Exhibit- 1.1
1,800,000
Common
Units
ATLAS ENERGY RESOURCES, LLC
AMENDED & RESTATED UNDERWRITING AGREEMENT
May 15, 2008
AMENDED & RESTATED UNDERWRITING AGREEMENT
May 15, 2008
UBS
Securities LLC
Wachovia Capital Markets, LLC
as
Managing Underwriters
c/o UBS
Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies
and Gentlemen:
Atlas Energy Resources, LLC, a
Delaware limited liability company (the “ Company
”), proposes to issue and sell to the underwriters named in
Schedule A annexed hereto (the “
Underwriters ”), for whom you are acting as
representatives (the “ Representatives ”), an
aggregate of 1,800,000 common units (the “ Firm Units
”) representing Class B limited liability company
interests in the Company (the “ Common Units ”).
In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 270,000 Common Units
(the “ Additional Units ”). The Firm Units and
the Additional Units are hereinafter collectively sometimes
referred to as the “ Offered Units .” The
Offered Units are described in the Prospectus which is referred to
below. It is understood and agreed that this agreement (this
“ Agreement ”) amends, restates and replaces in
its entirety the Underwriting Agreement, dated May 15, 2008,
among the parties hereto for the purchase of 1,600,000 Common
Units.
As used herein, each of Atlas Energy
Operating Company, LLC, a Delaware limited liability company
(“ Operating LLC ”), AIC, LLC, a Delaware
limited liability company (“ AIC ”), Atlas
Noble, LLC, a Delaware limited liability company (“ Atlas
Noble ”), Viking Resources, LLC, a Pennsylvania limited
liability company (“ Viking ”), Resource Energy,
LLC, a Delaware limited liability company (“ REI
”), Atlas America, LLC, a Pennsylvania limited liability
company (“ Atlas America LLC ”), AER Pipeline
Construction, Inc., a Delaware corporation (“ AER
Pipeline ”), Atlas Energy Ohio, LLC, an Ohio limited
liability company (“ Atlas Energy Ohio ”), Atlas
Resources, LLC, a Pennsylvania limited liability company (“
Atlas Resources ”), Anthem Securities, Inc., a
Pennsylvania corporation (“ Anthem ”), REI-NY,
LLC, a Delaware limited liability company (“ REI-NY
”), Resource Well Services, LLC, a Delaware limited liability
company (“ RWS ”), Atlas Energy Finance Corp., a
Delaware corporation (“ Finance Corp ”), Atlas
Energy Michigan, a Delaware limited liability company (“
Atlas Energy Michigan ”), Atlas Gas & Oil Company,
LLC, a Michigan limited liability company (“ AGO
”), and Westside Pipeline Company, LLC, a Michigan limited
liability company (“ Westside ”), is sometimes
referred to herein individually as a “ Subsidiary
” and collectively, as the “ Subsidiaries
.” Atlas Energy Management, Inc., a Delaware corporation (the
“ Manager ”), serves as the manager of the
Company. Each of the Company, the Manager and the Operating LLC is
sometimes referred to herein individually as an “ Atlas
Party ” and collectively, as the “ Atlas
Parties .” Each of the Subsidiaries and Atlas Parties is
sometimes referred to herein individually as an “ Atlas
Entity ” and collectively, as the “ Atlas
Entities .”
The Company has prepared and filed,
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively,
the “ Act ”), with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3ASR (File No. 333-149692) under the Act
(the “ registration statement ”), including a
prospectus relating to the Offered Units, which registration
statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules
and
regulations thereunder (collectively, the “ Exchange
Act ”). Such registration statement has become effective
under the Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
respective Underwriters (the “ Effective Time
”), including: (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein
and, (ii) any information contained or incorporated by
reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is
deemed, pursuant to Rule 430B or Rule 430C under the Act,
to be part of the registration statement at the Effective Time. The
Company has furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Offered Units,
copies of one or more preliminary prospectus supplements, and the
documents incorporated by reference therein, relating to the
Offered Units. Except where the context otherwise requires, “
Pre-Pricing Prospectus ,” as used herein, means each
such preliminary prospectus supplement, in the form so furnished,
including any basic prospectus (whether or not in preliminary form)
furnished to you by the Company and attached to or used with such
preliminary prospectus supplement. Except where the context
otherwise requires, “ Basic Prospectus ,” as
used herein, means any such basic prospectus and any basic
prospectus furnished to you by the Company and attached to or used
with the Prospectus Supplement (as defined below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Offered Units, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day
after the date hereof (or such earlier time as may be required
under the Act), in the form furnished by the Company to you for use
by the Underwriters and by dealers in connection with the offering
of the Offered Units.
Except where the context otherwise
requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached
to or used with the Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto and each
“road show” (as defined in Rule 433 under the
Act), if any, related to the offering of the Offered Units
contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Act). The Underwriters have
not offered or sold and will not offer or sell, without the
Company’s consent, any Offered Units by means of any
“free writing prospectus” (as defined in Rule 405
under the Act) that is required to be filed by the Underwriters
with the Commission pursuant to Rule 433 under the Act, other
than a Permitted Free Writing Prospectus.
