EXHIBIT “A”
ATLAS RESOURCES PUBLIC #16-2007(A) L.P.
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 2007, by and among Atlas Resources, LLC, a Pennsylvania limited liability company (the “Managing General Partner”), Anthem Securities, Inc., a Pennsylvania corporation (“Anthem”), the “Dealer-Manager,” Atlas Resources Public #16-2007(A) L.P., a Delaware limited partnership (the “Partnership”) and National City Bank of Pennsylvania, 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 19,900 investor general partner interests and up to 100 limited partner interests in the Partnership (the “Units”).
WHEREAS, each Investor will be required to pay his subscription in full on subscribing by check or wire (the “Subscription Proceeds”).
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts of up to 10% ($1,000 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. Larger subscriptions are 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 on a “best efforts” “all or none” basis for Subscription Proceeds of $2,000,000 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 Anthem Dealer-Manager Agreement, the “Dealer-Manager Agreement,” provides 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:
| • | a 2.5% Dealer-Manager fee; |
| • | a 7% sales commission; and |
| • | an up to .5% reimbursement of the Selling Agents’ bona fide 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 $2,000,000, excluding any optional subscription by the Managing General Partner, its officers, directors, and Affiliates.
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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:
| • | receipt of the maximum Subscription Proceeds of $200,000,000; or |
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 $2,000,000, 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,” which is the execution and subscription instrument signed by the Investor to evidence his agreement to purchase Units in the Partnership. In this regard, the Selling Agents shall promptly transmit any and all checks received by them from Investors and the original executed Subscription Agreement to the Dealer-Manager by noon of the next business day following receipt of the check by them. By noon of the next business day following the Dealer-Manager’s receipt of the check and the original executed subscription documents, the Dealer-Manager shall transmit the check and a copy of the executed Subscription Agreement to the Escrow Agent. |
Payment for each subscription for Units shall be in the form of a check or wire made payable to “Atlas Resources Public #16-2007(A) L.P., Escrow Agent, National City Bank of Pennsylvania,” pending receipt of the Partnership’s minimum Subscription Proceeds of $2,000,000.
3. | Investment of Subscription Proceeds. The Subscription Proceeds shall be deposited in an interest bearing account maintained by the Escrow Agent as directed by the Managing General Partner. This may be a savings account, bank money market account, short-term certificates of deposit issued by a bank, or short-term certificates of deposit issued or guaranteed by the United States government. 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 proper written notice from an authorized officer of the Managing General Partner that at least the minimum Subscription Proceeds of $2,000,000 have been received and accepted by the Managing General Partner; and |
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| (b) | determines that Subscription Proceeds for at least $2,000,000 are Distributable Subscription Proceeds; |
then the Escrow Agent shall promptly release and distribute to the Managing General Partner the Distributable Subscription Proceeds plus any interest paid and investment income earned on the Subscription Proceeds while held by the Escrow Agent in the escrow account. For purposes of the Agreement, “Distributable Subscription Proceeds” are Subscription Proceeds which have been deposited in the escrow account (1) by wire transfer; and (2) by check, but in the case of checks only at the time that the Escrow Agent believes an amount of time has passed which would usually be sufficient for Subscription Proceeds paid by check to have returned unpaid by the bank on which the check was drawn and after a 10 day period from the date of deposit.
After the occurrence of 4(a) and (b) above, Escrow Agent will provide a letter to the Managing General Partner confirming receipt of checks and/or wires representing Subscription Proceeds totaling at least $2,000,000 have been received and the anticipated date the funds will be considered Distributable Subscription Proceeds.
After the initial distribution, 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 become Distributable Subscription Proceeds after a 10 day period from the date of deposit.
The Managing General Partner shall immediately return to the Escrow Agent any Subscription Proceeds distributed to the Managing General Partner or refunded to an Investor to the extent that such Subscription Proceeds were paid by a check which is returned or otherwise not collected for any reason prior or subsequent to termination of this Agreement.
5. | Separate Partnership Account. During the continuation of the offering after the Partnership is funded with cleared Subscription Proceeds of at least $2,000,000 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 $2,000,000 have been received and accepted by the Managing General Partner by twelve (12:00) p.m. (noon), local time, EASTERN STANDARD 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, for which Escrow Agent has a copy of the subscription agreement, 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. |
| (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 in writing, the Escrow Agent of the rejection, and the Escrow Agent shall promptly distribute to the Investor for which Escrow Agent has a copy of a Subscription Agreement, 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. |
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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 $2,000,000 and the Escrow Agent receives the proper written 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 Managing General Partner or an authorized officer of the Managing General Partner. In no event shall the Escrow Agent be obligated to accept any notice, request, or demand from anyone other than the Managing General Partner. |
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 jointly and severally 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 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.
