EXHIBIT 1(a)
ATLAS AMERICA PUBLIC #15-2005 PROGRAM
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
PAGE
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1. Description of Program and Units..................................................1
2. Representations, Warranties and Agreements of the Managing General Partner........2
3. Grant of Authority to the Dealer-Manager..........................................3
4. Compensation and Fees.............................................................3
5. Covenants of the Managing General Partner.........................................6
6. Representations and Warranties of the Dealer-Manager..............................6
7. State Securities Registration....................................................11
8. Expense of Sale..................................................................11
9. Conditions of the Dealer-Manager's Duties........................................12
10. Conditions of the Managing General Partner's Duties..............................12
11. Indemnification..................................................................12
12. Representations and Agreements to Survive Delivery...............................13
13. Termination......................................................................13
14. Notices..........................................................................13
15. Format of Checks/Escrow Agent....................................................14
16. Transmittal Procedures...........................................................14
17. Parties..........................................................................15
18. Relationship.....................................................................15
19. Effective Date...................................................................15
20. Entire Agreement, Waiver.........................................................15
21. Governing Law....................................................................15
22. Complaints.......................................................................15
23. Privacy..........................................................................16
24. Anti-Money Laundering Provision..................................................16
25. Acceptance.......................................................................16
Exhibit A - Form of Escrow Agreement
Exhibit B - Selling Agent Agreement
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ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
Anthem Securities, Inc.
P.O. Box 926
Moon Township, Pennsylvania 15108-0926
RE: ATLAS AMERICA PUBLIC #15-2005 PROGRAM
Gentlemen:
The undersigned, Atlas Resources, Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public #15-2005 Program,
which is referred to as the "Program," is a series of up to three limited
partnerships formed under the Delaware Revised Uniform Limited Partnership Act
as described below. These limited partnerships are sometimes referred to in this
Agreement in the singular as a "Partnership" or in the plural as "Partnerships."
The Managing General Partner on behalf of the Partnerships hereby confirms its
agreement with you, as Dealer-Manager, as follows:
1. DESCRIPTION OF PROGRAM AND UNITS.
(a) The Managing General Partner, a Pennsylvania corporation, will
be the sole managing general partner of up to three limited
partnerships which will be named as follows:
(i) Atlas America Public #15-2005(A) L.P.;
(ii) Atlas America Public #15-2006(B) L.P.; and
(iii) Atlas America Public #15-2006(C) L.P.
On behalf of the Program and the Partnerships, a Registration
Statement on Form S-1 (Registration No. ______________) relating
to the offer and sale of the limited partner and investor
general partner interests in the Partnerships, which are
referred to as the "Units," was filed on August ___, 2005 with
the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, which is referred to as
the "Act." The Registration Statement has been declared
effective by the Commission and the Partnerships and the Units
are described in the Prospectus that forms a part of the
Registration Statement. As used in this Agreement, the terms
"Prospectus" and "Registration Statement" refer solely to the
Prospectus and Registration Statement, as amended, described
above, except that:
(i) from and after the date on which any post-effective
amendment to the Registration Statement is declared
effective by the Commission, the term "Registration
Statement" shall refer to the Registration Statement as
amended by that post-effective amendment, and the term
"Prospectus" shall refer to the Prospectus then forming
a part of the Registration Statement; and
(ii) if the Prospectus filed by the Managing General Partner
pursuant to Rule 424(b) or (c) promulgated by the
Commission under the Act differs from the Prospectus on
file with
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the Commission at the time the Registration Statement or
any post-effective amendment thereto shall have become
effective, the term "Prospectus" shall refer to the
Prospectus filed pursuant thereto from and after the
date on which it was filed.
Terms defined in the Prospectus and not otherwise defined in
this Agreement shall have the meanings set forth in the
Prospectus.
(b) The Units will be sold at a price of $10,000 per Unit subject to
the discounts for certain investors 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 $2,000,000 in a Partnership by its
Offering Termination Date for each Partnership as described in
the Prospectus (the "Offering Termination Date"), 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." Also, the maximum
subscription proceeds of all of the Partnerships, in the
aggregate, must not exceed the registered amount of
$150 million.
