Exhibit 1(a)
ATLAS AMERICA PUBLIC #11-2002 LTD.
DEALER-MANAGER AGREEMENT
WITH
ANTHEM SECURITIES, INC.
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
Page
1. Description of Units..................................................................................1
2. Representations, Warranties and Agreements of the Managing General Partner............................1
3. Grant of Authority to the Dealer-Manager..............................................................2
4. Compensation and Fees.................................................................................2
5. Covenants of the Managing General Partner.............................................................4
6. Representations and Warranties of the Dealer-Manager..................................................4
7. State Securities Registration.........................................................................8
8. Expense of Sale.......................................................................................9
9. Conditions of the Dealer-Manager's Duties.............................................................9
10. Conditions of the Managing General Partner's Duties..................................................10
11. Indemnification......................................................................................10
12. Representations and Agreements to Survive Delivery...................................................11
13. Termination..........................................................................................11
14. Notices..............................................................................................11
15. Format of Checks/Escrow Agent........................................................................12
16. Transmittal Procedures...............................................................................12
17. Parties..............................................................................................13
18. Relationship.........................................................................................13
19. Effective Date.......................................................................................13
20. Entire Agreement, Waiver.............................................................................13
21. Complaints...........................................................................................13
22. Privacy..............................................................................................13
Exhibit A - Escrow Agreement for Atlas America Public #11-2002 Ltd.
Exhibit B - Selling Agent Agreement
Anthem Securities, Inc. i
Dealer-Manager Agreement
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS AMERICA PUBLIC #11-2002 LTD.
Anthem Securities, Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Gentlemen:
The undersigned, Atlas Resources, Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public #11-2002 Ltd.,
confirms its agreement with you, as Dealer-Manager, as follows:
1. Description of Units. The Managing General Partner has formed a limited
partnership known as Atlas America Public #11-2002 Ltd., which is referred
to as "the "Partnership," which will issue and sell the Units in the
Partnership, which are referred to as the "Units," at a price of $10,000
per Unit subject to the discounts set forth in Section 4(c) of this
Agreement for certain investors. Subject to the receipt and acceptance by
the Managing General Partner of the minimum subscription proceeds of
$1,000,000, the Managing General Partner may break escrow and use the
subscription proceeds for the Partnership's drilling activities, which is
referred to as the "Initial Closing Date."
No subscriptions to the Partnership will be accepted after whichever of the
following events occurs first, which is referred to as the "Offering
Termination Date":
o receipt of the maximum subscriptions of $40,000,000; or
o December 31, 2002.
2. Representations, Warranties and Agreements of the Managing General Partner.
The Managing General Partner represents and warrants to and agrees with you
that:
(a) The Partnership has a currently effective registration statement on
Form S-1, including a final prospectus, for the registration of the
Units under the Securities Act of 1933, as amended, which is referred
to as the "Act." Such registration statement, as it may be amended,
and the prospectus and exhibits on file with the SEC, as well as any
post-effective amendments or supplements to such registration
statement or prospectus after the effective date of registration,
which are respectively referred to as the "Registration Statement" and
the "Prospectus."
(b) The Managing General Partner shall provide to you for delivery to all
offerees and purchasers and their representatives the information and
documents that the Managing General Partner deems appropriate to
comply with the Act and applicable state securities acts, which are
referred to as the "Blue Sky" laws.
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(c) The Units when issued will be duly authorized and validly issued as
set forth in the Amended and Restated Certificate and Agreement of
Limited Partnership of the Partnership, which is referred to as the
"Partnership Agreement," included as Exhibit (A) to the Prospectus,
and subject only to the rights and obligations set forth in the
Partnership Agreement or imposed by the laws of the state of the
Partnership's formation or of any jurisdiction to the laws of which
the Partnership is subject.
(d) The Partnership was duly formed under the laws of the State of
Delaware and is validly existing as a limited partnership in good
standing under the laws of Delaware with full power and authority to
own its properties and conduct its business as described in the
Prospectus. The Partnership will be qualified to do business as a
limited partnership or similar entity offering limited liability in
those jurisdictions where the Managing General Partner deems the
qualification necessary to assure limited liability of the limited
partners.
(e) The Prospectus, as supplemented or amended, does not contain an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements in the Prospectus, in the
light of the circumstances under which they are made, not misleading.
3. Grant of Authority to the Dealer-Manager. Based on the representations and
warranties contained in this Agreement, and subject to the terms and
conditions set forth in this Agreement, the Managing General Partner
appoints you as the Dealer-Manager for the Partnership and gives you the
exclusive right to solicit subscriptions for the Units on a "best efforts"
basis in all states other than:
(a) Minnesota; and
(b) New Hampshire.
In all states other than Minnesota and New Hampshire you agree to use your
best efforts to effect sales of the Units and to form and manage a selling
group composed of soliciting broker/dealers, which are referred to as the
"Selling Agents," each of which shall be a member of the National
Association of Securities Dealers, Inc., which is referred as the "NASD,"
and shall enter into a "Selling Agent Agreement" in substantially the form
attached to this Agreement as Exhibit "B."
The Managing General Partner shall have three business days after the
receipt of an executed Selling Agent Agreement to refuse that Selling
Agent's participation.
4. Compensation and Fees.
(a) As Dealer-Manager you shall receive from the Managing General Partner
the following compensation, based on each Unit sold to investors who
are situated and/or residents in states other than Minnesota and New
Hampshire and whose subscriptions for Units are accepted by the
Managing General Partner:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7% Sales Commission;
(iii) a .5% nonaccountable reimbursement of marketing expenses; and
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(iv) a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses.
(b) All of the Sales Commissions and the .5% reimbursement of the Selling
Agents' bona fide accountable due diligence expenses shall be
reallowed to the Selling Agents, and all or a portion of the .5%
nonaccountable marketing expense reimbursement shall be reallowed to
the Selling Agents. The 2.5% Dealer-Manager fee shall be reallowed to
the wholesalers for subscriptions obtained through their efforts. You
shall retain any of the .5% nonaccountable marketing expense
reimbursement not reallowed to the Selling Agents.
(c) Notwithstanding the foregoing:
(i) the Managing General Partner, its officers, directors, and
affiliates, and investors who buy Units through the officers
and directors of the Managing General Partner may subscribe to
Units for a subscription price reduced by the 2.5%
Dealer-Manager fee, the 7% Sales Commission, the .5%
nonaccountable marketing expense reimbursement, and the .5%
reimbursement of the Selling Agents' bona fide accountable due
diligence expenses which shall not be paid to you; and
(ii) registered investment advisors and their clients and Selling
Agents and their registered representatives and principals may
subscribe to Units for a subscription price reduced by the 7%
Sales Commission, which shall not be paid to you, although
their subscription price shall not be reduced by the 2.5%
Dealer-Manager fee, the .5% nonaccountable marketing expense
reimbursement, and the .5% reimbursement of the Selling Agents'
bona fide accountable due diligence expenses which shall be
paid to you.
(d) Pending receipt and acceptance by the Managing General Partner of the
minimum subscription proceeds of $1,000,000, excluding:
(i) any optional subscription of the Managing General Partner and
its Affiliates; and
(ii) the subscription discounts set forth in Section 4(c) of this
Agreement;
all proceeds received by you from the sale of Units shall be held in a
separate interest bearing escrow account as provided in Section 15 of
this Agreement.
Unless at least the minimum subscription proceeds of $1,000,000 as
described above are received on or before the Offering Termination
Date as described in Section 1 of this Agreement, the offering of
Units shall be terminated, in which event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales Commission, the .5%
nonaccountable marketing expense reimbursement, and the .5%
reimbursement of the Selling Agents' bona fide accountable due
diligence expenses set forth in Section 4(a) of this Agreement
shall not be payable to you;
(ii) all funds advanced by subscribers shall be returned to them
with interest earned; and
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(iii) you shall deliver a termination letter in the form provided to
you by the Managing General Partner to each of the subscribers
and to each of the offerees previously solicited by you and the
Selling Agents in connection with the offering of the Units.