National City Bank of Pennsylvania 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.
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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 receiving thirty days’ prior written notice from 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, or by facsimile with confirmation of receipt (originals to be followed in the mail), or by a nationally recognized overnight courier, as follows: |
If to the Escrow Agent:
National City Bank
c/o Allegiant Institutional Services
200 Public Square, 5th Floor
Cleveland, Ohio 44114
Attention: Dawn DeWerth LOC 01-86PS-01
Phone: (216) 222-9225
Facsimile: (216) 222-7044
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If to the Managing General Partner:
Atlas Resources, LLC
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: Karen A. Black
Phone: (412) 262-2830
Facsimile: (412) 262-2820
If to Anthem:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Moon Township, Pennsylvania 15108
Attention: Justin T. Atkinson
Phone: (412) 262-1680
Facsimile: (412) 262-7430
Any party may designate any other address to which notices and instructions shall be sent by notice duly given in accordance with this Agreement.
| (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. |
14. | The parties hereto and subscribers acknowledge Escrow Agent has not reviewed and is not making any recommendations with respect to the securities offered. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the day and year first above written.
| | NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent |
| | By: | |
| | |
|
| | | James Schultz, Vice President |
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| | ATLAS RESOURCES, LLC
A Pennsylvania limited liability company |
| | By: | |
| | |
|
| | | Karen A. Black, Vice President – Partnership Administration |
| | ANTHEM SECURITIES, INC.
A Pennsylvania corporation |
| | By: | |
| | |
|
| | | Justin T. Atkinson, President |
| | | ATLAS RESOURCES PUBLIC #16-2007(A) L.P. |
| | | | |
| | By: | ATLAS RESOURCES, LLC
Managing General Partner |
| | By: | |
| | |
|
| | | Karen A. Black, Vice President – Partnership Administration |
| | | | |
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APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: | | $ waived |
For providing initial review of the Escrow Agreement and all supporting documents and for initial services associated with establishing the Escrow Account. This is a one (1) time fee payable upon the opening of the account.
I. | | Annual Administrative Fee Payable in Advance (or any portion thereof) | | $3000.00 |
| | | | |
II. | | Remittance of checks returned to subscribers (set out in section 6 of the governing agreement) | | 20.00 |
| | | | |
III. | | Wire transfers | | n/a |
| | | | |
IV. | | Purchase or Sale of Securities | | 100.00 |
V. Investments (document limits investment to a checking or savings account, or certificates of deposit) such products offered by any National City Bank retail branch)- fees are subject to the type of account the Managing General Partner directs the Escrow Agent to open and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per hour charge will be made commensurate with the character of the service, time required and responsibility involved. Such services include but are not limited to excessive administrative time, attendance at closings, specialized reports, and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT THERETO.
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EXHIBIT “B”
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
| RE: | ATLAS RESOURCES PUBLIC #16-2007 PROGRAM |
Gentlemen:
Atlas Resources, LLC will be the Managing General Partner in a series of up to two limited partnerships organized under the Delaware Revised Uniform Limited Partnership Act: Atlas Resources Public #16-2007(A) L.P. and Atlas Resources Public #16-2007(B) L.P., which are referred to as the “Partnership” or the “Partnerships.” The Units in the Partnerships, which are referred to as the “Units,” and the offering are described in the Prospectus, copies of which 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, a copy of which has been furnished to you and is incorporated in this Agreement by reference, with the Managing General Partner and the Partnerships 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 each Partnership in all states 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 for Units in each Partnership at the time the Partnership is being offered as provided in Section 1 of the Dealer-Manager Agreement in all states where you are duly registered or licensed as broker/dealer.
1. | Representations and Warranties of Selling Agent. You represent and warrant to the Dealer-Manager that: |
| (a) | You are a corporation or other entity 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. |
| (b) | This Agreement when accepted and approved by you 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 organizational documents, bylaws, any indenture, agreement, or other instrument to which you are a party or by which you are bound; or |
Anthem Securities, Inc.