“ Covered Free Writing
Prospectuses ,” as used herein, means (i) each
“issuer free writing prospectus” (as defined in
Rule 433(h)(1) under the Act), if any, relating to the Offered
Units, which is not a Permitted Free Writing Prospectus and
(ii) each Permitted Free Writing Prospectus.
“ Disclosure Package
,” as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case, together with any combination of one or
more of the Permitted Free Writing Prospectuses, if any.
Any reference herein to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “
Incorporated Documents ”), including, unless the
context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus
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or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Basic Prospectus, such Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement, “
business day ” shall mean a day on which the New York
Stock Exchange (the “ NYSE ”) is open for
trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
On May 7, 2008 the Company
issued to Atlas America, Inc. (“ AII ”), 600,000
Common Units (the “ Private Units ”) pursuant to
the terms of a common unit purchase agreement, dated as of
May 5, 2008, between the Company and AII (the “
Private Placement ”).
The Company and the Underwriters
agree as follows:
1. Sale and Purchase .
Upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company the number of Firm Units set forth opposite the name of
such Underwriter in Schedule A attached hereto, subject
to adjustment in accordance with Section 8 hereof, in each
case at a purchase price of $40.08 per Unit. The Company is advised
by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Units as soon
after the effectiveness of this Agreement as in your judgment is
advisable and (ii) initially to offer the Firm Units upon the
terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Company hereby
grants to the several Underwriters the option (the “
Over-Allotment Option ”) to purchase, and upon the
basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of Firm Units to be purchased
by each of them, all or a portion of the Additional Units as may be
necessary to cover over-allotments made in connection with the
offering of the Firm Units, at the same purchase price per unit to
be paid by the Underwriters to the Company for the Firm Units. The
Over-Allotment Option may be exercised by the Representatives on
behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date of the
Prospectus Supplement, by written notice to the Company. Such
notice shall set forth the aggregate number of Additional Units as
to which the Over-Allotment Option is being exercised, and the date
and time when the Additional Units are to be delivered (any such
date and time being herein referred to as an “ additional
time of purchase ”); provided , however ,
that no additional time of purchase shall be earlier than the
“time of purchase” (as defined below) nor earlier than
the second business day after the date on which the Over-Allotment
Option shall have been exercised nor later than the tenth business
day after the date on which the Over-Allotment Option shall have
been exercised. The number of Additional Units to be sold to each
Underwriter shall be the number that bears the same proportion to
the aggregate number of Additional Units being purchased as the
number of Firm Units set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total
number of Firm Units (subject, in each case, to such adjustment as
the Representatives may determine to eliminate fractional common
units), subject to adjustment in accordance with Section 8
hereof.
2. Payment and Delivery
. Payment of the purchase price for the Firm Units shall be made to
the Company by Federal Funds wire transfer, against electronic
delivery of the certificates for the Firm
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Units in
book entry form to you through the facilities of The Depository
Trust Company (“ DTC ”) for the respective
accounts of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on May 21, 2008
(unless another time shall be agreed to by you and the Company or
unless postponed in accordance with the provisions of
Section 8 hereof). The time at which such payment and delivery
are to be made is hereinafter sometimes called the “ time
of purchase .” Electronic transfer of the Firm Units
shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the
Additional Units shall be made at the additional time of purchase
in the same manner and at the same office and time of day as the
payment for the Firm Units, provided that the purchase price per
Additional Unit shall be reduced by an amount per Additional Unit
equal to any dividends or distributions declared by the Company and
payable on the Firm Units but not payable on the Additional Units.
Electronic transfer of the Additional Units shall be made to you at
the additional time of purchase in such names and in such
denominations as you shall specify.
Deliveries of the documents described
in Section 6 hereof with respect to the purchase of the
Offered Units shall be made at the offices of Ledgewood, 1900
Market Street, Philadelphia, PA 19103, at 9:00 A.M., New York City
time, on the date of the closing of the purchase of the Firm Units
or the Additional Units, as the case may be.
3. Representations and
Warranties of the Atlas Parties . Each of the Atlas Parties,
jointly and severally, represents and warrants to and agrees with
each of the Underwriters that:
(a) Effectiveness of
Registration Statement . The Registration Statement has
heretofore become effective under the Act; no stop order of the
Commission preventing or suspending the use of any Basic
Prospectus, any Pre-Pricing Prospectus,, the Prospectus Supplement,
the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and
no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the
Commission.
