ATLAS RESOURCES PUBLIC #18-2008 PROGRAM ANTHEM SECURITIES, INC. DEALER-MANAGER AGREEMENT
Exhibit
1.1
ATLAS
RESOURCES PUBLIC #18-2008 PROGRAM
ANTHEM
SECURITIES, INC.
ANTHEM
SECURITIES, INC.
TABLE
OF CONTENTS
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Page
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1.
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Description
of Program and Units
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1
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2.
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Representations,
Warranties and Agreements of the Managing General Partner
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2
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3.
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Grant
of Authority to the Dealer-Manager
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3
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4.
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Compensation
and Fees
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3
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5.
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Covenants
of the Managing General Partner
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5
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6.
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Representations
and Warranties of the Dealer-Manager
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6
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7.
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State
Securities Registration
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10
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8.
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Expense
of Sale
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11
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9.
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Conditions
of the Dealer-Manager’s Duties
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11
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10.
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Conditions
of the Managing General Partner’s Duties
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12
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11.
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Indemnification
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12
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12.
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Representations
and Agreements to Survive Delivery
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13
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13.
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Termination
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13
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14.
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Notices
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13
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15.
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Format
of Checks/Escrow Agent
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13
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16.
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Transmittal
Procedures
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14
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17.
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Parties
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14
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18.
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Relationship
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15
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19.
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Effective
Date
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15
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20.
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Entire
Agreement, Waiver
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15
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21.
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Governing
Law
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15
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22.
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Complaints
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15
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23.
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Privacy
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15
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24.
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Anti-Money
Laundering Provision
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16
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25.
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Acceptance
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16
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Exhibit
A
– Form of Escrow Agreement
Exhibit
B
– Selling Agent Agreement
Anthem
Securities, Inc.
i
ANTHEM
SECURITIES, INC.
(Best
Efforts)
Anthem
Securities, Inc.
P.O.
Box
926
Moon
Township, Pennsylvania 15108-0926
RE: ATLAS
RESOURCES PUBLIC #18-2008 PROGRAM
Gentlemen:
The
undersigned, Atlas Resources, LLC., which is referred to as the “Managing
General Partner,” on behalf of Atlas Resources Public #18-2008 Program, which is
referred to as the “Program,” is a series of up to three limited partnerships
formed under the Delaware Revised Uniform Limited Partnership Act as described
below. These limited partnerships are sometimes referred to in this Agreement
in
the singular as a “Partnership” or in the plural as “Partnerships.” The Managing
General Partner on behalf of the Partnerships hereby confirms its agreement
with
you, as Dealer-Manager, as follows:
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1.
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Description
of Program and Units.
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(a)
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The
Managing General Partner, a Pennsylvania corporation, will be the
sole
managing general partner of up to three limited partnerships which
will be
named as follows:
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(i)
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Atlas
Resources Public #18-2008(A) L.P.;
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(ii)
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Atlas
Resources Public #18-2009(B) L.P.;
and
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(iii)
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Atlas
Resources Public #18-2008(C) L.P.
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On
behalf
of the Program and the Partnerships, a Registration Statement on Form S-1
(Registration No. 333-150925) relating to the offer and sale of the limited
partner and investor general partner interests in the Partnerships, which are
referred to as the “Units,” was filed on May 15, 2008 with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, which is referred to as the “Act.” The Registration Statement has been
declared effective by the Commission and the Partnerships and the Units are
described in the Prospectus that forms a part of the Registration Statement.
As
used in this Agreement, the terms “Prospectus” and “Registration Statement”
refer solely to the Prospectus and Registration Statement, as amended, described
above, except that:
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(i)
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from
and after the date on which any post-effective amendment to the
Registration Statement is declared effective by the Commission, the
term
“Registration Statement” shall refer to the Registration Statement as
amended by that post-effective amendment, and the term “Prospectus” shall
refer to the Prospectus then forming a part of the Registration Statement;
and
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(ii)
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if
the Prospectus filed by the Managing General Partner pursuant to
Rule
424(b) or (c) promulgated by the Commission under the Act differs
from the
Prospectus on file with the Commission at the time the Registration
Statement or any post-effective amendment thereto shall have become
effective, the term “Prospectus” shall refer to the Prospectus filed
pursuant thereto from and after the date on which it was filed.
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1
Terms
defined in the Prospectus and not otherwise defined in this Agreement shall
have
the meanings set forth in the Prospectus.
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(b)
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The
Units will be sold at a price of $10,000 per Unit subject to the
discounts
for certain investors set forth in Section 4(c) of this Agreement
for
certain investors. Subject to the receipt and acceptance by the Managing
General Partner of the minimum subscription proceeds of $2,000,000
in a
Partnership by its Offering Termination Date for each Partnership
as
described in the Prospectus (the “Offering Termination Date”), the
Managing General Partner may break escrow and use the subscription
proceeds for the Partnership’s drilling activities, which is referred to
as the “Initial Closing Date.” Also, the maximum subscription proceeds of
all of the Partnerships, in the aggregate, must not exceed the registered
amount of $600 million.
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The
Managing General Partner will notify you and the “Selling Agents,” as defined
below, of the Initial Closing Date and Offering Termination Date for each
Partnership.
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2.
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Representations,
Warranties and Agreements of the Managing General
Partner.
The Managing General Partner represents and warrants to and agrees
with
you that:
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(a)
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The
Partnerships composing the Program have a currently effective Registration
Statement on Form S-1, including a final Prospectus, for the registration
of the Units under the Act as described in Section 1 of this Agreement.
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(b)
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The
Managing General Partner shall provide to you for delivery to all
offerees
and purchasers and their representatives the information and documents
that the Managing General Partner deems appropriate to comply with
the Act
and applicable state securities acts, which are referred to as the
“Blue
Sky” laws.
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(c)
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The
Units when issued will be duly authorized and validly issued as set
forth
in the Agreement of Limited Partnership of each Partnership, which
is
referred to as the “Partnership Agreement,” the form of which is included
as Exhibit (A) to the Prospectus, and subject only to the rights
and
obligations set forth in the Partnership Agreement or imposed by
the laws
of the state of formation of each Partnership or of any jurisdiction
to
the laws of which each Partnership is
subject.
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(d)
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Each
Partnership was duly formed under the laws of the State of Delaware
and is
validly existing as a limited partnership in good standing under
the laws
of Delaware with full power and authority to own its properties and
conduct its business as described in the Prospectus. Each Partnership
will
be qualified to do business as a limited partnership or similar entity
offering limited liability in those jurisdictions where the Managing
General Partner deems the qualification necessary to assure limited
liability of the limited partners.
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This
Agreement,
when executed by you, will be a valid and binding agreement of each Partnership
and the Managing General Partner, duly authorized, executed and delivered
by
them and enforceable in accordance with its terms except as may be limited
by
the effect of bankruptcy, insolvency, moratorium, preferential or fraudulent
conveyance or other laws or equitable principles relating to or affecting
the
rights of creditors generally, general principles of equity, and public policy
relating to claims for indemnification for securities laws
violations.
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(e)
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The
Prospectus, as supplemented or amended, does not contain an untrue
statement of a material fact or omit to state a material fact required
to
be stated therein or necessary in order to make the statements in
the
Prospectus, in the light of the circumstances under which they are
made,
not misleading.
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2
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3.
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Grant
of Authority to the Dealer-Manager.
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(a)
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Based
on the representations and warranties contained in this Agreement,
and
subject to the terms and conditions set forth in this Agreement,
the
Managing General Partner appoints you as the Dealer-Manager for the
Partnerships and gives you the exclusive right to solicit subscriptions
for the Units on a “best efforts” basis in all states during the offering
period for each Partnership as described in the
Prospectus.
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(b)
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You
agree to use your best efforts to effect sales of the Units and to
form
and manage a selling group composed of soliciting broker/dealers,
which
are referred to as the “Selling Agents,” each of which shall be a member
of the Financial Industry Regulatory Authority, which is referred
to as
“FINRA,” (formerly known as National Association of Securities Dealers,
Inc., or NASD) and shall enter into a “Selling Agent Agreement” in
substantially the form attached to this Agreement as Exhibit “B.”
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(c)
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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.
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4.
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Compensation
and Fees.
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(a)
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As
Dealer-Manager you shall receive from the Managing General Partner
the
following compensation, based on each Unit sold to investors in a
Partnership whose subscriptions for Units are accepted by the Managing
General Partner:
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(i)
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a
2.5% Dealer-Manager fee;
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(ii)
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a
7% Sales Commission; and
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(iii)
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an
up to .5% reimbursement of the Selling Agents’ bona fide due diligence
expenses.
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(b)
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All
of the up to .5% reimbursement of the Selling Agents’ bona fide due
diligence expenses shall be reallowed to the Selling Agents, and
all or a
portion of the 7% Sales Commission shall be reallowed to the Selling
Agents as described in the Selling Agent Agreement with each Selling
Agent. A portion of the balance of the 2.5% Dealer-Manager fee may
be
reallowed to the wholesalers as wholesaling fees for subscriptions
obtained through their efforts. However, you may reduce the wholesaling
fees by any reimbursements made by the Managing General Partner or
the
Partnership for expenses which are received by the wholesalers in
connection with the Program or expenses which are owed by the wholesalers
to the Managing General Partner or the Partnership in connection
with the
Program. Also, you may use a portion of your Dealer-Manager fee to
pay for
permissible non-cash compensation. Under Rule 2810 of the FINRA Conduct
Rules, non-cash compensation means any form of compensation received
in
connection with the sale of the units that is not cash compensation,
including but not limited to merchandise, gifts and prizes, travel
expenses, meals and lodging. Permissible non-cash compensation includes
the following:
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(i)
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an
accountable reimbursement for training and education meetings for
associated persons of the selling
agents;
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(ii)
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gifts
that do not exceed $100 per year and are not preconditioned on achievement
of a sales target;
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3
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(iii)
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an
occasional meal, a ticket to a sporting event or the theater, or
comparable entertainment which is neither so frequent nor so extensive
as
to raise any question of propriety and is not preconditioned on
achievement of a sales target; and
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(iv)
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contributions
to a non-cash compensation arrangement between a selling agent and
its
associated persons, provided that neither the managing general partner
nor
the dealer-manager directly or indirectly participates in the selling
agent’s organization of a permissible non-cash compensation
arrangement.
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In
no
event shall a selling agent receive non-cash compensation and a marketing fee
if
it represents more than .5% per unit.
You
shall
retain any of the 7% Sales Commission and the 2.5% Dealer-Manager fee not
reallowed to the Selling Agents or the wholesalers.
You
are
responsible for ensuring that all non-cash compensation arrangements comply
with
FINRA Conduct Rule 2810. For example, payments or reimbursements by you or
the
Managing General Partner may be made in connection with meetings held by you
or
the Managing General Partner for the purpose of training or education of
registered representatives of a Selling Agent, only if the following conditions
are met:
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(i)
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the
registered representative obtains his Selling Agent’s prior approval to
attend the meeting and attendance by the registered representative
is not
conditioned by his Selling Agent on the achievement of a sales
target;
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(ii)
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the
location of the training and education meeting is appropriate to
the
purpose of the meeting as defined in FINRA Conduct Rule
2810;
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(iii)
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the
payment or reimbursement is not applied to the expenses of guests
of the
registered representative;
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(iv)
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the
payment or reimbursement by you or the Managing General Partner is
not
conditioned by you or the Managing General Partner on the achievement
of a
sales target; and
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(v)
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the
recordkeeping requirements are met.
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(c)
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Notwithstanding
the foregoing:
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(i)
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the
Managing General Partner, its officers, directors, and affiliates,
and
investors who buy Units through the officers and directors of the
Managing
General Partner may subscribe to Units for a subscription price reduced
by
the 2.5% Dealer-Manager fee, the 7% Sales Commission and the up to
.5%
reimbursement of the Selling Agents’ bona fide due diligence expenses,
which shall not be paid to you; and
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(ii)
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registered
investment advisors and their clients and Selling Agents and their
registered representatives and principals may subscribe to Units
for a
subscription price reduced by the 7% Sales Commission, which shall
not be
paid to you, although their subscription price shall not be reduced
by the
2.5% Dealer-Manager fee and the up to .5% reimbursement of the Selling
Agents’ bona fide due diligence expenses, which shall be paid to you.
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4
No
more
than 5% of the total Units sold in the Partnerships shall be sold, in the
aggregate, with the discounts described above.
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(d)
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Pending
receipt and acceptance by the Managing General Partner of the minimum
subscription proceeds of $2,000,000 in each Partnership, excluding
any
optional subscription of the Managing General Partner and its Affiliates
and the subscription discounts set forth in Section 4(c) of this
Agreement, all proceeds received by you from the sale of Units in
each
Partnership shall be held in a separate interest bearing escrow account
as
provided in Section 15 of this
Agreement.
