EXHIBIT 1(b)
PROPOSED FORM OF
DEALER-MANAGER AGREEMENT
FOR
▇▇▇▇▇ FUNDING, INC.
▇▇▇▇▇ FUNDING, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
PAGE
1. Description of Units..................................................................................1
2. Representations, Warranties and Agreements of the Managing General Partner............................1
3. Grant of Authority to the Dealer-Manager..............................................................2
4. Compensation and Fees.................................................................................2
5. Covenants of the Managing General Partner.............................................................3
6. Representations and Warranties of Dealer-Manager......................................................3
7. State Securities Registration.........................................................................6
8. Expense of Sale.......................................................................................7
9. Conditions of Your Duties.............................................................................7
10. Conditions of the Managing General Partner's Duties...................................................7
11. Indemnification.......................................................................................7
12. Representations and Agreements to Survive Delivery....................................................8
13. Termination...........................................................................................8
14. Notices...............................................................................................8
15. Format of Checks/Escrow Agent.........................................................................9
16. Transmittal Procedures................................................................................9
17. Parties...............................................................................................9
18. Relationship..........................................................................................9
19. Effective Date.......................................................................................10
20. Entire Agreement, Waiver.............................................................................10
Exhibit A - Escrow Agreement
Exhibit B - Selling Agent Agreement
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EXHIBIT 1(b)
▇▇▇▇▇ FUNDING, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS AMERICA PUBLIC #9 LTD.
▇▇▇▇▇ Funding, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned, Atlas Resources, Inc. (the "Managing General
Partner"), on behalf of ATLAS AMERICA PUBLIC #9 LTD., hereby confirms its
agreement with you as Dealer-Manager as follows:
1. DESCRIPTION OF UNITS. The Managing General Partner has formed a limited
partnership known as Atlas America Public #9 Ltd. (the "Partnership"),
which will issue and sell Units of Participation in the Partnership
(the "Units") at a price of $10,000 per Unit. Subject to the receipt
and acceptance by the Managing General Partner of the minimum
Partnership Subscription of 100 Units ($1,000,000), there will be two
closings, which are tentatively set for November 1, 2000 (the "Initial
Closing Date"), and December 31, 2000.
No subscriptions to the Partnership will be accepted after receipt of
the maximum Partnership Subscription of $15,000,000 or December 31,
2000, whichever event occurs first (the "Offering Termination Date").
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE MANAGING GENERAL
PARTNER. The Managing General Partner represents and warrants to and
agrees with you that:
(a) The Units have been or will be registered with the Securities
and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act").
(b) The Managing General Partner shall provide to you for delivery
to all offerees and purchasers and their representatives such
information and documents as the Managing General Partner
deems appropriate to comply with the Act and applicable state
securities ("blue sky") laws.
(c) The Units when issued will be duly authorized and validly
issued as set forth in the Amended and Restated Certificate
and Agreement of Limited Partnership of the Partnership
("Partnership Agreement") set forth as Exhibit (A) to the
offering circular (the "Prospectus") and subject only to the
rights and obligations set forth in the Partnership Agreement
or imposed by the laws of the state of formation of the
Partnership or of any jurisdiction to the laws of which the
Partnership is subject.
(d) The Partnership was duly formed pursuant to the laws of the
Commonwealth of Pennsylvania and is validly existing as a
limited partnership in good standing under the laws of
Pennsylvania with full power and authority to own its
properties and conduct its business as described in the
Prospectus. The Partnership will be qualified to do business
as a limited partnership or similar entity offering limited
liability in those jurisdictions where the Managing General
Partner deems such qualification necessary to assure limited
liability of the limited partners.
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(e) The Prospectus, as heretofore or hereafter supplemented or
amended, does not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they are made, not misleading.
3. GRANT OF AUTHORITY TO THE DEALER-MANAGER. On the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, the Managing General Partner
hereby appoints you as the Dealer-Manager for the Partnership and gives
you the exclusive right to solicit subscriptions for the Units in the
states of Minnesota and New Hampshire only, on a "best efforts" basis,
subject to the terms and conditions set forth herein. In the states of
Minnesota and New Hampshire only you agree to use your best efforts to
effect such sales and to form and manage a selling group composed of
soliciting broker-dealers ("Selling Agents"), each of which shall be a
member of the National Association of Securities Dealers, Inc.
("NASD"), pursuant to "Selling Agent Agreements" in substantially the
form attached hereto as Exhibit "B."
The Managing General Partner shall have three business days after the
receipt of an executed Selling Agent Agreement to refuse that Selling
Agent's participation.
4. COMPENSATION AND FEES.
(a) As Dealer-Manager you will receive from the Partnership the
following fees based on the amount of the Agreed Subscription
on each Unit sold to investors who are situated and/or
residents in the states of Minnesota and New Hampshire:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7.0% Sales Commission;
(iii) a .5% reimbursement of marketing expenses; and
(iv) a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses.
The 7.0% Sales Commission, the .5% reimbursement of marketing
expenses and the .5% reimbursement of bona fide accountable
due diligence expenses will be reallowed to the Selling
Agents. The 2.5% Dealer-Manager fee will be reallowed to the
wholesalers for Agreed Subscriptions obtained through the
wholesalers' effort.
(b) Pending receipt and acceptance by the Managing General Partner
of the minimum Partnership Subscription ($1,000,000 excluding
any optional subscription by the Managing General Partner and
its Affiliates), all proceeds received by you from the sale of
Units will be held in a separate interest bearing escrow
account as provided in Section 15.
Unless at least the minimum Partnership Subscription of
$1,000,000 is received on or before December 31, 2000, the
offering shall be terminated, in which event no fee shall be
payable to you and all funds advanced by purchasers shall be
returned to them with interest earned. In addition, you shall
deliver a termination letter in the form provided to you by
the Managing General Partner to each such subscriber and to
each of the offerees previously solicited by you and the
Selling Agents in connection with the offering of the Units.
(c) The fees set forth in Section 4(a), which shall be reallowed
by you to the Selling Agents which made the sale and the
wholesalers, will be paid to you within five business days
after at least the minimum Partnership Subscription
($1,000,000) has been received and accepted by the Managing
General Partner and the subscription proceeds have been
released to the Managing General Partner from the escrow
account. Thereafter, such fees will be paid to you and
reallowed to the Selling Agents and wholesalers as described
in the previous sentence approximately every two weeks until
the Offering Termination Date and all your remaining fees
shall be paid by the Managing General Partner no later than 14
business days after the Offering Termination Date.
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(d) Notwithstanding the foregoing, Registered Investment Advisors
and their clients may subscribe to Units without paying the
Sales Commissions and reimbursement of marketing expenses and
bona fide accountable due diligence expenses, and their Agreed
Subscriptions will be subject only to the 2.5% Dealer-Manager
fee.
Also, the Managing General Partner, its officers and directors
and Affiliates, and the Selling Agents may subscribe to Units
without paying the Dealer-Manager fee, Sales Commissions and
the reimbursement of marketing expenses and the Selling
Agents' bona fide accountable due diligence expenses.
5. COVENANTS OF THE MANAGING GENERAL PARTNER. The Managing General Partner
covenants and agrees that:
(a) The Managing General Partner will deliver to you ample copies
of the Prospectus and of all amendments or supplements
thereto, heretofore or hereafter made, including all exhibits
and other documents included therein.
