As filed with the Securities and Exchange Commission on July 7, 1999
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
TO
FORM SB-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
(Exact name of Registrant as Specified in its Charter)
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JAMES R. O'MARA, PRESIDENT
ATLAS RESOURCES, INC.
311 ROUSER ROAD, MOON TOWNSHIP, PENNSYLVANIA 15108
(412) 262-2830
(Name, Address and Telephone Number of Agent for Service)
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Copies to:
WALLACE W. KUNZMAN, JR., ESQ. JAMES R. O'MARA
KUNZMAN & BOLLINGER, INC. ATLAS RESOURCES, INC.
5100 N. BROOKLINE, SUITE 600 311 ROUSER ROAD
OKLAHOMA CITY, OKLAHOMA 73112 MOON TOWNSHIP, PENNSYLVANIA 15108
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EXHIBIT INDEX
Exhibit No. Description Page
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1(a) Proposed form of Dealer-Manager Agreement for Anthem Securities, Inc.
1(b) Proposed form of Dealer-Manager Agreement for Bryan Funding, Inc.
3(a) Articles of Incorporation of Atlas Resources, Inc.
3(b) Bylaws of Atlas Resources, Inc.
4(a) Certificate of Limited Partnership for Atlas-Energy for the Nineties-
Public #8 Ltd.
4(b) Amended and Restated Certificate and Agreement of Limited
Partnership for Atlas-Energy for the Nineties-Public #8 Ltd.
(See Exhibit (A) to Prospectus)
5 Opinion of Kunzman & Bollinger, Inc. as to the legality of the Units
registered hereby
8 Opinion of Kunzman & Bollinger, Inc. as to tax matters
10(a) Escrow Agreement
10(b) Proposed form of Drilling and Operating Agreement
(See Exhibit (II) to the Amended and Restated Certificate and
Agreement of Limited Partnership, Exhibit (A) to Prospectus)
24(a) Consent of Grant Thornton, L.L.P.
24(b) Consent of United Energy Development Consultants, Inc.
24(c) Consent of Kunzman & Bollinger, Inc. (See Exhibits 5 and 8)
25 Power of Attorney
PROPOSED FORM OF
DEALER-MANAGER AGREEMENT
FOR ANTHEM SECURITIES, INC.
Exhibit 1(a)
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
Anthem Securities, Inc.
P.O. Box 926
Coraopolis, Pennsylvania 15108-0926
Gentlemen:
The undersigned, Atlas Resources, Inc. ( the "Managing General Partner"),
on behalf of ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD., hereby confirms its
agreement with you as Dealer-Manager as follows:
1. DESCRIPTION OF UNITS. The Managing General Partner has formed a limited
partnership known as Atlas-Energy for the Nineties-Public #8 Ltd. (the
"Partnership"), which will issue and sell Units of Participation in the
Partnership (the "Units") at a price of $10,000 per Unit. Subject to the
receipt and acceptance by the Managing General Partner of the minimum
Partnership Subscription of 100 Units ($1,000,000), there will be two
closings, which are tentatively set for November 1, 1999 (the "Initial
Closing Date"), and December 31, 1999.
No subscriptions to the Partnership will be accepted after receipt of the
maximum Partnership Subscription of $14,000,000 (which may be increased to
$18,000,000 in the Managing General Partner's discretion) or December 31,
1999, whichever event occurs first (the "Offering Termination Date").
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 Units have been or will be registered with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act
of 1933, as amended (the "Act").
(b) The Managing General Partner shall provide to you for delivery to all
offerees and purchasers and their representatives such information and
documents as the Managing General Partner deems appropriate to comply
with the Act and applicable state securities ("blue sky") laws.
(c) The Units when issued will be duly authorized and validly issued as
set forth in the Amended and Restated Certificate and Agreement of
Limited Partnership of the Partnership ("Partnership Agreement") set
forth as Exhibit (A) to the offering circular (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 the Partnership or of any jurisdiction to the laws of which the
Partnership is subject.
(d) The Partnership was duly formed pursuant to the laws of the
Commonwealth of Pennsylvania and is validly existing as a limited
partnership in good standing under the laws of Pennsylvania with full
power and authority to own its properties and conduct its business as
described in the Prospectus. The Partnership will be qualified to do
business as a limited partnership or similar entity offering limited
liability in those jurisdictions where the Managing General Partner
deems such qualification necessary to assure limited liability of the
limited partners.
(e) The Prospectus, as heretofore or hereafter 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
therein, in the light of the circumstances under which they are made,
not misleading.
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3. GRANT OF AUTHORITY TO THE DEALER-MANAGER. On the basis of the
representations and warranties herein contained, and subject to the terms
and conditions herein set forth, the Managing General Partner hereby
appoints you as the Dealer-Manager for the Partnership and gives you the
exclusive right to solicit subscriptions for the Units in all states other
than Minnesota and New Hampshire, on a "best efforts" basis, subject to the
terms and conditions set forth herein. In all states other than Minnesota
and New Hampshire you agree to use your best efforts to effect such sales
and to form and manage a selling group composed of soliciting
broker-dealers ("Selling Agents"), each of which shall be a member of the
National Association of Securities Dealers, Inc. ("NASD"), pursuant to
"Selling Agent Agreements" in substantially the form attached hereto as
Exhibit "B."
The Managing General Partner shall have three business days after the
receipt of an executed Selling Agent Agreement to refuse that Selling
Agent's participation.
4. COMPENSATION AND FEES.
(a) As Dealer-Manager you will receive from the Partnership the
following fees based on the amount of the Agreed Subscription on each
Unit sold to investors who are situated and/or residents in states
other than Minnesota and New Hampshire:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7.0% Sales Commission;
(iii) a .5% reimbursement of marketing expenses; and
(iv) a .5% reimbursement of the Selling Agents' bona fide accountable
due diligence expenses.
The 7.0% Sales Commission, the .5% reimbursement of marketing expenses
and the .5% reimbursement of bona fide accountable due diligence
expenses will be reallowed to the Selling Agents. The 2.5%
Dealer-Manager fee will be reallowed to the wholesalers for Agreed
Subscriptions obtained through the wholesalers' effort.
