DEALER-MANAGER AGREEMENTBroker Dealer Agreement |
|
|
You are currently viewing: This Broker Dealer Agreement involves
ATLAS RESOURCES PUBLIC 16-2007 (B) L.P. | ANTHEM SECURITIES, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Broker Dealer Agreement by:
<PAGE>
EXHIBIT 1(a)
ATLAS AMERICA
PUBLIC #16-2007 PROGRAM
ANTHEM
SECURITIES, INC.
DEALER-MANAGER AGREEMENT
<PAGE>
ANTHEM
SECURITIES, INC.
DEALER-MANAGER AGREEMENT
TABLE OF
CONTENTS
PAGE
----
1.
Description of Program and Units................................... 1
2.
Representations, Warranties and Agreements of the Managing General
Partner......................................................... 2
3.
Grant of Authority to the Dealer-Manager........................... 3
4.
Compensation and Fees.............................................. 3
5.
Covenants of the Managing General Partner.......................... 5
6.
Representations and Warranties of the Dealer-Manager............... 6
7.
State Securities Registration...................................... 10
8.
Expense of Sale.................................................... 11
9.
Conditions of the Dealer-Manager's Duties.......................... 11
10. Conditions of the Managing General
Partner's Duties................ 11
11.
Indemnification.................................................... 12
12. Representations and Agreements to
Survive Delivery................. 12
13.
Termination........................................................ 13
14.
Notices............................................................ 13
15. Format of Checks/Escrow
Agent......................................
13
16. Transmittal
Procedures............................................. 14
17.
Parties............................................................ 14
18. Relationship....................................................... 14
19. Effective
Date..................................................... 14
20. Entire Agreement,
Waiver........................................... 15
21. Governing
Law...................................................... 15
22.
Complaints......................................................... 15
23.
Privacy............................................................ 15
24. Anti-Money Laundering
Provision....................................
15
25.
Acceptance......................................................... 15
Exhibit A - Form of Escrow Agreement
Exhibit B - Selling Agent Agreement
Anthem Securities, Inc.
Dealer-Manager Agreement
i
<PAGE>
ANTHEM
SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best
Efforts)
Anthem Securities, Inc.
P.O. Box 926
Moon Township, Pennsylvania 15108-0926
RE: ATLAS AMERICA PUBLIC #16-2007 PROGRAM
Gentlemen:
The undersigned, Atlas Resources,
Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public
#16-2007 Program,
which is referred to as the "Program," is a series of up to two
limited
partnerships formed under the Delaware Revised Uniform Limited Partnership Act
as described below. These limited partnerships are sometimes referred to in
this
Agreement in the singular as a "Partnership" or in the plural as
"Partnerships."
The Managing General Partner on behalf of the Partnerships hereby confirms its
agreement with you, as Dealer-Manager, as follows:
1. DESCRIPTION OF PROGRAM AND UNITS.
(a)
The Managing General Partner, a Pennsylvania corporation, will be the
sole managing general partner
of up to two limited partnerships which
will be named as follows:
(i) Atlas America Public #16-2007(A) L.P.; and
(ii) Atlas America Public
#16-2007(B) L.P.
On behalf of the Program and
the Partnerships, a Registration
Statement on Form S-1
(Registration No. 333-________) 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 October 18, 2006
with the Securities and Exchange
Commission (the
"Commission") under the Securities Act of 1933, as
amended, which is referred to
as the "Act." The Registration Statement
has been declared effective by
the Commission and the Partnerships and
the Units are described in the
Prospectus that forms a part of the
Registration Statement. As used
in this Agreement, the terms
"Prospectus" and
"Registration Statement" refer solely to the
Prospectus and Registration
Statement, as amended, described above,
except that:
(i) from and after the date on which any
post-effective amendment to
the Registration Statement
is declared effective by the
Commission, the term
"Registration Statement" shall refer to the
Registration Statement as
amended by that post-effective
amendment, and the term
"Prospectus" shall refer to the
Prospectus then forming a
part of the Registration Statement; and
(ii) if the Prospectus filed by
the Managing General Partner pursuant
to Rule 424(b) or (c)
promulgated by the Commission under the Act
differs from the
Prospectus on file with 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.