(e) Except as otherwise provided below, the fees, reimbursements, and
Sales Commissions set forth in Section 4(a) of this Agreement shall be
paid to you within five business days after the following:
(i) at least the minimum subscription proceeds of $1,000,000 as
described above have been received by the Partnership and
accepted by the Managing General Partner; and
(ii) the subscription proceeds have been released from the escrow
account to the Managing General Partner.
You shall reallow to the Selling Agents and the wholesalers their
respective fees, reimbursements, and Sales Commissions as set forth in
Section 4(b) of this Agreement.
Thereafter, your fees, reimbursements, and Sales Commissions shall be
paid to you and shall be reallowed to the Selling Agents and
wholesalers as described above approximately every two weeks until the
Offering Termination Date, and all your remaining fees,
reimbursements, and Sales Commissions shall be paid by the Managing
General Partner no later than fourteen business days after the
Offering Termination Date.
5. Covenants of the Managing General Partner. The Managing General Partner
covenants and agrees that:
(a) The Managing General Partner shall deliver to you ample copies of the
Prospectus and all amendments or supplements to the Prospectus.
(b) If any event affecting the Partnership or the Managing General Partner
occurs that in the opinion of the Managing General Partner should be
set forth in a supplement or amendment to the Prospectus, then the
Managing General Partner shall promptly at its expense prepare and
furnish to you a sufficient number of copies of a supplement or
amendment to the Prospectus so that it, as so supplemented or amended,
will not contain an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements in
the Prospectus, in the light of the circumstances under which they are
made, not misleading.
6. Representations and Warranties of the Dealer-Manager. You, as the
Dealer-Manager, represent and warrant to the Managing General Partner that:
(a) You are a corporation duly organized, validly existing and in good
standing under the laws of the state of your formation or of any
jurisdiction to the laws of which you are subject, with all requisite
power and authority to enter into this Agreement and to carry out your
obligations under this Agreement.
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(b) This Agreement when accepted and approved shall be duly authorized,
executed, and delivered by you and shall be a valid and binding
agreement on your part in accordance with its terms.
(c) The consummation of the transactions contemplated by this Agreement
and the Prospectus shall not result in the following:
(i) any breach of any of the terms or conditions of, or a default
under your Articles of Incorporation or Bylaws, or any other
indenture, agreement, or other instrument to which you are a
party; or
(ii) any violation of any order applicable to you of any court or
any federal or state regulatory body or administrative agency
having jurisdiction over you or your affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of 1934," as a
dealer, and you are a member in good standing of the NASD. You are
duly registered as a broker/dealer in the states where you are
required to be registered in order to carry out your obligations as
contemplated by this Agreement and the Prospectus. You agree to
maintain all the foregoing registrations in good standing throughout
the term of the offer and sale of the Units, and you agree to comply
with all statutes and other requirements applicable to you as a
broker/dealer under those registrations.
(e) Pursuant to your appointment as Dealer-Manager, you shall use your
best efforts to exercise the supervision and control that you deem
necessary and appropriate to the activities of you and the Selling
Agents to comply with all the provisions of the Act, insofar as the
Act applies to your and their activities under this Agreement.
Further, you and the Selling Agents shall not engage in any activity
which would cause the offer and/or sale of the Units not to comply
with the Act, the Act of 1934, the applicable rules and regulations of
the Commission, the applicable state securities laws and regulations,
this Agreement, and the NASD Conduct Rules including Rules 2420, 2730,
2740, 2750, and Rule 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall
not underwrite or participate in a public offering
of a direct participation program unless standards
of suitability have been established by the program
for participants therein and such standards are
fully disclosed in the prospectus and are consistent
with the provisions of subparagraph (B) of this
section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
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(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment
objectives, other investments, financial
situation and needs, and any other information
known by the member or associated person,
that:
(a) the participant is or will be in a
financial position appropriate to enable
him to realize to a significant extent
the benefits described in the
prospectus, including the tax benefits
where they are a significant aspect of
the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss
of investment and lack of liquidity; and
(c) the program is otherwise suitable for
the participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the
determination of suitability was reached as to
each participant.
(C) Notwithstanding the provisions of subparagraphs (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable
grounds to believe, based on information made
available to him by the sponsor through a prospectus
or other materials, that all material facts are
adequately and accurately disclosed and provide a
basis for evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subparagraph (A) hereof, a member or
person associated with a member shall obtain
information on material facts relating at a minimum
to the following, if relevant in view of the nature
of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
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(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subparagraphs (A) and (B) hereof, a
member or person associated with a member may rely
upon the results of an inquiry conducted by another
member or members, provided that:
(i) the member or person associated with a member
has reasonable grounds to believe that such
inquiry was conducted with due care;
(ii) the results of the inquiry were provided to
the member or person associated with a member
with the consent of the member or members
conducting or directing the inquiry; and
(iii) no member that participated in the inquiry is
a sponsor of the program or an affiliate of
such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the
prospective participant of all pertinent facts
relating to the liquidity and marketability of the
program during the term of investment.
(f) You agree to advise the Managing General Partner in writing of each
state in which you and the Selling Agents propose to offer or sell the
Units; and you shall not nor shall you permit any Selling Agent to
offer or sell the Units in any state until you have been advised in
writing by the Managing General Partner, or the Managing General
Partner's special counsel, that the offer or sale of the Units:
(i) has been qualified in the state;
(ii) is exempt from the qualification requirements imposed by the
state; or
(iii) the qualification is otherwise not required.
(g) You and the Selling Agents have received copies of the Prospectus
relating to the Units and you and the Selling Agents have relied only
on the statements contained in the Prospectus and not on any other
statements whatsoever, either written or oral, with respect to the
details of the offering of Units.
Also, unless advised otherwise by the Managing General Partner, you
and the Selling Agents may choose to provide each offeree with a
brochure entitled "Atlas America Public #11-2002 Ltd." which is
referred to as the "Sales Literature."
(h) You and the Selling Agents agree that you and the Selling Agents shall
not place any advertisement or other solicitation with respect to the
Units (including without limitation any material for use in any
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newspaper, magazine, radio or television commercial, telephone
recording, motion picture, or other public media) without the prior
written approval of the Managing General Partner, and without the
prior written approval of the form and content thereof by the
Commission, the NASD and the securities authorities of the states
where such advertisement or solicitation is to be circulated. Any such
advertisements or solicitations shall be at your expense.
(i) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner, you agree and shall
require any Selling Agent to agree as follows:
(1) to distribute each supplement or amendment to the Prospectus
to every person who has previously received a copy of the
Prospectus from you and/or the Selling Agent; and
(2) to include each supplement or amendment in all future
deliveries of any Prospectus.
(j) In connection with any offer or sale of the Units, you agree and shall
require any Selling Agent to agree to the following:
(1) to comply in all respects with statements set forth in the
Prospectus, the Partnership Agreement, and any supplements
or amendments to the Prospectus;
(2) not to make any statement inconsistent with the statements
in the Prospectus, the Partnership Agreement, and any
supplements or amendments to the Prospectus;
(3) not to make any untrue or misleading statements of a
material fact in connection with the Units; and
(4) not to provide any written information, statements, or sales
materials other than the Prospectus, the Sales Literature,
and any supplements or amendments to the Prospectus unless
approved in writing by the Managing General Partner.
(k) You agree to use your best efforts in the solicitation and sale of the
Units and to coordinate and supervise the efforts of the Selling
Agents, and you shall require any Selling Agent to agree to use its
best efforts in the solicitation and sale of the Units, including that
the prospective purchasers meet the suitability requirements set forth
in the Prospectus and the Subscription Agreement and the prospective
purchasers properly complete and execute the Subscription Agreement,
which has been provided as Exhibit (I-B) to the Partnership Agreement,
Exhibit (A) of the Prospectus, together with any additional forms
provided in any supplement or amendment to the Prospectus, or
otherwise provided to you by the Managing General Partner to be
completed by prospective purchasers.