(b) Pending receipt and acceptance by the Managing General Partner of the
minimum Partnership Subscription ($1,000,000 excluding any optional
subscription by the Managing General Partner and its Affiliates), all
proceeds received by you from the sale of Units will be held in a
separate interest bearing escrow account as provided in Section 15.
Unless at least the minimum Partnership Subscription of $1,000,000 is
received on or before December 31, 1999, the offering shall be
terminated, in which event no fee shall be payable to you and all
funds advanced by purchasers shall be returned to them with interest
earned. In addition, you shall deliver a termination letter in the
form provided to you by the Managing General Partner to each such
subscriber and to each of the offerees previously solicited by you and
the Selling Agents in connection with the offering of the Units.
(c) The fees set forth in Section 4(a), which shall be reallowed by you to
the Selling Agents which made the sale and the wholesalers, will be
paid to you within five business days after at least the minimum
Partnership Subscription ($1,000,000) has been received and accepted
by the Managing General Partner and the subscription proceeds have
been released to the Managing General Partner from the escrow account.
Thereafter, such fees will be paid to you and reallowed to the Selling
Agents and wholesalers as described in the previous sentence
approximately every two weeks until the Offering Termination Date and
all your remaining fees shall be paid by the Managing General Partner
no later than 14 business days after the Offering Termination Date.
(d) Notwithstanding the foregoing, Registered Investment Advisors and
their clients may subscribe to Units without paying the Sales
Commissions and the reimbursement of marketing expenses and bona fide
accountable due diligence expenses, and their Agreed Subscriptions
will be subject only to the 2.5% Dealer-Manager fee.
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Also, the Managing General Partner, its officers and directors and
Affiliates, and the Selling Agents may subscribe to Units without
paying the Dealer-Manager fee, Sales Commissions and the reimbursement
of marketing expenses and the Selling Agents' bona fide accountable
due diligence expenses.
5. COVENANTS OF THE MANAGING GENERAL PARTNER. The Managing General Partner
covenants and agrees that:
(a) The Managing General Partner will deliver to you ample copies of
the Prospectus and of all amendments or supplements thereto,
heretofore or hereafter made, including all exhibits and other
documents included therein.
(b) If any event affecting the Partnership or the Managing General
Partner shall occur which in the opinion of the Managing General
Partner should be set forth in a supplement to or an amendment of
the Prospectus, the Managing General Partner will forthwith at
its own 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 therein, in the light
of the circumstances under which they are made, not misleading.
6. REPRESENTATIONS AND WARRANTIES OF DEALER-MANAGER. You, as the
Dealer-Manager, represent and warrant to the Managing General Partner that:
(a) You are a corporation duly organized, validly existing and in good
standing under the laws of the state of your formation or of any
jurisdiction to the laws of which you are subject, with all requisite
power and authority to enter into this Agreement and to carry out your
obligations hereunder.
(b) This Agreement when accepted and approved 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 any breach of any of the terms
or conditions of, or constitute a default under your Articles of
Incorporation, Bylaws, any indenture, agreement or other instrument to
which you are a party, or violate any order applicable to you of any
court or any federal or state regulatory body or administrative agency
having jurisdiction over you or over your affiliates.
(d) You are duly registered pursuant to the provisions of the Securities
Exchange Act of 1934 (the "Act of 1934") as a dealer and you are a
member in good standing of the NASD. You are duly registered as a
broker-dealer in the states in which 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 pursuant to 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 hereunder. Further, you and
the Selling Agents shall not engage in any activity which would cause
the offer and/or sale of Units not to comply with the Act, the Act of
1934 and the applicable rules and regulations of the Commission, the
applicable state securities laws and regulations, this Agreement and
the NASD Conduct Rules including Rules 2730, 2740, 2420, 2750, and
Rules 2810(b)(2) and (b)(3), which provide as follows:
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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 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
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(vi) appraisals and other pertinent reports.
(C) For purposes of subparagraphs (A) and (B) hereof, a member
or person associated with a member may rely upon the results
of an inquiry conducted by another member or members,
provided that:
(i) the member or person associated with a member has
reasonable grounds to believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were provided to the member
or person associated with a member with the consent of
the member or members conducting or directing the
inquiry; and
(iii) no member that participated in the inquiry is a
sponsor of the program or an affiliate of such
sponsor.
(D) Prior to executing a purchase transaction in a direct
participation program, a member or person associated with a
member shall inform the prospective participant of all
pertinent facts relating to the liquidity and marketability
of the program during the term of investment.
(f) You 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.
(g) 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 the prior
written approval of the Managing General Partner, and without the
prior written approval of the form and content thereof by the
Commission, the NASD and the securities authorities of the states
where such advertisement or solicitation is to be circulated. Any such
advertisements or solicitations shall be at your expense.
(h) 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 to distribute each such 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 you further agree and shall require any Selling Agent to further
agree to include such supplement or amendment in all future deliveries
of any Prospectus.
(i) You agree to advise the Managing General Partner in writing of each
state in which you and the Selling Agents propose to offer or sell the
Units and you shall not nor shall you permit any Selling Agent to
offer or sell Units in any state until such time as you shall have
been advised in writing by the Managing General Partner, or the
Managing General Partner's special counsel, that such offer or sale
has been qualified in such state or is exempt from the qualification
requirements imposed by such state or such qualification is otherwise
not required.
(j) In connection with any offer or sale of the Units, you agree and shall
require any Selling Agent to agree to comply in all respects with
statements set forth in the Prospectus and the Partnership Agreement
and you agree and shall require any Selling Agent to agree not to make
any statement inconsistent with the statements in the Prospectus or
the Partnership Agreement. You further agree and shall require any
Selling Agent to further agree that you shall not provide and shall
require any Selling Agent not to provide any written information,
statements or sales literature other than the Prospectus, the Managing
General Partner's corporate profile and a brochure entitled
"Atlas-Energy for the Nineties-Public #8 Ltd." (the corporate profile
and the brochure collectively referred to herein as the "Brochure"),
and any supplements or amendments thereto unless approved in
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writing by the Managing General Partner. Further, you agree and shall
require any Selling Agent to agree not to make any untrue or
misleading statements of a material fact in connection with the Units.
(k) You agree to use your best efforts in the solicitation and sale of
said 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 said Units, including
insuring that the prospective purchasers meet the suitability
requirements set forth in the Prospectus and the Subscription
Agreement and properly 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.
