This Services Agreement (this “Agreement”) is made as of December 18, 2006 by and among Anthem Securities, Inc., a Pennsylvania corporation (“Anthem”), and Atlas America, Inc., a Delaware corporation (“Atlas America”).
WHEREAS, Anthem and Atlas America desire to enter into an agreement setting forth the terms on which Anthem will perform certain Services (as defined below) for Atlas America.
NOW, THEREFORE, in consideration for the mutual promises herein contained, the parties agree as follows:
Section 1. Appointment. Anthem agrees to provide to Atlas America, upon Atlas America’s request, dealer/manager services (the “Services”) on substantially the same terms set forth in Exhibit A hereto (with respect to a private offering) and Exhibit B hereto (with respect to a public offering). Nothing in this Agreement shall prohibit Atlas America from contracting with other parties in order to provide all or part of the Services.
Section 2. Expense Allocation. Anthem and Atlas America shall enter into an expense agreement on substantially the same terms set forth in Exhibit C hereto (the “Expense Agreement”). The Expense Agreement, which may be amended from time-to-time, was prepared in accordance with SEC and NASD rules and interpretations, including NASD Notice to Members 03-63. Subject to the terms of the Expense Agreement, and except as otherwise provided in the dealer-manager agreements into which Anthem and Atlas America shall enter pursuant to Section 1 hereof, Atlas America agrees to reimburse Anthem for all Anthem’s direct and indirect costs incurred in connection with providing the Services to Atlas America including, but not limited to, the share of Anthem's salaries, rent, telephone service, accounting and legal services, travel, office equipment, insurance, office supplies, postage, taxes, utilities and membership and registration fees reasonably related to the Services (collectively, the “Expenses”). Anthem shall submit to Atlas America, no less frequently than monthly, a reasonably itemized estimate for Expenses incurred to be in the following month, if any, which estimate shall also include (to the extent reasonably determinable and subject to final “trueing up” to actual) amounts accrued for employee bonuses but that are to be paid in subsequent periods.
Section 3. Independent Contractor. For all purposes of this Agreement, Anthem shall be an independent contractor and not an employee or dependent agent of Atlas America; nor shall anything herein be construed as making Atlas America a partner or co-venturer with Anthem. Except as provided in this Agreement or as may otherwise be delegated to Anthem from time to time by Atlas America in writing, Anthem shall not have any authority to bind, obligate or represent Atlas America, and shall be subject to none of the fiduciary duties of a partner, director or officer in respect of Atlas America. This Agreement establishes and limits by its terms Anthem’s obligations to Atlas America and Atlas America’s obligations for reimbursement of Anthem’s Expenses for the Services.
Section 4. Notices. All notices or requests or consents provided for or permitted to be given pursuant to this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the person to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by telecopier to such party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by telecopier shall be effective upon actual receipt if received during the recipient’s normal business hours, or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All notices to be sent to a party pursuant to this Agreement shall be sent to or made at the address set forth below such party’s signature to this Agreement, or at such other address as such party may stipulate to the other parties in the manner provided in this Section.