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The Managing General Partner shall have the right to reject
any subscription at any time for any reason without liability
to it. Subscription funds and executed Subscription Agreements
shall be transmitted as set forth in Section 16 of this
Agreement.
(l) Although not anticipated, if you assist in any transfers of the Units,
then you shall comply, and you shall require any Selling Agent to
comply, with the requirements of Rule 2810(b)(2)(B) and (b)(3)(D) of
the NASD Conduct Rules.
(m) You agree and covenant that the representations and warranties you
make in this Agreement are and shall be true and correct at the
applicable closing date, and you shall have fulfilled all your
obligations under this Agreement at the applicable closing date.
7. State Securities Registration. Incident to the offer and sale of the Units,
the Managing General Partner shall use its best efforts either in taking:
(a) all necessary action and filing all necessary forms and documents
deemed reasonable by it in order to qualify or register Units for sale
under the securities laws of the states requested by you pursuant to
Section 6(f) of this Agreement; or
(b) any necessary action and filing any necessary forms deemed reasonable
by it in order to obtain an exemption from qualification or
registration in those states.
Notwithstanding, the Managing General Partner may elect not to qualify or
register Units in any state or jurisdiction in which it deems the
qualification or registration is not warranted for any reason in its sole
discretion. The Managing General Partner and its counsel shall inform you
as to the states and jurisdictions in which the Units have been qualified
for sale or are exempt under the respective securities or Blue Sky laws of
those states and jurisdictions. The Managing General Partner, however, has
not assumed and will not assume any obligation or responsibility as to your
right or any Selling Agent's right to act as a broker/dealer with respect
to the Units in any state or jurisdiction.
The Managing General Partner shall provide to you and the Selling Agents
for delivery to all offerees and purchasers and their representatives any
additional information, documents, and instruments that the Managing
General Partner deems necessary to comply with the rules, regulations, and
judicial and administrative interpretations in those states and
jurisdictions for the offer and sale of the Units in these states. The
Managing General Partner shall file all post-offering forms, documents, or
materials and take all other actions required by the states and
jurisdictions in which the offer and sale of Units have been qualified,
registered, or are exempt. However, the Managing General Partner shall not
be required to take any action, make any filing, or prepare any document
necessary or required in connection with your status or any Selling Agent's
status as a broker/dealer under the laws of any state or jurisdiction.
The Managing General Partner shall provide you with copies of all
applications, filings, correspondence, orders, other documents, or
instruments relating to any application for qualification, registration,
exemption, or other approval under applicable state or Federal securities
laws for the offering.
8. Expense of Sale. The expenses in connection with the offer and sale of the
Units shall be payable as set forth below.
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(a) The Managing General Partner shall pay all expenses incident to the
performance of its obligations under this Agreement, including the
fees and expenses of its attorneys and accountants and all fees and
expenses of registering or qualifying the Units for offer and sale in
the states and jurisdictions as set forth in Section 7 of this
Agreement, or obtaining exemptions from qualification or registration,
even if this offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the formation and
management of the selling group and the fees and expenses of your own
counsel and accountants, even if this offering is not successfully
completed.
9. Conditions of the Dealer-Manager's Duties. Your obligations under this
Agreement shall be subject to the accuracy, as of the date of this
Agreement and at the applicable closing date of the Managing General
Partner's representations and warranties made in this Agreement, and to the
performance by the Managing General Partner of its obligations under this
Agreement.
10. Conditions of the Managing General Partner's Duties. The Managing General
Partner's obligations provided under this Agreement, including the duty to
pay compensation to you as set forth in Section 4 of this Agreement, shall
be subject to the following:
(a) the accuracy, as of the date of this Agreement and at the applicable
closing date as if made at the applicable closing date, of your
representations and warranties made in this Agreement;
(b) the performance by you of your obligations under this Agreement; and
(c) the Managing General Partner's receipt, at or before the applicable
closing date, of a fully executed Subscription Agreement for each
prospective purchaser as required by Section 6(k) of this Agreement.
11. Indemnification.
(a) You and the Selling Agents shall indemnify and hold harmless the
Managing General Partner, the Partnership and its attorneys against
any losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Act, the Act of 1934, or otherwise
insofar as the losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based on your agreements with the
Selling Agents or your breach of any of your duties and obligations,
representations, or warranties under the terms or provisions of this
Agreement, and you and the Selling Agents shall reimburse them for any
legal or other expenses reasonably incurred in connection with
investigating or defending the losses, claims, damages, liabilities,
or actions.
(b) The Managing General Partner shall indemnify and hold you and the
Selling Agents harmless against any losses, claims, damages or
liabilities, joint or several, to which you and the Selling Agents may
become subject under the Act, the Act of 1934, or otherwise insofar as
the losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based on the Managing General Partner's
breach of any of its duties and obligations, representations, or
warranties under the terms or provisions of this Agreement, and the
Managing General Partner shall reimburse you and the Selling Agents
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for any legal or other expenses reasonably incurred in connection with
investigating or defending the losses, claims, damages, liabilities,
or actions.
(c) The foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure to the benefit of, each person, if any,
who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, the indemnified party shall, if a claim in
respect of the action is to be made against an indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement of the action; but the omission to promptly notify the
indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party. If any action is
brought against an indemnified party, it shall notify the indemnifying
party of the commencement of the action, and the indemnifying party
shall be entitled to participate in, and, to the extent that it
wishes, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified and indemnifying parties. After the indemnified party has
received notice from the agreed on counsel that the defense of the
action under this paragraph has been assumed, the indemnifying party
shall not be responsible for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense of
the action other than with respect to the agreed on counsel who
assumed the defense of the action.
12. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Managing General Partner and you in this
Agreement, including the indemnity agreements contained in Section 11 of
this Agreement, shall:
(a) survive the delivery, execution and closing of this Agreement; and
(b) remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any person who controls
you within the meaning of the Act, by the Managing General Partner, or
any of its officers, directors, or any person who controls the
Managing General Partner within the meaning of the Act, or any other
indemnified party; and
(c) survive delivery of the Units.
13. Termination.
(a) You shall have the right to terminate this Agreement other than the
indemnification provisions of Section 11 of this Agreement by giving
notice as specified below any time at or before a closing date:
(i) if the Managing General Partner has failed, refused, or been
unable at or before a closing date, to perform any of its
obligations under this Agreement; or
(ii) there has occurred an event materially and adversely affecting
the value of the Units.
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If you elect to terminate this Agreement other than the indemnification
provisions of Section 11 of this Agreement, then the Managing General
Partner shall be promptly notified by you by telephone, e-mail, facsimile,
or telegram, confirmed by letter.
(b) The Managing General Partner may terminate this Agreement other than
the indemnification provisions of Section 11 of this Agreement, for
any reason and at any time, by promptly giving notice to you by
telephone, e-mail, facsimile, or telegram, confirmed by letter as
specified below at or before a closing date.
14. Notices.
(a) All notices or communications under this Agreement, except as
otherwise specifically provided, shall be in writing.
(b) Any notice or communication sent by the Managing General Partner to
you shall be mailed, delivered, or sent by facsimile, e-mail or
telegraph, and confirmed to you at X.X. Xxx 000, 000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
(c) Any notice or communication sent by you to the Managing General
Partner or the Partnership shall be mailed, delivered, or sent by
facsimile, e-mail or telegraph, and confirmed at 000 Xxxxxx Xxxx, Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000.
15. Format of Checks/Escrow Agent. Pending receipt of the minimum subscription
proceeds of $1,000,000 as set forth in Section 4(d) of this Agreement, the
Managing General Partner and you and the Selling Agents, including customer
carrying broker/dealers, agree that all subscribers shall be instructed to
make their checks, drafts, or money orders payable solely to "Atlas Public
#11-2002 Ltd., Escrow Agent, PNC Bank," as agent for the Partnership, and
you agree and shall require the Selling Agents, including customer carrying
broker/dealers, to agree to comply with Rule 15c2-4 adopted under the Act
of 1934.