(b) If any event affecting the Partnership or the Managing General
Partner shall occur which in the opinion of the Managing
General Partner should be set forth in a supplement to or an
amendment of the Prospectus, then the Managing General Partner
will forthwith at its own expense prepare and furnish to you a
sufficient number of copies of a supplement or amendment to
the Prospectus so that it, as so supplemented or amended, will
not contain an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading.
6. REPRESENTATIONS AND WARRANTIES OF DEALER-MANAGER. You, as the
Dealer-Manager, represent and warrant to the Managing General Partner
that:
(a) You are a corporation duly organized, validly existing and in
good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations hereunder.
(b) This Agreement when accepted and approved will be duly
authorized, executed and delivered by you and will be a valid
and binding agreement on your part in accordance with its
terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in any breach of
any of the terms or conditions of, or constitute a default
under your Articles of Incorporation, Bylaws, any indenture,
agreement or other instrument to which you are a party, or
violate any order applicable to you of any court or any
federal or state regulatory body or administrative agency
having jurisdiction over you or over your affiliates.
(d) You are duly registered pursuant to the provisions of the
Securities Exchange Act of 1934 (the "Act of 1934") as a
dealer and you are a member in good standing of the NASD. You
are duly registered as a broker-dealer in the states in which
you are required to be registered in order to carry out your
obligations as contemplated by this Agreement and the
Prospectus. You agree to maintain all the foregoing
registrations in good standing throughout the term of the
offer and sale of the Units and you agree to comply with all
statutes and other requirements applicable to you as a
broker-dealer pursuant to those registrations.
(e) Pursuant to your appointment as Dealer-Manager, you shall use
your best efforts to exercise the supervision and control that
you deem necessary and appropriate to the activities of you
and the Selling Agents to comply with all the provisions of
the Act, insofar as the Act applies to your and their
activities hereunder. Further, you and the Selling Agents
shall not engage in any
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activity which would cause the offer and/or sale of Units not
to comply with the Act, the Act of 1934 and the applicable
rules and regulations of the Commission, the applicable state
securities laws and regulations, this Agreement and the NASD
Conduct Rules including Rules 2730, 2740, 2420, 2750, and
Rules 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
SUITABILITY
(A) A member or person associated with a member
shall not underwrite or participate in a
public offering of a direct participation
program unless standards of suitability have
been established by the program for
participants therein and such standards are
fully disclosed in the prospectus and are
consistent with the provisions of
subparagraph (B) of this section.
(B) In recommending to a participant the
purchase, sale or exchange of an interest in
a direct participation program, a member or
person associated with a member shall:
(i) have reasonable grounds to believe,
on the basis of information obtained
from the participant concerning his
investment objectives, other
investments, financial situation and
needs, and any other information
known by the member or associated
person, that:
(a) the participant is or will
be in a financial position
appropriate to enable him
to realize to a significant
extent the benefits
described in the
prospectus, including the
tax benefits where they are
a significant aspect of the
program;
(b) the participant has a fair
market net worth sufficient
to sustain the risks
inherent in the program,
including loss of
investment and lack of
liquidity; and
(c) the program is otherwise
suitable for the
participant; and
(ii) maintain in the files of the member
documents disclosing the basis upon
which the determination of
suitability was reached as to each
participant.
(C) Notwithstanding the provisions of
subparagraphs (A) and (B) hereof, no member
shall execute any transaction in a direct
participation program in a discretionary
account without prior written approval of
the transaction by the customer.
Sec. (b)(3)
DISCLOSURE
(A) Prior to participating in a public offering
of a direct participation program, a member
or person associated with a member shall
have reasonable grounds to believe, based on
information made available to him by the
sponsor through a prospectus or other
materials, that all material facts are
adequately and accurately disclosed and
provide a basis for evaluating the program.
(B) In determining the adequacy of disclosed
facts pursuant to subparagraph (A) hereof, a
member or person associated with a member
shall obtain information on material facts
relating at a minimum to the following, if
relevant in view of the nature of the
program:
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(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk
factors; and
(vi) appraisals and other pertinent
reports.
(C) For purposes of subparagraphs (A) and (B)
hereof, a member or person associated with a
member may rely upon the results of an
inquiry conducted by another member or
members, provided that:
(i) the member or person associated
with a member has reasonable
grounds to believe that such
inquiry was conducted with due
care;
(ii) the results of the inquiry were
provided to the member or person
associated with a member with the
consent of the member or members
conducting or directing the
inquiry; and
(iii) no member that participated in the
inquiry is a sponsor of the program
or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in
a direct participation program, a member or
person associated with a member shall inform
the prospective participant of all pertinent
facts relating to the liquidity and
marketability of the program during the term
of investment.
(f) You and the Selling Agents have received copies of the
Prospectus relating to the Units and you and the Selling
Agents have relied only on the statements contained in the
Prospectus and not on any other statements whatsoever, either
written or oral, with respect to the details of the offering
of Units.
(g) You and the Selling Agents agree that you and the Selling
Agents shall not place any advertisement or other solicitation
with respect to the Units (including without limitation any
material for use in any newspaper, magazine, radio or
television commercial, telephone recording, motion picture, or
other public media) without the prior written approval of the
Managing General Partner, and without the prior written
approval of the form and content thereof by the Commission,
the NASD and the securities authorities of the states where
such advertisement or solicitation is to be circulated. Any
such advertisements or solicitations shall be at your expense.
(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner, you agree
and shall require any Selling Agent to agree to distribute
each such supplement or amendment to the Prospectus to every
person who has previously received a copy of the Prospectus
from you and/or the Selling Agent and you further agree and
shall require any Selling Agent to further agree to include
such supplement or amendment in all future deliveries of any
Prospectus.
(i) You agree to advise the Managing General Partner in writing of
each state in which you and the Selling Agents propose to
offer or sell the Units and you shall not nor shall you permit
any Selling Agent to offer or sell Units in any state until
such time as you shall have been advised in writing by the
Managing General Partner, or the Managing General Partner's
special counsel, that such offer or sale has been qualified in
such state or is exempt from the qualification requirements
imposed by such state or such qualification is otherwise not
required.
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(j) In connection with any offer or sale of the Units, you agree
and shall require any Selling Agent to agree to comply in all
respects with statements set forth in the Prospectus and the
Partnership Agreement and you agree and shall require any
Selling Agent to agree not to make any statement inconsistent
with the statements in the Prospectus or the Partnership
Agreement. You further agree and shall require any Selling
Agent to further agree that you shall not provide and shall
require any Selling Agent not to provide any written
information, statements or sales literature other than the
Prospectus, the Managing General Partner's corporate profile
and a brochure entitled "Atlas America Public #9 Ltd." (the
corporate profile and the brochure collectively referred to
herein as the "Brochure"), and any supplements or amendments
thereto unless approved in writing by the Managing General
Partner. Further, you agree and shall require any Selling
Agent to agree not to make any untrue or misleading statements
of a material fact in connection with the Units.
(k) You agree to use your best efforts in the solicitation and
sale of said Units and to coordinate and supervise the efforts
of the Selling Agents and you shall require any Selling Agent
to agree to use its best efforts in the solicitation and sale
of said Units, including insuring that the prospective
purchasers meet the suitability requirements set forth in the
Prospectus and the Subscription Agreement and properly execute
the Subscription Agreement, which has been provided as Exhibit
(I-B) to the Partnership Agreement, Exhibit (A) of the
Prospectus, together with any additional forms provided in any
supplement or amendment to the Prospectus, or otherwise
provided to you by the Managing General Partner to be
completed by prospective purchasers.