Executed Subscription Agreements shall be delivered or mailed
immediately to the Managing General Partner and must be received by
the Managing General Partner at or prior to the Offering Termination
Date.
The Managing General Partner shall have the right to reject any
subscription at any time for any reason without liability to it.
Investor funds shall be transmitted as set forth in Section 16.
(l) Although not anticipated, in the event you assist in any transfers of
the Units, 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.
7. STATE SECURITIES REGISTRATION. Incident to the offer and sale of the Units,
the Managing General Partner will either use its best efforts in taking all
necessary action and filing all necessary forms and documents deemed
reasonable by it in order to qualify or register Units for sale under the
securities laws of the states requested by you pursuant to Section 6 (i)
hereof or use its best efforts in taking any necessary action and filing
any necessary forms deemed reasonable by it which are required to obtain an
exemption from qualification or registration in such states.
Notwithstanding, the Managing General Partner may elect not to qualify or
register Units in any state in which it deems such qualification or
registration is not warranted for any reason in its sole discretion. The
Managing General Partner and its counsel will inform you as to the
jurisdictions in which the Partnership Units have been qualified for sale
or are exempt under the respective securities or blue sky laws of such
jurisdictions; but the Managing General Partner 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
such jurisdiction.
The Managing General Partner will provide to you and the Selling Agents for
delivery to all offerees and purchasers and their representatives, any
additional information, documents and instruments which 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 such states. The
Managing General Partner will file all post-offering forms, documents or
materials and take all other actions required by the states in which the
offer and sale of Units have been qualified or are exempt or in which the
Units have been registered. However, the Managing General Partner shall not
be required to take any actions, make any filings or prepare any documents
necessary or required in connection with your status or any Selling Agent's
status as a broker-dealer under the laws of such states.
The Managing General Partner shall promptly provide you with copies of all
applications, filings, correspondence, orders or other documents or
instruments relating to any application for qualification, registration or
other approval under applicable state or Federal securities laws for the
offering.
8. EXPENSE OF SALE. The expenses in connection with the offer and sale of the
Units shall be payable as set forth below.
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(a) The Managing General Partner shall pay all expenses incident to the
performance of its obligations hereunder, including the fees and
expenses of the Managing General Partner's attorneys and accountants
and all fees and expenses of registering or qualifying the Units for
offer and sale in the states as set forth in Section 7 hereof, or
obtaining exemptions therefrom, even if this offering is not
successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the formation and management of the
selling group and the fees and expenses of your own counsel and
accountants, even if this offering is not successfully completed.
9. CONDITIONS OF YOUR DUTIES. Your obligations provided herein shall be
subject to the accuracy, as of the date hereof and at the applicable
closing date (as if made at the applicable closing date), of the
representations and warranties of the Managing General Partner herein and
to the performance by the Managing General Partner of its obligations
hereunder.
10. CONDITION OF THE MANAGING GENERAL PARTNER'S DUTIES. The Managing General
Partner's obligations provided herein, including the duty to pay
compensation as set forth in Section 4 hereof, shall be subject to the
accuracy, as of the date hereof and at the applicable closing date (as if
made at the applicable closing date) of your representations and warranties
made herein, and to the performance by you of your obligations hereunder,
and to the additional condition that the Managing General Partner shall
have received, at or prior to the applicable closing date, the following
documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to the Managing General Partner that you and each
Selling Agent are registered as required by Section 6(d) and that such
registrations were, during the term of the offering and through the
applicable closing date, in full force and effect; and
(c) a certificate from you, dated at the applicable closing date, to the
effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you
have fulfilled all your obligations hereunder.
11. INDEMNIFICATION.
(a) You and the Selling Agents shall indemnify and hold harmless the
Managing General Partner, the Partnership and its attorneys, against
any losses, claims, damages or liabilities, joint or several, to which
such parties may become subject, under the Act, the Act of 1934 or
otherwise insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon 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 such parties for any legal or other expenses reasonably
incurred in connection with investigating or defending any such loss,
claim, damage, liability or action.
(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
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon 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 such loss, claim, damage, liability or
action.
(c) The foregoing indemnity agreements shall extend upon 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, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party. If any such action shall be brought against such
indemnified party, it shall notify the indemnifying party of the
commencement thereof, and the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified and
indemnifying parties. After the indemnified party shall have received
notice from the agreed upon counsel that the defense under this
paragraph has been so assumed, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than with respect to the agreed upon counsel who assumed the defense
thereof.
12. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All representations,
warranties and agreements of the Managing General Partner and you herein or
in certificates delivered pursuant hereto, and the indemnity agreements
contained in Section 11 hereof, shall survive the delivery, execution and
closing hereof, and shall 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, or 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 shall survive delivery of the Units hereunder.
13. TERMINATION. You shall have the right to terminate this agreement other
than the indemnification provisions of Section 11 by giving notice as
hereinafter specified any time at or prior to a closing date:
(a) if the Managing General Partner shall have failed, refused, or been
unable at or prior to the closing date, to perform any of its
obligations hereunder; or
(b) 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, the Managing General Partner shall be promptly
notified by you by telephone, telecopier or telegram, confirmed by letter.
The Managing General Partner may terminate this Agreement other than the
indemnification provisions of Section 11 for any reason by promptly giving
notice to you by telephone, telecopier or telegram, confirmed by letter as
hereinafter specified at or prior to a closing date.
14. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing, and if sent to you
shall be mailed, delivered or telegraphed and confirmed to you at P.O. Box
926, 311 Rouser Road, Coraopolis, Pennsylvania 15108 or if sent to the
Managing General Partner or on behalf of the Partnership, at 311 Rouser
Road, Moon Township, Pennsylvania 15108.
15. FORMAT OF CHECKS/ESCROW AGENT. Pending receipt of the minimum Partnership
Subscription, the Managing General Partner and you and the Selling Agents
agree that all subscribers shall be instructed to make their checks,
drafts, or money orders payable solely to "Atlas Public #8 Ltd., Escrow
Agent, National City Bank of PA" as agent for the Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money order
to the Selling Agent not later than the end of the next business day
following its receipt by you. The Selling Agent shall then return such
check, draft, or money order directly to the subscriber not later than the
end of the next business day following its receipt from you. Checks,
drafts, or money orders received by you or a Selling Agent which conform to
the foregoing instructions shall be transmitted by you pursuant to Section
16 "Transmittal Procedures," below.