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Unless
at
least the minimum subscription proceeds of $2,000,000 as described above are
received on or before the Offering Termination Date of a Partnership as
described in Section 1 of this Agreement, the offering of Units in that
Partnership shall be terminated, in which event:
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(i)
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the
2.5% Dealer-Manager fee, the 7% Sales Commission and the up to .5%
reimbursement of the Selling Agents’ bona fide due diligence expenses set
forth in Section 4(a) of this Agreement shall not be payable to you;
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(ii)
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all
funds advanced by subscribers shall be returned to them with interest
earned; and
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(iii)
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you
shall deliver a termination letter in the form provided to you by
the
Managing General Partner to each of the subscribers and to each of
the
offerees previously solicited by you and the Selling Agents in connection
with the offering of the Units.
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(e)
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Except
as otherwise provided below, the fees, reimbursements, and Sales
Commissions set forth in Section 4(a) of this Agreement shall be
paid to
you within five business days after the
following:
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(i)
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at
least the minimum subscription proceeds of $2,000,000 as described
above
have been received by the respective Partnership and accepted by
the
respective Partnership; and
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(ii)
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the
subscription proceeds have been released from the escrow account
to the
respective Partnership.
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You
shall
reallow to the Selling Agents and the wholesalers their respective fees,
reimbursements, and Sales Commissions as set forth in Section 4(b) of this
Agreement.
Thereafter,
your fees, reimbursements and Sales Commissions shall be paid to you and shall
be reallowed to the Selling Agents and wholesalers as described above
approximately every two weeks until the Offering Termination Date for the
respective Partnership. All your remaining fees, reimbursements, and Sales
Commissions shall be paid to you by the Managing General Partner no later than
fourteen business days after the Offering Termination Date for the respective
Partnership.
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5.
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Covenants
of the Managing General Partner.
The Managing General Partner covenants and agrees
that:
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(a)
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The
Managing General Partner shall deliver to you ample copies of the
Prospectus and all amendments or supplements to the Prospectus.
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(b)
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If
any event affecting a Partnership or the Managing General Partner
occurs
that in the opinion of the Managing General Partner should be set
forth in
a supplement or amendment to the Prospectus, then the Managing General
Partner shall promptly at its expense prepare and furnish to you
a
sufficient number of copies of a supplement or amendment to the Prospectus
so that it, as so supplemented or amended, will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
in the
Prospectus, in the light of the circumstances under which they are
made,
not misleading.
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Anthem
Securities, Inc.
5
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6.
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Representations
and Warranties of the Dealer-Manager. You,
as the Dealer-Manager, represent and warrant to the Managing General
Partner and the respective Partnership
that:
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(a)
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You
are a corporation duly organized, validly existing and in good standing
under the laws of the state of your formation or of any jurisdiction
to
the laws of which you are subject, with all requisite power and authority
to enter into this Agreement and to carry out your obligations under
this
Agreement.
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(b)
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This
Agreement when accepted and approved by you shall be duly authorized,
executed, and delivered by you and shall be a valid and binding agreement
on your part in accordance with its
terms.
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(c)
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The
consummation of the transactions contemplated by this Agreement and
the
Prospectus shall not result in the
following:
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(i)
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any
breach of any of the terms or conditions of, or a default under your
Articles of Incorporation or Bylaws, or any other indenture, agreement,
or
instrument to which you are a party or by which you are bound; or
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(ii)
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any
violation of any order applicable to you of any court or regulatory
body
or administrative agency having jurisdiction over you or your
affiliates.
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(d)
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You
are duly registered under the provisions of the Securities Exchange
Act of
1934, which is referred to as the “Act of 1934,” as a broker or dealer,
and you are a member in good standing of FINRA. You are duly registered
as
a broker/dealer in the states where you are required to be registered
in
order to carry out your obligations as contemplated by this Agreement
and
the Prospectus. You agree to maintain all the foregoing registrations
in
good standing throughout the term of the offer and sale of the Units
in
each Partnership, and you agree to comply with all statutes and other
requirements applicable to you as a broker/dealer under those
registrations.
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(e)
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Pursuant
to your appointment as Dealer-Manager, you shall use your best efforts
to
exercise the supervision and control that you deem necessary and
appropriate to the activities of you and the Selling Agents to comply
with
all the provisions of the Act, insofar as the Act applies to your
and
their activities under this Agreement. Further, you and the Selling
Agents
shall not engage in any activity which would cause the offer and/or
sale
of the Units not to comply with the Act, the Act of 1934, the applicable
rules and regulations of the Commission, the applicable state securities
laws and regulations, this Agreement, and the FINRA Conduct Rules
including Rules 2420, 2730, 2740, 2750, and Rule 2810(b)(2) and (b)(3),
which provide as follows:
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Sec.
(b)(2)
Suitability
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(A)
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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).
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Anthem
Securities, Inc.
6
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(B)
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In
recommending to a participant the purchase, sale or exchange of an
interest in a direct participation program, a member or person associated
with a member shall:
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(i)
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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:
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a.
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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;
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b.
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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
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c.
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the
program is otherwise suitable for the participant;
and
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(ii)
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maintain
in the files of the member documents disclosing the basis upon which
the
determination of suitability was reached as to each
participant.
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(C)
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Notwithstanding
the provisions of subparagraphs (A) and (B) hereof, no member shall
execute any transaction in direct participation program in a discretionary
account without prior written approval of the transaction by the
customer.
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(D)
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Subparagraphs
(A) and (B), and, only in situations where the member is not affiliated
with the direct participation program, subparagraph (C) shall not
apply
to:
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(i)
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a
secondary public offering of or a secondary market transaction in
a unit,
depositary receipt, or other interest in a direct participation program
that is listed on a national securities exchange; or
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(ii)
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an
initial public offering of a unit, depositary receipt or other interest
in
a direct participation program for which an application for listing
on a
national securities exchange has been approved by such exchange and
the
applicant makes a good faith representation that it believes such
listing
on an exchange will occur within a reasonable period of time following
the
formation of the program.
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Sec.
(b)(3)
Disclosure
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(A)
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Prior
to participating in a public offering of a direct participation program
or
REIT, 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.
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
7
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(B)
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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:
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(i)
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items
of compensation;
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(ii)
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physical
properties;
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(iii)
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tax
aspects;
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(iv)
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financial
stability and experience of the
sponsor;
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(v)
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the
program’s conflict and risk factors;
and
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(vi)
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appraisals
and other pertinent reports.
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(C)
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For
purposes of subparagraphs (A) or (B) hereof, a member or person associated
with a member may rely upon the results of an inquiry conducted by
another
member or members, provided
that:
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(i)
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the
member or person associated with a member has reasonable grounds
to
believe that such inquiry was conducted with due
care;
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(ii)
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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
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(iii)
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no
member that participated in the inquiry is a sponsor of the program
or an
affiliate of such sponsor.
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(D)
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Prior
to executing a purchase transaction in a direct participation program
or
REIT, 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 or
REIT during the term of the investment. Included in the pertinent
facts
shall be information regarding whether the sponsor has offered prior
programs or REITs in which disclosed in the offering materials was
a date
or time period at which the program or REIT might be liquidated,
and
whether the prior program(s) or REIT(s) in fact liquidated on or
around
that date or during the time
period.
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You
and
the Selling Agents shall maintain records on the information used to determine
that the investment in the Units is suitable and appropriate for each
subscriber, and shall maintain these records for at least six years after the
Offering Termination Date for the respective Partnership.
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(f)
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You
agree to advise the Managing General Partner in writing of each
jurisdiction in which you and the Selling Agents propose to offer
or sell
the Units; and you shall not nor shall you permit any Selling Agent
to
offer or sell the Units in any jurisdiction until you have been advised
in
writing by the Managing General Partner, or the Managing General
Partner’s
special counsel, that the offer or sale of the
Units:
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
8
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(i)
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has
been qualified in the jurisdiction;
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(ii)
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is
exempt from the qualification requirements imposed by the jurisdiction;
or
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(iii)
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the
qualification is otherwise not
required.
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(g)
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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.
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You
agree
and shall require the Selling Agents to agree to deliver a copy of the
Prospectus to each subscriber to whom you sell the Units at or before the
completion of any sale of Units to such subscriber (which sale shall be deemed,
for the purposes of this Agreement to occur on the date on which that subscriber
delivers subscription funds to the escrow agent), or earlier if required by
the
Blue Sky or securities laws of any state. Unless advised otherwise by the
Managing General Partner, you and the Selling Agents may choose to provide
each
offeree with the following, which are collectively referred to as the “Sales
Literature”:
|
(i)
|
a
brochure entitled “Atlas Resources Public #18-2008
Program”;
|
|
(ii)
|
an
article entitled “Tax Rewards with Oil and Gas Partnerships”;
|
|
(iii)
|
a
brochure of tax scenarios entitled “How an Investment in Atlas Resources
Public #18-2008 Program Can Help Achieve an Investor’s Tax
Objectives”;
|
|
(iv)
|
a
booklet entitled “AMT – A Little History and Reducing AMT though Natural
Gas Partnerships”;
|
|
(v)
|
a
brochure entitled “Frequently Asked Questions”;
|
|
(vi)
|
a
brochure entitled “Investing in Atlas Resources Public #18-2008 Program”;
|
| (vii) |
an
article entitled “Investment Insights – Tax
Time”;
|
| (viii) |
a
brochure entitled “Outline of Tax Consequences of Oil and Gas Drilling
Programs”;
|
|
(ix)
|
a
brochure entitled “The Drilling Process”;
and
|
|
(x)
|
possibly
other supplementary materials.
|
Any
such
Sales Literature, if distributed, must have been preceded or must be accompanied
by the Prospectus.
|
(h)
|
You
and the Selling Agents agree that you and the Selling Agents shall
not
place any advertisement or other solicitation with respect to the
Units
(including without limitation any material for use in any newspaper,
magazine, radio or television commercial, telephone recording, motion
picture, or other public media)
without:
|
|
(i)
|
the
prior written approval of the Managing General Partner; and
|
|
(ii)
|
the
prior written approval of the form and content thereof by the Commission,
FINRA and the securities authorities of the states where such
advertisement or solicitation is to be circulated.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
9
Any
such
advertisements or solicitations shall be at your expense.
|
(i)
|
If
a supplement or amendment to the Prospectus is prepared and delivered
to
you by the Managing General Partner, you agree and shall require
any
Selling Agent to agree as follows:
|
|
(i)
|
to
distribute each supplement or amendment to the Prospectus to every
person
who has previously received a copy of the Prospectus from you and/or
the
Selling Agent; and
|
|
(ii)
|
to
include each supplement or amendment in all future deliveries of
any
Prospectus.
|
|
(j)
|
In
connection with any offer or sale of the Units, you agree and shall
require any Selling Agent to agree to the
following:
|
|
(i)
|
to
comply in all respects with statements set forth in the Prospectus,
the
Partnership Agreement, and any supplements or amendments to the
Prospectus;
|
|
(ii)
|
not
to make any statement inconsistent with the statements in the Prospectus,
the Partnership Agreement, and any supplements or amendments to the
Prospectus;
|
|
(iii)
|
not
to make any untrue statement of a material fact or omit to state
a
material fact necessary in order to make statements made, in light
of the
circumstances under which they were made, not misleading in connection
with the Partnerships, the Units or the offering;
and
|
|
(iv)
|
not
to provide any written information, statements, or sales materials
other
than the Prospectus, the Sales Literature, and any supplements or
amendments to the Prospectus unless approved in writing by the Managing
General Partner.
|
|
(k)
|
You
agree to use your best efforts in the solicitation and sale of the
Units
and to coordinate and supervise the efforts of the Selling Agents,
and you
shall require any Selling Agent to agree to use its best efforts
in the
solicitation and sale of the Units, including that:
|
|
(i)
|
the
prospective purchasers meet the suitability requirements set forth
in the
Prospectus, the Subscription Agreement, and this Agreement; and
|
|
(ii)
|
the
prospective purchasers properly complete and execute the Subscription
Agreement, which has been provided as Exhibit (I-B) to the Partnership
Agreement, Exhibit (A) of the Prospectus, together with any additional
forms provided in any supplement or amendment to the Prospectus,
or
otherwise provided to you by the Managing General Partner to be completed
by prospective purchasers.
|
The
Managing General Partner shall have the right to reject any subscription at
any
time for any reason without liability to it. Subscription funds and executed
Subscription Agreements shall be transmitted as set forth in Section 16 of
this
Agreement.
|
(l)
|
You
agree and covenant that:
|
|
(i)
|
the
representations and warranties you make in this Agreement are and
shall be
true and correct at the applicable closing date; and
|
|
(ii)
|
you
shall have fulfilled all your obligations under this Agreement at
the
applicable closing date.
|
|
7.
|
State
Securities Registration.
Incident to the offer and sale of the Units, the Managing General
Partner
shall use its best efforts either in taking:
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
10
|
(a)
|
all
necessary action and filing all necessary forms and documents deemed
reasonable by it in order to qualify or register Units for sale under
the
securities laws of the jurisdictions requested by you pursuant to
Section
6(f) of this Agreement; or
|
|
(b)
|
any
necessary action and filing any necessary forms deemed reasonable
by it in
order to obtain an exemption from qualification or registration in
those
jurisdictions.
|
Notwithstanding,
the Managing General Partner may elect not to qualify or register Units in
any
state or jurisdiction in which it deems the qualification or registration is
not
warranted for any reason in its sole discretion. The Managing General Partner
and its counsel shall inform you as to the states and jurisdictions in which
the
Units have been qualified for sale or are exempt under the respective securities
or Blue Sky laws of those states and jurisdictions. The Managing General
Partner, however, has not assumed and will not assume any obligation or
responsibility as to your right or any Selling Agent’s right to act as a
broker/dealer with respect to the Units in any state or
jurisdiction.