Executed Subscription Agreements shall be delivered or mailed
immediately to the Managing General Partner and must be
received by the Managing General Partner at or prior to the
Offering Termination Date.
The Managing General Partner shall have the right to reject
any subscription at any time for any reason without liability
to it. Investor funds shall be transmitted as set forth in
Section 16.
(l) Although not anticipated, in the event you assist in any
transfers of the Units, you shall comply, and you shall
require any Selling Agent to comply, with the requirements of
Rule 2810(b)(2)(B) and (b)(3)(D) of the NASD Conduct Rules.
7. STATE SECURITIES REGISTRATION. Incident to the offer and sale of the
Units, the Managing General Partner will either use its best efforts in
taking all necessary action and filing all necessary forms and
documents deemed reasonable by it in order to qualify or register Units
for sale under the securities laws of the states requested by you
pursuant to Section 6(i) hereof or use its best efforts in taking any
necessary action and filing any necessary forms deemed reasonable by it
which are required to obtain an exemption from qualification or
registration in such states. Notwithstanding, the Managing General
Partner may elect not to qualify or register Units in any state in
which it deems such qualification or registration is not warranted for
any reason in its sole discretion. The Managing General Partner and its
counsel will inform you as to the jurisdictions in which the
Partnership Units have been qualified for sale or are exempt under the
respective securities or blue sky laws of such jurisdictions; but the
Managing General Partner has not assumed and will not assume any
obligation or responsibility as to your right or any Selling Agent's
right to act as a broker-dealer with respect to the Units in any such
jurisdiction.
The Managing General Partner will provide to you and the Selling Agents
for delivery to all offerees and purchasers and their representatives,
any additional information, documents and instruments which the
Managing General Partner deems necessary to comply with the rules,
regulations and judicial and administrative interpretations in those
states and jurisdictions for the offer and sale of the Units in such
states. The Managing General Partner will file all post-offering forms,
documents or materials and take all other actions required by the
states in which the offer and sale of Units have been qualified or are
exempt or in which the Units have been registered. However, the
Managing General Partner shall not
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be required to take any actions, make any filings or prepare any
documents necessary or required in connection with your status or any
Selling Agent's status as a broker-dealer under the laws of such
states.
The Managing General Partner shall promptly provide you with copies of
all applications, filings, correspondence, orders or other documents or
instruments relating to any application for qualification, registration
or other approval under applicable state or Federal securities laws for
the offering.
8. EXPENSE OF SALE. The expenses in connection with the offer and sale of
the Units shall be payable as set forth below.
(a) The Managing General Partner shall pay all expenses incident
to the performance of its obligations hereunder, including the
fees and expenses of the Managing General Partner's attorneys
and accountants and all fees and expenses of registering or
qualifying the Units for offer and sale in the states as set
forth in Section 7 hereof, or obtaining exemptions therefrom,
even if this offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the formation and management
of the selling group and the fees and expenses of your own
counsel and accountants, even if this offering is not
successfully completed.
9. CONDITIONS OF YOUR DUTIES. Your obligations provided herein shall be
subject to the accuracy, as of the date hereof and at the applicable
closing date (as if made at the applicable closing date), of the
representations and warranties of the Managing General Partner herein
and to the performance by the Managing General Partner of its
obligations hereunder.
10. CONDITION OF THE MANAGING GENERAL PARTNER'S DUTIES. The Managing
General Partner's obligations provided herein, including the duty to
pay compensation as set forth in Section 4 hereof, shall be subject to
the accuracy, as of the date hereof and at the applicable closing date
(as if made at the applicable closing date) of your representations and
warranties made herein, and to the performance by you of your
obligations hereunder, and to the additional condition that the
Managing General Partner shall have received, at or prior to the
applicable closing date, the following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to the Managing General Partner that you and
each Selling Agent are registered as required by Section 6(d)
and that such registrations were, during the term of the
offering and through the applicable closing date, in full
force and effect; and
(c) a certificate from you, dated at the applicable closing date,
to the effect that your representations and warranties made
herein are true and correct as if made at the applicable
closing date and that you have fulfilled all your obligations
hereunder.
11. INDEMNIFICATION.
(a) You and the Selling Agents shall indemnify and hold harmless
the Managing General Partner, the Partnership and its
attorneys, against any losses, claims, damages or liabilities,
joint or several, to which such parties may become subject,
under the Act, the Act of 1934 or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon your agreements with
the Selling Agents or your breach of any of your duties and
obligations, representations, or warranties under the terms or
provisions of this Agreement and you and the Selling Agents
shall reimburse such parties for any legal or other expenses
reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) The Managing General Partner shall indemnify and hold you and
the Selling Agents harmless against any losses, claims,
damages or liabilities, joint or several, to which you and the
Selling
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Agents may become subject, under the Act, the Act of 1934 or
otherwise insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon the Managing General Partner's breach of any
of its duties and obligations, representations, or warranties
under the terms or provisions of this Agreement and the
Managing General Partner shall reimburse you and the Selling
Agents for any legal or other expenses reasonably incurred in
connection with investigating or defending such loss, claim,
damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same
terms and conditions to, and shall inure to the benefit of,
each person, if any, who controls each indemnified party
within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of
the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying
party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party. If
any such action shall be brought against such indemnified
party, it shall notify the indemnifying party of the
commencement thereof, and the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties.
After the indemnified party shall have received notice from
the agreed upon counsel that the defense under this paragraph
has been so assumed, the indemnifying party shall not be
responsible for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
12. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Managing General
Partner and you herein or in certificates delivered pursuant hereto,
and the indemnity agreements contained in Section 11 hereof, shall
survive the delivery, execution and closing hereof, and shall remain
operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person who controls you within the
meaning of the Act, or by the Managing General Partner, or any of its
officers, directors or any person who controls the Managing General
Partner within the meaning of the Act, or any other indemnified party,
and shall survive delivery of the Units hereunder.
13. TERMINATION. You shall have the right to terminate this agreement other
than the indemnification provisions of Section 11 by giving notice as
hereinafter specified any time at or prior to a closing date:
(a) if the Managing General Partner shall have failed, refused, or
been unable at or prior to the closing date, to perform any of
its obligations hereunder; or
(b) there has occurred an event materially and adversely affecting
the value of the Units.
If you elect to terminate this Agreement other than the indemnification
provisions of Section 11, then the Managing General Partner shall be
promptly notified by you by telephone, telecopier or telegram,
confirmed by letter.
The Managing General Partner may terminate this Agreement other than
the indemnification provisions of Section 11 for any reason by promptly
giving notice to you by telephone, telecopier or telegram, confirmed by
letter as hereinafter specified at or prior to a closing date.
14. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing, and if sent to
you shall be mailed, delivered or telegraphed and confirmed to you at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or if sent to the
Managing General Partner or on behalf of the Partnership, at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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15. FORMAT OF CHECKS/ESCROW AGENT. Pending receipt of the minimum
Partnership Subscription, the Managing General Partner and you and the
Selling Agents agree that all subscribers shall be instructed to make
their checks, drafts, or money orders payable solely to "Atlas America
Public #9, Ltd., Escrow Agent, National City Bank of PA" as agent for
the Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions you shall return such check, draft, or money
order to the Selling Agent not later than the end of the next business
day following its receipt by you. The Selling Agent shall then return
such check, draft, or money order directly to the subscriber not later
than the end of the next business day following its receipt from you.