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You represent that you have executed the Escrow Agreement and agree that
you are bound by the terms of the Escrow Agreement executed by you, the
Partnership and the Managing General Partner, a copy of which is attached
hereto as Exhibit "A".
16. TRANSMITTAL PROCEDURES. You and each Selling Agent 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 where you receive subscriptions from investors.
(a) Pending receipt of the minimum subscription of $1,000,000, the Selling
Agents shall promptly, upon receipt of any and all checks, drafts, and
money orders received from prospective purchasers of Units, transmit
same together with the original executed Subscription Agreement to
you, as Dealer-Manager by the end of the next business day following
receipt of the check, draft, or money order by the Selling Agent. By
the end of the next business day following receipt of the check,
draft, or money order and Subscription Agreement by you as
Dealer-Manager, you as Dealer-Manager shall transmit the check, draft
or money order and a copy of the executed Subscription Agreement to
the Escrow Agent, and the original Subscription Agreement and a copy
of the check, draft or money order to the Managing General Partner.
(b) Upon receipt by you as Dealer-Manager of notice from the Managing
General Partner that the minimum Partnership Subscription has been
received, the Managing General Partner, you and the Selling Agent
agree that all subscribers thereafter may be instructed, in the
Managing General Partner's sole discretion, to make their checks,
drafts, or money orders payable solely to "Atlas Public #8 Ltd.".
Thereafter, Selling Agents shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective purchasers
of Units, transmit same together with the original Subscription
Agreement to you as Dealer-Manager by the end of the next business day
following receipt of the check, draft, or money order by the Selling
Agent. By the end of the next business day following receipt of the
check, draft, or money order and Subscription Agreement by you as
Dealer-Manager, you as Dealer-Manager shall transmit the check, draft
or money order and the original Subscription Agreement to the Managing
General Partner.
17. PARTIES. This Agreement shall inure to the benefit of and be binding upon
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 hereto, including the
Partnership, and their respective successors and assigns, and the
indemnified parties and their successors and assigns, and for the benefit
of no other person, and 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 such purchase
18. RELATIONSHIP. This Agreement shall not constitute you a partner of the
Managing General Partner or the Partnership or any general partner thereof,
nor render the Managing General Partner or the Partnership liable for any
of your obligations except as otherwise provided herein.
19. EFFECTIVE DATE. This Agreement is made effective between the parties as of
the date accepted by you as indicated by your signature hereto.
20. ENTIRE AGREEMENT WAIVER. This Agreement constitutes the entire agreement
between the parties hereto and shall not be amended or modified in any way
except by subsequent agreement executed in writing, and no party shall be
liable or bound to the other by any agreement, except as specifically set
forth herein. Any party hereto may waive, but only in writing, any term,
condition, or requirement under this Agreement which is intended for its
own benefit, and written waiver of any term or condition of this Agreement
shall not operate as a waiver of any other breach of such term or
condition, nor shall any failure to enforce any provision hereof operate as
a waiver of such provision or any other provision hereof.
9
If the foregoing correctly sets forth our understanding please so indicate in
the space provided below for the purpose whereupon this letter shall constitute
a binding agreement between us.
Very truly yours,
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
________________________________, 1999 By: ________________________________________
Date Tony C. Banks, Senior Vice President and
Chief Financial Officer
ATTEST:
______________________________________
(SEAL) Secretary
PARTNERSHIP
-----------
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
________________________________, 1999 By: ________________________________________
Date Tony C. Banks, Senior Vice President and
Chief Financial Officer
ATTEST:
______________________________________
(SEAL) Secretary
DEALER-MANAGER
--------------
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
________________________________, 1999 By: ________________________________________
Date Eric D. Koval, President
ATTEST:
______________________________________
(SEAL) Secretary
10
EXHIBIT "A"
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the _____ day of _________,
1999, by and between Atlas Resources, Inc., a Pennsylvania corporation (the
"Managing General Partner"), Anthem Securities, Inc., a Pennsylvania corporation
("Anthem"), Bryan Funding, Inc., a Pennsylvania corporation ("Bryan Funding"),
collectively Anthem and Bryan Funding are referred to as the "Dealer-Manager",
Atlas-Energy for the Nineties-Public #8 Ltd., a Pennsylvania limited partnership
(the "Partnership") and National City Bank of Pennsylvania, Pittsburgh,
Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Partnership intends to offer publicly for sale to qualified
investors (the "Investors") up to 1,800 limited partnership interests in the
Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in full
upon subscribing ($10,000 per Unit, however, the Managing General Partner, in
its discretion, may accept one-half Unit [$5,000] subscriptions, with larger
subscriptions permitted in $1,000 increments), by check, draft or money order
except that the broker-dealers and the Managing General Partner, its officers
and directors and Affiliates, may purchase Units net of the Dealer-Manager fee,
the commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses set forth below, and registered investment
advisors and their clients may purchase Units subject to the Dealer-Manager fee
but net of the commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses set forth below (the "Subscription
Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an agreement
("Anthem Dealer-Manager Agreement") pursuant to which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for $1,000,000 and on a "best efforts"
basis for the remaining Units on behalf of the Managing General Partner and the
Partnership and pursuant to 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"); and
WHEREAS, the Managing General Partner and Bryan Funding have executed an
agreement ("Bryan Funding Dealer-Manager Agreement") pursuant to which Bryan
Funding will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on a "best
efforts" basis for the remaining Units on behalf of the Managing General Partner
and the Partnership and pursuant to which Bryan Funding has been authorized to
select certain members in good standing of the NASD to participate in the
offering of the Units ("Selling Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the Bryan Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement", provide for compensation to the Dealer-Manager which includes, but
is not limited to: (i) a 2.5% Dealer-Manager fee; (ii) a 7.0% sales commission;
(iii) a .5% reimbursement of marketing expenses; and (iv) reimbursement of the
Selling Agents' bona fide accountable due diligence expenses of .5% per Unit to
participate in the offering of the Units, all or a portion of which compensation
will be reallowed to the Selling Agents and wholesalers; and
1
WHEREAS, under the terms of the Dealer-Manager Agreement the Subscription
Proceeds are required to be held in escrow subject to the receipt and acceptance
by the Managing General Partner of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General Partner,
its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after receipt
of the maximum Subscription Proceeds of $14,000,000 (which may be increased to
$18,000,000 in the Managing General Partner's discretion) or December 31, 1999,
whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement, the Managing General Partner and the Dealer-Manager desire to have
the Subscription Proceeds deposited with the Escrow Agent and the Escrow Agent
desires to hold the Subscription Proceeds pursuant to the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Managing General Partner, the Partnership
and the Dealer-Manager hereby appoint Escrow Agent as the escrow agent to
receive and to hold the Subscription Proceeds deposited with Escrow Agent
by the Dealer-Manager and the Selling Agents pursuant hereto and Escrow
Agent hereby agrees to serve in such capacity during the term and based
upon the provisions hereof.