The
Managing General Partner shall provide to you and the Selling Agents for
delivery to all offerees and purchasers and their representatives any additional
information, documents, and instruments that the Managing General Partner deems
necessary to comply with the rules, regulations, and judicial and administrative
interpretations in those states and jurisdictions for the offer and sale of
the
Units in those states.
The
Managing General Partner shall file all post-offering forms, documents, or
materials and take all other actions required by the states and jurisdictions
in
which the offer and sale of Units have been qualified, registered, or are
exempt. However, the Managing General Partner shall not be required to take
any
action, make any filing, or prepare any document necessary or required in
connection with your status or any Selling Agent’s status as a broker/dealer
under the laws of any state or jurisdiction.
The
Managing General Partner shall provide you with copies of all applications,
filings, correspondence, orders, other documents, or instruments relating to
any
application for qualification, registration, exemption, or other approval under
applicable state or Federal securities laws for the offering.
|
8.
|
Expense
of Sale.
The expenses in connection with the offer and sale of the Units shall
be
payable as set forth below.
|
|
(a)
|
The
Managing General Partner shall pay all expenses incident to the
performance of its obligations under this Agreement, including the
fees
and expenses of its attorneys and accountants and all fees and expenses
of
registering or qualifying the Units for offer and sale in the states
and
jurisdictions as set forth in Section 7 of this Agreement, or obtaining
exemptions from qualification or registration, even if the offering
of the
Partnerships is not successfully completed.
|
|
(b)
|
You
shall pay all expenses incident to the performance of your obligations
under this Agreement, including the formation and management of the
selling group and the fees and expenses of your own counsel and
accountants, even if the offering of the Partnerships is not successfully
completed.
|
|
9.
|
Conditions
of the Dealer-Manager’s Duties.
Your obligations under this Agreement shall be subject to the accuracy,
as
of the date of this Agreement and at the applicable closing date
of:
|
|
(a)
|
the
Managing General Partner’s representations and warranties made in this
Agreement; and
|
|
(b)
|
to
the performance by the Managing General Partner of its obligations
under
this Agreement.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
11
|
10.
|
Conditions
of the Managing General Partner’s Duties.
The Managing General Partner’s obligations provided under this Agreement,
including the duty to pay compensation to you as set forth in Section
4 of
this Agreement, shall be subject to the
following:
|
|
(a)
|
the
accuracy, as of the date of this Agreement and at the applicable
closing
date of each Partnership as if made at the applicable closing date,
of
your representations and warranties made in this Agreement;
|
|
(b)
|
the
performance by you of your obligations under this Agreement; and
|
|
(c)
|
the
Managing General Partner’s receipt, at or before the applicable closing
date of each Partnership, of a fully executed Subscription Agreement
for
each prospective purchaser as required by Section 6(k) of this
Agreement.
|
| 11. |
Indemnification.
|
|
(a)
|
You
and the Selling Agents shall indemnify and hold harmless the Managing
General Partner, each Partnership and its attorneys against any losses,
claims, damages or liabilities, joint or several, to which they may
become
subject under the Act, the Act of 1934, or otherwise insofar as the
losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based on your agreements with the Selling Agents
or
your breach of any of your duties and obligations, representations,
or
warranties under the terms or provisions of this Agreement, and you
and
the Selling Agents shall reimburse them for any legal or other expenses
reasonably incurred in connection with investigating or defending
the
losses, claims, damages, liabilities, or
actions.
|
|
(b)
|
The
Managing General Partner shall indemnify and hold you and the Selling
Agents harmless against any losses, claims, damages or liabilities,
joint
or several, to which you and the Selling Agents may become subject
under
the Act, the Act of 1934, or otherwise insofar as the losses, claims,
damages, or liabilities (or actions in respect thereof) arise out
of or
are based on the Managing General Partner’s breach of any of its duties
and obligations, representations, or warranties under the terms or
provisions of this Agreement, and the Managing General Partner shall
reimburse you and the Selling Agents for any legal or other expenses
reasonably incurred in connection with investigating or defending
the
losses, claims, damages, liabilities, or
actions.
|
|
(c)
|
The
foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure to the benefit of, each person, if
any, who
controls each indemnified party within the meaning of the Act.
|
|
(d)
|
Promptly
after receipt by an indemnified party of notice of the commencement
of any
action, the indemnified party shall, if a claim in respect of the
action
is to be made against an indemnifying party under this Section, notify
the
indemnifying party in writing of the commencement of the action;
but the
omission to promptly notify the indemnifying party shall not relieve
the
indemnifying party from any liability which it may have to any indemnified
party. If any action is brought against an indemnified party, it
shall
notify the indemnifying party of the commencement of the action,
and the
indemnifying party shall be entitled to participate in, and, to the
extent
that it wishes, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel satisfactory
to the indemnified and indemnifying parties. After the indemnified
party
has received notice from the agreed on counsel that the defense of
the
action under this paragraph has been assumed, the indemnifying party
shall
not be responsible for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense of the action
other than with respect to the agreed on counsel who assumed the
defense
of the action.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
12
|
12.
|
Representations
and Agreements to Survive Delivery.
All representations, warranties, and agreements of the Managing General
Partner and you in this Agreement, including the indemnity agreements
contained in Section 11 of this Agreement, shall:
|
|
(a)
|
survive
the delivery, execution and closing of this Agreement;
|
|
(b)
|
remain
operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person who controls you within
the
meaning of the Act, by the Managing General Partner, or any of its
officers, directors, or any person who controls the Managing General
Partner within the meaning of the Act, or any other indemnified party;
and
|
|
(c)
|
survive
delivery of the Units.
|
|
13.
|
Termination.
|
|
(a)
|
You
shall have the right to terminate this Agreement other than the
indemnification provisions of Section 11 of this Agreement by giving
notice as specified below any time at or before a closing
date:
|
|
(i)
|
if
the Managing General Partner has failed, refused, or been unable
at or
before a closing date, to perform any of its obligations under this
Agreement; or
|
|
(ii)
|
there
has occurred an event materially and adversely affecting the value
of the
Units.
|
If
you
elect to terminate this Agreement other than the indemnification provisions
of
Section 11 of this Agreement, then the Managing General Partner shall be
promptly notified by you by telephone, e-mail, facsimile, or telegram, confirmed
by letter. In
the
event the offering is not consummated you will only be entitled to the
reimbursement of your actual out-of-pocket expenses actually incurred in
connection with the offering.
|
(b)
|
The
Managing General Partner may terminate this Agreement other than
the
indemnification provisions of Section 11 of this Agreement, for any
reason
and at any time, by promptly giving notice to you by telephone, e-mail,
facsimile, or telegram, confirmed by letter as specified below at
or
before a closing date.
|
|
14.
|
Notices.
|
|
(a)
|
All
notices or communications under this Agreement, except as otherwise
specifically provided, shall be in writing.
|
|
(b)
|
Any
notice or communication sent by the Managing General Partner or a
Partnership to you shall be mailed, delivered, or sent by facsimile,
e-mail or telegraph, and confirmed to you at P.O. Box 926, Westpointe
Corporate Center One, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0926.
|
|
(c)
|
Any
notice or communication sent by you to the Managing General Partner
or a
Partnership shall be mailed, delivered, or sent by facsimile, e-mail
or
telegraph, and confirmed at Westpointe Corporate Center ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
|
| 15. |
Format
of Checks/Escrow Agent.
Pending receipt of the minimum subscription proceeds of $2,000,000
of each
Partnership as set forth in Section 4(d) of this Agreement, the Managing
General Partner and you and the Selling Agents, including customer
carrying broker/dealers, agree that all subscribers shall be instructed
to
make their checks or wire transfers payable solely to the Escrow
Agent as
agent for the Partnership in which the Units are then being offered
as
follows:
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
13
|
(a)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2008(A)
L.P.”;
|
|
(b)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2009(B)
L.P.”;
or
|
|
(c)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2009(C)
L.P.”
|
You
agree
and shall require the Selling Agents, including customer carrying
broker/dealers, to agree to comply with Rule 15c2-4 adopted under the Act of
1934. In addition, for identification purposes, wire transfers should reference
the subscriber’s name and the account number of the escrow account for the
Partnership in which the Units are then being offered.
If
you
receive a check not conforming to the foregoing instructions, then you shall
return the check to the Selling Agent not later than noon of the next business
day following its receipt by you. The Selling Agent shall then return the check
directly to the subscriber not later than noon of the next business day
following its receipt from you. Checks received by you or a Selling Agent which
conform to the foregoing instructions shall be transmitted by you under Section
16 “Transmittal Procedures,” below.
You
represent that you have or will execute the Escrow Agreement for each
Partnership and agree that you are bound by the terms of the Escrow Agreement
executed by you, for the respective Partnership, and the Managing General
Partner, the form of which is attached to this Agreement as Exhibit “A.”
|
16.
|
Transmittal
Procedures.
You and each Selling Agent, including customer carrying broker/dealers,
shall transmit received investor funds in accordance with the following
procedures. For purposes of the following, the term “Selling Agent” shall
also include you as Dealer-Manager when you receive subscriptions
from
investors.
|
|
(a)
|
Pending
receipt of a Partnership’s minimum subscription proceeds of $2,000,000 as
set forth in Section 4(d) of this Agreement, the Selling Agents on
receipt
of any check from a subscriber shall promptly transmit the check
and the
original executed Subscription Agreement to you, as Dealer-Manager,
by
noon of the next business day following receipt of the check by the
Selling Agent. By noon of the next business day following your receipt
of
the check and the original executed Subscription Agreement, you,
as
Dealer-Manager, shall transmit the check and a copy of the executed
Subscription Agreement to the Escrow Agent, and the original executed
Subscription Agreement and a copy of the check to the Managing General
Partner.
|
|
(b)
|
On
receipt by you, as Dealer-Manager, of notice from the Managing General
Partner that a Partnership’s minimum subscription proceeds of $2,000,000
as set forth in Section 4(d) of this Agreement have been received,
the
Managing General Partner, you, and the Selling Agents agree that
all
subscribers then may be instructed, in the Managing General Partner’s sole
discretion, to make their checks or wires payable solely to the
Partnership in which Units are then being
offered.
|
Thereafter,
the Selling Agents shall promptly transmit any and all checks received from
subscribers and the original executed Subscription Agreement to you, as
Dealer-Manager, by noon of the next business day following receipt of the check
by the Selling Agent. By noon of the next business day following your receipt
of
the check and the original executed Subscription Agreement, you, as
Dealer-Manager, shall transmit the check and the original executed Subscription
Agreement to the Managing General Partner.
|
17.
|
Parties.
This Agreement shall inure to the benefit of and be binding on you,
the
Managing General Partner, and any respective successors and assigns.
This
Agreement shall also inure to the benefit of the indemnified parties,
their successors and assigns. This Agreement is intended to be and
is for
the sole and exclusive benefit of the parties to this Agreement,
including
the Partnerships, and their respective successors and assigns, and
the
indemnified parties and their successors and assigns, and for the
benefit
of no other person. No other person shall have any legal or equitable
right, remedy or claim under or in respect of this Agreement. No
purchaser
of any of the Units from you or a Selling Agent shall be construed
a
successor or assign merely by reason of the
purchase.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
14
|
18.
|
Relationship.
This Agreement shall not constitute you a partner of the Managing
General
Partner, a Partnership, or any general partner of a Partnership,
nor
render the Managing General Partner, the Partnerships, or any general
partner of a Partnership liable for any of your
obligations.
|
|
19.
|
Effective
Date.
This Agreement is made effective between the parties as of the date
accepted by you as indicated by your signature to this
Agreement.
|
|
20.
|
Entire
Agreement, Waiver.
|
|
(a)
|
This
Agreement constitutes the entire agreement between the Managing General
Partner and you, and shall not be amended or modified in any way
except by
subsequent agreement executed in writing. Neither party to this Agreement
shall be liable or bound to the other by any agreement except as
specifically set forth in this Agreement.
|
|
(b)
|
The
Managing General Partner and you may waive, but only in writing,
any term,
condition, or requirement under this Agreement that is intended for
its
benefit. However, any written waiver of any term or condition of
this
Agreement shall not operate as a waiver of any other breach of that
term
or condition of this Agreement. Also, any failure to enforce any
provision
of this Agreement shall not operate as a waiver of that provision
or any
other provision of this Agreement.
|
|
21.
|
Governing
Law.
This Agreement shall be governed and construed in accordance with
the laws
of the Commonwealth of
Pennsylvania.
|
|
22.
|
Complaints.