The Managing General Partner will notify you and the "Selling Agents,"
as defined below, of the Initial Closing Date and Offering Termination
Date for each Partnership.
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 Partnerships composing the Program have a currently
effective Registration Statement on Form S-1, including a final
Prospectus, for the registration of the Units under the Act as
described in Section 1 of this Agreement.
(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.
(c) The Units when issued will be duly authorized and validly issued
as set forth in the Agreement of Limited Partnership of each
Partnership, which is referred to as the "Partnership
Agreement," the form of which is 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 formation of each Partnership or of any jurisdiction to
the laws of which each Partnership is subject.
(d) Each 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. Each 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.
This Agreement, when executed by you, will be a valid and
binding agreement of each Partnership and the Managing General
Partner, duly authorized, executed and delivered by them and
enforceable in accordance with its terms except as may be
limited by the effect of bankruptcy, insolvency, moratorium,
preferential or fraudulent conveyance or other laws or equitable
principles relating to or affecting the rights of creditors
generally, general principles of equity, and public policy
relating to claims for indemnification for securities laws
violations.
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(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.
(a) 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 Partnerships and gives you the exclusive
right to solicit subscriptions for the Units on a "best efforts"
basis in all states during the offering period for each
Partnership as described in the Prospectus.
(b) 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 to as the "NASD,"
and shall enter into a "Selling Agent Agreement" in
substantially the form attached to this Agreement as
Exhibit "B."
(c) 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 in a Partnership 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% accountable Reimbursement for Permissible Non-Cash
Compensation which, under Rule 2810 of the NASD Conduct
Rules, is composed of the following:
(A) training and education meetings for associated
persons of the Selling Agents meeting the
requirements set forth in Section 4(b), below;
(B) gifts that do not exceed $100 per year and are
not preconditioned on the achievement of a sales
target;
(C) 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
(D) contributions to a non-cash compensation
arrangement between a Selling Agent and its
associated persons, provided that neither the
Managing General Partner, the Partnerships nor
you directly or indirectly participate in the
Selling Agent's organization of the permissible
non-cash compensation arrangement; and
(iv) an up to .5% reimbursement of the Selling Agents' bona
fide due diligence expenses.
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(b) All of the up to .5% reimbursement of the Selling Agents' bona
fide due diligence expenses shall be reallowed to the Selling
Agents, and all or a portion of the 7% Sales Commission and the
.5% Reimbursement for Permissible Non-Cash Compensation may be
reallowed to the Selling Agents as described in the Selling
Agent Agreement with each Selling Agent. All or a portion of the
remaining balance of the 2.5% Dealer-Manager fee may be
reallowed to the wholesalers as wholesaling fees for
subscriptions obtained through their efforts. However, you may
reduce the wholesaling fees by any reimbursements made by the
Managing General Partner or the Partnership for expenses which
are received by the wholesalers in connection with the Program
or expenses which are owed by the wholesalers to the Managing
General Partner or the Partnership in connection with the
Program and any salaries for the wholesalers in connection with
the Program.
You shall retain any of the 7% Sales Commission, the .5%
accountable Reimbursement for Permissible Non-Cash Compensation
and the 2.5% Dealer-Manager fee not reallowed to the Selling
Agents or the wholesalers. Any Dealer-Manager fee not reallowed
to the wholesalers, which may be used for such items as legal
fees associated with the underwriting and salaries of dual
employees of you and the Managing General Partner which are
required to be included in underwriting compensation under NASD
Conduct Rule 2810 as determined jointly by the Managing General
Partner and you.