Anthem Securities, Inc.
Dealer-Manager Agreement
1
<PAGE>
Terms defined in the Prospectus
and not otherwise defined in this
Agreement shall have the
meanings set forth in the Prospectus.
(b)
The Units will be sold at a price of $10,000 per Unit subject to the
discounts for certain investors
set forth in Section 4(c) of this
Agreement for certain
investors. Subject to the receipt and acceptance
by the Managing General Partner
of the minimum subscription proceeds
of $2,000,000 in a Partnership
by its Offering Termination Date for
each Partnership as described
in the Prospectus (the "Offering
Termination Date"), the
Managing General Partner may break escrow and
use the subscription proceeds
for the Partnership's drilling
activities, which is referred
to as the "Initial Closing Date." Also,
the maximum subscription
proceeds of all of the Partnerships, in the
aggregate, must not exceed the
registered amount of $200 million.
The Managing General Partner will
notify you and the "Selling Agents," as
defined below, of the Initial
Closing Date and Offering Termination Date
for each Partnership.
2. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF THE MANAGING GENERAL PARTNER.
The Managing General Partner
represents and warrants to and agrees with you
that:
(a)
The Partnerships composing the Program have a currently effective
Registration Statement on Form
S-1, including a final Prospectus, for
the registration of the Units
under the Act as described in Section 1
of this Agreement.
(b)
The Managing General Partner shall provide to you for delivery to all
offerees and purchasers and
their representatives the information and
documents that the Managing
General Partner deems appropriate to
comply with the Act and
applicable state securities acts, which are
referred to as the "Blue
Sky" laws.
(c)
The Units when issued will be duly authorized and validly issued as
set forth in the Agreement of
Limited Partnership of each Partnership,
which is referred to as the
"Partnership Agreement," the form of which
is included as Exhibit (A) to
the Prospectus, and subject only to the
rights and obligations set forth
in the Partnership Agreement or
imposed by the laws of the
state of formation of each Partnership or
of any jurisdiction to the laws
of which each Partnership is subject.
(d)
Each Partnership was duly formed under the laws of the State of
Delaware and is validly
existing as a limited partnership in good
standing under the laws of
Delaware with full power and authority to
own its properties and conduct
its business as described in the
Prospectus. Each Partnership
will be qualified to do business as a
limited partnership or similar
entity offering limited liability in
those jurisdictions where the
Managing General Partner deems the
qualification necessary to assure
limited liability of the limited
partners.
This Agreement, when executed
by you, will be a valid and binding
agreement of each Partnership
and the Managing General Partner, duly
authorized, executed and
delivered by them and enforceable in
accordance with its terms
except as may be limited by the effect of
bankruptcy, insolvency,
moratorium, preferential or fraudulent
conveyance or other laws or
equitable principles relating to or
affecting the rights of creditors
generally, general principles of
equity, and public policy
relating to claims for indemnification for
securities laws violations.
(e)
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.
Anthem Securities, Inc.
Dealer-Manager Agreement
2
<PAGE>
3. GRANT OF AUTHORITY TO THE
DEALER-MANAGER.
(a)
Based on the representations and warranties contained in this
Agreement, and subject to the
terms and conditions set forth in this
Agreement, the Managing General
Partner appoints you as the
Dealer-Manager for the
Partnerships and gives you the exclusive right
to solicit subscriptions for
the Units on a "best efforts" basis in
all states during the offering
period for each Partnership as
described in the Prospectus.
(b)
You agree to use your best efforts to effect sales of the Units and to
form and manage a selling group
composed of soliciting broker/dealers,
which are referred to as the
"Selling Agents," each of which shall be
a member of the National
Association of Securities Dealers, Inc.,
which is referred to as the
"NASD," and shall enter into a "Selling
Agent Agreement" in
substantially the form attached to this Agreement
as Exhibit "B."