The Managing General Partner and you, as Dealer-Manager, agree as
follows:
|
|
(a)
|
to
notify the other if either receives an investor complaint in connection
with the offer or sale of Units by you or a Selling
Agent;
|
|
(b)
|
to
cooperate with the other in resolving the complaint;
and
|
|
(c)
|
to
cooperate in any regulatory examination of the other to the extent
it
involves this Agreement or the offer or sale of Units by you or a
Selling
Agent.
|
|
23.
|
Privacy.
The Managing General Partner and you each acknowledge that certain
information made available to the other under this Agreement may
be deemed
nonpublic personal information under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act,
other
federal or state privacy laws (as amended), and the rules and regulations
promulgated thereunder, which are referred to collectively, as the
“Privacy Laws.” The Managing General Partner and you agree as
follows:
|
|
(a)
|
not
to disclose or use the information except as required to carry out
each
party’s respective duties under this Agreement or as otherwise permitted
by law in the ordinary course of
business;
|
|
(b)
|
to
establish and maintain procedures reasonably designed to assure the
security and privacy of all the information;
and
|
|
(c)
|
to
cooperate with the other and provide reasonable assistance in ensuring
compliance with the Privacy Laws to the extent applicable to either
or
both the Managing General Partner and
you.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
15
|
24.
|
Anti-Money
Laundering Provision.
You and each Selling Agent each represent and warrant to the Managing
General Partner that each of you have in place and will maintain
suitable
and adequate “know your customer” policies and procedures and that each of
you shall comply with all applicable laws and regulations regarding
anti-money laundering activity and will provide such documentation
to the
Managing General Partner on written
request.
|
|
25.
|
Acceptance.
Please confirm your agreement to the terms and conditions set forth
above
by signing and returning the enclosed duplicate copy of this Agreement
to
us at the address set forth above.
|
|
Very
truly yours,
|
||
|
MANAGING
GENERAL PARTNER
|
||
|
ATLAS
RESOURCES, LLC,
|
||
|
a
Pennsylvania limited liability company
|
||
|
________________________________,
2008
|
By:
|
|
|
Date
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President – Direct Participation
Programs
|
|
|
PROGRAM
|
||
|
ATLAS
RESOURCES PUBLIC #18-2008 PROGRAM
|
||
|
|
By:
|
Atlas Resources, LLC, |
|
|
|
Managing
General Partner
|
|
________________________________,
2008
|
By:
|
|
|
Date
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President – Direct Participation
Programs
|
|
|
DEALER-MANAGER
|
||
|
ANTHEM
SECURITIES, INC.,
|
||
|
a
Pennsylvania corporation
|
||
|
________________________________,
2008
|
By:
|
|
|
Date
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, President
|
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
16
EXHIBIT
“A”
ATLAS
RESOURCES PUBLIC #18-2008(A) L.P.
ESCROW
AGREEMENT
THIS
AGREEMENT
(the
“Agreement”) is effective as of October 15, 2008, by and among Atlas Resources,
LLC, a Pennsylvania limited liability company (the “Managing General Partner”),
Anthem Securities, Inc., a Pennsylvania corporation (“Anthem”), the
“Dealer-Manager,” Atlas Resources Public #18-2008(A) L.P., a Delaware limited
partnership (the “Partnership”) and ▇▇▇▇▇ Fargo Bank, N.A., as escrow agent (the
“Escrow Agent”).
WITNESSETH:
WHEREAS,
the
Managing General Partner intends to offer publicly for sale to qualified
investors (the “Investors”) up to 59,000 investor general partner interests and
up to 1,000 limited partner interests in the Partnership (the
“Units”).
WHEREAS,
each
Investor will be required to pay his subscription in full on subscribing
by
check or wire (the “Subscription Proceeds”).
WHEREAS,
the
cost per Unit will be $10,000 subject to certain discounts of up to 10% ($1,000
per Unit) for sales to the Managing General Partner, its officers, directors
and
affiliates, registered investment advisors and their clients, Selling Agents
and
their registered representatives and principals, and investors who buy Units
through the officers and directors of the Managing General Partner. Larger
subscriptions are permitted in $1,000 increments.
WHEREAS,
the
Managing General Partner and Anthem have executed an agreement (“Anthem
Dealer-Manager Agreement”) under which Anthem will solicit subscriptions for
Units in all states on a “best efforts” “all or none” basis for Subscription
Proceeds of $2,000,000 and on a “best efforts” basis for the remaining Units on
behalf of the Managing General Partner and the Partnership and under which
Anthem has been authorized to select certain members in good standing of
the
Financial Industry Regulatory Authority (“FINRA”), previously known as the
National Association of Securities Dealers, Inc., to participate in the offering
of the Units (“Selling Agents”).
WHEREAS,
the
Anthem Dealer-Manager Agreement, the “Dealer-Manager Agreement,” provides for
compensation to the Dealer-Manager to participate in the offering of the
Units,
subject to the discounts set forth above for certain Investors, which
compensation includes, but is not limited to, for each Unit sold:
|
·
|
a
2.5% Dealer-Manager fee;
|
|
·
|
a
7% sales commission; and
|
|
·
|
an
up to .5% reimbursement of the Selling Agents’ bona fide due diligence
expenses;
|
all
or a
portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS,
under
the terms of the Dealer-Manager Agreement the Subscription Proceeds are required
to be held in escrow subject to the receipt and acceptance by the Managing
General Partner of the minimum Subscription Proceeds of $2,000,000, excluding
any optional subscription by the Managing General Partner, its officers,
directors, and Affiliates.
1
WHEREAS,
the
Units may also be offered and sold by the officers and directors of the Managing
General Partner without receiving a sales commission or other compensation
on
their sales.
WHEREAS,
no
subscriptions to the Partnership will be accepted after the “Offering
Termination Date,” which is the first to occur of either:
|
·
|
receipt
of the maximum Subscription Proceeds of $600,000,000; or
|
|
·
|
December
31, 2008.
|
WHEREAS,
to
facilitate compliance with the terms of the Dealer-Manager Agreement and
Rule
15c2-4 adopted under the Securities Exchange Act of 1934, the Managing General
Partner and the Dealer-Manager desire to have the Subscription Proceeds
deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE,
in
consideration of the mutual covenants and conditions contained in this
Agreement, the parties to this Agreement, intending to be legally bound, agree
as follows:
|
1.
|
Appointment
of Escrow Agent.
The Managing General Partner, the Partnership, and the Dealer-Manager
appoint the Escrow Agent as the escrow agent to receive and to
hold the
Subscription Proceeds deposited with the Escrow Agent by the
Dealer-Manager and the Managing General Partner under this Agreement,
and
the Escrow Agent agrees to serve in this capacity during the term
and
based on the provisions of this
Agreement.
|
|
2.
|
Deposit
of Subscription Proceeds.
Pending receipt of the minimum Subscription Proceeds of $2,000,000,
the
Dealer-Manager and the Managing General Partner shall deposit the
Subscription Proceeds of each Investor to whom they sell Units
with the
Escrow Agent and shall deliver to the Escrow Agent a copy of the
“Subscription Agreement,” which is the execution and subscription
instrument signed by the Investor to evidence his agreement to
purchase
Units in the Partnership. In this regard, the Selling Agents shall
promptly transmit any and all checks received by them from Investors
and
the original executed Subscription Agreement to the Dealer-Manager
by noon
of the next business day following receipt of the check by them.
By noon
of the next business day following the Dealer-Manager’s receipt of the
check and the original executed subscription documents, the Dealer-Manager
shall transmit the check and a copy of the executed Subscription
Agreement
to the Escrow Agent.
|
Payment
for each subscription for Units shall be in the form of a check or wire made
payable to the Escrow Agent as follows: “▇▇▇▇▇ Fargo Bank, N.A., Escrow Agent,
Atlas Resources Public #18-2008(A) L.P.,” pending receipt of the Partnership’s
minimum Subscription Proceeds of $2,000,000. The Escrow Agent shall hold
the
Subscription Proceeds in a separate account (the “Escrow Account”).
|
3.
|
Investment
of Subscription Proceeds; Tax.
|
|
(a)
|
The
Subscription Proceeds shall be deposited in an interest bearing
account
maintained by the Escrow Agent as directed in writing by the Managing
General Partner. This may be a savings account, bank money market
account,
short-term certificates of deposit issued by a bank, or short-term
certificates of deposit issued or guaranteed by the United States
government. In the absence of complete written instructions from
the
Managing General Partner, the Subscription Proceeds shall be deposited
and
invested in the ▇▇▇▇▇ Fargo Money Market Deposit Account, which
is further
described herein on Appendix I. The Managing General Partner confirms
that
it has read and understands Appendix I. The interest earned shall
be added
to the Subscription Proceeds and disbursed in accordance with the
provisions of Paragraph 4 or 5 of this Agreement, as the case may
be. The
Escrow Agent shall have no responsibility or liability for any
loss which
may result from any investment or sale of investment made pursuant
to
this Agreement. The parties hereto acknowledge that the Escrow Agent
is not providing investment supervision, recommendations, or
advice.
|
2
|
(b)
|
For
tax reporting purposes, all interest or other taxable income earned
on the
Investor Funds in any tax year shall be taxable to the
Partnership.
|
|
(c)
|
Upon
or before the execution of this Agreement, the parties hereto shall
provide the Escrow Agent with certified tax identification numbers
by
furnishing appropriate IRS forms W-9 or W-8 and other forms and
documents
that the Escrow Agent may reasonably request. The parties hereto
understand that if such tax reporting documentation is not so certified
to
the Escrow Agent, the Escrow Agent may be required by the Internal
Revenue
Code of 1986, as amended, to withhold a portion of any interest
or other
income earned on the Subscription Proceeds pursuant to this Agreement.
The
Managing General Partner shall also provide tax reporting documentation
for the subscribers as the Escrow Agent may reasonably request,
should the
Escrow Agent be required to disburse Subscription Proceeds or income
on
Subscription Proceeds back to the
subscribers.
|
|
4.
|
Distribution
of Subscription Proceeds.
|
|
(a)
|
If
the Escrow Agent:
|
|
(i)
|
receives
proper written notice from an authorized officer of the Managing
General
Partner that at least the minimum Subscription Proceeds of $2,000,000
have
been received, deposited with the Escrow Agent and accepted by
the
Managing General Partner; and
|
|
(ii)
|
determines
that Subscription Proceeds for at least $2,000,000 are Distributable
Subscription Proceeds (as defined below);
|
the
Escrow Agent shall promptly release and distribute to the Managing General
Partner the Distributable Subscription Proceeds plus any interest paid and
investment income earned on the Subscription Proceeds while held by the Escrow
Agent in the Escrow Account. For purposes of the Agreement, “Distributable
Subscription Proceeds” are Subscription Proceeds which have been deposited in
the Escrow Account (1) by wire transfer; and (2) by check, but in the case
of
checks only at the time that enough time has passed to permit payments to
have
returned unpaid by the bank on which the check was drawn.
|
(b)
|
Following
the distribution under Section 4(a), any remaining Subscription
Proceeds,
plus any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the Escrow Account,
shall be
released and distributed to the Managing General Partner by the
Escrow
Agent promptly after the Subscription Proceeds become Distributable
Subscription Proceeds after a 1 business day period from the date of
deposit.
|
|
(c)
|
Escrow
Agent shall have no duty to make any disbursement, investment or
other use
of Subscription Proceeds until and unless it has good and collected
funds.
In the event that any checks deposited in the Escrow Account are
returned
or prove uncollectible after the funds represented thereby have
been
released by the Escrow Agent, then the Managing General Partner
shall
promptly reimburse the Escrow Agent for any and all costs incurred
for
such, upon request, and the Escrow Agent shall deliver the returned
checks
to the Managing General Partner. The Escrow Agent shall be under
no duty
or responsibility to enforce collection of any check delivered
to it
hereunder.
|
3
|
5.
|
Separate
Partnership Account.
During the continuation of the offering after the Partnership is
funded
with cleared Subscription Proceeds of at least $2,000,000 and the
Escrow
Agent receives the notice described in Paragraph 4 of this Agreement,
and
before the Offering Termination Date, any additional Subscription
Proceeds
may be deposited by the Dealer-Manager and the Managing General
Partner
directly in a separate Partnership account which shall not be subject
to
the terms of this Agreement.
|
|
6.
|
Subscriptions of
Pennsylvania Investors. Notwithstanding
any other provision of this Agreement to the
contrary:
|
|
(a)
|
The
Escrow Agent shall deposit Subscription Proceeds from Pennsylvania
Investors into a separate fund (“Pennsylvania Escrow Fund”) within the
Escrow Account to be held in escrow pursuant to this Agreement
for up to
120 calendar days after the Subscription Proceeds of the first
Pennsylvania Investor are received by the Escrow Agent. The Pennsylvania
Escrow Fund shall be automatically renewed for additional 120 calendar
day
periods during the term of this Agreement. Funds shall be promptly
released from the Pennsylvania Escrow Fund and distributed to the
Managing
General Partner in the same manner as described in Paragraph 4
with
respect to the Escrow Fund when Escrow Agent receives a Distribution
of
Subscription Proceeds Notice from an authorized officer of the
Managing
General Partner that the total of all Subscription Proceeds received
and
accepted by the Managing General Partner, including Subscription
Proceeds
from Pennsylvania Investors and all other Subscription Proceeds
(including
the minimum Subscription Proceeds of $2,000,000), total $30,000,000
or
more, and directing the Escrow Agent to make such distributions
to the
Managing General Partner.
|
The
parties agree that the Dealer-Manager and the Managing General Partner will
specifically identify subscriptions of Pennsylvania Investors to the Escrow
Agent by written notice(s) which shall be provided to Escrow Agent so that
such
notice is received by Escrow Agent prior to submission to Escrow Agent of
Pennsylvania Subscription Proceeds by way of either wire transfer or check.