If you receive a check, draft, or money order not conforming to the
foregoing instructions, then you shall return the check, draft, or money
order to the Selling Agent not later than the end of the next business day
following its receipt by you. The Selling Agent shall then return the
check, draft, or money order directly to the subscriber not later than the
end of the next business day following its receipt from you. Checks,
drafts, or money orders received by you or a Selling Agent which conform to
the foregoing instructions shall be transmitted by you under Section 16
"Transmittal Procedures," below.
You represent that you have executed the Escrow Agreement for the
Partnership and agree that you are bound by the terms of the Escrow
Agreement executed by you, the Partnership, and the Managing General
Partner, a copy of which is attached to this Agreement as Exhibit "A."
16. Transmittal Procedures. You and each Selling Agent, including customer
carrying broker/dealers, shall transmit received investor funds in
accordance with the following procedures. For purposes of the following,
the term "Selling Agent" shall also include you as Dealer-Manager when you
receive subscriptions from investors.
(a) Pending receipt of the minimum subscription proceeds of $1,000,000 as
set forth in Section 4(d) of this Agreement, the Selling Agents on
receipt of any check, draft, and money order from a subscriber shall
promptly transmit the check, draft, and money order and the original
Anthem Securities, Inc. 12
Dealer-Manager Agreement
executed Subscription Agreement to you, as Dealer-Manager, by the end
of the next business day following receipt of the check, draft, or
money order by the Selling Agent. By the end of the next business day
following your receipt of the check, draft, or money order and the
original executed Subscription Agreement, you, as Dealer-Manager,
shall transmit the check, draft, or money order and a copy of the
executed Subscription Agreement to the Escrow Agent, and the original
executed Subscription Agreement and a copy of the check, draft, or
money order to the Managing General Partner.
(b) On receipt by you, as Dealer-Manager, of notice from the Managing
General Partner that the minimum subscription proceeds of $1,000,000
as set forth in Section 4(d) of this Agreement have been received, the
Managing General Partner, you, and the Selling Agents agree that all
subscribers then may be instructed, in the Managing General Partner's
sole discretion, to make their checks, drafts, or money orders payable
solely to "Atlas Public #11-2002 Ltd."
Thereafter, the Selling Agents shall promptly transmit any and all
checks, drafts, and money orders received from subscribers and the
original executed Subscription Agreement to you, as Dealer-Manager, by
the end of the next business day following receipt of the check,
draft, or money order by the Selling Agent. By the end of the next
business day following your receipt of the check, draft, or money
order and the original executed Subscription Agreement, you, as
Dealer-Manager, shall transmit the check, draft or money order and the
original executed Subscription Agreement to the Managing General
Partner.
17. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Managing General Partner, and any respective successors and
assigns. This Agreement shall also inure to the benefit of the indemnified
parties, their successors and assigns. This Agreement is intended to be and
is for the sole and exclusive benefit of the parties to this Agreement,
including the Partnership, and their respective successors and assigns, and
the indemnified parties and their successors and assigns, and for the
benefit of no other person. No other person shall have any legal or
equitable right, remedy or claim under or in respect of this Agreement. No
purchaser of any of the Units from you or a Selling Agent shall be
construed a successor or assign merely by reason of the purchase.
18. Relationship. This Agreement shall not constitute you a partner of the
Managing General Partner, the Partnership, or any general partner of the
Partnership, nor render the Managing General Partner, the Partnership, or
any general partner of the Partnership liable for any of your obligations.
19. Effective Date. This Agreement is made effective between the parties as of
the date accepted by you as indicated by your signature to this Agreement.
20. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the Managing
General Partner and you, and shall not be amended or modified in any
way except by subsequent agreement executed in writing. Neither party
to this Agreement shall be liable or bound to the other by any
agreement except as specifically set forth in this Agreement.
Anthem Securities, Inc. 13
Dealer-Manager Agreement
(b) The Managing General Partner and you may waive, but only in writing,
any term, condition, or requirement under this Agreement that is
intended for its benefit. However, any written waiver of any term or
condition of this Agreement shall not operate as a waiver of any other
breach of that term or condition of this Agreement. Also, any failure
to enforce any provision of this Agreement shall not operate as a
waiver of that provision or any other provision of this Agreement.
21. Complaints. The Managing General Partner and you, as Dealer-Manager, agree
as follows:
(a) to notify the other if either receives an investor complaint in
connection with the offer or sale of Units by you or a Selling Agent;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the extent
it involves this Agreement or the offer or sale of Units by you or a
Selling Agent.
22. Privacy. The Managing General Partner and you each acknowledge that certain
information made available to the other under this Agreement may be deemed
nonpublic personal information under the Xxxxx-Xxxxx-Xxxxxx Act, other
federal or state privacy laws (as amended), and the rules and regulations
promulgated thereunder, which are referred to collectively, as the "Privacy
Laws." The Managing General Partner and you agree as follows:
(a) not to disclose or use the information except as required to carry out
each party's respective duties under this Agreement or as otherwise
permitted by law in the ordinary course of business;
(b) to establish and maintain procedures reasonably designated to assure
the security and privacy of all the information; and
(c) to cooperate with the other and provide reasonable assistance in
ensuring compliance with the Privacy Laws to the extent applicable to
either or both the Managing General Partner and you.
Very truly yours,
MANAGING GENERAL PARTNER
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 2002 By:
----------------- ---------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice
President - Direct Participation Programs
Anthem Securities, Inc. 14
Dealer-Manager Agreement
PARTNERSHIP
ATLAS AMERICA PUBLIC #11-2002 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
, 2002 By:
-------------------- -----------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice
President - Direct Participation Programs
DEALER-MANAGER
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
, 2002 By:
-------------------- -----------------------------------------
Date Xxxx X. Xxxxxx, President
Anthem Securities, Inc. 15
Dealer-Manager Agreement
EXHIBIT "A"
ATLAS AMERICA PUBLIC #11-2002 LTD.
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of June ______, 2002, by and
among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing General
Partner"), Anthem Securities, Inc., a Pennsylvania corporation ("Anthem"), Xxxxx
Funding, Inc., a Pennsylvania corporation ("Xxxxx Funding"), collectively Anthem
and Xxxxx Funding are referred to as the "Dealer-Manager," Atlas America Public
#11-2002 Ltd., a Delaware limited partnership (the "Partnership") and PNC Bank,
Pittsburgh, Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for sale
to qualified investors (the "Investors") up to 4,000 limited partnership
interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check, draft, or money order (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for Subscription Proceeds of $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and under which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents").
WHEREAS, the Managing General Partner and Xxxxx Funding have executed an
agreement ("Xxxxx Funding Dealer-Manager Agreement") under which Xxxxx Funding
will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for Subscription Proceeds of
$1,000,000 and on a "best efforts" basis for the remaining Units on behalf of
the Managing General Partner and the Partnership and under which Xxxxx Funding
has been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement and the Xxxxx Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement," provide for compensation to the Dealer-Manager to participate in the
offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
1
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% nonaccountable reimbursement of marketing expenses; and
o a .5% reimbursement of the Selling Agents' bona fide accountable due
diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the Subscription
Proceeds are required to be held in escrow subject to the receipt and acceptance
by the Managing General Partner of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General Partner,
its officers, directors, and Affiliates.
WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of $40,000,000; or
o December 31, 2002.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. Appointment of Escrow Agent. The Managing General Partner, the
Partnership, and the Dealer-Manager appoint the Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with the Escrow Agent by the Dealer-Manager and the Managing General
Partner under this Agreement, and the Escrow Agent agrees to serve in
this capacity during the term and based on the provisions of this
Agreement.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager and the Managing
General Partner shall deposit the Subscription Proceeds of each Investor
to whom they sell Units with the Escrow Agent and shall deliver to the
Escrow Agent a copy of the Subscription Agreement of the Investor.