(c)
The Managing General Partner shall have three business days after the
receipt of an executed Selling
Agent Agreement to refuse that Selling
Agent's participation.
4. COMPENSATION AND FEES.
(a)
As Dealer-Manager you shall receive from the Managing General Partner
the following compensation,
based on each Unit sold to investors in a
Partnership whose subscriptions
for Units are accepted by the Managing
General Partner:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7% Sales Commission;
(iii) an up to .5% reimbursement
of the Selling Agents' bona fide due
diligence expenses.
(b)
All of the up to .5% reimbursement of the Selling Agents' bona fide
due diligence expenses shall be
reallowed to the Selling Agents, and
all or a portion of the 7%
Sales Commission shall be reallowed to the
Selling Agents as described in
the Selling Agent Agreement with each
Selling Agent. A portion of the
remaining balance of the 2.5% Dealer-
Manager fee may be reallowed to
the wholesalers as wholesaling fees
for subscriptions obtained
through their efforts. However, you may
reduce the
Anthem Securities, Inc.
Dealer-Manager Agreement
3
<PAGE>
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 NASD 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:
(1) an accountable reimbursement for training
and education meetings
for associated persons of
the selling agents:
(ii) gifts that do not exceed $100 per year and
are not
preconditioned on
achievement of a sales target;
(iii) an occassional meal, a
ticket to a sporting event of 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
(iv) 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.
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 NASD
Conduct Rule 2810. For example, payments
or reimbursements by you or the
Managing General Partner may be made
in connection with meetings
held by you or the Managing General
Partner for the purpose of
training or education of registered
representatives of a Selling
Agent, only if the following conditions
are met:
(i) the registered representative obtains his
Selling Agent's prior
approval to attend the
meeting and attendance by the registered
representative is not
conditioned by his Selling Agent on the
achievement of a sales
target;
(ii) the location of the training and education
meeting is
appropriate to the
purpose of the meeting as defined in NASD
Conduct Rule 2810;
(iii) the payment or
reimbursement is not applied to the expenses of
guests of the registered
representative;
(iv) the payment or reimbursement by you or the
Managing General
Partner is not
conditioned by you or the Managing General
Partner on the
achievement of a sales target; and
(v) the recordkeeping requirements are met.
"Non-cash
compensation" means any form of compensation received in
connection with the sale of the
Units that is not cash compensation,
including but not limited to
merchandise, gifts and prizes, travel
expenses, meals and lodging.
(c)
Notwithstanding the foregoing:
(i) the Managing General Partner, its officers,
directors, and
affiliates, and investors
who buy Units through the officers and
directors of the Managing
General Partner may subscribe to Units
for a subscription price
reduced by the 2.5% Dealer-Manager fee,
the 7% Sales Commission
and the .5% reimbursement of the Selling
Agents' bona fide due
diligence expenses, which shall not be paid
to you; and
(ii) registered investment
advisors and their clients and Selling
Agents and their
registered representatives and principals may
subscribe to Units for a
subscription price reduced by the 7%
Sales Commission, which
shall not be paid to you, although their
subscription price shall not be reduced by
the 2.5%
Dealer-Manager fee and the
up to .5%
Anthem Securities, Inc.
Dealer-Manager Agreement
4
<PAGE>
reimbursement of the
Selling Agents' bona fide due diligence
expenses which shall be
paid to you.
No more than 5% of the total
Units sold in the Partnerships shall be
sold, in the aggregate, with
the discounts described above.
(d)
Pending receipt and acceptance by the Managing General Partner of the
minimum subscription proceeds
of $2,000,000 in each Partnership,
excluding any optional
subscription of the Managing General Partner
and its Affiliates and the
subscription discounts set forth in Section
4(c) of this Agreement, all
proceeds received by you from the sale of
Units in each Partnership shall
be held in a separate interest bearing
escrow account as provided in
Section 15 of this Agreement.