Upon
receipt of each such written notice, the Escrow Agent will not commingle
those
subscriptions with subscriptions of residents of other states but rather
will
hold such Pennsylvania Subscription Proceeds in the Pennsylvania Escrow Fund
in
the Escrow Account. Any interest and investment income earned on such
Pennsylvania Subscription Proceeds shall also be held in the Pennsylvania
Escrow
Fund.
|
(b)
|
If
total Subscription Proceeds, including Subscription Proceeds received
from
Pennsylvania Investors, of at least $30,000,000 have not been received
and
accepted by the Managing General Partner at the end of the first
120 day
escrow period, the Partnership must notify the Pennsylvania Investors
in
writing by certified mail or any other means whereby a receipt
of delivery
is obtained within ten (10) calendar days after the end of the
escrow
period that they have a right to have their Subscription Proceeds
returned
to them, together with any interest earned thereon and without
deduction
for any fees. If a Pennsylvania Investor requests the return of
the
Investor’s Subscription Proceeds within ten (10) calendar days after
receipt of notification, the Managing General Partner must return
the
Pennsylvania Investor’s Subscription Proceeds within 15 days after the
Managing General Partner’s receipt of the Pennsylvania Investor’s request,
and the Managing General Partner will promptly direct the Escrow
Agent in
a signed writing to return the Pennsylvania Investor’s Subscription
Proceeds, plus any interest paid and investment income earned on
the
Pennsylvania Investor’s Subscription Proceeds while held by the Escrow
Agent in the Pennsylvania Escrow Fund, directly to the Pennsylvania
Investor. Upon receipt of such signed, written direction from the
Managing
General Partner, the Escrow Agent shall disburse such amount to
the
Investor within three (3) Business Days after the Escrow Agent’s receipt
of such Managing General Partner’s written direction. If the Pennsylvania
Investor does not timely request the return of the Investor’s Subscription
Proceeds, then the Investor’s Subscription Proceeds will continue to be
held in the Pennsylvania Escrow Fund within the Escrow Account
for another
120 day period, as described in 6(a), under the terms and conditions
of
this Agreement and this Paragraph 6 shall again apply to the Pennsylvania
Investor’s Subscription Proceeds.
|
4
|
7.
|
Distributions
to Subscribers.
|
|
(a)
|
If
the Partnership is not funded as contemplated because less than
the
minimum Subscription Proceeds of $2,000,000 have been received
and
accepted by the Managing General Partner by twelve (12:00) p.m.
(noon),
local time, Eastern Standard Time on the Offering Termination Date,
or for
any other reason, then the Managing General Partner shall notify
the
Escrow Agent that the minimum Subscription Proceeds of $2,000,000
has not
been met, and the Escrow Agent promptly shall distribute to each
Investor,
for which Escrow Agent has a copy of the subscription agreement,
a refund
check made payable to the Investor in an amount equal to the Subscription
Proceeds of the Investor, plus any interest paid or investment
income
earned on the Investor’s Subscription Proceeds while held by the Escrow
Agent in the Escrow Account.
|
|
(b)
|
If
a subscription for Units submitted by an Investor is rejected by
the
Managing General Partner for any reason after the Subscription
Proceeds
relating to the subscription have been deposited with the Escrow
Agent,
then the Managing General Partner promptly shall notify the Escrow
Agent
in writing of the rejection, and the Escrow Agent shall promptly
distribute to the Investor for which Escrow Agent has a copy of
a
Subscription Agreement, a refund check made payable to the Investor
in an
amount equal to the Subscription Proceeds of the Investor, plus any
interest paid or investment income earned on the Investor’s Subscription
Proceeds while held by the Escrow Agent in the Escrow
Account.
|
|
8.
|
Compensation
and Expenses of Escrow Agent.
The Managing General Partner shall be solely responsible for and
shall pay
the compensation of the Escrow Agent for its services under this
Agreement, as provided in Appendix II to this Agreement and made
a part of
this Agreement, and the charges, expenses (including any reasonable
attorneys’ fees), and other out-of-pocket expenses incurred by the Escrow
Agent in connection with the administration of the provisions of
this
Agreement. The Escrow Agent shall have no lien on the Subscription
Proceeds deposited in the Escrow Account unless and until the Partnership
is funded with cleared Subscription Proceeds of at least $2,000,000
and
the Escrow Agent receives the proper written notice described in
Paragraph
4 of this Agreement, at which time the Escrow Agent shall have,
and is
granted, a prior lien on any property, cash, or assets held under
this
Agreement, with respect to its unpaid compensation and nonreimbursed
expenses, superior to the interests of any other persons or
entities.
|
|
9.
|
Duties
of Escrow Agent.
The Escrow Agent shall not be obligated to accept any notice, make
any
delivery, or take any other action under this Agreement unless
the notice
or request or demand for delivery or other action is in writing
and given
or made by the Managing General Partner or an authorized officer
of the
Managing General Partner. In no event shall the Escrow Agent be
obligated
to accept any notice, request, or demand from anyone other than
the
Managing General Partner. Upon or before the execution of this
Agreement,
the Managing General Partner shall deliver to the Escrow Agent
an
authorized signers list in the form of Appendix III to this
Agreement.
|
|
10.
|
Limitation
on Liability
of Escrow Agent.
|
|
(a)
|
The
Escrow Agent shall not be liable for any action taken or omitted
by it
except to the extent that a court of competent jurisdiction determines
that the Escrow Agent’s gross negligence or willful misconduct was the
primary cause of loss.
|
|
(b)
|
IN
NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY,
FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND
WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF
THE ESCROW
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES
AND
REGARDLESS OF THE FORM OF ACTION.
|
5
|
(c)
|
The
Escrow Agent’s duties and obligations under this Agreement shall be
entirely administrative and not discretionary. The Escrow Agent
shall not
be liable to any party to this Agreement or to any third-party
as a result
of any action or omission taken or made by the Escrow Agent in
accordance
with this Agreement. The Escrow Agent is acting solely as escrow
agent
hereunder and owes no duties, covenants or obligations, fiduciary
or
otherwise, to any person by reason of this Escrow Agreement, except
as
otherwise explicitly set forth in this Agreement, and no implied
duties,
covenants or obligations, fiduciary or otherwise, shall be read
into this
Agreement against the Escrow Agent.
|
|
(d)
|
Managing
General Partner, Dealer-Manager and Partnership will jointly and
severally
indemnify the Escrow Agent, defend and hold the Escrow Agent harmless,
and
reimburse the Escrow Agent from, against and for, any and all liabilities,
costs, fees and expenses (including reasonable attorney’s fees) the Escrow
Agent may suffer or incur by reason of its execution and performance
of
this Agreement. If any legal questions arise concerning the Escrow
Agent’s
duties and obligations under this Agreement, then the Escrow Agent
may
consult with its counsel and rely without liability on written
opinions
given to it by its counsel. The provisions of this paragraph shall
survive
the assignment or termination of this Agreement and the resignation
or
removal of the Escrow Agent.
|
|
(e)
|
The
Escrow Agent shall be protected in acting on any written notice,
request,
waiver, consent, authorization, or other paper or document which
the
Escrow Agent, in good faith, believes to be genuine and what it
purports
to be.
|
|
(f)
|
If
there is any disagreement between any of the parties to this Agreement,
or
between them or any other person, resulting in adverse claims or
demands
being made in connection with this Agreement, or if the Escrow
Agent, in
good faith, is in doubt as to what action it should take under
this
Agreement, then the Escrow Agent may, at its option, refuse to
comply with
any claims or demands on it or refuse to take any other action
under this
Agreement, until the Escrow Agent (i) receives a final non-appealable
order of a court of competent jurisdiction or a final non-appealable
arbitration decision directing delivery of the Subscription Proceeds,
(ii)
receives a written agreement executed by each of the parties involved
in
such disagreement or dispute directing delivery of the Subscription
Proceeds, in which event the Escrow Agent shall be authorized to
disburse
the Subscription Proceeds in accordance with such final court order,
arbitration decision, or agreement, or (iii) files an interpleader
action
in any court of competent jurisdiction, and upon the filing thereof,
the
Escrow Agent shall be relieved of all liability as to the Subscription
Proceeds and shall be entitled to recover attorneys’ fees, expenses and
other costs incurred in commencing and maintaining any such interpleader
action. The Escrow Agent shall be entitled to act on any such agreement,
court order, or arbitration decision without further question,
inquiry, or
consent.
|
|
(g)
|
No
provision of this Agreement shall require the Escrow Agent to risk
or
advance its own funds or otherwise incur any financial liability
or
potential financial liability in the performance of its duties
or the
exercise of its rights hereunder.
|
|
(h)
|
The
parties agree that the Escrow Agent had no role in the preparation
of the
Subscription Agreement, has not reviewed the Subscription Agreement,
and
makes no representations or warranties with respect to the information
contained therein or omitted therefrom. The Escrow Agent has not
reviewed
or approved any agreement or matter of background related to this
Agreement, other than this Agreement
itself.
|
|
11.
|
Resignation
or Removal of Escrow Agent.
The Escrow Agent may resign as such after giving thirty days’ prior
written notice to the other parties to this Agreement. Similarly,
the
Escrow Agent may be removed and replaced after receiving thirty
days’
prior joint written notice from the other parties to this Agreement.
In
either event, the duties of the Escrow Agent shall terminate thirty
days
after the date of the notice (or as of an earlier date as may be
mutually
agreeable); and the Escrow Agent shall then deliver the balance
of the
Subscription Proceeds (and any interest paid or investment income
earned
thereon while held by the Escrow Agent in the escrow account) in
its
possession to a successor escrow agent appointed by the other parties
to
this Agreement as evidenced by a written notice filed with the
Escrow
Agent.
|
6
If
the
other parties to this Agreement are unable to agree on a successor escrow
agent
or fail to appoint a successor escrow agent before the expiration of thirty
days
following the date of the notice of the Escrow Agent’s resignation or removal,
then the Escrow Agent may petition any court of competent jurisdiction for
the
appointment of a successor escrow agent or other appropriate relief. Any
resulting appointment shall be binding on all of the parties to this
Agreement.
On
acknowledgment by any successor escrow agent of the receipt of the then
remaining balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the escrow
account), the Escrow Agent shall be fully released and relieved of all duties,
responsibilities, and obligations under this Agreement.
|
12.
|
Termination.
This Agreement shall terminate and the Escrow Agent shall have
no further
obligation with respect to this Agreement after the distribution
of all
Subscription Proceeds (and any interest paid or investment income
earned
thereon while held by the Escrow Agent in the Escrow Account) as
contemplated by this Agreement or on the written consent of all
the
parties to this Agreement.
|
|
13.
|
Notice.
Any notices or instructions to be given under this Agreement shall
be
validly given if set forth in writing and mailed by certified mail,
return
receipt requested, or by facsimile with written confirmation of
receipt
(originals to be followed in the mail), or by a nationally recognized
overnight courier, as follows:
|
If
to the
Escrow Agent:
▇▇▇▇▇
Fargo Bank, N.A.
Four
Gateway Center, Suite 1400
Pittsburgh,
Pennsylvania 15222
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Managing General Partner:
Atlas
Resources, LLC
Westpointe
Corporate Center One
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
Floor
P.O.
Box
611
Moon
Township, Pennsylvania 15108
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
7
If
to
Anthem:
Anthem
Securities, Inc.
Westpointe
Corporate Center One
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
Floor
P.O.
Box
926
Moon
Township, Pennsylvania 15108
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Any
party
may designate any other address to which notices and instructions shall be
sent
by notice to all other parties hereto duly given in accordance with this
Agreement.
| 14. |
Miscellaneous.
|
|
(a)
|
This
Agreement shall be governed by and construed in accordance with
the laws
of the Commonwealth of
Pennsylvania.
|
|
(b)
|
This
Agreement shall be binding on and shall inure to the benefit of
the
undersigned and their respective successors and
assigns.
|
|
(c)
|
This
Agreement may be executed in counterparts, each of which shall
be deemed
an original, but all of which shall constitute the same
instrument.
|
|
15.
|
Acknowledgements.