2. DEPOSIT OF SUBSCRIPTION PROCEEDS. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall deposit the
Subscription Proceeds of each Investor with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the Subscription Agreement of such
Investor. Payment for each subscription for Units shall be in the form of a
check made payable to "Atlas Public #8 Ltd., Escrow Agent, National City
Bank of PA". The Escrow Agent shall deliver a receipt to Anthem and the
Managing General Partner for each deposit of Subscription Proceeds made
pursuant hereto by Anthem, and to Bryan Funding and the Managing General
Partner for each deposit of subscription proceeds made pursuant hereto by
Bryan Funding.
3. INVESTMENT OF SUBSCRIPTION PROCEEDS. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
entitled "Armada Government Fund." Subscription Proceeds may be temporarily
invested by the Escrow Agent only in income producing short-term, highly
liquid investments secured by the United States government where there is
appropriate safety of principal, such as U.S. Treasury Bills. The interest
earned shall be added to the Subscription Proceeds and disbursed in
accordance with the provisions of paragraph 4 or 5, as the case may be.
4. DISTRIBUTION OF SUBSCRIPTION PROCEEDS. If the Escrow Agent:
(a) receives written notice from an authorized officer of the Managing
General Partner that at least the minimum aggregate subscriptions of
$1,000,000 have been received and accepted by the Managing General
Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000 as
determined by the Managing General Partner have cleared the banking
system and are good;
2
the Escrow Agent shall promptly release and distribute to the Managing
General Partner such escrowed Subscription Proceeds which have cleared
the banking system and are good plus any interest paid and investment
income earned on such Subscription Proceeds while held by the Escrow
Agent in an escrow account.
Any remaining Subscription Proceeds, plus any interest paid and
investment income earned on such Subscription Proceeds while held by
the Escrow Agent in an escrow account shall be promptly released and
distributed to the Managing General Partner by the Escrow Agent as
such Subscription Proceeds clear the banking system and become good.
5. SEPARATE PARTNERSHIP ACCOUNT. During the continuation of the offering after
the Partnership is funded with cleared Subscription Proceeds of at least
$1,000,000 and the Escrow Agent receives the notice described in Paragraph
4 of this Agreement, and prior to the Offering Termination Date, any
additional Subscription Proceeds may be deposited by the Dealer-Manager
directly in a separate Partnership account which shall not be subject to
the terms of this Agreement.
6. DISTRIBUTIONS TO SUBSCRIBERS.
(a) In the event that the Partnership will not be funded as contemplated
because less than the minimum aggregate subscriptions of $1,000,000
have been received and accepted by the Managing General Partner by
twelve p.m. (noon), local time, on December 31, 1999, or for any other
reason, the Managing General Partner shall so notify the Escrow Agent,
whereupon the Escrow Agent promptly shall distribute to each Investor
a refund check made payable to such Investor in an amount equal to the
Subscription Proceeds of such Investor, plus any interest paid or
investment income earned thereon while held by the Escrow Agent in an
escrow account as calculated by the Managing General Partner.
(b) In the event that a subscription for Units submitted by an Investor is
rejected by the Managing General Partner for any reason after the
Subscription Proceeds relating to such subscription have been
deposited with the Escrow Agent, then the Managing General Partner
promptly shall notify the Escrow Agent of such rejection, and the
Escrow Agent shall promptly distribute to such Investor a refund check
made payable to such Investor in an amount equal to the Subscription
Proceeds of such Investor, plus any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow account as
calculated by the Managing General Partner.
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 hereunder, as provided in Appendix 1 to this
Agreement and made a part hereof, 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 an escrow account unless and until the Partnership is
funded with cleared Subscription Proceeds of at least $1,000,000 and the
Escrow Agent receives the notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is hereby
granted, a prior lien upon any property, cash, or assets held hereunder,
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 Escrow
Agreement unless the notice or request or demand for delivery or other
action is in writing and given or made by the party given the right or
charged with
3
the obligation under this Escrow Agreement to give the notice or to make
the request or demand. In no event shall the Escrow Agent be obligated
to accept any notice, request, or demand from anyone other than the
Managing General Partner or the Dealer-Manager.
9. LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed herein in
carrying out or executing the purposes and intent of this Escrow Agreement;
provided, however, that nothing herein contained shall relieve the Escrow
Agent from liability arising out of its own willful misconduct or gross
negligence. Escrow Agent's duties and obligations under this Agreement
shall be entirely administrative and not discretionary. Escrow Agent shall
not be liable to any party hereto or to any third party as a result of any
action or omission taken or made by Escrow Agent in good faith. The parties
to this Agreement will indemnify Escrow Agent, hold Escrow Agent harmless,
and reimburse Escrow Agent from, against and for, any and all liabilities,
costs, fees and expenses (including reasonable attorney's fees) Escrow
Agent may suffer or incur by reason of its execution and performance of
this Agreement. In the event any legal questions arise concerning Escrow
Agent's duties and obligations hereunder, Escrow Agent may consult with its
counsel and rely without liability upon written opinions given to it by
such counsel.
The Escrow Agent shall be protected in acting upon 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.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any other
person, resulting in adverse claims or demands being made in connection
with this Agreement, or in the event that Escrow Agent, in good faith,
shall be in doubt as to what action it should take hereunder, Escrow Agent
may, at its option, refuse to comply with any claims or demands on it or
refuse to take any other action hereunder, so long as such disagreement
continues or such doubt exists. In any such event, Escrow Agent shall not
be or become liable in any way or to any person for its failure or refusal
to act and 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 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
following the giving of thirty days' prior written notice to the other
parties hereto. Similarly, the Escrow Agent may be removed and replaced
following the giving of thirty days' prior written notice to the Escrow
Agent by the other parties hereto.