Payment for each subscription for Units shall be in the form of a check
made payable to "Atlas America Public #11-2002 Ltd., Escrow Agent, PNC
Bank." The Escrow Agent shall deliver a receipt to either:
(a) Anthem and the Managing General Partner for each deposit of
Subscription Proceeds made under this Agreement by Anthem;
Escrow Agreement 2
(b) Xxxxx Funding and the Managing General Partner for each deposit of
Subscription Proceeds made under this Agreement by Xxxxx Funding;
or
(c) the Managing General Partner for each deposit of Subscription
Proceeds made under this Agreement by the Managing General Partner.
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent.
Subscription Proceeds may be temporarily invested by the Escrow Agent
only in income producing short-term, highly liquid investments secured by
the United States government where there is appropriate safety of
principal, such as U.S. Treasury Bills. The interest earned shall be
added to the Subscription Proceeds and disbursed in accordance with the
provisions of Paragraph 4 or 5 of this Agreement, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent:
(a) receives written notice from an authorized officer of the Managing
General Partner that at least the minimum Subscription Proceeds of
$1,000,000 have been received and accepted by the Managing General
Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000 have
cleared the banking system and are good;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner the escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on the Subscription Proceeds while held by the
Escrow Agent in the escrow account.
Any remaining Subscription Proceeds, plus any interest paid and
investment income earned on the Subscription Proceeds while held by the
Escrow Agent in the escrow account, shall be promptly released and
distributed to the Managing General Partner by the Escrow Agent as the
Subscription Proceeds clear the banking system and become good.
5. Separate Partnership Account. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of at
least $1,000,000 and the Escrow Agent receives the notice described in
Paragraph 4 of this Agreement, and before the Offering Termination Date,
any additional Subscription Proceeds may be deposited by the
Dealer-Manager and the Managing General Partner directly in a separate
Partnership account which shall not be subject to the terms of this
Agreement.
6. Distributions to Subscribers.
(a) If the Partnership is not funded as contemplated because less than
the minimum Subscription Proceeds of $1,000,000 have been received
and accepted by the Managing General Partner by twelve p.m. (noon),
local time, on the Offering Termination Date, or for any other
reason, then the Managing General Partner shall notify the Escrow
Agent, and the Escrow Agent promptly shall distribute to each
Investor a refund check made payable to the Investor in an amount
equal to the Subscription Proceeds of the Investor, plus any
interest paid or investment income earned on the Investor's
Subscription Proceeds while held by the Escrow Agent in the escrow
account.
Escrow Agreement 3
(b) If a subscription for Units submitted by an Investor is rejected by
the Managing General Partner for any reason after the Subscription
Proceeds relating to the subscription have been deposited with the
Escrow Agent, then the Managing General Partner promptly shall
notify the Escrow Agent of the rejection, and the Escrow Agent
shall promptly distribute to the Investor a refund check made
payable to the Investor in an amount equal to the Subscription
Proceeds of the Investor, plus any interest paid or investment
income earned on the Investor's Subscription Proceeds while held by
the Escrow Agent in the escrow account.
7. Compensation and Expenses of Escrow Agent. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in
Appendix 1 to this Agreement and made a part of this Agreement, and the
charges, expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with
the administration of the provisions of this Agreement. The Escrow Agent
shall have no lien on the Subscription Proceeds deposited in the escrow
account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the notice described in Paragraph 4 of this Agreement, at which
time the Escrow Agent shall have, and is granted, a prior lien on any
property, cash, or assets held under this Agreement, with respect to its
unpaid compensation and nonreimbursed expenses, superior to the interests
of any other persons or entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated to accept
any notice, make any delivery, or take any other action under this
Agreement unless the notice or request or demand for delivery or other
action is in writing and given or made by the party given the right or
charged with the obligation under this Agreement to give the notice or to
make the request or demand. In no event shall the Escrow Agent be
obligated to accept any notice, request, or demand from anyone other than
the Managing General Partner or the Dealer-Manager.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in this
Agreement in carrying out or executing the purposes and intent of this
Agreement. However, nothing in this Agreement shall relieve the Escrow
Agent from liability arising out of its own willful misconduct or gross
negligence. The Escrow Agent's duties and obligations under this
Agreement shall be entirely administrative and not discretionary. The
Escrow Agent shall not be liable to any party to this Agreement or to any
third-party as a result of any action or omission taken or made by the
Escrow Agent in good faith. The parties to this Agreement will indemnify
the Escrow Agent, hold the Escrow Agent harmless, and reimburse the
Escrow Agent from, against and for, any and all liabilities, costs, fees
and expenses (including reasonable attorney's fees) the Escrow Agent may
suffer or incur by reason of its execution and performance of this
Agreement. If any legal questions arise concerning the Escrow Agent's
duties and obligations under this Agreement, then the Escrow Agent may
consult with its counsel and rely without liability on written opinions
given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document which
the Escrow Agent, in good faith, believes to be genuine and what it
purports to be.
If there is any disagreement between any of the parties to this
Agreement, or between them or any other person, resulting in adverse
claims or demands being made in connection with this Agreement, or if the
Escrow Agent, in good faith, is in doubt as to what action it should take
under this Agreement, then the Escrow Agent may, at its option, refuse to
comply with any claims or demands on it or refuse to take any other
Escrow Agreement 4
action under this Agreement, so long as the disagreement continues or the
doubt exists. In any such event, the Escrow Agent shall not be or become
liable in any way or to any person for its failure or refusal to act and
the Escrow Agent shall be entitled to continue to so refrain from acting
until the dispute is resolved by the parties involved.
PNC Bank is acting solely as the Escrow Agent and is not a party to, nor
has it reviewed or approved any agreement or matter of background related
to this Agreement, other than this Agreement itself, and has assumed,
without investigation, the authority of the individuals executing this
Agreement to be so authorized on behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign as
such after giving thirty days' prior written notice to the other parties
to this Agreement. Similarly, the Escrow Agent may be removed and
replaced after giving thirty days' prior written notice to the Escrow
Agent by the other parties to this Agreement. In either event, the duties
of the Escrow Agent shall terminate thirty days after the date of the
notice (or as of an earlier date as may be mutually agreeable); and the
Escrow Agent shall then deliver the balance of the Subscription Proceeds
(and any interest paid or investment income earned thereon while held by
the Escrow Agent in the escrow account) in its possession to a successor
escrow agent appointed by the other parties to this Agreement as
evidenced by a written notice filed with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a successor
escrow agent or fail to appoint a successor escrow agent before the
expiration of thirty days following the date of the notice of the Escrow
Agent's resignation or removal, then the Escrow Agent may petition any
court of competent jurisdiction for the appointment of a successor escrow
agent or other appropriate relief. Any resulting appointment shall be
binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in the escrow account), the Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect to this Agreement after the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) as contemplated by this Agreement or on the written
consent of all the parties to this Agreement.
12. Notice. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, as follows:
If to the Escrow Agent:
PNC Bank
____________________________
____________________________
Attention:__________________________
Phone: ____________________
Facsimile: __________________
Escrow Agreement 5
Escrow Agreement 6
If to the Managing General Partner:
Atlas Resources, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx Funding:
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the benefit
of the undersigned and their respective successors and assigns.
(c) This Agreement may be executed in multiple copies, each executed
copy to serve as an original.
Escrow Agreement 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
PNC BANK
As Escrow Agent
By:
--------------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
--------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President -
Direct Participation Programs
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
---------------------------------------------
Xxxx X. Xxxxxx, President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
---------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #11-2002 LTD.
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
---------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President -
Direct Participation Programs
Escrow Agreement 8
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
Escrow Agent annual fee per year or any part thereof $____________
Escrow Agreement 9
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO:___________________________________________________
RE: ATLAS AMERICA PUBLIC #11-2002 LTD.
Gentlemen:
Atlas Resources, Inc. is the Managing General Partner in a Delaware
limited partnership named Atlas America Public #11-2002 Ltd., which is referred
to as the "Partnership." The Units in the Partnership, which are referred to as
the "Units," and the offering are described in the enclosed Prospectus dated
__________________, 2002, which is referred to as the "Prospectus." Prospectuses
relating to the Units have been furnished to you with this Agreement.