The parties hereto acknowledge Escrow Agent has not reviewed and
is not
making any recommendations with respect to the Units offered. During
the
term of this Agreement, the Subscription Proceeds are not subject
to
claims by creditors, by the Partnership, the Partnership’s affiliates, the
Escrow Agent, or by the Selling Agents until the proceeds have
been
released to the Partnership pursuant to the terms of this
Agreement.
|
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement to be effective as of the day
and
year first above written.
|
▇▇▇▇▇
FARGO BANK, N.A.
|
||
|
As
Escrow Agent
|
||
|
By:
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President
|
||
|
ATLAS
RESOURCES, LLC
|
||
|
A
Pennsylvania limited liability company
|
||
|
By:
|
||
|
▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President – Partnership
Administration
|
||
8
|
ANTHEM
SECURITIES, INC.
|
||
|
A
Pennsylvania corporation
|
||
|
By:
|
||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
|
||
|
ATLAS
RESOURCES PUBLIC #18-2008(A) L.P.
|
||
|
By:
|
ATLAS
RESOURCES, LLC
|
|
|
Managing
General Partner
|
||
|
By:
|
||
|
▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President – Partnership
Administration
|
||
9
APPENDIX
I TO ESCROW AGREEMENT
Agency
and Custody Account Direction
For
Cash Balances
▇▇▇▇▇
Fargo Money Market Deposit Accounts
Direction
to use the following ▇▇▇▇▇ Fargo Money Market Deposit Accounts for Cash Balances
for the escrow account or accounts (the “Account”) established under the Escrow
Agreement to which this Appendix I is attached.
You
are
hereby directed to deposit, as indicated below, or as I shall direct further
in
writing from time to time, all cash in the Account(s) in the following money
market deposit account of ▇▇▇▇▇ Fargo Bank, National Association
(Bank):
▇▇▇▇▇
Fargo Money Market Deposit Account (MMDA)
I
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(FDIC), in the basic FDIC insurance up to a total of $250,000. I understand
that
deposits in the MMDA are not secured.
I
acknowledge that I have full power to direct investments of the
Account(s).
I
understand that I may change this direction at any time and that it shall
continue in effect until revoked or modified by me by written notice to
you.
10
APPENDIX
II TO ESCROW AGREEMENT
Compensation
for Services of Escrow Agent
|
REVIEW
AND ACCEPTANCE FEE:
|
$
waived
|
For
providing initial review of the Escrow Agreement and all supporting documents
and for initial services associated with establishing the Escrow Account.
This
is a one (1) time fee payable upon the opening of the account.
|
I.
|
Annual
Administrative Fee Payable in Advance
|
$
|
|
|
(or
any portion thereof)
|
|||
|
II.
|
Remittance
of checks returned to subscribers
|
||
|
(set
out in section 6 of the governing agreement)
|
|||
|
III.
|
Wire
transfers
|
n/a
|
|
|
IV.
|
Purchase
or Sale of Securities
|
V. Investments
(document limits investment to a checking or savings account, or certificates
of
deposit) such products offered by any ▇▇▇▇▇ Fargo Bank, N.A. retail branch)-
fees are subject to the type of account the Managing General Partner directs
the
Escrow Agent to open and to be governed by the Escrow Agreement.
EXTRAORDINARY
SERVICES:
For
any
services other than those covered by the aforementioned, a special per hour
charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing
General Partner agrees to report all funds in accordance with appropriate
tax
treatment.
FEE
SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT THERETO.
11
APPENDIX
III TO ESCROW AGREEMENT
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of Atlas Resources,
LLC
and are authorized to initiate and approve transactions of all types for
the
escrow account or accounts established under the Escrow Agreement to which
this
Appendix III is attached, on behalf of Managing General Partner.
|
Name
/ Title
|
Specimen
Signature
|
|
|
________________________________
|
_______________________________
|
|
|
Name
|
Signature
|
|
|
________________________________
|
||
|
Title
|
||
|
________________________________
|
_______________________________
|
|
|
Name
|
Signature
|
|
|
________________________________
|
||
|
Title
|
||
|
________________________________
|
_______________________________
|
|
|
Name
|
Signature
|
|
|
________________________________
|
||
|
Title
|
||
|
________________________________
|
_______________________________
|
|
|
Name
|
Signature
|
|
|
________________________________
|
||
|
Title
|
12
EXHIBIT
“B”
SELLING
AGENT AGREEMENT
WITH
ANTHEM SECURITIES, INC.
| TO: | _______________________________________ |
|
RE:
|
ATLAS
RESOURCES PUBLIC #18-2008
PROGRAM
|
Gentlemen:
Atlas
Resources, LLC will be the Managing General Partner in a series of up to
three
limited partnerships organized under the Delaware Revised Uniform Limited
Partnership Act: Atlas Resources Public #18-2008(A) L.P., Atlas Resources
Public
#18-2009(B) L.P. and Atlas Resources Public #18-2009(C) L.P., which are referred
to as the “Partnership” or the “Partnerships.” The Units in the Partnerships,
which are referred to as the “Units,” and the offering are described in the
Prospectus, copies of which have been furnished to you with this Agreement.
Our
firm,
Anthem Securities, Inc., which is referred to as the “Dealer-Manager,” has
entered into a Dealer-Manager Agreement for sales in all states, a copy of
which
has been furnished to you and is incorporated in this Agreement by reference,
with the Managing General Partner and the Partnerships under which the
Dealer-Manager has agreed to form a group of FINRA member firms, which are
referred to as the “Selling Agents.” The Selling Agents will obtain
subscriptions for Units in each Partnership in all states on a “best efforts”
basis under the Securities Act of 1933, as amended, which is referred to
as the
“Act,” and the provisions of the Prospectus.
You
are
invited to become one of the Selling Agents on a non-exclusive basis. By
your
acceptance below you agree to act in that capacity and to use your best efforts,
in accordance with the terms and conditions of this Agreement, to solicit
subscriptions for Units in each Partnership at the time the Partnership is
being
offered as provided in Section 1 of the Dealer-Manager Agreement in all states
where you are duly registered or licensed as broker/dealer.
|
1.
|
Representations
and Warranties of Selling Agent.
You represent and warrant to the Dealer-Manager
that:
|
|
(a)
|
You
are a corporation or other entity duly organized, validly existing,
and in
good standing under the laws of the state of your formation or
of any
jurisdiction to the laws of which you are subject, with all requisite
power and authority to enter into this Agreement and to carry out
your
obligations under this Agreement.
|
|
(b)
|
This
Agreement when accepted and approved by you will be duly authorized,
executed, and delivered by you and will be a valid and binding
agreement
on your part in accordance with its
terms.
|
|
(c)
|
The
consummation of the transactions contemplated by this Agreement
and the
Prospectus will not result in the following:
|
|
(i)
|
any
breach of any of the terms or conditions of, or constitute a default
under
your organizational documents, bylaws, any indenture, agreement,
or other
instrument to which you are a party or by which you are bound;
or
|
Anthem
Securities, Inc.
Selling
Agent Agreement
1
|
(ii)
|
any
violation of any order applicable to you of any court, regulatory
body or
administrative agency having jurisdiction over you or over your
affiliates.
|
|
(d)
|
You
are duly registered under the provisions of the Securities Exchange
Act of
1934, which is referred to as the “Act of 1934,” as a broker/dealer, and
you are a member in good standing of FINRA. You are duly registered
as a
broker/dealer in the jurisdictions where you are required to be
registered
in order to carry out your obligations as contemplated by this
Agreement
and the Prospectus. You agree to maintain all the foregoing registrations
in good standing throughout the term of the offer and sale of the
Units,
and you agree to comply with all statutes and other requirements
applicable to you as a broker/dealer under those registrations.
|
|
(e)
|
Pursuant
to your appointment as a Selling Agent, you shall comply with all
the
provisions of the Act, insofar as the Act applies to your activities
under
this Agreement. Further, you shall not engage in any activity which
would
cause the offer and/or sale of the Units not to comply with the
Act, the
Act of 1934, the applicable rules and regulations of the Securities
and
Exchange Commission, which is referred to as the “Commission,” the
applicable state securities laws and regulations, this Agreement,
and the
FINRA Conduct Rules including Rules 2420, 2730, 2740, 2750, and
2810(b)(2)
and (b)(3), which provide as
follows:
|
Sec.
(b)(2)
Suitability
|
(A)
|
A
member or person associated with a member shall not underwrite
or
participate in a public offering of a direct participation program
unless
standards of suitability have been established by the program for
participants therein and such standards are fully disclosed in
the
prospectus and are consistent with the provisions of subparagraph
(B).
|
|
(B)
|
In
recommending to a participant the purchase, sale or exchange of
an
interest in a direct participation program, a member or person
associated
with a member shall:
|
|
(i)
|
have
reasonable grounds to believe, on the basis of information obtained
from
the participant concerning his investment objectives, other investments,
financial situation and needs, and any other information known
by the
member or associated person,
that:
|
|
a.
|
the
participant is or will be in a financial position appropriate to
enable
him to realize to a significant extent the benefits described in
the
prospectus, including the tax benefits where they are a significant
aspect
of the program;
|
|
b.
|
the
participant has a fair market net worth sufficient to sustain the
risks
inherent in the program, including loss of investment and lack
of
liquidity; and
|
|
c.
|
the
program is otherwise suitable for the participant;
and
|
Anthem
Securities, Inc.
Selling
Agent Agreement
2
|
(ii)
|
maintain
in the files of the member documents disclosing the basis upon
which the
determination of suitability was reached as to each
participant.
|
|
(C)
|
Notwithstanding
the provisions of subparagraphs (A) and (B) hereof, no member shall
execute any transaction in direct participation program in a discretionary
account without prior written approval of the transaction by the
customer.
|
| (D) |
Subparagraphs
(A) and (B), and, only in situations where the member is not affiliated
with the direct participation program, subparagraph (C) shall not
apply
to:
|
|
(i)
|
a
secondary public offering of or a secondary market transaction
in a unit,
depositary receipt, or other interest in a direct participation
program
that is listed on a national securities exchange; or
|
|
(ii)
|
an
initial public offering of a unit, depositary receipt or other
interest in
a direct participation program for which an application for listing on a
national securities exchange has been approved by such exchange
and the
applicant makes a good faith representation that it believes such
listing
on an exchange will occur within a reasonable period of time following
the
formation of the program.
|
Sec.
(b)(3)
Disclosure
|
(A)
|
Prior
to participating in a public offering of a direct participation
program or
REIT, 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 conflict and risk factors;
and
|
|
(vi)
|
appraisals
and other pertinent reports.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
3
|
(C)
|
For
purposes of subparagraphs (A) or (B) hereof, a member or person
associated
with a member may rely upon the results of an inquiry conducted
by another
member or members, provided
that:
|
|
(i)
|
the
member or person associated with a member has reasonable grounds
to
believe that such inquiry was conducted with due
care;
|
|
(ii)
|
the
results of the inquiry were provided to the member or person associated
with a member with the consent of the member or members conducting
or
directing the inquiry; and
|
|
(iii)
|
no
member that participated in the inquiry is a sponsor of the program
or an
affiliate of such sponsor.
|
|
(D)
|
Prior
to executing a purchase transaction in a direct participation program
or
REIT, 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 or REIT during the term of the
investment. Included in the pertinent facts shall be information
regarding
whether the sponsor has offered prior programs or REITs in which
disclosed
in the offering materials was a date or time period at which the
program
or REIT might be liquidated, and whether the prior program(s) or
REIT(s)
in fact liquidated on or around that date or during the time
period.
|
|
(f)
|
You
shall not offer or sell the Units in any jurisdiction until you
have been
advised in writing by the Managing General Partner, or the Managing
General Partner’s special counsel, that the offer or sale of the Units:
|
|
(i)
|
has
been qualified in the jurisdiction;
|
|
(ii)
|
is
exempt from the qualification requirements imposed by the jurisdiction;
or
|
|
(iii)
|
the
qualification is otherwise not
required.
|
|
(g)
|
You
agree that you shall not place any advertisement or other solicitation
with respect to the Units (including without limitation any material
for
use in any newspaper, magazine, radio or television commercial,
telephone
recording, motion picture, or other public media) without:
|
|
(i)
|
the
prior written approval of the Managing General Partner; and
|
|
(ii)
|
the
prior written approval of the form and content thereof by the Commission,
FINRA and the securities authorities of the states where such
advertisement or solicitation is to be circulated.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
4
Any
such
advertisements or solicitations shall be at your expense.
|
(h)
|
You
have received copies of the Prospectus relating to the Units and
you have
relied only on the statements contained in the Prospectus and not
on any
other statements whatsoever, either written or oral, with respect
to the
details of the offering of Units.
|
You
shall
deliver a copy of the Prospectus to each subscriber to whom you sell the
Units
at or before the completion of any sale of Units to such subscriber (which
sale
shall be deemed, for the purposes of this Agreement to occur on the date
on
which that subscriber delivers subscription funds to the escrow agent), or
earlier if required by the blue sky or securities laws of any jurisdiction.