In either event, the duties of the Escrow Agent shall terminate thirty days
after the date of such notice (or as of such 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 an escrow account) in its
possession to a successor escrow agent as shall be appointed by the other
parties hereto as evidenced by a written notice filed with the Escrow
Agent. If the other parties hereto are unable to agree upon a successor or
shall have failed to appoint a successor prior to the expiration of thirty
days following the date of the notice of resignation or removal, the then
acting Escrow Agent may petition any court of competent jurisdiction for
the appointment of a successor escrow agent or other appropriate relief;
and any such resulting appointment shall be binding upon all of the parties
hereto.
Upon 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 an
escrow account), the then acting Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
4
11. TERMINATION. This Agreement shall terminate and the Escrow Agent shall have
no further obligation with respect hereto upon the occurrence of the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in an
escrow account) as contemplated hereby or upon the written consent of all
the parties hereto.
12. NOTICE. Any notices or instructions, or both, to be given hereunder shall
be validly given if set forth in writing and mailed by certified mail,
return receipt requested, as follows:
IF TO THE ESCROW AGENT:
-----------------------
National City Bank of Pennsylvania
Attention: Mr. Robert Mialki, Vice President
Corporate Trust Department
300 Fourth Avenue
Pittsburgh, Pennsylvania 15278-2331
Phone: (412) 644-8401
Facsimile: (412) 644-7971
IF TO THE MANAGING GENERAL PARTNER:
-----------------------------------
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: Tony C. Banks
Phone: (412) 262-2830
Facsimile: (412) 262-2820
IF TO ANTHEM:
-------------
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Coraopolis, Pennsylvania 15108
Attention: Eric D. Koval
Phone: (412) 262-1680
Facsimile: (412) 262-7430
IF TO BRYAN FUNDING:
-------------------
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Attention: Richard G. Bryan, Jr.
Phone: (412) 276-9393
Facsimile: (412) 276-9396
5
Any party may designate any other address to which notices and instructions
shall be sent by notice duly given in accordance herewith.
13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the benefit of the
undersigned and their respective heirs, successors and assigns.
(c) This Agreement may be executed in multiple copies, each executed copy
to serve as an original.
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
ATTEST: As Escrow Agent
By:______________________________ By: _____________________________________________
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.
ATTEST: A Pennsylvania corporation
By:______________________________ By: ____________________________________________
Secretary Tony C. Banks, Senior Vice President and
Chief Financial Officer
ANTHEM SECURITIES, INC.
ATTEST: A Pennsylvania corporation
By:______________________________ By: _____________________________________________
Secretary Eric D. Koval, President
BRYAN FUNDING, INC.
ATTEST: A Pennsylvania corporation
By:______________________________ By: ______________________________________________
Secretary Richard G. Bryan, Jr., President
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
By: ATLAS RESOURCES, INC.
ATTEST: Managing General Partner
By:______________________________ By: ______________________________________
Secretary Tony C. Banks, Senior Vice President and
Chief Financial Officer
6
APPENDIX I TO ESCROW AGREEMENT
COMPENSATION FOR SERVICES OF ESCROW AGENT
Escrow Agent annual fee per year or any part thereof $3,000.00
7
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO: ____________________________________________
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
Gentlemen:
Atlas Resources, Inc. ("Atlas"), is the Managing General Partner in a
Pennsylvania limited partnership named Atlas-Energy for the Nineties-Public #8
Ltd. (the "Partnership"). The Units of Participation (the "Units") and the
offering are described in the enclosed Prospectus dated _________, 1999 (the
"Prospectus"). Prospectuses relating to the Units have been furnished to you
with this Agreement.
Our firm, Anthem Securities, Inc. (the "Dealer-Manager"), has entered into
a Dealer-Manager Agreement for sales in all states other than Minnesota and New
Hampshire, a copy of which has been furnished to you and is incorporated herein
by reference, with the Managing General Partner and the Partnership under which
the Dealer-Manager has agreed to form a group of National Association of
Securities Dealers, Inc. (the "NASD") member firms (the "Selling Agents"), who
will obtain subscriptions to the Partnership in all states other than Minnesota
and New Hampshire on a "best efforts" basis pursuant to the Securities Act of
1933, as amended (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 will have agreed to act in that capacity and
to use your best efforts, in accordance with the following terms and conditions,
to solicit such subscriptions in all states other than Minnesota and New
Hampshire. This Agreement, however, shall not be construed to prohibit your
participation as a selling agent in Minnesota and New Hampshire pursuant to a
duly executed selling agent agreement entered into by you and any other
authorized "Dealer-Manager" for the Partnership.
1. REPRESENTATIONS AND WARRANTIES OF SELLING AGENT. You, as a Selling Agent,
represent and warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing and in good
standing under the laws of the state of your formation or of any
jurisdiction to the laws of which you are subject, with all requisite
power and authority to enter into this Agreement and to carry out your
obligations hereunder.
(b) This Agreement when accepted and approved 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 any breach of any of the terms
or conditions of, or constitute a default under your Articles of
Incorporation, Bylaws, any indenture, agreement or other instrument to
which you are a party, or violate any order applicable to you of any
court or any federal or state regulatory body or administrative agency
having jurisdiction over you or over your affiliates.
(d) You are duly registered pursuant to the provisions of the Securities
Exchange Act of 1934 (the "Act of 1934") as a dealer and you are a
member in good standing of the NASD. You are duly registered as a
broker-dealer in the states in which you are required to be registered
in order to
1
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 pursuant to
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 hereunder. Further, you shall not engage in any activity
which would cause the offer and/or sale of Units not to comply with
the Act, the Act of 1934 and the applicable rules and regulations of
the Securities and Exchange Commission (the "Commission"), the
applicable state securities laws and regulations, this Agreement and
the NASD Conduct Rules including Rules 2730, 2740, 2420, 2750, and
Rules 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
2
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:
(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 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.