Checks, drafts, or money orders received by you or a Selling Agent
which conform to the foregoing instructions shall be transmitted by you
pursuant to Section 16 "Transmittal Procedures," below.
You represent that you have executed the Escrow Agreement and agree
that you are bound by the terms of the Escrow Agreement executed by
you, the Partnership and the Managing General Partner, a copy of which
is attached hereto as Exhibit "A."
16. TRANSMITTAL PROCEDURES. You and each Selling Agent shall transmit
received investor funds in accordance with the following procedures.
For purposes of the following, the term Selling Agent shall also
include you as Dealer-Manager where you receive subscriptions from
investors.
(a) Pending receipt of the minimum subscription of $1,000,000, the
Selling Agents shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to you, as Dealer-Manager by
the end of the next business day following receipt of the
check, draft, or money order by the Selling Agent. By the end
of the next business day following receipt of the check,
draft, or money order and Subscription Agreement by you as
Dealer-Manager, you as Dealer-Manager shall transmit the
check, draft or money order and a copy of the executed
Subscription Agreement to the Escrow Agent, and the original
Subscription Agreement and a copy of the check, draft or money
order to the Managing General Partner.
(b) Upon receipt by you as Dealer-Manager of notice from the
Managing General Partner that the minimum Partnership
Subscription has been received, the Managing General Partner,
you and the Selling Agent agree that all subscribers
thereafter may be instructed, in the Managing General
Partner's sole discretion, to make their checks, drafts, or
money orders payable solely to "Atlas America Public #9,
Ltd.". Thereafter, Selling Agents shall promptly, upon receipt
of any and all checks, drafts, and money orders received from
prospective purchasers of Units, transmit same together with
the original Subscription Agreement to you as Dealer-Manager
by the end of the next business day following receipt of the
check, draft, or money order by the Selling Agent. By the end
of the next business day following receipt of the check,
draft, or money order and Subscription Agreement by you as
Dealer-Manager, you as Dealer-Manager shall transmit the
check, draft or money order and the original Subscription
Agreement to the Managing General Partner.
17. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you, the Managing General Partner, and any respective successors
and assigns. This Agreement shall also inure to the benefit of the
indemnified parties, their successors and assigns. This Agreement is
intended to be and is for the sole and exclusive benefit of the parties
hereto, including the Partnership, and their respective successors and
assigns, and the indemnified parties and their successors and assigns,
and for the benefit of no other person, and no other person shall have
any legal or equitable right, remedy or claim under or in respect of
this Agreement. No purchaser of any of the Units from you shall be
construed a successor or assign merely by reason of such purchase.
18. RELATIONSHIP. This Agreement shall not constitute you a partner of the
Managing General Partner or the Partnership or any general partner
thereof, nor render the Managing General Partner or the Partnership
liable for any of your obligations except as otherwise provided herein.
9
19. EFFECTIVE DATE. This Agreement is made effective between the parties as
of the date accepted by you as indicated by your signature hereto.
20. ENTIRE AGREEMENT, WAIVER. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in writing,
and no party shall be liable or bound to the other by any agreement,
except as specifically set forth herein. Any party hereto may waive,
but only in writing, any term, condition, or requirement under this
Agreement which is intended for its own benefit, and written waiver of
any term or condition of this Agreement shall not operate as a waiver
of any other breach of such term or condition, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or
any other provision hereof.
If the foregoing correctly sets forth our understanding please so
indicate in the space provided below for the purpose whereupon this letter
shall constitute a binding agreement between us.
Very truly yours,
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 2000 By:
-------------------------- ------------------------------------
Date ▇▇▇▇▇ ▇. ▇'▇▇▇▇, President and
Chief Executive Officer
ATTEST:
--------------------------------
(SEAL) Secretary
PARTNERSHIP
ATLAS AMERICA PUBLIC #9 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
, 2000 By:
-------------------------- ------------------------------------
Date ▇▇▇▇▇ ▇. ▇'▇▇▇▇, President and
Chief Executive Officer
ATTEST:
--------------------------------
(SEAL) Secretary
DEALER-MANAGER
▇▇▇▇▇ FUNDING, INC.,
a Pennsylvania corporation
, 2000 By:
-------------------------- ------------------------------------
Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
ATTEST:
--------------------------------
(SEAL) Secretary
10
EXHIBIT "A"
ATLAS AMERICA PUBLIC #9 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the 18th day of August,
2000, by and between Atlas Resources, Inc., a Pennsylvania corporation (the
"Managing General Partner"), Anthem Securities, Inc., a Pennsylvania
corporation ("Anthem"), ▇▇▇▇▇ Funding, Inc., a Pennsylvania corporation
("▇▇▇▇▇ Funding"), collectively Anthem and ▇▇▇▇▇ Funding are referred to as
the "Dealer-Manager", Atlas America Public #9 Ltd., a Pennsylvania limited
partnership (the "Partnership") and National City Bank of Pennsylvania,
Pittsburgh, Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Partnership intends to offer publicly for sale to
qualified investors (the "Investors") up to 1,500 limited partnership
interests in the Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in full
upon subscribing ($10,000 per Unit, however, the Managing General Partner, in
its discretion, may accept one-half Unit [$5,000] subscriptions, with larger
subscriptions permitted in $1,000 increments), by check, draft or money order
except that the broker-dealers and the Managing General Partner, its officers
and directors and Affiliates, may purchase Units net of the Dealer-Manager
fee, the commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses set forth below, and registered investment
advisors and their clients may purchase Units subject to the Dealer-Manager
fee but net of the commissions and reimbursement of marketing expenses and
bona fide accountable due diligence expenses set forth below (the
"Subscription Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") pursuant to which Anthem will
solicit subscriptions for Units in all states other than Minnesota and New
Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on a
"best efforts" basis for the remaining Units on behalf of the Managing General
Partner and the Partnership and pursuant to which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents"); and
WHEREAS, the Managing General Partner and ▇▇▇▇▇ Funding have executed
an agreement ("▇▇▇▇▇ Funding Dealer-Manager Agreement") pursuant to which
▇▇▇▇▇ Funding will solicit subscriptions for Units in the states of Minnesota
and New Hampshire on a "best efforts" "all or none" basis for $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and pursuant to which ▇▇▇▇▇ Funding has
been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the ▇▇▇▇▇ Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement", provide for compensation to the Dealer-Manager which includes, but
is not limited to:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7.0% sales commission;
(iii) a .5% reimbursement of marketing expenses; and
1
(iv) reimbursement of the Selling Agents' bona fide accountable due
diligence expenses of .5%
per Unit to participate in the offering of the Units, all or a portion of
which compensation will be reallowed to the Selling Agents and wholesalers; and
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the receipt
and acceptance by the Managing General Partner of the minimum Subscription
Proceeds of $1,000,000, excluding any optional subscription by the Managing
General Partner, its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after
receipt of the maximum Subscription Proceeds of $15,000,000 or December 31,
2000, whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement, the Managing General Partner and the Dealer-Manager desire to have
the Subscription Proceeds deposited with the Escrow Agent and the Escrow Agent
desires to hold the Subscription Proceeds pursuant to the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Managing General Partner, the
Partnership and the Dealer-Manager hereby appoint Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with Escrow Agent by the Dealer-Manager and the Selling Agents pursuant
hereto and Escrow Agent hereby agrees to serve in such capacity during
the term and based upon the provisions hereof.