(b) Registration
Statement . The Registration Statement complied when it became
effective, complies as of the date hereof and, as amended or
supplemented, at the time of purchase, each additional time of
purchase, if any, and at all times during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Offered Units, will comply, in all
material respects, with the requirements of the Act; the conditions
to the use of Form S-3 in connection with the offering and sale of
the Offered Units as contemplated hereby have been satisfied; the
Registration Statement constitutes an “automatic shelf
registration statement” (as defined in Rule 405 under
the Act); the Company has not received, from the Commission, a
notice, pursuant to Rule 401(g)(2), of objection to the use of
the automatic shelf registration statement form; as of the
determination date applicable to the Registration Statement (and
any amendment thereof) and the offering contemplated hereby, and as
of each time, if any, an “offer by or on behalf of”
(within the meaning of Rule 163 under the Act) the Company was
made prior to the initial filing of the Registration Statement, the
Company is and was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; the Registration Statement
meets, and the offering and sale of the Offered Units as
contemplated hereby complies with, the requirements of
Rule 415 under the Act (including, without limitation,
Rule 415(a)(5) under the Act); the Registration Statement did
not, as of the Effective Time, 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 therein
not misleading; each Pre-Pricing Prospectus complied, at the time
it was filed with the Commission, and complies as of the date
hereof, in all material respects with the requirements of the Act;
at no time during the period that begins on the earlier of the date
of such Pre-Pricing Prospectus and the date such Pre-Pricing
Prospectus was filed with the Commission and ends at the time of
purchase did or will any Pre-Pricing Prospectus, as then amended
or
4
supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and at no time during such period
did or will any Pre-Pricing Prospectus, as then amended or
supplemented, together with any combination of one or more of the
then-issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; each Basic Prospectus complied or will comply, as of
its date and as of the date hereof (if filed with the Commission on
or prior to the date hereof) and, at the time of purchase, each
additional time of purchase, if any, and at all times during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Offered Units,
will comply, in all material respects, with the requirements of the
Act; at no time during the period that begins on the earlier of the
date of such Basic Prospectus and the date such Basic Prospectus
was filed with the Commission and ends at the time of purchase did
or will any Basic Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any Basic
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection
with any sale of Offered Units, in all material respects, with the
requirements of the Act (in the case of the Prospectus, including,
without limitation, Section 10(a) of the Act); at no time during
the period that begins on the earlier of the date of the Prospectus
Supplement and the date the Prospectus Supplement is filed with the
Commission and ends at the later of the time of purchase, the
latest additional time of purchase, if any, and the end of the
period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Offered Units did or will any Prospectus Supplement or
the Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; at no
time during the period that begins on the date of such Permitted
Free Writing Prospectus and ends at the time of purchase did or
will any Permitted Free Writing Prospectus, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Atlas Parties make no representation or
warranty in this Section 3(b) with respect to any statement
contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the
Registration Statement, such Pre-Pricing Prospectus, the Prospectus
or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed, or will be filed,
with the Commission or at the time such document became or becomes
effective, as applicable, complied or will comply, in all material
respects, with the requirements of the Exchange Act and did not or
will not, as applicable, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) No Other Prospectus
. Prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Offered Units by means
of any “prospectus” (within the meaning of the Act) or
used any “prospectus” (within the meaning of the Act)
in connection with the offer
5
or sale
of the Offered Units, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any;
the Company has not, directly or indirectly, prepared, used or
referred to any Permitted Free Writing Prospectus except in
compliance with Rule 163 or with Rules 164 and 433 under
the Act; assuming that such Permitted Free Writing Prospectus is so
sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was,
if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 and Rule 433 (without reliance on subsections
(b), (c) and (d) of Rule 164); the conditions set
forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Offered
Units contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433,
Rule 431 or Rule 430B under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor
the Underwriters are disqualified, by reason of subsection
(f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Offered Units,
“free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433
under the Act; the Company is not an “ineligible
issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and
433 under the Act with respect to the offering of the Offered Units
contemplated by the Registration Statement , without taking into
account any determination by the Commission pursuant to
Rule 405 under the Act that it is not necessary under the
circumstances that the Company be considered an “ineligible
issuer”; the parties hereto agree and understand that the
content of any and all “road shows” (as defined in
Rule 433 under the Act) related to the offering of the Offered
Units contemplated hereby is solely the property of the
Company.
(d) Formation and
Qualification of the Atlas Entities . Each of the Atlas
Entities has been duly formed and is validly existing as a limited
liability company or corporation, as the case may be, is in good
standing under the laws of its respective jurisdiction of formation
or incorporation, with full limited liability company or corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Disclosure Package and the
Prospectus and, in the case of the Atlas Parties, to enter into and
perform its obligations under this Agreement. Each of the Atlas
Entities is duly registered or qualified to do business and is in
good standing as a foreign limited liability company or
corporation, as the case may be, in each jurisdiction where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so registered or qualified and in good standing would not,
individually or in the aggregate, have a material adverse effect on
the business, properties, condition (financial or otherwise),
earnings, operations or prospects of the Atlas Entities taken as a
whole (a “ Material Adverse Effect ”).
(e) Capitalization . At
March 31, 2008, the Company would have had, on the
consolidated as adjusted and as further adjusted bases indicated in
each of the Pre-Pricing Prospectuses and the Prospectus a
capitalization as set forth therein. As of the time of purchase and
any additional time of purchase, as the case may be, the Company
shall have an authorized and outstanding capitalization as set
forth in the sections of the Pre-Pricing Prospectuses and the
Prospectus entitled “Capitalization” and
“Description of Common Units” (and any similar sections
or information, if any, contained in any Permitted Free Writing
Prospectus), except for such adjustments as are necessary to
reflect the offer and sale of the Offered Units.