Unless at least the minimum
subscription proceeds of $2,000,000 as
described above are received on
or before the Offering Termination
Date of a Partnership as
described in Section 1 of this Agreement, the
offering of Units in that Partnership shall
be terminated, in which
event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales
Commission and the up
to .5% reimbursement of
the Selling Agents' bona fide due
diligence expenses set forth in Section 4(a)
of this Agreement
shall not be payable to
you;
(ii) all funds advanced by subscribers shall be
returned to them with
interest earned; and
(iii) you shall deliver a
termination letter in the form provided to
you by the Managing
General Partner to each of the subscribers
and to each of the
offerees previously solicited by you and the
Selling Agents in
connection with the offering of the Units.
(e)
Except as otherwise provided below, the fees, reimbursements, and
Sales Commissions set forth in
Section 4(a) of this Agreement shall be
paid to you within five
business days after the following:
(i) at least the minimum subscription proceeds of
$2,000,000 as
described above have been
received by the respective Partnership
and accepted by the
respective Partnership; and
(ii) the subscription proceeds
have been released from the escrow
account to the respective
Partnership.
You shall reallow to the
Selling Agents and the wholesalers their
respective fees,
reimbursements, and Sales Commissions as set forth in
Section 4(b) of this Agreement.
Thereafter, your fees,
reimbursements and Sales Commissions shall be
paid to you and shall be
reallowed to the Selling Agents and
wholesalers as described above
approximately every two weeks until the
Offering Termination Date for
the respective Partnership. All your
remaining fees, reimbursements,
and Sales Commissions shall be paid to
you by the Managing General
Partner no later than fourteen business
days after the Offering Termination
Date for the respective
Partnership.
5. COVENANTS OF THE MANAGING GENERAL
PARTNER. The Managing General Partner
covenants and agrees that:
(a)
The Managing General Partner shall deliver to you ample copies of the
Prospectus and all amendments
or supplements to the Prospectus.
Anthem Securities, Inc.
Dealer-Manager Agreement
5
<PAGE>
(b)
If any event affecting a Partnership or the Managing General Partner
occurs that in the opinion of
the Managing General Partner should be
set forth in a supplement or
amendment to the Prospectus, then the
Managing General Partner shall
promptly at its expense prepare and
furnish to you a sufficient
number of copies of a supplement or
amendment to the Prospectus so
that it, as so supplemented or amended,
will not contain an untrue
statement of a material fact or omit to
state any material fact
necessary in order to make the statements in
the Prospectus, in the light of
the circumstances under which they are
made, not misleading.
6. REPRESENTATIONS AND WARRANTIES OF
THE DEALER-MANAGER. You, as the
Dealer-Manager, represent and
warrant to the Managing General Partner and
the respective Partnership that:
(a)
You are a corporation duly organized, validly existing and in good
standing under the laws of the
state of your formation or of any
jurisdiction to the laws of
which you are subject, with all requisite
power and authority to enter
into this Agreement and to carry out your
obligations under this
Agreement.
(b)
This Agreement when accepted and approved by you shall be duly
authorized, executed, and
delivered by you and shall be a valid and
binding agreement on your part
in accordance with its terms.
(c)
The consummation of the transactions contemplated by this Agreement
and the Prospectus shall not result in
the following:
(i) any breach of any of the terms or conditions
of, or a default
under your Articles of
Incorporation or Bylaws, or any other
indenture, agreement, or
instrument to which you are a party or
by which you are bound; or
(ii) any violation of any order
applicable to you of any court or
regulatory body or
administrative agency having jurisdiction over
you or your affiliates.
(d)
You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is
referred to as the "Act of 1934," as a
broker or dealer, and you are a
member in good standing of the NASD.
You are duly registered as a
broker/dealer in the states where you are
required to be registered in
order to carry out your obligations as
contemplated by this Agreement
and the Prospectus. You agree to
maintain all the foregoing
registrations in good standing throughout
the term of the offer and sale
of the Units in each Partnership, and
you agree to comply with all
statutes and other requirements
applicable to you as a
broker/dealer under those registrations.