(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 the prior written approval of the Managing General
Partner, and without the prior written approval of the form and
content thereof by the Commission, the NASD and the securities
authorities of the states where such advertisement or solicitation is
to be circulated. Any such advertisements or solicitations shall be at
your expense.
(h) 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 to distribute each such supplement or
amendment to the Prospectus to every person who has previously
received a copy of the Prospectus from you and you further agree to
include such supplement or amendment in all future deliveries of any
Prospectus.
3
(i) In connection with any offer or sale of the Units, you agree to comply
in all respects with statements set forth in the Prospectus and the
Partnership Agreement and you agree not to make any statement
inconsistent with the statements in the Prospectus or the Partnership
Agreement and you further agree that you shall not provide any written
information, statements or sales literature other than the Prospectus,
the Managing General Partner's corporate profile and a brochure
entitled "Atlas-Energy for the Nineties-Public #8 Ltd." (the corporate
profile and the brochure collectively referred to herein as the
"Brochure"), and any supplements or amendments thereto unless approved
in writing by the Managing General Partner. Further, you agree not to
make any untrue or misleading statements of a material fact in
connection with the Units.
(j) You agree to use your best efforts in the solicitation and sale of
said Units, including insuring that the prospective purchasers meet
the suitability requirements set forth in the Prospectus and the
Subscription Agreement and properly execute the Subscription
Agreement, which has been provided as Exhibit (I-B) to the Partnership
Agreement, Exhibit (A) to the Prospectus, together with any additional
forms provided in any supplement or amendment to the Prospectus, or
otherwise provided to you by the Managing General Partner or the
Dealer-Manager to be completed by prospective purchasers.
The Managing General Partner shall have the right to reject any
subscription at any time for any reason without liability to it.
Investor funds and executed Subscription Agreements shall be
transmitted as set forth in Section 11.
(k) You shall comply with the requirements of Rules 2810(b)(2)(B) and
(b)(3)(D) of the NASD Conduct Rules.
2. COMMISSIONS.
(a) Subject to the receipt of the minimum required Partnership
Subscription of $1,000,000, the Dealer-Manager is entitled to receive
from the Partnership a 7.0% Sales Commission, a .5% reimbursement of
marketing expenses and a .5% reimbursement of the Selling Agents' bona
fide accountable due diligence expenses based on the aggregate amount
of all Unit subscriptions to the Partnership secured by the
Dealer-Manager or the selling group formed by the Dealer-Manager and
accepted by the Managing General Partner.
Subject to the terms and conditions herein set forth, including the
Dealer-Manager's receipt from you of the documentation required of you
in Section 1 of this Agreement, the Dealer-Manager agrees to pay you a
7.0% cash commission, a .5% reimbursement of marketing expenses and a
.5% reimbursement of your bona fide accountable due diligence
expenses, of subscriptions sold by you and accepted by the Managing
General Partner, within seven business days after the Dealer-Manager
has received the commissions and reimbursements on such subscriptions.
The Dealer-Manager is entitled to receive its commissions and
reimbursements within five business days after at least the minimum
Partnership Subscription ($1,000,000) has been received and accepted
by the Managing General Partner and the subscription proceeds have
been released to the Managing General Partner from the escrow account,
and approximately every two weeks thereafter until the Offering
Termination Date, which is December 31, 1999, or when the maximum
Partnership Subscription of $18,000,000 is received if earlier. The
balance will be paid to the Dealer-Manager within 14 business days
after the Offering Termination Date.
(b) Notwithstanding anything herein to the contrary, you agree to waive
payment of your commissions and reimbursements as set forth above in
(a) until the Dealer-Manager is in receipt of the related amounts owed
to it pursuant to the Dealer-Manager Agreement, and the
Dealer-Manager's liability for such amounts hereunder is limited
solely to the proceeds of the related amounts owed to it pursuant to
the Dealer-Manager Agreement.
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(c) The Partnership will not commence operations unless subscriptions for
at least $1,000,000 have been secured by December 31, 1999. If this
amount is not secured, nothing will be payable to you and all funds
advanced by purchasers will be returned to them with interest earned,
if any.
(d) Notwithstanding the foregoing, Registered Investment Advisors and
their clients may subscribe to Units without paying the Sales
Commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses, and their Agreed Subscriptions
will be subject only to the 2.5% Dealer-Manager fee.
Also, the Managing General Partner, its officers and directors and
Affiliates, and the Selling Agents may subscribe to Units without
paying the Dealer-Manager fee, Sales Commissions and the reimbursement
of marketing expenses and the Selling Agents' bona fide accountable
due diligence expenses.
3. STATE SECURITIES REGISTRATION. The Managing General Partner may elect not
to qualify or register Units in any state in which it deems such
qualification or registration is not warranted for any reason in its sole
discretion. Upon application to the Dealer-Manager you will be informed as
to the jurisdictions in which the Units have been qualified for sale or are
exempt under the respective securities or "Blue Sky" laws of such
jurisdictions.
Notwithstanding, the Dealer-Manager, the Partnership and the Managing
General Partner have not assumed and will not assume any obligation or
responsibility as to your right to act as a broker-dealer with respect to
the Units in any such 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 hereunder, including the fees and expenses of its
attorneys and accountants, even if this offering is not successfully
completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the fees and expenses of your own
counsel and accountants, even if this offering is not successfully
completed.
5. CONDITIONS OF YOUR DUTIES. Your obligations provided herein, as of the date
hereof and at the applicable closing date, shall be subject to the
performance by the Dealer-Manager of its obligations hereunder and to 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
provided herein, including the duty to pay compensation as set forth in
Section 2 hereof, shall be subject to the accuracy, as of the date hereof
and at the applicable closing date (as if made at the applicable closing
date) of your representations and warranties made herein, and to the
performance by you of your obligations hereunder, and to the additional
condition that the Dealer-Manager shall have received, at or prior to the
applicable closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to the Dealer-Manager that you are registered as
required by Section 1(d) and that such registrations were, during the
term of the offering and through the applicable closing date, in full
force and effect; and
(c) a certificate from you, dated at the applicable closing date, to the
effect that your representations and warranties made herein are true
and correct as if made at the applicable closing date and that you
have fulfilled all your obligations hereunder.
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7. INDEMNIFICATION.