Our firm, Anthem Securities, Inc., which is referred to as the
"Dealer-Manager," has entered into a Dealer-Manager Agreement for sales in all
states other than Minnesota and New Hampshire, a copy of which has been
furnished to you and is incorporated in this Agreement by reference, with the
Managing General Partner and the Partnership under which the Dealer-Manager has
agreed to form a group of NASD member firms, which are referred to as the
"Selling Agents." The Selling Agents will obtain subscriptions for Units in all
states other than:
o Minnesota; and
o New Hampshire
on a "best efforts" basis under the Securities Act of 1933, as amended, which is
referred to as the "Act" and the provisions of the Prospectus.
You are invited to become one of the Selling Agents on a non-exclusive
basis. By your acceptance below you agree to act in that capacity and to use
your best efforts, in accordance with the terms and conditions of this
Agreement, to solicit subscriptions in all states other than:
o Minnesota; and
o New Hampshire.
This Agreement, however, shall not be construed to prohibit your participation
as a selling agent in Minnesota and New Hampshire under a duly executed selling
agent agreement entered into by you and any other authorized "Dealer-Manager"
for the Partnership.
1. Representations and Warranties of Selling Agent. You represent and
warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing, and in
good standing under the laws of the state of your formation or of
any jurisdiction to the laws of which you are subject, with all
Anthem Securities, Inc. 1
Selling Agent Agreement
requisite power and authority to enter into this Agreement and to
carry out your obligations under this Agreement.
(b) This Agreement will be duly authorized, executed, and delivered
by you and will be a valid and binding agreement on your part in
accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in the following:
(i) any breach of any of the terms or conditions of, or
constitute a default under your Articles of Incorporation
or Bylaws, or any other indenture, agreement, or other
instrument to which you are a party; or
(ii) any violation of any order applicable to you of any court
or any federal or state regulatory body or administrative
agency having jurisdiction over you or over your
affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of 1934,"
as a dealer, and you are a member in good standing of the NASD.
You are duly registered as a broker/dealer in the states where
you are required to be registered in order to carry out your
obligations as contemplated by this Agreement and the Prospectus.
You agree to maintain all the foregoing registrations in good
standing throughout the term of the offer and sale of the Units,
and you agree to comply with all statutes and other requirements
applicable to you as a broker/dealer under those registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall comply
with all the provisions of the Act, insofar as the Act applies to
your activities under this Agreement. Further, you shall not
engage in any activity which would cause the offer and/or sale of
the Units not to comply with the Act, the Act of 1934, the
applicable rules and regulations of the Securities and Exchange
Commission, which is referred to as the "Commission," the
applicable state securities laws and regulations, this Agreement,
and the NASD Conduct Rules including Rules 2420, 2730, 2740,
2750, and 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall not
underwrite or participate in a public offering of a
direct participation program unless standards of
suitability have been established by the program for
participants therein and such standards are fully
disclosed in the prospectus and are consistent with
the provisions of subparagraph (B) of this section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment
objectives, other investments, financial
situation and needs, and any other information
known by the member or associated person, that:
Anthem Securities, Inc. 2
Selling Agent Agreement
(a) the participant is or will be in a
financial position appropriate to enable
him to realize to a significant extent the
benefits described in the prospectus,
including the tax benefits where they are
a significant aspect of the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss of
investment and lack of liquidity; and
(c) the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the
determination of suitability was reached as to
each participant.
(C) Notwithstanding the provisions of subparagraphs (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable
grounds to believe, based on information made
available to him by the sponsor through a prospectus
or other materials, that all material facts are
adequately and accurately disclosed and provide a
basis for evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subparagraph (A) hereof, a member or
person associated with a member shall obtain
information on material facts relating at a minimum
to the following, if relevant in view of the nature
of the program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience of the
sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
Anthem Securities, Inc. 3
Selling Agent Agreement
(C) For purposes of subparagraphs (A) and (B) hereof, a
member or person associated with a member may rely
upon the results of an inquiry conducted by another
member or members, provided that:
(i) the member or person associated with a member
has reasonable grounds to believe that such
inquiry was conducted with due care;
(ii) the results of the inquiry were provided to the
member or person associated with a member with
the consent of the member or members conducting
or directing the inquiry; and
(iii) no member that participated in the inquiry is a
sponsor of the program or an affiliate of such
sponsor.
(D) Prior to executing a purchase transaction in a direct
participation program, a member or person associated
with a member shall inform the prospective
participant of all pertinent facts relating to the
liquidity and marketability of the program during the
term of investment.
(f) You shall not offer or sell the Units in any state until you have
been advised in writing by the Managing General Partner, or the
Managing General Partner's special counsel, that the offer or
sale of the Units:
(1) has been qualified in the state;
(2) is exempt from the qualification requirements imposed
by the state; or
(3) the qualification is otherwise not required.
(g) You have received copies of the Prospectus relating to the Units
and you have relied only on the statements contained in the
Prospectus and not on any other statements whatsoever, either
written or oral, with respect to the details of the offering of
Units.
(h) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without
limitation any material for use in any newspaper, magazine, radio
or television commercial, telephone recording, motion picture, or
other public media) without the prior written approval of the
Managing General Partner, and without the prior written approval
of the form and content thereof by the Commission, the NASD and
the securities authorities of the states where such advertisement
or solicitation is to be circulated. Any such advertisements or
solicitations shall be at your expense.
(i) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner or the
Dealer-Manager, you agree as follows:
(i) to distribute each supplement or amendment to the
Prospectus to every person who has previously received a
copy of the Prospectus from you; and
(ii) to include each supplement or amendment in all future
deliveries of any Prospectus.
Anthem Securities, Inc. 4
Selling Agent Agreement
(j) In connection with any offer or sale of the Units, you agree to the
following:
(i) to comply in all respects with statements set forth in the
Prospectus, the Partnership Agreement, and any supplements or
amendments to the Prospectus;
(ii) not to make any statement inconsistent with the statements in
the Prospectus, the Partnership Agreement, and any supplements
or amendments to the Prospectus;
(iii) not to make any untrue or misleading statements of a material
fact in connection with the Units; and
(iv) not to provide any written information, statements, or sales
materials other than the Prospectus, the Sales Literature, and
any supplements or amendments to the Prospectus unless approved
in writing by the Managing General Partner.
(k) You agree to use your best efforts in the solicitation and sale of the
Units, including that the prospective purchasers meet the suitability
requirements set forth in the Prospectus and the Subscription
Agreement and the prospective purchasers properly complete and execute
the Subscription Agreement , which has been provided as Exhibit (I-B)
to the Partnership Agreement, Exhibit (A) of the Prospectus, together
with any additional forms provided in any supplement or amendment to
the Prospectus, or otherwise provided to you by the Managing General
Partner or the Dealer-Manager to be completed by prospective
purchasers.
The Managing General Partner shall have the right to reject any
subscription at any time for any reason without liability to it.
Subscription funds and executed subscription packets shall be
transmitted as set forth in Section 11 of this Agreement.
(l) You shall comply with the requirements of Rules 2810(b)(2)(B) and
(b)(3)(D) of the NASD Conduct Rules.
(m) You agree and covenant that the representations and warranties you
make in this Agreement are and shall be true and correct at the
applicable closing date, and you shall and have fulfilled all your
obligations under this Agreement at the applicable closing date.
2. Commissions.
(a) Subject to the receipt of the minimum required subscription proceeds
of $1,000,000 as described in Section 4(d) of the Dealer-Manager
Agreement, and the discounts set forth in Section 4(c) of the
Dealer-Manager Agreement for sales to the following:
(i) the Managing General Partner, its officers, directors and
affiliates;
(ii) registered investment advisors and their clients;
(iii) Selling Agents and their registered representatives and
principals; and
(iv) investors who buy Units through the officers or directors of the
Managing General Partner;
Anthem Securities, Inc. 5
Selling Agent Agreement
the Dealer-Manager is entitled to receive from the Managing General
Partner a 7% Sales Commission, a .5% nonaccountable marketing expense
reimbursement, and a .5% reimbursement of the Selling Agents' bona
fide accountable due diligence expenses per Unit, based on the
aggregate amount of all Unit subscriptions to the Partnership secured
by the Dealer-Manager or the selling group formed by the
Dealer-Manager and accepted by the Managing General Partner.