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| (ii) | any violation of any order applicable to you of any court, 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 broker/dealer, and you are a member in good standing of the NASD. You are duly registered as a broker/dealer in the jurisdictions 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). |
| (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: |
| 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 |
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| (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 direct participation program in a discretionary account without prior written approval of the transaction by the customer. |
| (D) | Subparagraphs (A) and (B), and, only in situations where the member is not affiliated with the direct participation program, subparagraph (C) shall not apply to: |
| (i) | a secondary public offering of or a secondary market transaction in a unit, depositary receipt, or other interest in a direct participation program that is listed on a national securities exchange; or |
| (ii) | an initial public offering of a unit, depositary receipt or other interest in a direct participation program for which an application for listing on a national securities exchange has been approved by such exchange and the applicant makes a good faith representation that it believes such listing on an exchange will occur within a reasonable period of time following the formation of the program. |
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; |
| (iv) | financial stability and experience of the sponsor; |
| (v) | the program’s conflict and risk factors; and |
| (vi) | appraisals and other pertinent reports. |
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| (C) | For purposes of subparagraphs (A) or (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 the investment; provided, however, that paragraph (b) shall not apply to an initial or secondary public offering of or a secondary market transaction in a unit, depositary receipt or other interest in a direct participation program which complies with subparagraph (2)(D). |
| | (f) | You shall not offer or sell the Units in any jurisdiction 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 jurisdiction; |
| | (ii) | is exempt from the qualification requirements imposed by the jurisdiction; or |
| | (iii) | the qualification is otherwise not required. |
| | (g) | 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: |
| | (i) | the prior written approval of the Managing General Partner; and |
| | (ii) | 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.
| | (h) | 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. |
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You shall deliver a copy of the Prospectus to each subscriber to whom you sell the Units at or before the completion of any sale of Units to such subscriber (which sale shall be deemed, for the purposes of this Agreement to occur on the date on which that subscriber delivers subscription funds to the escrow agent), or earlier if required by the blue sky or securities laws of any jurisdiction. Unless advised otherwise by the Managing General Partner, you may choose to provide each offeree with the following sales materials which are collectively referred to as the “Sales Literature”:
| | (i) | a flyer entitled “Atlas Resources Public #16-2007 Program”; |
| | (ii) | an article entitled “Tax Rewards with Oil and Gas Partnerships”; |
| | (iii) | a brochure of tax scenarios entitled “How an Investment in Atlas Resources Public #16-2007 Program Can Help Achieve an Investor’s Tax Objectives”; |
| | (iv) | a booklet entitled “Outline of Tax Consequences of Oil and Gas Drilling Programs”; |
| | (v) | a brochure entitled “Investment Insights – Tax Time”; |
| | (vi) | a brochure entitled “Frequently Asked Questions”; and |
| | (vii) | a brochure entitled “The Drilling Process”; and |
| | (viii) | possibly other supplementary materials. |
Any such Sales Literature, if distributed, must have been preceded or must be accompanied by the Prospectus.
| | (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. |
| | (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 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; and |
| | (iv) | not to make any untrue statement of a material fact or omit to state a material fact necessary in order to make statements made, in light of the circumstances under which they were made, not misleading in connection with the Partnerships, the Units or the offering. |
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| | (k) | You agree to use your best efforts in the solicitation and sale of the Units, including that: |
| | (i) | you comply with all the provisions of 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; |
| | (ii) | the prospective purchasers meet the suitability requirements set forth in the Prospectus, the Subscription Agreement, and this Agreement; and |
| | (iii) | 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. |
You acknowledge and agree that 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 agree and covenant that: |
| | (i) | the representations and warranties you make in this Agreement are and shall be true and correct as of the date of this Agreement and at the applicable closing date; and |
| | (ii) | you shall and have fulfilled all your obligations under this Agreement at the applicable closing date. |
| (a) | Subject to the receipt of the minimum required subscription proceeds of $2,000,000 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 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 or directors of the Managing General Partner, the Dealer-Manager is entitled to receive from the Managing General Partner a 7% Sales Commission and a 2.5% Dealer-Manager Fee, based on the aggregate amount of all Unit subscriptions to a Partnership secured by the Dealer-Manager or the selling group formed by the Dealer-Manager and accepted by the Managing General Partner. |
Additionally, the Dealer-Manager is entitled to receive from the Managing General Partner an up to .5% reimbursement of the Selling Agents’ bona fide due diligence expenses per Unit.