(e)
Pursuant to your appointment as Dealer-Manager, you shall use your
best efforts to exercise the
supervision and control that you deem
necessary and appropriate to
the activities of you and the Selling
Agents to comply with all the provisions
of the Act, insofar as the
Act applies to your and their
activities under this Agreement.
Further, you and the Selling
Agents shall not engage in any activity
which would cause the offer
and/or sale of the Units not to comply
with the Act, the Act of 1934,
the applicable rules and regulations of
the Commission, the applicable
state securities laws and regulations,
this Agreement, and the NASD
Conduct Rules including Rules 2420, 2730,
2740, 2750, and Rule 2810(b)(2)
and (b)(3), which provide as follows:
Sec. (b)(2)
SUITABILITY
(A) A member or person associated with a member
shall not
underwrite or
participate in a public offering of a direct
participation program
unless standards of suitability have
been established by
the program for participants therein and
such standards are fully
disclosed in the
Anthem Securities, Inc.
Dealer-Manager Agreement
6
<PAGE>
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
(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.
Anthem Securities, Inc.
Dealer-Manager Agreement
7
<PAGE>
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 conflict and risk factors; and
(vi) appraisals and other pertinent reports.
(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, 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 the investment; provided,
however, that
paragraph (b) shall not apply to an initial or
secondary public
offering of or a secondary market
transaction in a
unit, depositary receipt or other interest
in a direct
participation program which complies with
subparagraph (2)(D).
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.
Anthem Securities, Inc.
Dealer-Manager Agreement
8
<PAGE>
(f)
You agree to advise the Managing General Partner in writing of each
jurisdiction in which you and
the Selling Agents propose to offer or
sell the Units; and you shall
not nor shall you permit any Selling
Agent to offer or sell the
Units in any jurisdiction until you have
been advised in writing by the
Managing General Partner, or the
Managing General Partner's
special counsel, that the offer or sale of
the Units:
(i) has been qualified in the jurisdiction;
(ii) is exempt from the qualification requirements
imposed by the
jurisdiction; or
(iii) the qualification is
otherwise not required.
(g)
You and the Selling Agents have received copies of the Prospectus
relating to the Units and you
and the Selling Agents have relied only
on the statements contained in
the Prospectus and not on any other
statements whatsoever, either
written or oral, with respect to the
details of the offering of
Units.
You agree and shall require the
Selling Agents to agree to deliver a
copy of the Prospectus to each
subscriber to whom you sell the Units
at or before the completion of
any sale of Units to such subscriber
(which sale shall be deemed,
for the purposes of this Agreement to
occur on the date on which that
subscriber delivers subscription funds
to the escrow agent), or
earlier if required by the Blue Sky or
securities laws of any state.
Unless advised otherwise by the Managing
General Partner, you and the
Selling Agents may choose to provide each
offeree with the following,
which are collectively referred to as the
"Sales Literature":
(i) a flyer entitled "Atlas America Public
#16-2007 Program";
(ii) an article entitled "Tax Rewards with
Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled
"How an Investment in
Atlas America Public
#16-2007 Program Can Help Achieve an
Investor's Tax
Objectives";
(iv) a booklet entitled "Outline of Tax
Consequences of Oil and Gas
Drilling Programs";
(v) a brochure entitled "Investment
Insights - Tax Time";
(vi) a brochure entitled "Frequently Asked
Questions";
(vii) a brochure entitled "The Drilling
Process"; and
(viii) 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, the NASD and
the securities authorities of the states
where such advertisement
or solicitation is to be circulated.
Anthem Securities, Inc.
Dealer-Manager Agreement
9
<PAGE>
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.
Anthem Securities, Inc.