(f) Ownership of Company
. As of May 15, 2008, the members of the Company held limited
liability company interests in the Company represented by a total
of 1,251,236 outstanding Class A units (“
Class A Units ”) representing limited liability
interests in the Company, 61,310,749 outstanding Common Units and
the management incentive interests (as defined in the Company LLC
Agreement (as defined below)) (“ Management Incentive
Interests ”); all such membership interests were duly
authorized and validly issued in accordance with the limited
liability agreement of the Company, as amended (the “
Company LLC Agreement ”) and are fully paid (to the
extent required in the Company LLC Agreement)
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and
nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware Limited Liability
Company Act (the “ Delaware LLC Act ”)); and AAI
and the Manager own 29,952,996 Common Units (the “ Sponsor
Common Units ”), 1,251,236 Class A units and the
Management Incentive Interests, in each case, free and clear of any
liens, encumbrances, security interests, equities, charges and
other claims (collectively, “ Liens ”) (except
restrictions on transferability as contained in the Company LLC
Agreement).
(g) Valid Issuance of the
Units . At the time of purchase and each additional time of
purchase, if any, the Offered Units to be sold by the Company and
the limited liability company interests represented thereby, will
be duly authorized by the Company LLC Agreement and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully
paid (to the extent required under the Company LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act and as
otherwise described in the Disclosure Package and the
Prospectus).
(h) Ownership of the
Subsidiaries . The Company, directly or indirectly, owns 100%
of the outstanding limited liability company interests or capital
stock, as the case may be, in each of the Subsidiaries free and
clear of all Liens, except for any Liens pursuant to the Revolving
Credit Agreement, dated as of June 29, 2007, among Atlas
Energy Operating Company, LLC, its subsidiaries, J.P. Morgan Chase
Bank, N.A., as Administrative Agent and the other parties thereto,
as amended by the First Amendment to Credit Agreement, dated as of
October 25, 2007 (as so amended, the “ Credit
Agreement ”). Such ownership interests were duly
authorized and validly issued in accordance with the organizational
documents of the respective Subsidiaries, and are fully paid (to
the extent required under their respective organizational
documents) and nonassessable (except as such nonassessability may
be affected by the Delaware General Corporations Law, the
Pennsylvania Limited Liability Company Act, the Ohio Limited
Liability Company Act and Sections 18-607 and 18-804 of the
Delaware LLC Act, as applicable).
(i) Ownership of the
Manager . AAI owns all of the issued and outstanding shares of
capital stock of the Manager; all of such shares of capital stock
were duly authorized and validly issued and are fully paid and
nonassessable; and AAI owns such shares of capital stock free and
clear of all Liens. There are no options, warrants, preemptive
rights or other rights to subscribe for or purchase, nor any
restriction upon the voting or transfer of any such shares of
capital stock.
(j) The Investment
Partnerships . At the time of purchase and at the additional
time of purchase, the Subsidiaries set forth on
Schedule C hereto (i) are the sole managing
general partner of each of the Investment Partnerships set forth
opposite the name of such Subsidiary, and own, directly or
indirectly, the general partner interests in such Investment
Partnerships set forth opposite the name of such Subsidiary, free
and clear of all Liens, except for any Liens pursuant to the Credit
Agreement and (ii) own the limited partner interests in such
Investment Partnership set forth opposite the name of such of
Subsidiary, free and clear of all Liens, except for any Liens
pursuant to the Credit Agreement. Except for any Liens pursuant to
the Credit Agreement, none of the assets of any Investment
Partnership are hypothecated, pledged or otherwise
encumbered.
(k) No Other
Subsidiaries . Other than its direct or indirect ownership
interests in the Subsidiaries, the Company does not own, directly
or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture,
association or other entity, except with respect to the Investment
Partnerships and the joint ventures listed on
Schedule D hereto.
(l) Authority and
Authorization . The Company has all requisite power and
authority under the Company LLC Agreement and the Delaware LLC Act
to issue, sell and deliver the Offered Units, in accordance with
and upon the terms and conditions set forth in this Agreement, the
Company LLC Agreement, the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted
7
Free
Writing Prospectuses, if any. All limited liability company and
corporate action, as the case may be, required to be taken by the
Atlas Parties or any of their partners, members, unitholders or
stockholders for the authorization, issuance, sale and delivery of
the Offered Units, the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement
have been validly taken.
(m) Conformity of Securities
to Description . The Offered Units, when issued and delivered
in accordance with the terms of the Company LLC Agreement and
against payment therefor as provided herein will conform in all
material respects, and the Sponsor Common Units, Class A Units
and Management Incentive Interests, conform in all material
respects, in each case, to the descriptions thereof contained in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if
any.
(n) Authorization of
Agreement . This Agreement has been duly authorized and validly
executed and delivered by each of the Atlas Parties.
(o) Enforceability of Other
Agreements .