2. DEPOSIT OF SUBSCRIPTION PROCEEDS. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall deposit
the Subscription Proceeds of each Investor with the Escrow Agent and
shall deliver to the Escrow Agent a copy of the Subscription Agreement
of such Investor. Payment for each subscription for Units shall be in
the form of a check made payable to "Atlas America Public #9 Ltd.,
Escrow Agent, National City Bank of PA". The Escrow Agent shall deliver
a receipt to either:
(a) Anthem and the Managing General Partner for each deposit of
Subscription Proceeds made pursuant hereto by Anthem; or
(b) ▇▇▇▇▇ Funding and the Managing General Partner for each
deposit of subscription proceeds made pursuant hereto by ▇▇▇▇▇
Funding.
3. INVESTMENT OF SUBSCRIPTION PROCEEDS. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
entitled "Armada Government Fund." Subscription Proceeds may be
temporarily invested by the Escrow Agent only in income producing
short-term, highly liquid investments secured by the United States
government where there is appropriate safety of principal, such as U.S.
Treasury Bills. The interest earned shall be added to the Subscription
Proceeds and disbursed in accordance with the provisions of paragraph 4
or 5, as the case may be.
2
4. DISTRIBUTION OF SUBSCRIPTION PROCEEDS. If the Escrow Agent:
(a) receives written notice from an authorized officer of the
Managing General Partner that at least the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000
as determined by the Managing General Partner have cleared the
banking system and are good;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner such escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on such Subscription Proceeds while held by
the Escrow Agent in an escrow account.
Any remaining Subscription Proceeds, plus any interest paid and
investment income earned on such Subscription Proceeds while held by
the Escrow Agent in an escrow account shall be promptly released and
distributed to the Managing General Partner by the Escrow Agent as such
Subscription Proceeds clear the banking system and become good.
5. SEPARATE PARTNERSHIP ACCOUNT. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of
at least $1,000,000 and the Escrow Agent receives the notice described
in Paragraph 4 of this Agreement, and prior to the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager directly in a separate Partnership account which shall
not be subject to the terms of this Agreement.
6. DISTRIBUTIONS TO SUBSCRIBERS.
(a) In the event that the Partnership will not be funded as
contemplated because less than the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
the Managing General Partner by twelve p.m. (noon), local
time, on December 31, 2000, or for any other reason, the
Managing General Partner shall so notify the Escrow Agent,
whereupon the Escrow Agent promptly shall distribute to each
Investor a refund check made payable to such Investor in an
amount equal to the Subscription Proceeds of such Investor,
plus any interest paid or investment income earned thereon
while held by the Escrow Agent in an escrow account as
calculated by the Managing General Partner.
(b) In the event that a subscription for Units submitted by an
Investor is rejected by the Managing General Partner for any
reason after the Subscription Proceeds relating to such
subscription have been deposited with the Escrow Agent, then
the Managing General Partner promptly shall notify the Escrow
Agent of such rejection, and the Escrow Agent shall promptly
distribute to such Investor a refund check made payable to
such Investor in an amount equal to the Subscription Proceeds
of such Investor, plus any interest paid or investment income
earned thereon while held by the Escrow Agent in an escrow
account as calculated by the Managing General Partner.
7. COMPENSATION AND EXPENSES OF ESCROW AGENT. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services hereunder, as provided in Appendix 1 to
this Agreement and made a part hereof, and the charges, expenses
(including any reasonable attorneys' fees), and other out-of-pocket
expenses incurred by the Escrow Agent in connection with the
administration of the provisions of this Agreement. The Escrow Agent
shall have no lien on the Subscription Proceeds deposited in an escrow
account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the
3
notice described in Paragraph 4 of this Agreement, at which time the
Escrow Agent shall have, and is hereby granted, a prior lien upon any
property, cash, or assets held hereunder, with respect to its unpaid
compensation and nonreimbursed expenses, superior to the interests of
any other persons or entities.
8. DUTIES OF ESCROW AGENT. The Escrow Agent shall not be obligated to
accept any notice, make any delivery, or take any other action under
this Escrow Agreement unless the notice or request or demand for
delivery or other action is in writing and given or made by the party
given the right or charged with the obligation under this Escrow
Agreement to give the notice or to make the request or demand. In no
event shall the Escrow Agent be obligated to accept any notice,
request, or demand from anyone other than the Managing General Partner
or the Dealer-Manager.
9. LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed
herein in carrying out or executing the purposes and intent of this
Escrow Agreement; provided, however, that nothing herein contained
shall relieve the Escrow Agent from liability arising out of its own
willful misconduct or gross negligence. Escrow Agent's duties and
obligations under this Agreement shall be entirely administrative and
not discretionary. Escrow Agent shall not be liable to any party hereto
or to any third party as a result of any action or omission taken or
made by Escrow Agent in good faith. The parties to this Agreement will
indemnify Escrow Agent, hold Escrow Agent harmless, and reimburse
Escrow Agent from, against and for, any and all liabilities, costs,
fees and expenses (including reasonable attorney's fees) Escrow Agent
may suffer or incur by reason of its execution and performance of this
Agreement. In the event any legal questions arise concerning Escrow
Agent's duties and obligations hereunder, Escrow Agent may consult with
its counsel and rely without liability upon written opinions given to
it by such counsel.
The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, authorization, or other paper or document
which the Escrow Agent, in good faith, believes to be genuine and what
it purports to be.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any other
person, resulting in adverse claims or demands being made in connection
with this Agreement, or in the event that Escrow Agent, in good faith,
shall be in doubt as to what action it should take hereunder, Escrow
Agent may, at its option, refuse to comply with any claims or demands
on it or refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists. In any such event, Escrow
Agent shall not be or become liable in any way or to any person for its
failure or refusal to act and Escrow Agent shall be entitled to
continue to so refrain from acting until the dispute is resolved by the
parties involved.
National City Bank of Pennsylvania is acting solely as Escrow Agent and
is not a party to, nor has it reviewed or approved any agreement or
matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the authority
of the individuals executing this Agreement to be so authorized on
behalf of the party or parties involved.
10. RESIGNATION OR REMOVAL OF ESCROW AGENT. The Escrow Agent may resign as
such following the giving of thirty days' prior written notice to the
other parties hereto. Similarly, the Escrow Agent may be removed and
replaced following the giving of thirty days' prior written notice to
the Escrow Agent by the other parties hereto.
In either event, the duties of the Escrow Agent shall terminate thirty
days after the date of such notice (or as of such earlier date as may
be mutually agreeable); and the Escrow Agent shall then deliver the
balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in an
escrow account) in its possession to a successor escrow agent as shall
be appointed by the other parties hereto as evidenced by a written
notice filed with the Escrow Agent. If the other parties hereto are
unable to agree upon a successor or shall have failed to appoint a
successor prior to the expiration of thirty days following the date of
the notice of resignation or removal, the then
4
acting Escrow Agent may petition any court of competent jurisdiction
for the appointment of a successor escrow agent or other appropriate
relief; and any such resulting appointment shall be binding upon all of
the parties hereto.
Upon acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in an escrow account), the then acting Escrow Agent shall be fully
released and relieved of all duties, responsibilities, and obligations
under this Agreement.