Dealer-Manager Agreement
10
<PAGE>
7. STATE SECURITIES REGISTRATION.
Incident to the offer and sale of the Units,
the Managing General Partner shall
use its best efforts either in taking:
(a)
all necessary action and filing all necessary forms and documents
deemed reasonable by it in
order to qualify or register Units for sale
under the securities laws of
the jurisdictions requested by you
pursuant to Section 6(f) of
this Agreement; or
(b)
any necessary action and filing any necessary forms deemed reasonable
by it in order to obtain an
exemption from qualification or
registration in those
jurisdictions.
Notwithstanding, the Managing
General Partner may elect not to qualify or
register Units in any state or
jurisdiction in which it deems the
qualification or registration is not
warranted for any reason in its sole
discretion. The Managing General
Partner and its counsel shall inform you
as to the states and jurisdictions
in which the Units have been qualified
for sale or are exempt under the
respective securities or Blue Sky laws of
those states and jurisdictions. The
Managing General Partner, however, has
not assumed and will not assume any
obligation or responsibility as to your
right or any Selling Agent's right
to act as a broker/dealer with respect
to the Units in any state or
jurisdiction.
The Managing General Partner shall
provide to you and the Selling Agents
for delivery to all offerees and
purchasers and their representatives any
additional information, documents,
and instruments that the Managing
General Partner deems necessary to
comply with the rules, regulations, and
judicial and administrative
interpretations in those states and
jurisdictions for the offer and sale
of the Units in those states.
The Managing General Partner shall
file all post-offering forms, documents,
or materials and take all other
actions required by the states and
jurisdictions in which the offer and
sale of Units have been qualified,
registered, or are exempt. However,
the Managing General Partner shall not
be required to take any action, make
any filing, or prepare any document
necessary or required in connection
with your status or any Selling Agent's
status as a broker/dealer under the
laws of any state or jurisdiction.
The Managing General Partner shall
provide you with copies of all
applications, filings,
correspondence, orders, other documents, or
instruments relating to any
application for qualification, registration,
exemption, or other approval under
applicable state or Federal securities
laws for the offering.
8. EXPENSE OF SALE. The expenses in
connection with the offer and sale of the
Units shall be payable as set forth
below.
(a)
The Managing General Partner shall pay all expenses incident to the
performance of its obligations
under this Agreement, including the
fees and expenses of its attorneys
and accountants and all fees and
expenses of registering or
qualifying the Units for offer and sale in
the states and jurisdictions as
set forth in Section 7 of this
Agreement, or obtaining
exemptions from qualification or registration,
even if the offering of the
Partnerships is not successfully
completed.
(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
Anthem Securities, Inc.
Dealer-Manager Agreement
11
<PAGE>
(b)
to the performance by the Managing General Partner of its obligations
under this Agreement.
10. CONDITIONS OF THE MANAGING GENERAL
PARTNER'S DUTIES. The Managing General
Partner's obligations provided under
this Agreement, including the duty to
pay compensation to you as set forth
in Section 4 of this Agreement, shall
be subject to the following:
(a)
the accuracy, as of the date of this Agreement and at the applicable
closing date of each
Partnership as if made at the applicable closing
date, of your representations
and warranties made in this Agreement;
(b)
the performance by you of your obligations under this Agreement; and
(c)
the Managing General Partner's receipt, at or before the applicable
closing date of each
Partnership, of a fully executed Subscription
Agreement for each prospective
purchaser as required by Section 6(k)
of this Agreement.
11. INDEMNIFICATION.
(a)
You and the Selling Agents shall indemnify and hold harmless the
Managing General Partner, each
Partnership and its attorneys against
any losses, claims, damages or
liabilities, joint or several, to which
they may become subject under
the Act, the Act of 1934, or otherwise
insofar as the losses, claims,
damages, or liabilities (or actions in
respect thereof) arise out of
or are based on your agreements with the
Selling Agents or your breach
of any of your duties and obligations,
representations, or warranties
under the terms or provisions of this
Agreement, and you and the
Selling Agents shall reimburse them for any
legal or other expenses
reasonably incurred in connection with
investigating or defending the
losses, claims, damages, liabilities,
or actions.