You are responsible for ensuring that all non-cash compensation
arrangements comply with NASD Conduct Rule 2810. For example,
payments or reimbursements by you or the Managing General
Partner may be made in connection with meetings held by you or
the Managing General Partner for the purpose of training or
education of registered representatives of a Selling Agent, only
if the following conditions are met:
(i) the registered representative obtains his Selling
Agent's prior approval to attend the meeting and
attendance by the registered representative is not
conditioned by his Selling Agent on the achievement of a
sales target;
(ii) the location of the training and education meeting is
appropriate to the purpose of the meeting as defined in
NASD Conduct Rule 2810;
(iii) the payment or reimbursement is not applied to the
expenses of guests of the registered representative;
(iv) the payment or reimbursement by you or the Managing
General Partner is not conditioned by you or the
Managing General Partner on the achievement of a sales
target; and
(v) the recordkeeping requirements are met.
"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.
(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% accountable Reimbursement for Permissible
Non-Cash
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Compensation, and the .5% reimbursement of the Selling
Agents' bona fide 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% accountable Reimbursement for Permissible Non-Cash
Compensation, and the up to .5% reimbursement of the
Selling Agents' bona fide due diligence expenses which
shall be paid to you.
No more than 5% of the total Units sold in the Partnerships
shall be sold, in the aggregate, with the discounts described
above.
(d) Pending receipt and acceptance by the Managing General Partner
of the minimum subscription proceeds of $2,000,000 in each
Partnership, excluding any optional subscription of the Managing
General Partner and its Affiliates and the subscription
discounts set forth in Section 4(c) of this Agreement, all
proceeds received by you from the sale of Units in each
Partnership 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 $2,000,000
as described above are received on or before the Offering
Termination Date of a Partnership as described in Section 1 of
this Agreement, the offering of Units in that Partnership shall
be terminated, in which event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales Commission,
the .5% accountable Reimbursement for Permissible
Non-Cash Compensation, and the up to .5% reimbursement
of the Selling Agents' bona fide 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
(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 $2,000,000
as described above have been received by the respective
Partnership and accepted by the respective Partnership;
and
(ii) the subscription proceeds have been released from the
escrow account to the respective Partnership.
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 for the respective
Partnership. All your remaining fees, reimbursements, and Sales
Commissions shall be paid to you by the Managing General
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Partner no later than fourteen business days after the Offering
Termination Date for the respective Partnership.
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 a 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
and the respective Partnership 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.
(b) This Agreement when accepted and approved by you 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 instrument to
which you are a party or by which you are bound; or
(ii) any violation of any order applicable to you of any
court or 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 broker or 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 in each Partnership, 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
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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:
(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
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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.
(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.
You and the Selling Agents shall maintain records on the
information used to determine that the investment in the Units
is suitable and appropriate for each subscriber, and shall
maintain these records for at least six years after the Offering
Termination Date for the respective Partnership.
(f) You agree to advise the Managing General Partner in writing of
each jurisdiction 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 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
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(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.
You agree and shall require the Selling Agents to agree to
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 state. Unless
advised otherwise by the Managing General Partner, you and the
Selling Agents may choose to provide each offeree with the
following, which are collectively referred to as the "Sales
Literature":
(i) a flyer entitled "Atlas America Public #15-2005
Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled "How an Investment
in Atlas America Public #15-2005 Program Can Help
Achieve an Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America Public
#15-2005 Program";
(v) a booklet entitled "Outline of Tax Consequences of Oil
and Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions";
(ix) a brochure entitled "AMT - A Little History and Reducing
AMT through Natural Gas Partnerships";
(x) a brochure entitled "The Drilling Process"; and
(xi) possibly other supplementary materials.
Any such Sales Literature, if distributed, must have been
preceded or must be accompanied by the Prospectus.
(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 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
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(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.
(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:
(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/or the Selling
Agent; 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 and
shall require any Selling Agent to 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 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; 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 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:
(i) the prospective purchasers meet the suitability
requirements set forth in the Prospectus, the
Subscription Agreement, and this Agreement; and
(ii) 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.
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.
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(m) You agree and covenant that:
(i) the representations and warranties you make in this
Agreement are and shall be true and correct at the
applicable closing date; and
(ii) 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
jurisdictions 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 jurisdictions.