11. TERMINATION. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect hereto upon the occurrence of
the distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in an
escrow account) as contemplated hereby or upon the written consent of
all the parties hereto.
12. NOTICE. Any notices or instructions, or both, to be given hereunder
shall be validly given if set forth in writing and mailed by certified
mail, return receipt requested, as follows:
IF TO THE ESCROW AGENT:
National City Bank of Pennsylvania
Corporate Trust Department
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇, Pennsylvania 15222-4802
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Asst. Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE MANAGING GENERAL PARTNER:
Atlas Resources, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ANTHEM:
Anthem Securities, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
5
IF TO ▇▇▇▇▇ FUNDING:
▇▇▇▇▇ Funding, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may designate any other address to which notices and instructions
shall be sent by notice duly given in accordance herewith.
13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the benefit
of the undersigned and their respective heirs, successors and
assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- ---------------------------------
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ---------------------------------------
Secretary ▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
and Chief Financial Officer
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Secretary ▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
6
▇▇▇▇▇ FUNDING, INC.
a Pennsylvania corporation
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------- ---------------------------------
Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
ATLAS AMERICA PUBLIC #9 LTD.
By: ATLAS RESOURCES, INC.
Managing General Partner
ATTEST:
By: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ------------------------------------
Secretary ▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
and Chief Financial Officer
7
APPENDIX I TO ESCROW AGREEMENT
COMPENSATION FOR SERVICES OF ESCROW AGENT
Escrow Agent annual fee per year or any part thereof $3,000.00
8
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ▇▇▇▇▇ FUNDING, INC.
TO:
-------------------------------------------
RE: ATLAS AMERICA PUBLIC #9 LTD.
Gentlemen:
Atlas Resources, Inc. ("Atlas"), is the Managing General Partner in a
Pennsylvania limited partnership named Atlas America Public #9 Ltd. (the
"Partnership"). The Units of Participation (the "Units") and the offering are
described in the enclosed Prospectus dated __________, 2000 (the
"Prospectus"). Prospectuses relating to the Units have been furnished to you
with this Agreement.
Our firm, ▇▇▇▇▇ Funding, Inc. (the "Dealer-Manager"), has entered into
a Dealer-Manager Agreement for sales in the states of Minnesota and New
Hampshire, a copy of which has been furnished to you and is incorporated
herein by reference, with the Managing General Partner and the Partnership
under which the Dealer-Manager has agreed to form a group of National
Association of Securities Dealers, Inc. (the "NASD") member firms (the
"Selling Agents"), who will obtain subscriptions to the Partnership in the
states of Minnesota and New Hampshire on a "best efforts" basis pursuant to
the Securities Act of 1933, as amended (the "Act"), and the provisions of the
Prospectus.
You are invited to become one of the Selling Agents, on a non-exclusive
basis. By your acceptance below you will have agreed to act in that capacity
and to use your best efforts, in accordance with the following terms and
conditions, to solicit such subscriptions in the states of Minnesota and New
Hampshire. This Agreement, however, shall not be construed to prohibit your
participation as a selling agent in other states in addition to Minnesota and
New Hampshire pursuant to a duly executed selling agent agreement entered into
by you and any other authorized "Dealer-Manager" for the Partnership.
1. REPRESENTATIONS AND WARRANTIES OF SELLING AGENT. You, as a Selling
Agent, represent and warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing and in
good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations hereunder.
(b) This Agreement when accepted and approved will be duly
authorized, executed and delivered by you and will be a valid
and binding agreement on your part in accordance with its
terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in any breach of
any of the terms or conditions of, or constitute a default
under your Articles of Incorporation, Bylaws, any indenture,
agreement or other instrument to which you are a party, or
violate any order applicable to you of any court or any
federal or state regulatory body or administrative agency
having jurisdiction over you or over your affiliates.
1
(d) You are duly registered pursuant to the provisions of the
Securities Exchange Act of 1934 (the "Act of 1934") as a
dealer and you are a member in good standing of the NASD. You
are duly registered as a broker-dealer in the states in which
you are required to be registered in order to carry out your
obligations as contemplated by this Agreement and the
Prospectus. You agree to maintain all the foregoing
registrations in good standing throughout the term of the
offer and sale of the Units and you agree to comply with all
statutes and other requirements applicable to you as a
broker-dealer pursuant to those registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall
comply with all the provisions of the Act, insofar as the Act
applies to your activities hereunder. Further, you shall not
engage in any activity which would cause the offer and/or sale
of Units not to comply with the Act, the Act of 1934 and the
applicable rules and regulations of the Securities and
Exchange Commission (the "Commission"), the applicable state
securities laws and regulations, this Agreement and the NASD
Conduct Rules including Rules 2730, 2740, 2420, 2750, and
Rules 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
SUITABILITY
(A) A member or person associated with a member
shall not underwrite or participate in a
public offering of a direct participation
program unless standards of suitability have
been established by the program for
participants therein and such standards are
fully disclosed in the prospectus and are
consistent with the provisions of
subparagraph (B) of this section.
(B) In recommending to a participant the
purchase, sale or exchange of an interest in
a direct participation program, a member or
person associated with a member shall:
(i) have reasonable grounds to believe,
on the basis of information obtained
from the participant concerning his
investment objectives, other
investments, financial situation and
needs, and any other information
known by the member or associated
person, that:
(a) the participant is or will
be in a financial position
appropriate to enable him
to realize to a significant
extent the benefits
described in the
prospectus, including the
tax benefits where they are
a significant aspect of the
program;
(b) the participant has a fair
market net worth sufficient
to sustain the risks
inherent in the program,
including loss of
investment and lack of
liquidity; and
(c) the program is otherwise
suitable for the
participant; and
(ii) maintain in the files of the member
documents disclosing the basis upon
which the determination of
suitability was reached as to each
participant.
(C) Notwithstanding the provisions of
subparagraphs (A) and (B) hereof, no member
shall execute any transaction in a direct
participation program in a discretionary
account without prior written approval of
the transaction by the customer.
2
Sec. (b)(3)
DISCLOSURE
(A) Prior to participating in a public offering
of a direct participation program, a member
or person associated with a member shall
have reasonable grounds to believe, based on
information made available to him by the
sponsor through a prospectus or other
materials, that all material facts are
adequately and accurately disclosed and
provide a basis for evaluating the program.
(B) In determining the adequacy of disclosed
facts pursuant to subparagraph (A) hereof, a
member or person associated with a member
shall obtain information on material facts
relating at a minimum to the following, if
relevant in view of the nature of the
program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk
factors; and
(vi) appraisals and other pertinent
reports.
(C) For purposes of subparagraphs (A) and (B)
hereof, a member or person associated with a
member may rely upon the results of an
inquiry conducted by another member or
members, provided that:
(i) the member or person associated with
a member has reasonable grounds to
believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were
provided to the member or person
associated with a member with the
consent of the member or members
conducting or directing the inquiry;
and
(iii) no member that participated in the
inquiry is a sponsor of the program
or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in
a direct participation program, a member or
person associated with a member shall inform
the prospective participant of all pertinent
facts relating to the liquidity and
marketability of the program during the term
of investment.
(f) You have received copies of the Prospectus relating to the
Units and you have relied only on the statements contained in
the Prospectus and not on any other statements whatsoever,
either written or oral, with respect to the details of the
offering of Units.