Subject to the terms and conditions set forth in this Agreement,
including the Dealer-Manager's receipt from you of the documentation
required of you in Section 1 of this Agreement, the Dealer-Manager
agrees to pay you a 7% Sales Commission, a .5% reimbursement of your
bona fide accountable due diligence expenses and, subject to the
performance by you of your obligations under Appendix I to this
Agreement, which is incorporated in this Agreement by reference, a .5%
nonaccountable marketing expense reimbursement per Unit on Units sold
by you and accepted by the Managing General Partner.
Your Sales Commissions, the .5% reimbursement of your bona fide
accountable due diligence expenses, and the .5% nonaccountable
marketing expense reimbursement, shall be paid to you within seven
business days after the Dealer-Manager has received the Sales
Commissions, the .5% reimbursement of your bona fide accountable due
diligence expenses, and the .5% nonaccountable marketing expense
reimbursement on the subscriptions.
The Dealer-Manager is entitled to receive its Sales Commissions, the
.5% reimbursement of your bona fide accountable due diligence
expenses, and the .5% nonaccountable marketing expense reimbursement
within five business days after the conditions described in Section
4(e) of the Dealer-Manager Agreement are satisfied and approximately
every two weeks thereafter until the Offering Termination Date, which
is the earlier of:
(i) receipt of the maximum subscriptions of $40,000,000; or
(ii) December 31, 2002;
as described in Section 1 of the Dealer-Manager Agreement. The balance
shall be paid to the Dealer-Manager within fourteen business days
after the Offering Termination Date.
(b) Notwithstanding anything in this Agreement to the contrary, you agree
to waive payment of your Sales Commissions, the .5% nonaccountable
marketing expense reimbursement, and the .5% reimbursement of your
bona fide accountable due diligence expenses as set forth above in (a)
above, until the Dealer-Manager is in receipt of the related amounts
owed to it under the Dealer-Manager Agreement, and the
Dealer-Manager's liability to pay your compensation under this
Agreement shall be limited solely to the proceeds of the related
amounts owed to it under the Dealer-Manager Agreement.
(c) As provided in Section 4(d) of the Dealer-Manager Agreement, the
Partnership shall not begin operations unless it receives subscription
proceeds for at least $1,000,000 by December 31, 2002. If this amount
is not secured by this date, then nothing shall be payable to you and
all funds advanced by subscribers for Units shall be returned to them
with interest earned, if any.
Anthem Securities, Inc. 6
Selling Agent Agreement
3. Blue Sky Qualification. The Managing General Partner may elect not to
qualify or register Units in any state or jurisdiction in which it deems
the qualification or registration is not warranted for any reason in its
sole discretion. On application to the Dealer-Manager you will be informed
as to the states and jurisdictions in which the Units have been qualified
for sale or are exempt under the respective securities or "Blue Sky" laws
of those states and jurisdictions.
Notwithstanding the foregoing, the Dealer-Manager, the Partnership, and the
Managing General Partner have not assumed and will not assume any
obligation or responsibility as to your right to act as a broker/dealer
with respect to the Units in any state or jurisdiction.
4. Expense of Sale. The expenses in connection with the offer and sale of the
Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
expenses of its attorneys and accountants, even if this offering is
not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the fees and expenses of
your own counsel and accountants, even if this offering is not
successfully completed.
5. Conditions of Your Duties. Your obligations under this Agreement, as of the
date of this Agreement and at the applicable closing date, shall be subject
to the following:
(a) the performance by the Dealer-Manager of its obligations under this
Agreement; and
(b) the performance by the Managing General Partner of its obligations
under the Dealer-Manager Agreement.
6. Conditions of Dealer-Manager's Duties. The Dealer-Manager's obligations
under this Agreement, including the duty to pay compensation to you as set
forth in Section 2 of this Agreement, shall be subject to the following:
(a) the accuracy, as of the date of this Agreement and at the applicable
closing date as if made at the applicable closing date, of your
representations and warranties made in this Agreement;
(b) the performance by you of your obligations under this Agreement; and
(c) the Dealer-Manager's receipt, at or before the applicable closing
date, of a fully executed Subscription Agreement for each prospective
purchaser as required by Section 1(k) of this Agreement.
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, the Managing
General Partner, the Partnership and its attorneys against any losses,
claims, damages or liabilities, joint or several, to which they may
become subject under the Act, the Act of 1934, or otherwise insofar as
the losses, claims, damages, or liabilities (or actions in respect
Anthem Securities, Inc. 7
Selling Agent Agreement
thereof) arise out of or are based on your breach of any of your
duties and obligations, representations, or warranties under the terms
or provisions of this Agreement, and you shall reimburse them for any
legal or other expenses reasonably incurred in connection with
investigating or defending the losses, claims, damages, liabilities,
or actions.
(b) The Dealer-Manager shall indemnify and hold you harmless against any
losses, claims, damages, or liabilities, joint or several, to which
you may become subject under the Act, the Act of 1934, or otherwise
insofar as the losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based on the Dealer-Manager's
breach of any of its duties and obligations, representations, or
warranties under the terms or provisions of this Agreement, and the
Dealer-Manager shall reimburse you for any legal or other expenses
reasonably incurred in connection with investigating or defending the
losses, claims, damages, liabilities, or actions.
(c) The foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure to the benefit of, each person, if any,
who controls each indemnified party within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, the indemnified party shall, if a claim in
respect of the action is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement of the action; but the omission to promptly notify the
indemnifying party shall not relieve the indemnifying party from any
liability which it may have to the indemnified party. If any action is
brought against an indemnified party, it shall notify the indemnifying
party of the commencement of the action, and the indemnifying party
shall be entitled to participate in, and, to the extent that it
wishes, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified and indemnifying parties. After the indemnified party has
received notice from the agreed on counsel that the defense of the
action under this paragraph has been assumed, the indemnifying party
shall not be responsible for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense of
the action other than with respect to the agreed on counsel who
assumed the defense of the action.
8. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Dealer-Manager and you in this Agreement,
including the indemnity agreements contained in Section 7 of this
Agreement, shall:
(a) survive the delivery, execution and closing of this Agreement;
(b) remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any person who controls
you within the meaning of the Act, by the Dealer-Manager, or any of
its officers, directors or any person who controls the Dealer-Manager
within the meaning of the Act, or any other indemnified party; and
(c) survive delivery of the Units.
Anthem Securities, Inc. 8
Selling Agent Agreement
9. Termination.
(a) You shall have the right to terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement by giving
notice as specified in Section 16 of this Agreement any time at or
before a closing date:
(i) if the Dealer-Manager has failed, refused, or been unable at or
before a closing date, to perform any of its obligations under
this Agreement; or
(ii) there has occurred an event materially and adversely affecting
the value of the Units.
If you elect to terminate this Agreement other than the indemnification
provisions of Section 7 of this Agreement, then the Dealer-Manager shall be
promptly notified by you by telephone, e-mail, facsimile, or telegram,
confirmed by letter.
(b) The Dealer-Manager may terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement, for any
reason and at any time, by promptly giving notice to you by telephone,
e-mail, facsimile or telegram, confirmed by letter.
10. Format of Checks/Escrow Agent. Pending receipt of the minimum subscription
proceeds of $1,000,000 as set forth in Section 4(d) of the Dealer-Manager
Agreement, the Dealer-Manager and you, including if you are a customer
carrying broker/dealer, agree that all subscribers shall be instructed to
make their checks, drafts, or money orders payable solely "Atlas Public
#11-2002 Ltd., Escrow Agent, PNC Bank," as agent for the Partnership, and
you, including if you are a customer carrying broker/dealer, agree to
comply with Rule 15c2-4 adopted under the Act of 1934.