(i) The Company LLC Agreement has
been be duly authorized, executed and delivered by the Members (as
defined in the Company LLC Agreement) and is a valid and legally
binding agreement of the Initial Member (as defined in the Company
LLC Agreement) and the Members, enforceable against the Initial
Members and the Members in accordance with its terms; and
(ii) The limited liability company
agreement or articles of incorporation and bylaws, as applicable,
of each of the Manager, the Operating LLC and the Subsidiaries
(together with the Company LLC Agreement, the “ Atlas
Entities Organizational Agreements ”) have been duly
authorized, executed and delivered by the parties thereto and are
valid and legally binding agreements of the parties thereto,
enforceable against such parties in accordance with their
respective terms;
provided that , with respect to each agreement
described in this Section 3(o), the enforceability thereof may
be limited by (A) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or
affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(B) public policy, applicable laws relating to fiduciary
duties and indemnification and an implied covenant of good faith
and fair dealing.
(p) No Default or
Conflicts . No Atlas Entity is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse
of time or both would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (i) its organizational documents, or
(ii) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound or
affected, except as disclosed in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any and, in the case of clause (ii), for
any such breaches, violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect.
The execution, delivery and performance of this Agreement by the
Atlas Parties, the issuance and sale of the Offered Units and the
consummation of the transactions contemplated hereby will not
(i) conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or
violation of or constitute a default under) the
8
organizational documents of any of the Atlas Entities, or any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to any of the Atlas Entities,
or (ii) conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or
violation of or constitute any default under) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which any Atlas Entity is a party or by
which any of them or any of their respective properties may be
bound or affected, except, in the case of clause (ii), for any such
breach, violation or default that would not have a Material Adverse
Effect.
(q) No Consents . Except
for any approvals, authorizations, consents, orders or filings
that, if not obtained or made, would not have a Material Adverse
Effect, no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required
in connection with the (i) execution, delivery and performance
of this Agreement by the Atlas Parties (ii) issuance and sale
of the Offered Units or the consummation by the Atlas Parties of
the transactions contemplated hereby and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Offered Units are being offered by the
Underwriters or under the rules and regulations of Financial
Industry Regulatory Authority (“ FINRA ”).
(r) No Preemptive Rights,
Registration Rights or Options . Except as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
there are no options, warrants, preemptive rights or other rights
to subscribe for or purchase, nor any restriction upon the voting
or transfer of, any ownership interests in, or shares of capital
stock of, any Atlas Entity. Neither the filing of the Registration
Statement nor the offering or sale of the Offered Units as
contemplated by this Agreement gives rise to (i) any rights
for or relating to the registration of any Common Units or other
securities of any of the Atlas Entities, other than as provided in
the Company LLC Agreement, which rights have been waived, or
(ii) the right of any person to act as an underwriter or as a
financial advisor to any of the Atlas Parties in connection with
the offer and sale of the Offered Units.
(s) Permits . Each of
the Atlas Entities and the Manager has all licenses,
authorizations, consents and approvals of governmental or
regulatory authorities (“ permits ”) as are
necessary to own or lease its properties and to conduct its
business in the manner described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, subject to such qualifications as may
be set forth in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any and except for such permits that, if not
obtained, would not have a Material Adverse Effect; none of the
Atlas Entities or the Manager is in violation of, or in default
under, or has received notice of any proceedings relating to
revocation or modification of, any such permit, except where such
violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect.
(t) Disclosure of Certain
Items . All legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses,
agreements, leases or documents of a character required to be
described in the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as
required.
(u) Litigation . There
are no actions, suits, claims, investigations or proceedings
pending or, to the knowledge of the Atlas Parties after due
inquiry, threatened, to which any of the Atlas Entities or of which
any of their respective properties is or would be subject at law or
in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, except any such action, suit, claim, investigation or
proceeding that would not result in a judgment, decree
9
or order
having, individually or in the aggregate, a Material Adverse Effect
or preventing consummation of the transactions contemplated
hereby.
(v) Independent Public
Accountants . Grant Thornton LLP, whose reports on the combined
and consolidated financial statements of the Company and
Subsidiaries and the financial statements of DTE Gas and Oil
Company included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus, are
independent registered public accountants as required by the Act
and by the rules of the Public Company Accounting Oversight
Board.
(w) Financial Statements
. The (i) audited financial statements included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, together with the
related notes, present fairly the financial position of the
entities purported to be shown thereby as of the dates indicated
and the consolidated results of operations and cash flows of such
entities for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity with
generally accepted accounting principles applied on a consistent
basis during the periods involved, except to the extent disclosed
therein, (ii) unaudited historical financial statements or
data included in the included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and any Permitted Free Writing Prospectus present fairly
the financial position of the entities purported to be shown
thereby as of the dates indicated and the consolidated results of
operations of such entities for the periods specified, and
(iii) pro forma financial statements or data included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectuses and any Permitted Free
Writing Prospectuses, if any, comply with the requirements of the
Act and the Exchange Act, and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data; the other financial and statistical data contained or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and or any Permitted Free
Writing Prospectuses, if any, are accurately and fairly presented
and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be
included or incorporated by reference in the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus that are
not included or incorporated by reference as required; and the
Atlas Entities do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus and all
disclosures contained in the Registration Statement, each
Pre-Pricing Prospectus and the Prospectus and the Permitted Free
Writing Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act,
to the extent applicable.