(g) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without
limitation any material for use in any newspaper, magazine,
radio or television commercial, telephone recording, motion
picture, or other public media) without the prior written
approval of the Managing General Partner, and without the
prior written approval of the form and content thereof by the
Commission, the NASD and the securities authorities of the
states where such advertisement or solicitation is to be
circulated. Any such advertisements or solicitations shall be
at your expense.
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(h) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner or the
Dealer-Manager, you agree to distribute each such supplement
or amendment to the Prospectus to every person who has
previously received a copy of the Prospectus from you and you
further agree to include such supplement or amendment in all
future deliveries of any Prospectus.
(i) In connection with any offer or sale of the Units, you agree
to comply in all respects with statements set forth in the
Prospectus and the Partnership Agreement and you agree not to
make any statement inconsistent with the statements in the
Prospectus or the Partnership Agreement and you further agree
that you shall not provide any written information, statements
or sales literature other than the Prospectus, the Managing
General Partner's corporate profile and a brochure entitled
"Atlas America Public #9 Ltd." (the corporate profile and the
brochure collectively referred to herein as the "Brochure"),
and any supplements or amendments thereto unless approved in
writing by the Managing General Partner. Further, you agree
not to make any untrue or misleading statements of a material
fact in connection with the Units.
(j) You agree to use your best efforts in the solicitation and
sale of said Units, including insuring that the prospective
purchasers meet the suitability requirements set forth in the
Prospectus and the Subscription Agreement and properly execute
the Subscription Agreement, which has been provided as Exhibit
(I-B) to the Partnership Agreement, Exhibit (A) to the
Prospectus, together with any additional forms provided in any
supplement or amendment to the Prospectus, or otherwise
provided to you by the Managing General Partner or the
Dealer-Manager to be completed by prospective purchasers.
The Managing General Partner shall have the right to reject
any subscription at any time for any reason without liability
to it. Investor funds and executed Subscription Agreements
shall be transmitted as set forth in Section 11.
(k) You shall comply with the requirements of Rules 2810(b)(2)(B)
and (b)(3)(D) of the NASD Conduct Rules.
2. COMMISSIONS.
(a) Subject to the receipt of the minimum required Partnership
Subscription of $1,000,000, the Dealer-Manager is entitled to
receive from the Partnership a 7.0% Sales Commission, a .5%
reimbursement of marketing expenses and a .5% reimbursement of
the Selling Agents' bona fide accountable due diligence
expenses based on the aggregate amount of all Unit
subscriptions to the Partnership secured by the Dealer-Manager
or the selling group formed by the Dealer-Manager and accepted
by the Managing General Partner.
Subject to the terms and conditions herein set forth,
including the Dealer-Manager's receipt from you of the
documentation required of you in Section 1 of this Agreement,
the Dealer-Manager agrees to pay you a 7.0% cash commission, a
.5% reimbursement of marketing expenses and a .5%
reimbursement of your bona fide accountable due diligence
expenses, of subscriptions sold by you and accepted by the
Managing General Partner, within seven business days after the
Dealer-Manager has received the commissions and reimbursements
on such subscriptions.
The Dealer-Manager is entitled to receive its commissions and
reimbursements within five business days after at least the
minimum Partnership Subscription ($1,000,000) has been
received and accepted by the Managing General Partner and the
subscription proceeds have been released to the Managing
General Partner from the escrow account, and approximately
every two weeks thereafter until the Offering Termination
Date, which is December 31, 2000, or when the maximum
Partnership Subscription of $15,000,000 is received if
earlier. The
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balance will be paid to the Dealer-Manager within 14 business
days after the Offering Termination Date.
(b) Notwithstanding anything herein to the contrary, you agree to
waive payment of your commissions and reimbursements as set
forth above in (a) until the Dealer-Manager is in receipt of
the related amounts owed to it pursuant to the Dealer-Manager
Agreement, and the Dealer-Manager's liability for such amounts
hereunder is limited solely to the proceeds of the related
amounts owed to it pursuant to the Dealer-Manager Agreement.
(c) The Partnership will not commence operations unless
subscriptions for at least $1,000,000 have been secured by
December 31, 2000. If this amount is not secured, nothing will
be payable to you and all funds advanced by purchasers will be
returned to them with interest earned, if any.
(d) Notwithstanding the foregoing, Registered Investment Advisors
and their clients may subscribe to Units without paying the
Sales Commissions and reimbursement of marketing expenses and
bona fide accountable due diligence expenses, and their Agreed
Subscriptions will be subject only to the 2.5% Dealer-Manager
fee.
Also, the Managing General Partner, its officers and directors
and Affiliates, and the Selling Agents may subscribe to Units
without paying the Dealer-Manager fee, Sales Commissions and
the reimbursement of marketing expenses and the Selling
Agents' bona fide accountable due diligence expenses.
3. STATE SECURITIES REGISTRATION. The Managing General Partner may elect
not to qualify or register Units in any state in which it deems such
qualification or registration is not warranted for any reason in its
sole discretion. Upon application to the Dealer-Manager you will be
informed as to the jurisdictions in which the Units have been qualified
for sale or are exempt under the respective securities or "Blue Sky"
laws of such jurisdictions.
Notwithstanding, the Dealer-Manager, the Partnership and the Managing
General Partner have not assumed and will not assume any obligation or
responsibility as to your right to act as a broker-dealer with respect
to the Units in any such jurisdiction.
4. EXPENSE OF SALE. The expenses in connection with the offer and sale of
the Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the
performance of its obligations hereunder, including the fees
and expenses of its attorneys and accountants, even if this
offering is not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations hereunder, including the fees and expenses of your
own counsel and accountants, even if this offering is not
successfully completed.
5. CONDITIONS OF YOUR DUTIES. Your obligations provided herein, as of the
date hereof and at the applicable closing date, shall be subject to the
performance by the Dealer-Manager of its obligations hereunder and to
the performance by the Managing General Partner of its obligations
under the Dealer-Manager Agreement.
6. CONDITIONS OF DEALER-MANAGER'S DUTIES. The Dealer-Manager's obligations
provided herein, including the duty to pay compensation as set forth in
Section 2 hereof, shall be subject to the accuracy, as of the date
hereof and at the applicable closing date (as if made at the applicable
closing date) of your representations and warranties made herein, and
to the performance by you of your obligations
5
hereunder, and to the additional condition that the Dealer-Manager
shall have received, at or prior to the applicable closing date, the
following documents:
(a) a fully executed Subscription Agreement for each prospective
purchaser;
(b) certification to the Dealer-Manager that you are registered as
required by Section 1(d) and that such registrations were,
during the term of the offering and through the applicable
closing date, in full force and effect; and
(c) a certificate from you, dated at the applicable closing date,
to the effect that your representations and warranties made
herein are true and correct as if made at the applicable
closing date and that you have fulfilled all your obligations
hereunder.
7. INDEMNIFICATION.
(a) You shall indemnify and hold harmless the Dealer-Manager, the
Managing General Partner, the Partnership and its attorneys,
against any losses, claims, damages or liabilities, joint or
several, to which such parties may become subject, under the
Act, the Act of 1934 or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon your breach of any of your
duties and obligations, representations, or warranties under
the terms or provisions of this Agreement and you shall
reimburse such parties for any legal or other expenses
reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) The Dealer-Manager shall indemnify and hold you harmless
against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act, the
Act of 1934 or otherwise insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon the Dealer-Manager's breach of any of
its duties and obligations, representations, or warranties
under the terms or provisions of this Agreement and the
Dealer-Manager shall reimburse you for any legal or other
expenses reasonably incurred in connection with investigating
or defending such loss, claim, damage, liability or action.