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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 on Units sold by you and accepted by the Managing General Partner:
| (i) | a 7% Sales Commission, subject to the performance by you of your obligations under Appendix I to this Agreement, which is incorporated in this Agreement by reference; and |
| (ii) | up to a .5% reimbursement of your bona fide due diligence expenses per Unit. With respect to the up to .5% reimbursement of your bona fide due diligence expenses, any bill presented by you to the Dealer-Manager for reimbursement of costs associated with your due diligence activities must be for actual costs and may not include a profit margin. Although the Dealer-Manager is not required to obtain an itemized expense statement before paying out due diligence expenses, any bill for due diligence submitted by you must be based on your actual expenses incurred in conducting due diligence. If the Dealer-Manager receives a non-itemized bill for due diligence that it has reason to question, then it has the obligation to ensure your compliance by requesting an itemized statement to support the bill submitted by you. If such a due diligence bill cannot be justified, any excess over actual due diligence expenses that is paid is considered by the NASD to be undisclosed underwriting compensation and is required to be included within the 10% compensation guideline under NASD Conduct Rule 2810, and reflected on your books and records. Notwithstanding, if you provide an itemized bill in excess of .5% then the excess over .5% will not be included within the 10% compensation guideline, but instead the 4.5% organization and offering cost guideline of NASD Conduct Rule 2810. |
| (iii) | In addition, the Dealer-Manager or Managing General Partner may make certain non-cash compensation arrangements of up to .5% per Unit with you or your registered representatives. The permissible non-cash compensation will be paid for training and education meetings, gifts that do not exceed $100 per year and are not preconditioned on the achievement of a sales target, an occasional meal, a ticket to a sporting event or the theater, or comparable entertainment which is neither so frequent nor so extensive as to raise any question of propriety and is not preconditioned on achievement of a sales target and contributions by the Dealer-Manager or Managing General Partner to a non-cash compensation arrangement between you and your associated persons, provided that the Dealer-Manager or Managing General Partner do not directly or indirectly participate in your organization of the permissible non-cash compensation arrangement. The Dealer-Manager is responsible for ensuring that all non-cash compensation arrangements comply with the restrictions on non-cash compensation in connection with direct participation programs as set forth in NASD Conduct Rule 2810. For example, if the Managing General Partner or Dealer-Manager pays or reimburses you in connection with meetings held by the Managing General Partner or Dealer-Manager for the purpose of training or education of your registered representatives, then the following conditions must be met: |
| (A) | your registered representative must obtain your prior approval to attend the meeting and attendance by your registered representatives must not be conditioned by you on the achievement of a sales target; |
| (B) | the location of the training and education meeting must be appropriate to the purpose of the meeting, as defined in NASD Conduct Rule 2810; |
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| (C) | the payment or reimbursement must not be applied to the expenses of guests of the registered representative; |
| (D) | the payment or reimbursement by the Managing General Partner or Dealer-Manager must not be conditioned by the Managing General Partner or Dealer-Manager on the achievement of a sales target; and |
| (E) | the appropriate records must be maintained. |
Non-cash compensation means any form of compensation received in connection with the sale of the Units that is not cash compensation, including but not limited to merchandise, gifts and prizes, travel expenses, meals and lodging.
[Also, the Dealer-Manager may pay a marketing fee of up to ________ if you meet certain sales thresholds and provide marketing support as set forth in Appendix II, but in no event shall you receive non-cash compensation and the marketing fee if it represents more than .5% per unit.]
| (iv) | Your sales commissions which are owed to you as set forth above shall be paid to you within seven business days after the Dealer-Manager has received the related amounts owed to it under the Dealer-Manager Agreement, which the Dealer-Manager is entitled to receive 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 respective Partnership’s Offering Termination Date, which is described in Section 1 of the Dealer-Manager Agreement. The balance of your sales commissions and the reimbursements which are owed to you as set forth above shall be paid to you within seven business days after the Dealer-Manager has received the related amounts owed to it under the Dealer-Manager Agreement, which the Dealer-Manager is entitled to receive within fourteen business days after the respective Partnership’s Offering Termination Date. |
| (b) | Notwithstanding anything in this Agreement to the contrary, you agree to waive payment of your compensation and reimbursements which are owed to you as set forth 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 and reimbursements 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, a Partnership shall not begin operations unless it receives subscription proceeds for at least $2,000,000 by its respective Offering Termination Date. If this amount is not secured by the respective Partnership’s Offering Termination Date, then nothing shall be payable to you for the respective Partnership and all funds advanced by subscribers for Units in the respective Partnership shall be returned to them with interest earned, if any. |
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. |
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Notwithstanding the foregoing, the Dealer-Manager, the Partnerships, 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 the offering of any or all of the Partnerships 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 the offering of any or all of the Partnerships 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 and reimbursements 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. |
| (a) | You shall indemnify and hold harmless the Dealer-Manager, the Managing General Partner, each 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 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. |
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| (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. |
| (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.