Unless advised otherwise by the Managing General Partner, you may choose
to
provide each offeree with the following sales materials which are collectively
referred to as the “Sales Literature”:
|
(i)
|
a
brochure entitled “Atlas Resources Public #18-2008
Program”;
|
|
(ii)
|
an
article entitled “Tax Rewards with Oil and Gas Partnerships”;
|
|
(iii)
|
a
brochure of tax scenarios entitled “How an Investment in Atlas Resources
Public #18-2008 Program Can Help Achieve an Investor’s Tax
Objectives”;
|
|
(iv)
|
a
booklet entitled “AMT - A Little History and Reducing AMT through Natural
Gas Partnerships”;
|
|
(v)
|
a
brochure entitled “Frequently Asked Questions”;
|
|
(vi)
|
a
brochure entitled “Investing in Atlas Resources Public #18-2008 Program”;
|
|
(vii)
|
an
article entitled “Investment Insights - Tax
Time”;
|
|
(viii)
|
a
brochure entitled “Outline of Tax Consequences of Oil and Gas Drilling
Programs”;
|
|
(ix)
|
a
brochure entitled “The Drilling Process”;
and
|
|
(x)
|
possibly
other supplementary materials.
|
Any
such
Sales Literature, if distributed, must have been preceded or must be accompanied
by the Prospectus.
|
(i)
|
If
a supplement or amendment to the Prospectus is prepared and delivered
to
you by the Managing General Partner or the Dealer-Manager, you
agree as
follows:
|
|
(i)
|
to
distribute each supplement or amendment to the Prospectus to every
person
who has previously received a copy of the Prospectus from you;
and
|
|
(ii)
|
to
include each supplement or amendment in all future deliveries of
any
Prospectus.
|
|
(j)
|
In
connection with any offer or sale of the Units, you agree to the
following:
|
Anthem
Securities, Inc.
Selling
Agent Agreement
5
|
(i)
|
to
comply in all respects with statements set forth in the Prospectus,
the
Partnership Agreement, and any supplements or amendments to the
Prospectus;
|
|
(ii)
|
not
to make any statement inconsistent with the statements in the Prospectus,
the Partnership Agreement, and any supplements or amendments to
the
Prospectus;
|
|
(iii)
|
not
to provide any written information, statements, or sales materials
other
than the Prospectus, the Sales Literature, and any supplements
or
amendments to the Prospectus unless approved in writing by the
Managing
General Partner; and
|
|
(iv)
|
not
to make any untrue statement of a material fact or omit to state
a
material fact necessary in order to make statements made, in light
of the
circumstances under which they were made, not misleading in connection
with the Partnerships, the Units or the
offering.
|
|
(k)
|
You
agree to use your best efforts in the solicitation and sale of
the Units,
including that:
|
|
(i)
|
you
comply with all the provisions of the Act, the Act of 1934, the
applicable
rules and regulations of the Commission, the applicable state securities
laws and regulations, this Agreement, and the FINRA Conduct Rules;
|
|
(ii)
|
the
prospective purchasers meet the suitability requirements set forth
in the
Prospectus, the Subscription Agreement, and this Agreement; and
|
|
(iii)
|
the
prospective purchasers properly complete and execute the Subscription
Agreement, which has been provided as Exhibit (I-B) to the Partnership
Agreement, Exhibit (A) of the Prospectus, together with any additional
forms provided in any supplement or amendment to the Prospectus,
or
otherwise provided to you by the Managing General Partner or the
Dealer-Manager to be completed by prospective
purchasers.
|
You
acknowledge and agree that the Managing General Partner shall have the right
to
reject any subscription at any time for any reason without liability to it.
Subscription funds and executed subscription packets shall be transmitted
as set
forth in Section 11 of this Agreement.
|
(l)
|
You
agree and covenant that:
|
|
(i)
|
the
representations and warranties you make in this Agreement are and
shall be
true and correct as of the date of this Agreement and at the applicable
closing date; and
|
|
(ii)
|
you
shall and have fulfilled all your obligations under this Agreement
at the
applicable closing date.
|
| 2. |
Commissions.
|
|
(a)
|
Subject
to the receipt of the minimum required subscription proceeds of
$2,000,000
as described in Section 4(d) of the Dealer-Manager Agreement, and
the
discounts set forth in Section 4(c) of the Dealer-Manager Agreement
for
sales to the Managing General Partner, its officers, directors
and
affiliates, registered investment advisors and their clients, Selling
Agents and their registered representatives and principals, and
investors
who buy Units through the officers or directors of the Managing
General
Partner, the Dealer-Manager is entitled to receive from the Managing
General Partner a 7% Sales Commission and a 2.5% Dealer-Manager
Fee, based
on the aggregate amount of all Unit subscriptions to a Partnership
secured
by the Dealer-Manager or the selling group formed by the Dealer-Manager
and accepted by the Managing General Partner.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
6
Additionally,
the Dealer-Manager is entitled to receive from the Managing General Partner
an
up to .5% reimbursement of the Selling Agents’ bona fide due diligence expenses
per Unit.
Subject
to the terms and conditions set forth in this Agreement, including the
Dealer-Manager’s receipt from you of the documentation required of you in
Section 1 of this Agreement, the Dealer-Manager agrees to pay you on Units
sold
by you and accepted by the Managing General Partner:
|
(i)
|
a
7% Sales Commission, subject to the performance by you of your
obligations
under Appendix I to this Agreement, which is incorporated in this
Agreement by reference; and
|
|
(ii)
|
up
to a .5% reimbursement of your bona fide due diligence expenses
per Unit.
With respect to the up to .5% reimbursement of your bona fide due
diligence expenses, any bill presented by you to the Dealer-Manager
for
reimbursement of costs associated with your due diligence activities
must
be for actual costs and may not include a profit margin. Although
the
Dealer-Manager is not required to obtain an itemized expense statement
before paying out due diligence expenses, any bill for due diligence
submitted by you must be based on your actual expenses incurred
in
conducting due diligence. If the Dealer-Manager receives a non-itemized
bill for due diligence that it has reason to question, then it
has the
obligation to ensure your compliance by requesting an itemized
statement
to support the bill submitted by you. If such a due diligence bill
cannot
be justified, any excess over actual due diligence expenses that
is paid
is considered by FINRA to be undisclosed underwriting compensation
and is
required to be included within the 10% compensation guideline under
FINRA
Conduct Rule 2810, and reflected on your books and records.
Notwithstanding, if you provide an itemized bill in excess of .5%
then the
excess over .5% will not be included within the 10% compensation
guideline, but instead the 4.5% organization and offering cost
guideline
of FINRA Conduct Rule 2810.
|
|
(iii)
|
In
addition, the Dealer-Manager or Managing General Partner may make
certain
non-cash compensation arrangements of up to .5% per Unit with you
or your
registered representatives. The permissible non-cash compensation
will be
paid for training and education meetings, gifts that do not exceed
$100
per year and are not preconditioned on the achievement of a sales
target,
an occasional meal, a ticket to a sporting event or the theater,
or
comparable entertainment which is neither so frequent nor so extensive
as
to raise any question of propriety and is not preconditioned on
achievement of a sales target and contributions by the Dealer-Manager
or
Managing General Partner to a non-cash compensation arrangement
between
you and your associated persons, provided that the Dealer-Manager
or
Managing General Partner do not directly or indirectly participate
in your
organization of the permissible non-cash compensation arrangement.
The
Dealer-Manager is responsible for ensuring that all non-cash compensation
arrangements comply with the restrictions on non-cash compensation
in
connection with direct participation programs as set forth in FINRA
Conduct Rule 2810. For example, if the Managing General Partner
or
Dealer-Manager pays or reimburses you in connection with meetings
held by
the Managing General Partner or Dealer-Manager for the purpose
of training
or education of your registered representatives, then the following
conditions must be met:
|
Anthem
Securities, Inc.
Selling
Agent Agreement
7
|
(A)
|
your
registered representative must obtain your prior approval to attend
the
meeting and attendance by your registered representatives must
not be
conditioned by you on the achievement of a sales
target;
|
|
(B)
|
the
location of the training and education meeting must be appropriate
to the
purpose of the meeting, as defined in FINRA Conduct Rule
2810;
|
|
(C)
|
the
payment or reimbursement must not be applied to the expenses of
guests of
the registered representative;
|
|
(D)
|
the
payment or reimbursement by the Managing General Partner or Dealer-Manager
must not be conditioned by the Managing General Partner or Dealer-Manager
on the achievement of a sales target;
and
|
|
(E)
|
the
appropriate records must be
maintained.
|
Non-cash
compensation means any form of compensation received in connection with the
sale
of the Units that is not cash compensation, including but not limited to
merchandise, gifts and prizes, travel expenses, meals and lodging.
[Also,
the Dealer-Manager may pay a marketing fee of up to ________ if you provide
marketing support as set forth in Appendix I, but in no event shall you receive
non-cash compensation and the marketing fee if it represents more than .5%
per
unit.]
|
(iv)
|
Your
sales commissions which are owed to you as set forth above shall
be paid
to you within seven business days after the Dealer-Manager has
received
the related amounts owed to it under the Dealer-Manager Agreement,
which
the Dealer-Manager is entitled to receive within five business
days after
the conditions described in Section 4(e) of the Dealer-Manager
Agreement
are satisfied and approximately every two weeks thereafter until
the
respective Partnership’s Offering Termination Date, which is described in
Section 1 of the Dealer-Manager Agreement. The balance of your
sales
commissions and the reimbursements which are owed to you as set
forth
above shall be paid to you within seven business days after the
Dealer-Manager has received the related amounts owed to it under
the
Dealer-Manager Agreement, which the Dealer-Manager is entitled
to receive
within fourteen business days after the respective Partnership’s Offering
Termination Date.
|
|
(b)
|
Notwithstanding
anything in this Agreement to the contrary, you agree to waive
payment of
your compensation and reimbursements which are owed to you as set
forth
above until the Dealer-Manager is in receipt of the related amounts
owed
to it under the Dealer-Manager Agreement, and the Dealer-Manager’s
liability to pay your compensation and reimbursements under this
Agreement
shall be limited solely to the proceeds of the related amounts
owed to it
under the Dealer-Manager Agreement.
|
|
(c)
|
As
provided in Section 4(d) of the Dealer-Manager Agreement, a Partnership
shall not begin operations unless it receives subscription proceeds
for at
least $2,000,000 by its respective Offering Termination Date. If
this
amount is not secured by the respective Partnership’s Offering Termination
Date, then nothing shall be payable to you for the respective Partnership
and all funds advanced by subscribers for Units in the respective
Partnership shall be returned to them with interest earned, if
any.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
8
|
3.
|
Blue
Sky Qualification.
The Managing General Partner may elect not to qualify or register
Units in
any state or jurisdiction in which it deems the qualification or
registration is not warranted for any reason in its sole discretion.
On
application to the Dealer-Manager you will be informed as to the
states
and jurisdictions in which the Units have been qualified for sale
or are
exempt under the respective securities or “Blue Sky” laws of those states
and jurisdictions.
|
Notwithstanding
the foregoing, the Dealer-Manager, the Partnerships, and the Managing General
Partner have not assumed and will not assume any obligation or responsibility
as
to your right to act as a broker/dealer with respect to the Units in any
state
or jurisdiction.
|
4.
|
Expense
of Sale.
The expenses in connection with the offer and sale of the Units
shall be
payable as set forth below.
|
|
(a)
|
The
Dealer-Manager shall pay all expenses incident to the performance
of its
obligations under this Agreement, including the fees and expenses
of its
attorneys and accountants, even if the offering of any or all of
the
Partnerships is not successfully completed.
|
|
(b)
|
You
shall pay all expenses incident to the performance of your obligations
under this Agreement, including the fees and expenses of your own
counsel
and accountants, even if the offering of any or all of the Partnerships
is
not successfully completed.
|
| 5. |
Conditions
of Your Duties.
Your obligations under this Agreement, as of the date of this Agreement
and at the applicable closing date, shall be subject to the
following:
|
|
(a)
|
the
performance by the Dealer-Manager of its obligations under this
Agreement;
and
|
|
(b)
|
the
performance by the Managing General Partner of its obligations
under the
Dealer-Manager Agreement.
|
|
6.
|
Conditions
of Dealer-Manager’s Duties.