(c) The foregoing indemnity agreements shall extend upon the same
terms and conditions to, and shall inure to the benefit of,
each person, if any, who controls each indemnified party
within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of
the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying
party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party. If
any such action shall be brought against such indemnified
party, it shall notify the indemnifying party of the
commencement thereof, and the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified and indemnifying parties.
After the indemnified party shall have received notice from
the agreed upon counsel that the defense under this paragraph
has been so assumed, the indemnifying party shall not be
responsible for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than with respect to the agreed upon
counsel who assumed the defense thereof.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Dealer-Manager and
you herein or in certificates delivered pursuant hereto, and the
indemnity agreements contained in Section 7 hereof, shall survive the
delivery, execution and closing hereof, and shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of you or any person who controls you within the meaning of the
Act, or by the Dealer-Manager, or any
6
of its officers, directors or any person who controls the Dealer-
Manager within the meaning of the Act, or any other indemnified party,
and shall survive delivery of the Units hereunder.
9. TERMINATION. You shall have the right to terminate this Agreement,
other than the indemnification provisions of Section 7, by giving
notice as hereinafter specified any time at or prior to a closing date:
(a) if the Dealer-Manager shall have failed, refused, or been
unable at or prior to the closing date, to perform any of its
obligations hereunder; or
(b) there has occurred an event materially and adversely affecting
the value of the Units.
If you elect to terminate this Agreement, other than the
indemnification provisions of Section 7, the Dealer-Manager shall be
promptly notified by you by telephone, telecopier, facsimile or
telegram, confirmed by letter.
The Dealer-Manager may terminate this Agreement, other than the
indemnification provisions of Section 7, for any reason and at any time
by promptly giving notice to you by telephone, telecopier or telegram,
confirmed by letter.
10. FORMAT OF CHECKS/ESCROW AGENT. Pending receipt of the minimum
Partnership Subscription of $1,000,000 (100 Units), the Dealer-Manager
and you agree that all subscribers shall be instructed to make their
checks, drafts, or money orders payable solely to "Atlas America Public
#9 Ltd., Escrow Agent, National City Bank of PA" as agent for the
Partnership.
If you receive a check, draft, or money order not conforming to the
foregoing instructions, then you shall return such check, draft, or
money order directly to the subscriber not later than the end of the
next business day following its receipt from the subscriber. If the
Dealer-Manager receives a check, draft, or money order not conforming
to the foregoing instructions, then the Dealer-Manager shall return
such check, draft, or money order to you not later than the end of the
next business day following its receipt by the Dealer-Manager and you
shall then return such check, draft, or money order directly to the
subscriber not later than the end of the next business day following
its receipt from the Dealer-Manager. Checks, drafts, or money orders
received by you which conform to the foregoing instructions shall be
transmitted by you pursuant to Section 11 "Transmittal Procedures,"
below.
You agree that you are bound by the terms of the Escrow Agreement, a
copy of which is attached to the Dealer-Manager Agreement as Exhibit
"A".
11. TRANSMITTAL PROCEDURES. You shall transmit received investor funds in
accordance with the following procedures.
(a) Pending receipt of the minimum Partnership Subscription of
$1,000,000, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from prospective
purchasers of Units, transmit same together with the original
executed Subscription Agreement to the Dealer-Manager by the
end of the next business day following receipt of the check,
draft, or money order by you. By the end of the next business
day following receipt of the check, draft, or money order and
Subscription Agreement by the Dealer-Manager, the
Dealer-Manager shall transmit the check, draft, or money order
and a copy of the executed Subscription Agreement to the
Escrow Agent, and the original Subscription Agreement and a
copy of the check, draft, or money order to the Managing
General Partner.
(b) Upon receipt by you of notice from the Managing General
Partner or the Dealer-Manager that the minimum Partnership
Subscription has been received, you agree that all subscribers
thereafter may be instructed, in the Managing General
Partner's sole discretion, to make their checks, drafts, or
money orders payable solely to "Atlas America Public #9 Ltd.".
Thereafter, you shall promptly, upon receipt of any and all
checks, drafts, and money orders received from
7
prospective purchasers of Units, transmit same together with
the original Subscription Agreement to the Dealer-Manager by
the end of the next business day following receipt of the
check, draft, or money order by you. By the end of the next
business day following receipt of the check, draft, or money
order and subscription documents by the Dealer-Manager, the
Dealer-Manager shall transmit the check, draft, or money
order and the original Subscription Agreement to the Managing
General Partner.
12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you, the Dealer-Manager, and any respective successors and
assigns. This Agreement shall also inure to the benefit of the
indemnified parties, their successors and assigns. This Agreement is
intended to be and is for the sole and exclusive benefit of the parties
hereto, and their respective successors and assigns, and the
indemnified parties and their successors and assigns, and for the
benefit of no other person. No other person shall have any legal or
equitable right, remedy or claim under or in respect of this Agreement.
No purchaser of any of the Units from you shall be construed a
successor or assign merely by reason of such purchase.
13. RELATIONSHIP. You are not authorized to hold yourself out as agent of
the Dealer-Manager, the Managing General Partner, the Partnership or of
any other Selling Agent, nor shall this Agreement constitute you a
partner of the Managing General Partner, the Dealer-Manager, the
Partnership or of any other Selling Agent, or render the Managing
General Partner, the Dealer-Manager, the Partnership or any general
partner thereof, or any other Selling Agent liable for any of your
obligations.
14. EFFECTIVE DATE. This Agreement is made effective between the parties as
of the date accepted by you as indicated by your signature hereto.
15. ENTIRE AGREEMENT, WAIVER. This Agreement constitutes the entire
agreement between the parties hereto and shall not be amended or
modified in any way except by subsequent agreement executed in writing,
and no party shall be liable or bound to the other by any agreement,
except as specifically set forth herein. Any party hereto may waive,
but only in writing, any term, condition, or requirement under this
Agreement which is intended for its own benefit, and written waiver of
any term or condition of this Agreement shall not operate as a waiver
of any other breach of such term or condition, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or
any other provision hereof.
16. NOTICES. Any communications from you shall be in writing addressed to
the Dealer-Manager at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. Any notice from the Dealer-Manager to you shall be deemed to
have been duly given if mailed, faxed or telegraphed to you at your
address shown below.
17. ACCEPTANCE. Please confirm your agreement to become a Selling Agent
under the terms and conditions set forth above by signing and returning
the enclosed duplicate copy of this Agreement to us at the address set
forth above.
Sincerely,
, 2000 ▇▇▇▇▇ FUNDING, INC.
--------------------------
ATTEST:
By:
-------------------------------- ------------------------------------
(SEAL) Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
8
ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the terms
and conditions stated in the above Agreement and confirm that all the
statements set forth in the above Agreement are true and correct. We hereby
acknowledge receipt of the Prospectuses and Brochures and a copy of the
Dealer-Manager Agreement referred to above.
, 2000
-------------------------- -----------------------------------,
a(n) corporation,
----------------
ATTEST:
By:
-------------------------------- ---------------------------------
(SEAL) Secretary , President
----------------------
------------------------------------
(Address)
------------------------------------
------------------------------------
9