PROPOSED FORM OF
DEALER-MANAGER AGREEMENT
FOR BRYAN FUNDING, INC.
EXHIBIT 1(b)
BRYAN FUNDING, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
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 $18,000,000 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 the states of
Minnesota and New Hampshire only, on a "best efforts" basis, subject to
the terms and conditions set forth herein. In the states of Minnesota
and New Hampshire only 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
the states of 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 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
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to herein as the "Brochure"), and any supplements or amendments
thereto unless approved in 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 393
Vanadium Road, Pittsburgh, Pennsylvania 15243 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.
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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
BRYAN FUNDING, INC.,
a Pennsylvania corporation
, 1999 By:
- ----------------------------- ------------------------------------
Date Richard G. Bryan, Jr., 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 $18,000,000 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 BRYAN FUNDING, 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, Bryan Funding, Inc. (the "Dealer-Manager"), has entered into
a Dealer-Manager Agreement for sales in the states of 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 the
states of 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 the states of
Minnesota and New Hampshire. This Agreement, however, shall not be construed
to prohibit your participation as a selling agent in other states in addition
to 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
prospectus or other materials, that all material facts are
adequately and accurately disclosed and provide a basis for
evaluating the program.
2
(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.
(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
3
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.
(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.
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(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 393 Vanadium Road, Pittsburgh, Pennsylvania 15243.
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 BRYAN FUNDING, INC.
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ATTEST:
By:
- ------------------------------------- -------------------------------------
(SEAL) Secretary Richard G. Bryan, Jr., 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 Brochures and a copy of the
Dealer-Manager Agreement referred to above.
, 1999
- --------------------------------- --------------------------------------
a(n) corporation,
----------------------
ATTEST:
By:
- ------------------------------------- -------------------------------------
(SEAL) Secretary , President
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-------------------------------------
(Address)
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