The Dealer-Manager’s obligations under this Agreement, including the duty
to pay compensation and reimbursements to you as set forth in Section
2 of
this Agreement, shall be subject to the
following:
|
|
(a)
|
the
accuracy, as of the date of this Agreement and at the applicable
closing
date as if made at the applicable closing date, of your representations
and warranties made in this Agreement;
|
|
(b)
|
the
performance by you of your obligations under this Agreement; and
|
|
(c)
|
the
Dealer-Manager’s receipt, at or before the applicable closing date, of a
fully executed Subscription Agreement for each prospective purchaser
as
required by Section 1(k) of this
Agreement.
|
| 7. |
Indemnification.
|
|
(a)
|
You
shall indemnify and hold harmless the Dealer-Manager, the Managing
General
Partner, each Partnership and its attorneys against any losses,
claims,
damages or liabilities, joint or several, to which they may become
subject
under the Act, the Act of 1934, or otherwise insofar as the losses,
claims, damages, or liabilities (or actions in respect thereof)
arise out
of or are based on your breach of any of your duties and obligations,
representations, or warranties under the terms or provisions of
this
Agreement, and you shall reimburse them for any legal or other
expenses
reasonably incurred in connection with investigating or defending
the
losses, claims, damages, liabilities, or
actions.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
9
|
(b)
|
The
Dealer-Manager shall indemnify and hold you harmless against any
losses,
claims, damages, or liabilities, joint or several, to which you
may become
subject under the Act, the Act of 1934, or otherwise insofar as
the
losses, claims, damages, or liabilities (or actions in respect
thereof)
arise out of or are based on the Dealer-Manager’s breach of any of its
duties and obligations, representations, or warranties under the
terms or
provisions of this Agreement, and the Dealer-Manager shall reimburse
you
for any legal or other expenses reasonably incurred in connection
with
investigating or defending the losses, claims, damages, liabilities,
or
actions.
|
|
(c)
|
The
foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure to the benefit of, each person,
if any, who
controls each indemnified party within the meaning of the Act.
|
|
(d)
|
Promptly
after receipt by an indemnified party of notice of the commencement
of any
action, the indemnified party shall, if a claim in respect of the
action
is to be made against the indemnifying party under this Section,
notify
the indemnifying party in writing of the commencement of the action;
but
the omission to promptly notify the indemnifying party shall not
relieve
the indemnifying party from any liability which it may have to
the
indemnified party. If any action is brought against an indemnified
party,
it shall notify the indemnifying party of the commencement of the
action,
and the indemnifying party shall be entitled to participate in,
and, to
the extent that it wishes, jointly with any other indemnifying
party
similarly notified, to assume the defense of the action, with counsel
satisfactory to the indemnified and indemnifying parties. After
the
indemnified party has received notice from the agreed on counsel
that the
defense of the action under this paragraph has been assumed, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection
with
the defense of the action other than with respect to the agreed
on counsel
who assumed the defense of the
action.
|
|
8.
|
Representations
and Agreements to Survive Delivery.
All representations, warranties, and agreements of the Dealer-Manager
and
you in this Agreement, including the indemnity agreements contained
in
Section 7 of this Agreement, shall:
|
|
(a)
|
survive
the delivery, execution and closing of this Agreement;
|
|
(b)
|
remain
operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person who controls you within
the
meaning of the Act, by the Dealer-Manager, or any of its officers,
directors or any person who controls the Dealer-Manager within
the meaning
of the Act, or any other indemnified party; and
|
|
(c)
|
survive
delivery of the Units.
|
|
9.
|
Termination.
|
|
(a)
|
You
shall have the right to terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement by giving
notice
as specified in Section 16 of this Agreement any time at or before
a
closing date:
|
|
(i)
|
if
the Dealer-Manager has failed, refused, or been unable at or before
a
closing date, to perform any of its obligations under this Agreement;
or
|
Anthem
Securities, Inc.
Selling
Agent Agreement
10
|
(ii)
|
there
has occurred an event materially and adversely affecting the value
of the
Units.
|
If
you
elect to terminate this Agreement other than the indemnification provisions
of
Section 7 of this Agreement, then the Dealer-Manager shall be promptly notified
by you by telephone, e-mail, facsimile, or telegram, confirmed by
letter.
|
(b)
|
The
Dealer-Manager may terminate this Agreement other than the indemnification
provisions of Section 7 of this Agreement, for any reason and at
any time,
by promptly giving notice to you by telephone, e-mail, facsimile
or
telegram, confirmed by letter.
|
|
10.
|
Format
of Checks/Escrow Agent.
Pending receipt of the minimum subscription proceeds of $2,000,000
as set
forth in Section 4(d) of the Dealer-Manager Agreement, the Dealer-Manager
and you, including if you are a customer carrying broker/dealer,
agree
that all subscribers shall be instructed to make their checks or
wire
transfers payable solely to the Escrow Agent as agent for the Partnership
in which the Units are then being offered as
follows:
|
|
(a)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2008(A)
L.P.”;
|
|
(b)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2009(B)
L.P.”;
or
|
|
(c)
|
“▇▇▇▇▇
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #18-2009(C)
L.P.”
|
Also,
you, including if you are a customer carrying broker/dealer, agree to comply
with Rule 15c2-4 adopted under the Act of 1934. In addition, for identification
purposes, wire transfers should reference the subscriber’s name and the account
number of the escrow account for the Partnership in which the Units are then
being offered.
If
you
receive a check not conforming to the foregoing instructions, then you shall
return the check directly to the subscriber not later than noon of the next
business day following its receipt by you from the subscriber. If the
Dealer-Manager receives a check not conforming to the foregoing instructions,
then the Dealer-Manager shall return the check to you not later than noon
of the
next business day following its receipt by the Dealer-Manager and you shall
then
return the check directly to the subscriber not later than noon of the next
business day following its receipt by you from the Dealer-Manager. Checks
received by you which conform to the foregoing instructions shall be transmitted
by you under Section 11 “Transmittal Procedures,” below.
You
agree
that you are bound by the terms of the Escrow Agreement, a copy of which
is
attached to the Dealer-Manager Agreement as Exhibit “A.”
|
11.
|
Transmittal
Procedures.
You, including if you are a customer carrying broker/dealer, shall
transmit received investor funds in accordance with the following
procedures.
|
|
(a)
|
Pending
receipt of a Partnership’s minimum subscription proceeds of $2,000,000 as
set forth in Section 4(d) of the Dealer-Manager Agreement, you
shall
promptly transmit any and all checks received by you from subscribers
and
the original executed Subscription Agreement to the Dealer-Manager
by noon
of the next business day following receipt of the check by you.
By noon of
the next business day following the Dealer-Manager’s receipt of the check
and the original executed subscription documents, the Dealer-Manager
shall
transmit the check and a copy of the executed Subscription Agreement
to
the Escrow Agent, and the original executed Subscription Agreement
and a
copy of the check to the Managing General Partner.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
11
|
(b)
|
On
receipt by you of notice from the Managing General Partner or the
Dealer-Manager that a Partnership’s minimum subscription proceeds of
$2,000,000 as set forth in Section 4(d) of the Dealer-Manager Agreement
have been received, you agree that all subscribers then may be
instructed,
in the Managing General Partner’s sole discretion, to make their checks or
wire transfers payable solely to the Partnership then being
offered.
|
|
Thereafter,
you shall promptly transmit any and all checks received by you
from
subscribers and the original executed Subscription Agreement to
the
Dealer-Manager by noon of the next business day following receipt
of the
check by you. By noon of the next business day following the
Dealer-Manager’s receipt of the check and original Subscription Agreement,
the Dealer-Manager shall transmit the check and the original executed
Subscription Agreement to the Managing General Partner.
|
|
12.
|
Parties.
This Agreement shall inure to the benefit of and be binding on
you, the
Dealer-Manager, and any respective successors and assigns. This
Agreement
shall also inure to the benefit of the indemnified parties, their
successors and assigns. This Agreement is intended to be and is
for the
sole and exclusive benefit of the parties to this Agreement, including
their respective successors and assigns, and the indemnified parties
and
their successors and assigns, and for the benefit of no other person.
No
other person shall have any legal or equitable right, remedy or
claim
under or in respect of this Agreement. No purchaser of any of the
Units
from you shall be construed a successor or assign merely by reason
of the
purchase.
|
|
13.
|
Relationship.
You are not authorized to hold yourself out as agent of the
Dealer-Manager, the Managing General Partner, a Partnership or
any other
Selling Agent. This Agreement shall not constitute you a partner
of the
Managing General Partner, the Dealer-Manager, a Partnership, any
general
partner of a Partnership, or any other Selling Agent, nor render
the
Managing General Partner, the Dealer-Manager, the Partnerships,
any
general partner of a Partnership, or any other Selling Agent, liable
for
any of your obligations.
|
|
14.
|
Effective
Date.
This Agreement is made effective between the parties as of the
date
accepted by you as indicated by your signature to this
Agreement.
|
|
15.
|
Entire
Agreement, Waiver.
|
|
(a)
|
This
Agreement constitutes the entire agreement between the Dealer-Manager
and
you, and shall not be amended or modified in any way except by
subsequent
agreement executed in writing. Neither party to this Agreement
shall be
liable or bound to the other by any agreement except as specifically
set
forth in this Agreement.
|
|
(b)
|
The
Dealer-Manager and you may waive, but only in writing, any term,
condition, or requirement under this Agreement that is intended
for its
benefit. However, any written waiver of any term or condition of
this
Agreement shall not operate as a waiver of any other breach of
the term or
condition of this Agreement.
|
|
(c)
|
Also,
any failure to enforce any provision of this Agreement shall not
operate
as a waiver of that provision or any other provision of this
Agreement.
|
|
16.
|
Notices.
|
|
(a)
|
Any
communications from you shall be in writing addressed to the
Dealer-Manager at P.O. Box 926, Moon Township, Pennsylvania 15108-0926.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
12
|
(b)
|
Any
notice from the Dealer-Manager to you shall be deemed to have been
duly
given if mailed, faxed or telegraphed to you at your address shown
below.
|
|
17.
|
Complaints.
The Dealer-Manager and you agree as
follows:
|
|
(a)
|
to
notify the other if either receives an investor complaint in connection
with the offer or sale of Units by
you;
|
|
(b)
|
to
cooperate with the other in resolving the complaint;
and
|
|
(c)
|
to
cooperate in any regulatory examination of the other to the extent
it
involves this Agreement or the offer or sale of Units by
you.
|
|
18.
|
Privacy.
The Dealer-Manager and you each acknowledge that certain information
made
available to the other under this Agreement may be deemed nonpublic
personal information under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, other federal
or
state privacy laws (as amended), and the rules and regulations
promulgated
thereunder, which are referred to collectively as the “Privacy Laws.” The
Dealer-Manager and you agree as
follows:
|
|
(a)
|
not
to disclose or use the information except as required to carry
out each
party’s respective duties under this Agreement or as otherwise permitted
by law in the ordinary course of
business;
|
|
(b)
|
to
establish and maintain procedures reasonably designed to assure
the
security and privacy of all the information; and
|
|
(c)
|
to
cooperate with the other and provide reasonable assistance in ensuring
compliance with the Privacy Laws to the extent applicable to either
or
both the Dealer-Manager and you.
|
|
19.
|
Anti-Money
Laundering Provision.
You represent and warrant to the Managing General Partner and the
Dealer-Manager that you have in place and will maintain suitable
and
adequate “know your customer” policies and procedures and that you shall
comply with all applicable laws and regulations regarding anti-money
laundering activity and will provide such documentation to the
Managing
General Partner and the Dealer-Manager on written
request.
|
|
20.
|
Acceptance.
Please confirm your agreement to become a Selling Agent under the
terms
and conditions set forth above by signing and returning the enclosed
duplicate copy of this Agreement to us at the address set forth
above.
|
|
Sincerely,
|
||||
| & #160 ; | ||||
|
,
2008
|
ANTHEM
SECURITIES, INC.
|
|||
|
Date
|
||||
|
ATTEST:
|
||||
|
By:
|
||||
|
(SEAL) Secretary
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, President
|
|||
Anthem Securities,
Inc.
Selling
Agent Agreement
13
ACCEPTANCE:
We
accept
your invitation to become a Selling Agent under all the terms and conditions
stated in the above Agreement and confirm that all the statements set forth
in
the above Agreement are true and correct. We hereby acknowledge receipt of
the
Prospectuses and Sales Literature and a copy of the Dealer-Manager Agreement
referred to above.
|
,
2008
|
_______________________________________________,
|
|||
|
Date
|
a(n)__________________________corporation,
|
|||
|
ATTEST:
|
||||
|
By:
|
||||
|
(SEAL)
|
Secretary
|
________________________________, President
|
||
|
(Address)
|
||||
|
(Address
to Send Commissions, if different from above)
|
||||
|
(Telephone
Number)
|
||||
|
Our CRD Number is________________________________________________________________
|
||||
|
Our Tax ID Number is______________________________________________________________
|
||||
Anthem
Securities, Inc.
Selling
Agent Agreement
14
APPENDIX
I TO SELLING AGENT AGREEMENT
In
partial consideration for the payment to you, as Selling Agent, by the
Dealer-Manager of the Sales Commission as set forth in Section 2(a) of the
Selling Agent Agreement, you warrant, represent, covenant, and agree with
the
Dealer-Manager that you, as Selling Agent, shall do the following:
|
·
|
prominently
and promptly announce your participation in the offering as Selling
Agent
to your registered representatives, whether by newsletter, e-mail,
mail or
otherwise, which announcement also shall advise your registered
representatives to contact our Regional Marketing Director in whose
territory the registered representative is located (the information
concerning our Regional Marketing Directors has been provided to
you by
separate correspondence) with a copy of the announcement provided
concurrently to the Dealer-Manager;
and
|
|
·
|
provide
the Dealer-Manager with the names, telephone numbers, addresses
and e-mail
addresses of your registered representatives, which information
shall be
kept confidential by the Dealer-Manager and the Managing General
Partner
and shall not be used for any purpose other than the marketing
of the
offering as set forth in the Dealer-Manager Agreement and the Selling
Agent Agreement. Further, you, as Selling Agent, agree that the
Dealer-Manager and the Managing General Partner may directly contact
your
registered representatives, in person or otherwise, to:
|
|
·
|
inform
them of the offering;
|
|
·
|
explain
the merits and risks of the offering; and
|
|
·
|
otherwise
assist in your registered representatives’ efforts to solicit and sell
Units.
|
Anthem
Securities, Inc.
Selling
Agent Agreement
15