If you receive a check, draft, or money order not conforming to the
foregoing instructions, then you shall return the check, draft, or money
order directly to the subscriber not later than the end of the next
business day following its receipt by you from the subscriber. If the
Dealer-Manager receives a check, draft, or money order not conforming to
the foregoing instructions, then the Dealer-Manager shall return the check,
draft, or money order to you not later than the end of the next business
day following its receipt by the Dealer-Manager and you shall then return
the check, draft, or money order directly to the subscriber not later than
the end of the next business day following its receipt by you from the
Dealer-Manager. Checks, drafts, or money orders received by you which
conform to the foregoing instructions shall be transmitted by you under
Section 11 "Transmittal Procedures," below.
You agree that you are bound by the terms of the Escrow Agreement, a copy
of which is attached to the Dealer-Manager Agreement as Exhibit "A."
11. Transmittal Procedures. You, including if you are a customer carrying
broker/dealer, shall transmit received investor funds in accordance with
the following procedures.
(a) Pending receipt of the minimum subscription proceeds of $1,000,000 as
set forth in Section 4(d) of the Dealer-Manager Agreement, you shall
promptly transmit, any and all checks, drafts, and money orders
received by you from subscribers and the original executed
Subscription Agreement to the Dealer-Manager by the end of the next
business day following receipt of the check, draft, or money order by
you. By the end of the next business day following its receipt of the
check, draft, or money order and the original executed subscription
documents, the Dealer-Manager shall transmit the check, draft, or
money order and a copy of the executed Subscription Agreement to the
Anthem Securities, Inc. 9
Selling Agent Agreement
Escrow Agent, and the original executed Subscription Agreement and a
copy of the check, draft, or money order to the Managing General
Partner.
(b) On receipt by you of notice from the Managing General Partner or the
Dealer-Manager that the minimum subscription proceeds of $1,000,000 as
set forth in Section 4(d) of the Dealer-Manager Agreement have been
received, you agree that all subscribers then may be instructed, in
the Managing General Partner's sole discretion, to make their checks,
drafts, or money orders payable solely "Atlas Public #11-2002 Ltd."
Thereafter, you shall promptly transmit any and all checks, drafts,
and money orders received by you from subscribers and the original
executed Subscription Agreement to the Dealer-Manager by the end of
the next business day following receipt of the check, draft, or money
order by you. By the end of the next business day following its
receipt of the check, draft, or money order and original Subscription
Agreement, the Dealer-Manager shall transmit the check, draft, or
money order and the original executed Subscription Agreement to the
Managing General Partner.
12. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Dealer-Manager, and any respective successors and assigns. This
Agreement shall also inure to the benefit of the indemnified parties, their
successors and assigns. This Agreement is intended to be and is for the
sole and exclusive benefit of the parties to this Agreement, and their
respective successors and assigns, and the indemnified parties and their
successors and assigns, and for the benefit of no other person. No other
person shall have any legal or equitable right, remedy or claim under or in
respect of this Agreement. No purchaser of any of the Units from you shall
be construed a successor or assign merely by reason of the purchase.
13. Relationship. You are not authorized to hold yourself out as agent of the
Dealer-Manager, the Managing General Partner, the Partnership or any other
Selling Agent. This Agreement shall not constitute you a partner of the
Managing General Partner, the Dealer-Manager, the Partnership, any general
partner of the Partnership, or any other Selling Agent, nor render the
Managing General Partner, the Dealer-Manager, the Partnership, any general
partner of the Partnership, or any other Selling Agent, liable for any of
your obligations.
14. Effective Date. This Agreement is made effective between the parties as of
the date accepted by you as indicated by your signature to this Agreement.
15. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the
Dealer-Manager and you, and shall not be amended or modified in any
way except by subsequent agreement executed in writing. Neither party
to this Agreement shall be liable or bound to the other by any
agreement except as specifically set forth in this Agreement.
(b) The Dealer-Manager and you may waive, but only in writing, any term,
condition, or requirement under this Agreement that is intended for
its benefit. However, any written waiver of any term or condition of
this Agreement shall not operate as a waiver of any other breach of
the term or condition of this Agreement. Also, any failure to enforce
Anthem Securities, Inc. 10
Selling Agent Agreement
any provision of this Agreement shall not operate as a waiver of that
provision or any other provision of this Agreement.
16. Notices.
(a) Any communications from you shall be in writing addressed to the
Dealer-Manager at X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
(b) Any notice from the Dealer-Manager to you shall be deemed to have been
duly given if mailed, faxed or telegraphed to you at your address
shown below.
17. Complaints. The Dealer-Manager and you agree as follows:
(a) to notify the other if either receives an investor complaint in
connection with the offer or sale of Units by you;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the extent
it involves this Agreement or the offer or sale of Units by you.
18. Privacy. The Dealer-Manager and you each acknowledge that certain
information made available to the other under this Agreement may be deemed
nonpublic personal information under the Xxxxx-Xxxxx-Xxxxxx Act, other
federal or state privacy laws (as amended), and the rules and regulations
promulgated thereunder, which are referred to collectively as the "Privacy
Laws." The Dealer-Manager and you agree as follows:
(a) not to disclose or use the information except as required to carry out
each party's respective duties under this Agreement or as otherwise
permitted by law in the ordinary course of business;
(b) to establish and maintain procedures reasonably designated to assure
the security and privacy of all the information; and
(c) to cooperate with the other and provide reasonable assistance in
ensuring compliance with the Privacy Laws to the extent applicable to
either or both the Dealer-Manager and you.
19. Acceptance. Please confirm your agreement to become a Selling Agent under
the terms and conditions set forth above by signing and returning the
enclosed duplicate copy of this Agreement to us at the address set forth
above.
Sincerely,
, 2002 ANTHEM SECURITIES, INC.
--------------------------
Date
ATTEST:
By:
--------------------------- ----------------------------------
(SEAL) Secretary
Xxxx X. Xxxxxx, President
Anthem Securities, Inc. 11
Selling Agent Agreement
ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the terms
and conditions stated in the above Agreement and confirm that all the statements
set forth in the above Agreement are true and correct. We hereby acknowledge
receipt of the Prospectuses and Sales Literature and a copy of the
Dealer-Manager Agreement referred to above.
, 2002
________________________ ____________________________________________
Date a(n) ___________________________ corporation,
ATTEST:
By:
________________________ __________________________________________
(SEAL) Secretary _____________________________, President
__________________________________________
(Address)
__________________________________________
__________________________________________
Your CRD Number is________________________
Your Tax ID Number is_____________________
Anthem Securities, Inc. 12
Selling Agent Agreement
APPENDIX I TO SELLING AGENT AGREEMENT
In consideration for the payment to you, as Selling Agent, by the Dealer-Manager
of a .5% nonaccountable marketing expense reimbursement as set forth in Section
2(a) of the Selling Agent Agreement, you warrant, represent, covenant, and agree
with the Dealer-Manager that you, as Selling Agent, shall do the following:
o prominently and promptly announce your participation in the offering
as Selling Agent to your registered representatives, whether by
newsletter, e-mail, mail or otherwise, which announcement also shall
advise your registered representatives to contact our Regional
Marketing Director in whose territory the registered representative is
located (the information concerning our Regional Marketing Directors
has been provided to you by separate correspondence) with a copy of
the announcement provided concurrently to the Dealer-Manager; and
o provide the Dealer-Manager with the names, telephone numbers,
addresses and e-mail addresses of your registered representatives,
which information shall be kept confidential by the Dealer-Manager and
the Managing General Partner and shall not be used for any purpose
other than the marketing of the offering as set forth in the
Dealer-Manager Agreement and the Selling Agent Agreement. Further,
you, as Selling Agent, agree that the Dealer-Manager and the Managing
General Partner may directly contact your registered representatives,
in person or otherwise, to inform them of the offering, explain the
merits and risks of the offering, and otherwise assist in your
registered representatives' efforts to solicit and sell Units.
Anthem Securities, Inc. 13
Selling Agent Agreement
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