(x) Options . Except as
disclosed in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus, each unit
option granted under any option plan of any Atlas Entity (each, a
“ Stock Plan ”) was granted with a per unit
exercise price no less than the fair market value per Common Unit
on the grant date of such option, and no such grant involved any
“back-dating,” “forward-dating” or similar
practice with respect to the effective date of such grant; except
as would not, individually or in the aggregate, have a Material
Adverse Effect, each such option (i) was granted in compliance
with applicable law and with the applicable Stock Plan(s),
(ii) was duly approved by the board of directors (or a duly
authorized committee thereof) of such Atlas Entity and
(iii) has been properly accounted for in the Company’s
financial statements in accordance with U.S. generally accepted
accounting principles and disclosed in the Company’s filings
with the Commission;
(y) No Material Adverse
Change . Subsequent to the respective dates as of which
information is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the
10
Permitted Free Writing Prospectuses, if any, in each case excluding
any amendments or supplements to the foregoing made after the
execution of this Agreement, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management,
financial condition or results of operations of the Atlas Entities
taken as a whole, (ii) any transaction that is material to the
Atlas Entities taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet
obligations), incurred by any Atlas Entities, that is material to
the Atlas Entities taken as a whole, (iv) any material change
in the capitalization, or material increase in the long-term debt,
of the Atlas Entities or (v) any adverse change in or
affecting the general affairs, condition (financial or otherwise),
business, prospects, assets or results of operations of the Atlas
Entities taken as a whole. None of the Atlas Entities has sustained
since the date of the last audited financial statements included in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any loss
or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree.
(z) Lock-Up Agreement .
The Company has obtained for the benefit of the Underwriters the
agreement (a “ Lock-Up Agreement ”), in the form
set forth as Exhibit A hereto, of each of the
Company’s directors and officers (within the meaning of
Rule 16a-1(f) under the Exchange Act) and each holder of the
Sponsor Common Units.
(aa) Investment Company
. None of the Atlas Entities is now, and at no time during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Offered Units
will any of them be and, after giving effect to the offering and
sale of the Offered Units, none of them will be an
“investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act ”).
(bb) Independent Petroleum
Engineers. Wright & Company, Inc., whose report dated
February 22, 2008 (the “ Company Reserve Report
”) is referenced on Form 8-K dated April 17, 2008, which
is incorporated by reference in the Pre-Pricing Prospectus and who
has delivered the letter referred to in Section 6(c) hereof,
was, as of the date of such report, and is, as of the date hereof,
an independent petroleum engineer with respect to the
Company.
(cc) Reserves Data. The
information underlying the estimates of oil and natural gas
reserves of the Company, which the Company prepared and supplied to
Wright & Company, Inc. for the purpose of preparing the Company
Reserve Report, was true and correct in all material respects on
the dates such estimates were made and such information was
supplied and was prepared in accordance with customary industry
practices; the Company is not aware of any facts or circumstances
that would result in an adverse change in the reserves, or the
present value of future net cash flows therefrom, as described in
the most recent Pre-Pricing Prospectus and as reflected in the
Company Reserve Report, that would reasonably be expected to have a
Material Adverse Effect; estimates of such reserves and present
values as described in the most recent Pre-Pricing Prospectus and
reflected in the Company Reserve Report comply in all material
respects with applicable requirements of Regulation S-X and
Industry Guide 2 under the Securities Act.
(dd) Derivatives .
Except as described in the Disclosure Package and the Prospectus,
since March 31, 2008 none of the Atlas Entities or Investment
Partnerships has entered into any material natural gas or oil
future option contracts, swaps, collar contracts, interest rate
swaps or other derivative instruments.
(ee) Title. The Atlas
Entities have:
11
(i) good and defensible title to the
producing oil and gas property interests (including the wells and
the working and net revenue interests attributable thereto) (the
“ Wells ”) of the Company included in the
Company Reserve Report, subject only to encumbrances that do not
materially adversely affect the value of such oil and gas property
interests or the ability of the Atlas Entities to operate such oil
and gas property interests in substantially the same manner as they
were operated immediately prior to the time of purchase and
(ii) good and defensible title to each oil and gas lease as to
which proved undeveloped reserves were assigned in the Reserve
Report (the “ Leases ”), subject only to
encumbrances that do not materially adversely affect the value of
the such Lease or, in the event that the Atlas Entities do not have
good and defensible title to such Lease (each, a “
Defective Lease ”), then (a) the Atlas Entities
have good and defensible title to an oil and gas lease as to which
no reserves were indicated therefor in the Company Reserve Report
(each, a “ Substitute Lease ”), (b) one or
more drilling locations have been identified for such Substitute
Lease as of the date hereof, (c) the Atlas Entities have a
reasonable expectation that they will drill a well on one or more
of such drilling locations on the Substitute Lease within the
24 months following the date hereof, (d) the Atlas
Entities have a reasonable expectation that the wells expected to
be drilled at such locations on the Substitute Lease within such
24-month period are generally comparable in reserve potential to
the reserves assigned to such Defective Lease in the Company
Reserve Report and (e) such Substitute Lease is not and has
not been otherwise utilized for purposes of this clause
(ii) with respect to another Defective Lease; and
(ii) valid and indefeasible easement
rights or fee ownership interests in and to the lands on which any
of the Wells, Leases and Substitute Leases are located as of the
time of purchase;
(in each
case) subject only to encumbrances that do not materially adversely
affect the value of the Wells, Leases and Substitute Leases, as the
case may be.