(b)
The Managing General Partner shall indemnify and hold you and the
Selling Agents harmless against
any losses, claims, damages or
liabilities, joint or several,
to which you and the Selling Agents may
become subject under the Act,
the Act of 1934, or otherwise insofar as
the losses, claims, damages, or liabilities
(or actions in respect
thereof) arise out of or are
based on the Managing General Partner's
breach of any of its duties and
obligations, representations, or
warranties under the terms or
provisions of this Agreement, and the
Managing General Partner shall
reimburse you and the Selling Agents
for any legal or other expenses
reasonably incurred in connection with
investigating or defending the
losses, claims, damages, liabilities,
or actions.
(c)
The foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure
to the benefit of, each person, if any,
who controls each indemnified
party within the meaning of the Act.
(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
Anthem Securities, Inc.
Dealer-Manager Agreement
12
<PAGE>
connection with the defense of
the action other than with respect to
the agreed on counsel who
assumed the defense of the action.
12. REPRESENTATIONS AND AGREEMENTS TO
SURVIVE DELIVERY. All representations,
warranties, and agreements of the
Managing General Partner and you in this
Agreement, including the indemnity
agreements contained in Section 11 of
this Agreement, shall:
(a)
survive the delivery, execution and closing of this Agreement;
(b)
remain operative and in full force and effect regardless of any
investigation made by or on
behalf of you or any person who controls
you within the meaning of the
Act, by the Managing General Partner, or
any of its officers, directors,
or any person who controls the
Managing General Partner within
the meaning of the Act, or any other
indemnified party; and
(c)
survive delivery of the Units.
13. TERMINATION.
(a)
You shall have the right to terminate this Agreement other than the
indemnification provisions of
Section 11 of this Agreement by giving
notice as specified below any
time at or before a closing date:
(i) if the Managing General Partner has failed,
refused, or been
unable at or before a
closing date, to perform any of its
obligations under this
Agreement; or
(ii) there has occurred an
event materially and adversely affecting
the value of the Units.
If you elect to terminate this
Agreement other than the
indemnification provisions of
Section 11 of this Agreement, then the
Managing General Partner shall
be promptly notified by you by
telephone, e-mail, facsimile,
or telegram, confirmed by letter.
(b)
The Managing General Partner may terminate this Agreement other than
the indemnification provisions
of Section 11 of this Agreement, for
any reason and at any time, by
promptly giving notice to you by
telephone, e-mail, facsimile,
or telegram, confirmed by letter as
specified below at or before a
closing date.
14. NOTICES.
(a)
All notices or communications under this Agreement, except as
otherwise specifically
provided, shall be in writing.
(b)
Any notice or communication sent by the Managing General Partner or a
Partnership to you shall be
mailed, delivered, or sent by facsimile,
e-mail or telegraph, and
confirmed to you at P.O. Box 926, 311 Rouser
Road, Moon Township,
Pennsylvania 15108-0926.
(c)
Any notice or communication sent by you to the Managing General
Partner or a Partnership shall
be mailed, delivered, or sent by
facsimile, e-mail or telegraph,
and confirmed at 311 Rouser Road, Moon
Township, Pennsylvania 15108.
15. FORMAT OF CHECKS/ESCROW AGENT.
Pending receipt of the minimum subscription
proceeds of $2,000,000 of each
Partnership as set forth in Section 4(d) of
this Agreement, the Managing General
Partner and you and the Selling
Agents, including customer carrying
broker/dealers, agree that all
subscribers shall be instructed to
make their checks or wire transfers
payable solely to the Escrow Agent
as agent for the Partnership in which
the Units are then being offered as
follows:
Anthem Securities, Inc.
Dealer-Manager Agreement
13
<PAGE>
(a)
"Atlas America Public #16-2007(A) L.P., Escrow Agent, National City
Bank of PA"; or
(b)
"Atlas Ame