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| (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 $2,000,000 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 or wire transfers payable solely to the Escrow Agent as agent for the Partnership in which the Units are then being offered as follows: |
| (a) | “Atlas Resources Public #16-2007(A) L.P., Escrow Agent, National City Bank of PA”; or |
| (b) | “Atlas Resources Public #16-2007(B) L.P., Escrow Agent, National City Bank of PA.” |
Also, you, including if you are a customer carrying broker/dealer, agree to comply with Rule 15c2-4 adopted under the Act of 1934. In addition, for identification purposes, wire transfers should reference the subscriber’s name and the account number of the escrow account for the Partnership in which the Units are then being offered.
If you receive a check not conforming to the foregoing instructions, then you shall return the check directly to the subscriber not later than noon of the next business day following its receipt by you from the subscriber. If the Dealer-Manager receives a check not conforming to the foregoing instructions, then the Dealer-Manager shall return the check to you not later than noon of the next business day following its receipt by the Dealer-Manager and you shall then return the check directly to the subscriber not later than noon of the next business day following its receipt by you from the Dealer-Manager. Checks 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 a Partnership’s minimum subscription proceeds of $2,000,000 as set forth in Section 4(d) of the Dealer-Manager Agreement, you shall promptly transmit any and all checks received by you from subscribers and the original executed Subscription Agreement to the Dealer-Manager by noon of the next business day following receipt of the check by you. By noon of the next business day following the Dealer-Manager’s receipt of the check and the original executed subscription documents, the Dealer-Manager shall transmit the check and a copy of the executed Subscription Agreement to the Escrow Agent, and the original executed Subscription Agreement and a copy of the check to the Managing General Partner. |
| (b) | On receipt by you of notice from the Managing General Partner or the Dealer-Manager that a Partnership’s minimum subscription proceeds of $2,000,000 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 or wire transfers payable solely to the Partnership then being offered. |
Thereafter, you shall promptly transmit any and all checks received by you from subscribers and the original executed Subscription Agreement to the Dealer-Manager by noon of the next business day following receipt of the check by you. By noon of the next business day following the Dealer-Manager’s receipt of the check and original Subscription Agreement, the Dealer-Manager shall transmit the check and the original executed Subscription Agreement to the Managing General Partner.
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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, including 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, a Partnership or any other Selling Agent. This Agreement shall not constitute you a partner of the Managing General Partner, the Dealer-Manager, a Partnership, any general partner of a Partnership, or any other Selling Agent, nor render the Managing General Partner, the Dealer-Manager, the Partnerships, any general partner of a 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. |
| (c) | 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. |
| (a) | Any communications from you shall be in writing addressed to the Dealer-Manager at P.O. Box 926, Moon Township, Pennsylvania 15108-0926. |
| (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 |
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| (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 Gramm-Leach-Bliley 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 designed 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. | Anti-Money Laundering Provision. You represent and warrant to the Managing General Partner and the Dealer-Manager that you have in place and will maintain suitable and adequate “know your customer” policies and procedures and that you shall comply with all applicable laws and regulations regarding anti-money laundering activity and will provide such documentation to the Managing General Partner and the Dealer-Manager on written request. |
20. | 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, |
______________________________________, 2007
| |
ANTHEM SECURITIES, INC.
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Date | | | |
ATTEST: | | | |
| | By: |
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| | |
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(SEAL) Secretary | | | Justin Atkinson, President |
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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.
| | | |
___________________________________, 2007
| | | ____________________________________________________________, |
Date | | | a(n) _______________________ corporation, |
ATTEST: | | | |
| | By: | |
| | |
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(SEAL) Secretary | | | _____________________________, President |
| | | |
| | |
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| | | (Address to Send Commissions, if different from above) |
| | | |
| | |
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| | | |
| | |
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| | | |
| | | |
| | |
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| | | (Telephone Number) |
| | | |
| | | Our CRD Number is ____________________ |
| | | Our Tax ID Number is___________________ |
| | | |
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APPENDIX I TO SELLING AGENT AGREEMENT
In partial consideration for the payment to you, as Selling Agent, by the Dealer-Manager of the Sales Commission 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:
| • | 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 |
| • | 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. |
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