(ff) Intellectual
Property . The Atlas Entities own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets
and other proprietary information described in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any as being owned or
licensed by them or which are necessary for the conduct of their
respective businesses, except where the failure to own, license or
have such rights would not, individually or in the aggregate, have
a Material Adverse Effect.
(gg) Labor and Employee
Benefits Matters . There is (A) no unfair labor practice
complaint pending or, to the knowledge of the Atlas Parties,
threatened against any of the Atlas Entities, and no grievance or
arbitration proceeding arising out of or under collective
bargaining agreements is pending or threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the knowledge of
the Atlas Parties, threatened against any of the Atlas Entities,
(C) no union representation dispute currently existing
concerning the employees of any of the Atlas Entities, (D) nor
has there been in the past, any violation of any federal, state,
local or foreign law relating to discrimination in the hiring,
promotion or pay of employees, any applicable wage or hour or
worker classification laws concerning the employees of any of the
Atlas Entities and (E) to the knowledge of the Atlas Parties,
no union organizing activities or collective bargaining
negotiations are currently taking place concerning any of the
employees of any of the Atlas Entities. With respect to each
employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), that is sponsored, maintained, or
contributed to by any Atlas Entity for employees or former
employees of such Atlas Entity, or that was sponsored, maintained,
or contributed to within six years prior to the date of this
Agreement, by any corporation, trade, business or entity under
common control with any Atlas Entity, within the meaning of
Section 414(b), (c), or (m) of the Internal Revenue Code
of 1986, as amended (the
12
“
Code ”) or Section 4001 of ERISA, except as would
not, individually or in the aggregate, have a Material Adverse
Effect, (i) such plan has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Code, (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan excluding any transactions
effected pursuant to a statutory or administrative exemption,
(iii) for each such plan that is subject to the funding rules
of Section 412 of the Code or Section 302 of ERISA, no
“accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not
waived, (iv) all contributions (including installments) to
such plan required by Section 302 of ERISA or Section 412
of the Code have been timely made, and (v) the fair market
value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable
actuarial assumptions. No Atlas Entity contributes or has an
obligation to contribute, and has not within six years prior to the
date of this Agreement contributed or had an obligation to
contribute, to a multiemployer plan within the meaning of
Section 3(37) of ERISA.
(hh) Environmental
Compliance . Each of the Atlas Entities and their respective
properties, assets and operations are in compliance with, and hold
all permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent that
failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a
Material Adverse Effect; there are no past, present or, to the
knowledge of the Atlas Parties, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions
or omissions that could reasonably be expected to give rise to any
costs or liabilities to any Atlas Entity, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
except as would not, individually or in the aggregate, have a
Material Adverse Effect, no Atlas Entity, to the knowledge of any
Atlas Party, (i) is the subject of any pending investigation
by a government authority, (ii) has received any notice or
claim, (iii) is a party to by any pending or threatened
action, suit or proceeding, (iv) is bound by any judgment,
decree or order or (v) has entered into any written agreement
assuming any obligations, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release
or cleanup at any location of any Hazardous Materials, except as
would not, individually or in the aggregate, have a Material
Adverse Effect. As used herein, “ Environmental Law
” means any applicable federal, state or local laws or
regulations relating to the protection of human health and safety
and the environment, including those imposing liability or
standards of conduct concerning any Hazardous Materials, and
“ Hazardous Materials ” means (A) any
“hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, (B) any “hazardous waste” as defined in
the Resource Conservation and Recovery Act, as amended,
(C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other
applicable Environmental Law.
(ii) Environmental
Compliance Review . In the ordinary course of their business,
the Atlas Entities conduct a periodic review of the effect of the
then existing Environmental Laws on their business, operations and
properties and claims alleging potential liability or
responsibility for violation of any Environmental Law on their
businesses, operations and properties.
(jj) Tax Returns . All
tax returns required to be filed by the Atlas Entities have been
filed, and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been paid, other than
those that are being contested in good faith and for which adequate
reserves have been provided.
(kk) Insurance . The
Atlas Entities maintain insurance covering their properties,
operations, personnel and businesses; such insurance insures
against such losses and risks to an extent which is
13
reasonably adequate in accordance with customary industry practice
to protect the Atlas Entities and their businesses. All such
insurance is fully in force on the date hereof and will be fully in
force at the time of purchase and any additional time of purchase.
None of the Atlas Entities has received notice from any insurer or
agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such
insurance.