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 those 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.
(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 the offering of the
Partnerships is not successfully completed.
11
(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 the offering of the
Partnerships 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:
(a) the Managing General Partner's representations and warranties
made in this Agreement; and
(b) 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 of each Partnership 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 each Partnership, 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, 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 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 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.
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(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;
(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.
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.
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(b) Any notice or communication sent by the Managing General Partner
or a Partnership to you shall be mailed, delivered, or sent by
facsimile, e-mail or telegraph, and confirmed to you at P.O. Box
926, 311 Rouser Road, Moon Township, Pennsylvania 15108-0926.
(c) Any notice or communication sent by you to the Managing General
Partner or a Partnership shall be mailed, delivered, or sent by
facsimile, e-mail or telegraph, and confirmed at 311 Rouser
Road, Moon Township, Pennsylvania 15108.
15. FORMAT OF CHECKS/ESCROW AGENT. Pending receipt of the minimum
subscription proceeds of $2,000,000 of each Partnership 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 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 Public #15-2005(A) L.P., Escrow Agent, National City Bank
of PA";
(b) "Atlas Public #15-2006(B) L.P., Escrow Agent, National City Bank
of PA"; or
(c) "Atlas Public #15-2006(C) L.P., Escrow Agent, National City Bank
of PA".
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. 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 to the Selling Agent not later than noon
of the next business day following its receipt by you. The Selling Agent
shall then return the check directly to the subscriber not later than
noon of the next business day following its receipt from you. Checks
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 or will execute the Escrow Agreement for
each Partnership and agree that you are bound by the terms of the Escrow
Agreement executed by you, for the respective Partnership, and the
Managing General Partner, the form 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 a Partnership's minimum subscription proceeds
of $2,000,000 as set forth in Section 4(d) of this Agreement,
the Selling Agents on receipt of any check from a subscriber
shall promptly transmit the check and the original executed
Subscription Agreement to you, as Dealer-Manager, by noon of the
next business day following receipt of the check by the Selling
Agent. By noon of the next business day following your receipt
of the check and the original executed Subscription Agreement,
you, as 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, as Dealer-Manager, of notice from the
Managing General Partner that a Partnership's minimum
subscription proceeds of $2,000,000 as set forth in Section 4(d)
of this Agreement have been received, the Managing General
Partner, you, and the Selling Agents agree
14
that all subscribers then may be instructed, in the Managing
General Partner's sole discretion, to make their checks or wires
payable solely to the Partnership in which Units are then being
offered.
Thereafter, the Selling Agents shall promptly transmit any and
all checks received from subscribers and the original executed
Subscription Agreement to you, as Dealer-Manager, by noon of the
next business day following receipt of the check by the Selling
Agent. By noon of the next business day following your receipt
of the check and the original executed Subscription Agreement,
you, as Dealer-Manager, shall transmit the check 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 Partnerships, 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, a Partnership, or any general partner of a
Partnership, nor render the Managing General Partner, the Partnerships,
or any general partner of a 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.
(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. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
22. 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
15
(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.
23. 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 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 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 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 Managing General Partner and
you.
24. ANTI-MONEY LAUNDERING PROVISION. You and each Selling Agent each
represent and warrant to the Managing General Partner that each of you
have in place and will maintain suitable and adequate "know your
customer" policies and procedures and that each of you shall comply with
all applicable laws and regulations regarding anti-money laundering
activity and will provide such documentation to the Managing General
Partner on written request.
25. ACCEPTANCE. Please confirm your agreement to 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.
Very truly yours,
MANAGING GENERAL PARTNER
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
__________________________, 2005 By:
Date -------------------------------------
Jack L. Hollander,
Senior Vice President - Direct
Participation Programs
PROGRAM
ATLAS AMERICA PUBLIC #15-2005 PROGRAM
By: Atlas Resources, Inc.,
Managing General Partner
__________________________, 2005 By:
Date -------------------------------------
Jack L. Hollander,
Senior Vice President - Direct
Participation Programs
16
DEALER-MANAGER
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
__________________________, 2005 By:
Date -------------------------------------
Justin Atkinson, President
17
EXHIBIT "A"
ATLAS AMERICA PUBLIC #15-2005(A) L.P.