(a) You shall indemnify and hold harmless the Dealer-Manager, the Managing
General Partner, the Partnership and its attorneys, against any
losses, claims, damages or liabilities, joint or several, to which
such parties may become subject, under the Act, the Act of 1934 or
otherwise insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon your breach
of any of your duties and obligations, representations, or warranties
under the terms or provisions of this Agreement and you shall
reimburse such parties for any legal or other expenses reasonably
incurred in connection with investigating or defending any such loss,
claim, damage, liability or action.
(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 such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon 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 such
loss, claim, damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon 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, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party. If any such action shall be brought against such
indemnified party, it shall notify the indemnifying party of the
commencement thereof, and the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified and
indemnifying parties. After the indemnified party shall have received
notice from the agreed upon counsel that the defense under this
paragraph has been so assumed, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than with respect to the agreed upon counsel who assumed the defense
thereof.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All representations,
warranties and agreements of the Dealer-Manager and you herein or in
certificates delivered pursuant hereto, and the indemnity agreements
contained in Section 7 hereof, shall survive the delivery, execution and
closing hereof, and shall 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, or 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 shall survive delivery of the Units hereunder.
9. TERMINATION. You shall have the right to terminate this Agreement, other
than the indemnification provisions of Section 7, by giving notice as
hereinafter specified any time at or prior to a closing date:
(a) if the Dealer-Manager shall have failed, refused, or been unable at or
prior to the closing date, to perform any of its obligations
hereunder; or
(b) there has occurred an event materially and adversely affecting the
value of the Units.
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If you elect to terminate this Agreement, other than the indemnification
provisions of Section 7, the Dealer-Manager shall be promptly notified by
you by telephone, telecopier, facsimile, or telegram, confirmed by letter.
The Dealer-Manager may terminate this Agreement, other than the
indemnification provisions of Section 7, for any reason and at any time by
promptly giving notice to you by telephone, telecopier or telegram,
confirmed by letter.
10. FORMAT OF CHECKS/ESCROW AGENT. Pending receipt of the minimum Partnership
Subscription of $1,000,000 (100 Units), the Dealer-Manager and you agree
that all subscribers shall be instructed to make their checks, drafts, or
money orders payable solely to "Atlas Public #8 Ltd., Escrow Agent,
National City Bank of PA" as agent for the Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money order
directly to the subscriber not later than the end of the next business day
following its receipt from the subscriber. If the Dealer-Manager receives a
check, draft, or money order not conforming to the foregoing instructions
the Dealer-Manager shall return such check, draft, or money order to you
not later than the end of the next business day following its receipt by
the Dealer-Manager and you shall then return such check, draft, or money
order directly to the subscriber not later than the end of the next
business day following its receipt from the Dealer-Manager. Checks, drafts,
or money orders received by you which conform to the foregoing instructions
shall be transmitted by you pursuant to 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 shall transmit received investor funds in
accordance with the following procedures.
(a) Pending receipt of the minimum Partnership Subscription of $1,000,000,
you shall promptly, upon receipt of any and all checks, drafts, and
money orders received from prospective purchasers of Units, transmit
same together with the original executed Subscription Agreement to the
Dealer-Manager by the end of the next business day following receipt
of the check, draft, or money order by you. By the end of the next
business day following receipt of the check, draft, or money order and
Subscription Agreement by the Dealer-Manager, the Dealer-Manager shall
transmit the check, draft, or money order and a copy of the executed
Subscription Agreement to the Escrow Agent, and the original
Subscription Agreement and a copy of the check, draft, or money order
to the Managing General Partner.
(b) Upon receipt by you of notice from the Managing General Partner or the
Dealer-Manager that the minimum Partnership Subscription has been
received, you agree that all subscribers thereafter may be instructed,
in the Managing General Partner's sole discretion, to make their
checks, drafts, or money orders payable solely to "Atlas Public #8
Ltd.". Thereafter, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective purchasers
of Units, transmit same together with the original Subscription
Agreement to the Dealer-Manager by the end of the next business day
following receipt of the check, draft, or money order by you. By the
end of the next business day following receipt of the check, draft, or
money order and subscription documents by the Dealer-Manager, the
Dealer-Manager shall transmit the check, draft, or money order and the
original Subscription Agreement to the Managing General Partner.
12. PARTIES. This Agreement shall inure to the benefit of and be binding upon
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 hereto, 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
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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 such purchase.
13. RELATIONSHIP. You are not authorized to hold yourself out as agent of the
Dealer-Manager, the Managing General Partner, the Partnership or of any
other Selling Agent, nor shall this Agreement constitute you a partner of
the Managing General Partner, the Dealer-Manager, the Partnership or of any
other Selling Agent, or render the Managing General Partner, the
Dealer-Manager, the Partnership or any general partner thereof, 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 hereto.
15. ENTIRE AGREEMENT, WAIVER. This Agreement constitutes the entire agreement
between the parties hereto and shall not be amended or modified in any way
except by subsequent agreement executed in writing, and no party shall be
liable or bound to the other by any agreement, except as specifically set
forth herein. Any party hereto may waive, but only in writing, any term,
condition, or requirement under this Agreement which is intended for its
own benefit, and written waiver of any term or condition of this Agreement
shall not operate as a waiver of any other breach of such term or
condition, nor shall any failure to enforce any provision hereof operate as
a waiver of such provision or any other provision hereof.
16. NOTICES. Any communications from you shall be in writing addressed to the
Dealer-Manager at P.O. Box 926, Coraopolis, Pennsylvania 15108-0926. 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. ACCEPTANCE. Please confirm your agreement to become a Selling Agent under
the terms and conditions set forth above by signing and returning the
enclosed duplicate copy of this Agreement to us at the address set forth
above.
Sincerely,
_____________________________ , 1999 ANTHEM SECURITIES, INC.
ATTEST:
_____________________________________ By:_______________________________
(SEAL) Secretary Eric D. Koval, President
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ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the terms and
conditions stated in the above Agreement and confirm that all the statements set
forth in the above Agreement are true and correct. We hereby acknowledge receipt
of the Prospectuses and Brochures and a copy of the Dealer-Manager Agreement
referred to above.
____________________________, 1999 ____________________________,
a(n)____________corporation,
ATTEST:
__________________________________ By:__________________________
(SEAL) Secretary _______________, President
_____________________________
(Address)
_____________________________
_____________________________
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