(ll) Contracts and
Agreements . The Atlas Entities have not sent or received any
communication regarding termination of, or intent not to renew, any
of the contracts or agreements referred to or described in, or
filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Atlas
Entities or, to the knowledge of any Atlas Party, any other party
to any such contract or agreement.
(mm) Prohibition on
Dividends. No Subsidiary is prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s limited liability company
interests, from repaying to the Company any loans or advances to
such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary, except as described in or contemplated by the
Registration Statement and the Prospectus.
(nn) Books and Records .
The Atlas Entities maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with accounting
principles generally accepted in the United States and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(oo) Sarbanes-Oxley .
The Company has established and maintains and evaluates
“disclosure controls and procedures” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such
term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; the Company’s independent registered public
accountants and the Audit Committee of the Board of Directors of
the Company have been advised of: (i) all significant
deficiencies, if any, in the design or operation of internal
controls which could adversely affect the Company’s ability
to record, process, summarize and report financial data; and
(ii) all fraud, if any, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls; all “significant
deficiencies” (as such term is defined in Rule 1-02(a)(4) of
Regulation S-X under the Act), if any, have been identified to
the Company’s independent registered public accountants and
all “material weaknesses” (as such term is defined in
Rule 1-02(a)(4) of Regulation S-X under the Act) of the
Company, if any, have been identified to the Company’s
independent registered public accountants and are disclosed in the
Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus; since the date of the
most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal
financial officers (or their equivalents) of the Company have made
all certifications required by the Sarbanes-Oxley Act of 2002 (the
“ Sarbanes-Oxley Act ”) any related rules and
regulations promulgated by the Commission, and the statements
contained in each such certification are complete and
14
correct;
the Atlas Entities and their directors and officers are each in
compliance in all material respects with all applicable effective
provisions of the Sarbanes-Oxley Act and the rules and regulations
of the Commission and the NYSE promulgated thereunder. The Company
is in compliance in all material respects with the applicable
provisions of the Sarbanes-Oxley Act and the rules and regulations
promulgated thereunder, including Section 402 thereof related
to loans to officers and directors and Sections 302 and 906
related to certifications.
(pp) Certain Relationships
and Related Transactions. No relationship, direct or indirect,
exists between or among any Atlas Entity, on the one hand, and the
directors, officers, members, partners, stockholders, customers or
suppliers of any Atlas Entity on the other hand that is required to
be described in the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus that is not so described.
(qq) Statistical Data .
All statistical and market-related data included or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any are based on or derived from sources that the
Atlas Parties believe to be reliable and accurate, and the Company
has obtained the written consent to the use of such data from such
sources to the extent required.
(rr) Payment or Receipt of
Funds . None of the Atlas Entities nor, to the knowledge of any
Atlas Party, any director, officer, employee or agent of any Atlas
Entity has made any payment of funds of any Atlas Entity or
received or retained any funds in violation of any law, rule or
regulation (including, without limitation, the Foreign Corrupt
Practices Act of 1977), which payment, receipt or retention of
funds is of a character required to be disclosed in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus or the Permitted Free Writing Prospectuses, if
any.
(ss) Money Laundering
Laws. The operations of the Atlas Entities are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”); and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator or
non-governmental authority involving any of the Atlas Entities with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Atlas Parties, threatened.
(tt) OFAC. None of the
Atlas Entities nor, to the knowledge of the Atlas Parties, any
director, officer, agent, employee or affiliate of the Atlas
Entities is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury
Department (“ OFAC ”); and the Atlas Entities
will not directly or indirectly use the proceeds of the offering
contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
(uu) Stabilization or
Manipulation . No Atlas Entity has taken, directly or
indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Offered Units.
(vv) FINRA Affiliations
. Except for Anthem, to the Company’s knowledge, there are no
affiliations or associations between (i) any member of FINRA
and (ii) the Company or any of the Company’s officers,
directors or 5% or greater security holders or any beneficial owner
of the Company’s unregistered equity securities that were
acquired at any time on or after the 180th day immediately
15
preceding the date the Registration Statement was initially filed
with the Commission, except as disclosed in the Registration
Statement (excluding the exhibits thereto), the Pre-Pricing
Prospectuses and the Prospectus.
(ww) NYSE . The Company
has not received any notice from the NYSE regarding the delisting
of the Common Units from the NYSE.
(xx) Private Placement.
The offer, sale and delivery of the Private Units in the Private
Placement was exempt from the registration requirements of the Act
and the securities laws of any state having jurisdiction with
respect thereto, and no Atlas Entity has taken any action that
would cause the loss of such exemption.
(yy) Forward-Looking
Statements. Each “forward-looking statement”
(within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus or the
Permitted Free Writing Prospectuses, if any has been made or
reaffirmed with a reasonable basis and in good faith.
In addition, any certificate signed
by any officer of the Atlas Parties and delivered to the
Underwriters or counsel for any Underwriter in connection with the
offering of the Offered Units shall be deemed to be a
representation and warranty by the relevant Atlas Party, as the
case may be, as to matters covered thereby, to each
Underwriter.
4. Certain Covenants of the
Atlas Parties . The Atlas Parties, jointly and severally, agree
with the several
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