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 2005, by
and among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing
General Partner"), Anthem Securities, Inc., a Pennsylvania corporation
("Anthem"), the "Dealer-Manager," Atlas America Public #15-2005(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 __________ investor general
partner interests and up to __________ 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 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 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:
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% accountable Reimbursement for Permissible Non-Cash
Compensation; and
o 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
1
Subscription Proceeds of $2,000,000, 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 $150,000,000; or
o December 31, 2005.
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. Payment for each
subscription for Units shall be in the form of a check or wire made
payable to "Atlas America Public #15-2005(A) L.P., Escrow Agent,
National City Bank of Pennsylvania."
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
(b) determines that Subscription Proceeds for at least $2,000,000
are Distributable Subscription Proceeds;
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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.
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
4
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
If to the Managing General Partner:
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: Karen A. Black
Phone: (412) 262-2830
Facsimile: (412) 262-2820
5
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.
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.
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
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
------------------------------------
Karen A. Black, Vice President -
Partnership Administration
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ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
------------------------------------
Justin T. Atkinson, President
ATLAS AMERICA PUBLIC #15-2005(A) L.P.
By: ATLAS RESOURCES, INC.
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 $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
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.
8
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO: _______________________________
RE: ATLAS AMERICA PUBLIC #15-2005 PROGRAM
Gentlemen:
Atlas Resources, Inc. will be the Managing General Partner in a series
of up to three limited partnerships organized under the Delaware Revised Uniform
Limited Partnership Act:
o Atlas America Public #15-2005(A) L.P.;
o Atlas America Public #15-2006(B) L.P.; and
o Atlas America Public #15-2006(C) 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.
1
(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
(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) 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:
2
(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.
(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:
3
(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 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.
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":
4
(i) a flyer entitled "Atlas America Public #15-2005
Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled "How an Investment
in Atlas America Public #15-2005 Program Can Help
Achieve an Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America Public
#15-2005 Program";
(v) a booklet entitled "Outline of Tax Consequences of Oil
and Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions"; and
(ix) a brochure entitled "AMT - A Little History and Reducing
AMT through Natural Gas Partnerships";
(x) a brochure entitled "The Drilling Process"; and
(xi) 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
5
(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.
(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) Although not anticipated, if you assist in any transfers of the
Units, then 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:
(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.
2. COMMISSIONS.
(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 .5% accountable Reimbursement for Permissible Non-Cash
Compensation, 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.
6
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.
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.
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, which will be included in
the accountable Reimbursement for Permissible Non-Cash
Compensation of up to .5% per Unit. 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
7
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;
(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.
(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.
8
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 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.
7. INDEMNIFICATION.
(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
9
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.
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:
10
(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 $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 Public #15-2005(A) L.P., Escrow Agent, National City Bank
of PA";
(b) "Atlas Public #15-2005(B) L.P., Escrow Agent, National City Bank
of PA"; or
(c) "Atlas Public #15-2005(C) 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
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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.
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.
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16. NOTICES.
(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
(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.
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Sincerely,
____________________________, 2005 ANTHEM SECURITIES, INC.
Date
ATTEST:
By:
- -------------------------------- ------------------------------------
(SEAL) Secretary Justin Atkinson, President
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.
____________________________, 2005 _______________________________________,
Date a(n) ______________________ corporation,
ATTEST:
By:
- -------------------------------- ------------------------------------
(SEAL) Secretary ______________________, President
________________________________________
(Address)
________________________________________
________________________________________
________________________________________
(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:
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:
o inform them of the offering;
o explain the merits and risks of the offering; and
o otherwise assist in your registered representatives'
efforts to solicit and sell Units.
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