As filed with the Securities and Exchange Commission on
July 8, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ATLAS ENERGY RESOURCES, LLC
ATLAS ENERGY OPERATING COMPANY, LLC
ATLAS ENERGY FINANCE CORP.
and Other Registrants
(see additional registrants below)
(Exact name of registrant as
specified in its charter)
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Delaware
Delaware
Delaware
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75-3218520
75-3218521
74-3243996
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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)
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Westpointe Corporate Center
One
1550 Coraopolis Heights
Road
Moon Township, PA
15108
(412) 262-2830
(Address, including zip code,
and telephone number,
including area code, of
registrants principal executive office)
Matthew A. Jones
Atlas Energy Resources,
LLC
Westpointe Corporate Center
One
1550 Coraopolis Heights
Road
Moon Township, PA
15108
(412) 262-2830
(Address, including zip code,
and telephone number,
including area code, of agent
for service)
Please send copies of
communications to:
Lisa A.
Ernst, Esq.
Mark E.
Rosenstein, Esq.
Ledgewood
1900 Market Street,
Suite 750
Philadelphia, PA 19103
(215) 731-9450
Approximate date of commencement of proposed sale to the
public:
From time to time after this registration
statement becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or reinvestment plans, please check
the following
box:
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box:
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See definitions of
large accelerated filer, accelerated
filer, and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check One):
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Large
Accelerated
Filer
þ
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Accelerated
Filer
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Non-Accelerated
Filer
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Smaller Reporting
Company
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CALCULATION OF REGISTRATION
FEE
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Title of Each Class of
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Proposed Maximum
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Securities to be Registered
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Aggregate Offering Price(1)
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Amount of Registration Fee(2)
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Common units
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$
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$
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Preferred units
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Warrants
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Debt Securities
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Guarantees
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(1)
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An indeterminate number of
securities of each identified class is being registered as may
from time to time be offered for sale at prices to be determined
or upon conversion of, or exchange for, or upon the exercise of,
or pursuant to convertible or exchangeable securities or
securities that provide for exercise or conversion into other
securities of a class identified above. Separate consideration
may or may not be received for securities that are issuable on
exercise, conversion, or exchange of other securities.
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(2)
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In accordance with Rule 456(b)
and Rule 457(r), the registrant is deferring payment of the
registration fee required in connection with this registration
statement. In accordance with Rule 457(n), no separate fee
is payable with respect to guarantees of Debt Securities.
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The following are co-registrants that may guarantee the debt
securities:
Atlas Energy Tennessee,
LLC
(Exact name of registrant as
specified in its charter)
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Pennsylvania
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26-2770794
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(State or other jurisdiction
of
Incorporation or organization)
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(I.R.S. Employer
Identification No.
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)
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Atlas Energy Indiana,
LLC
(Exact name of registrant as
specified in its charter)
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Indiana
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26-3210546
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(State or other jurisdiction
of
Incorporation or organization)
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(I.R.S. Employer
Identification No.
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)
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Atlas Energy Michigan,
LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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42-1731124
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Atlas Gas & Oil
Company, LLC
(Exact name of registrant as
specified in its charter)
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Michigan
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33-1171397
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Westside Pipeline Company,
LLC
(Exact name of registrant as
specified in its charter)
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Michigan
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33-1171401
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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AIC, LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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20-5365126
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Atlas Energy Ohio, LLC
(Exact name of registrant as
specified in its charter)
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Ohio
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20-5365198
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Atlas Resources, LLC
(Exact name of registrant as
specified in its charter)
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Pennsylvania
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20-4822875
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Atlas Noble, LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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20-5365139
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Atlas America, LLC
(Exact name of registrant as
specified in its charter)
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Pennsylvania
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20-8243540
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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AER Pipeline Construction,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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20-8029375
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Viking Resources, LLC
(Exact name of registrant as
specified in its charter)
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Pennsylvania
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20-5365124
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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Resource Energy, LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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20-5365174
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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)
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Resource Well Services,
LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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20-5365162
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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REI-NY, LLC
(Exact name of registrant as
specified in its charter)
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Delaware
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20-5365147
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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)
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PROSPECTUS
ATLAS ENERGY RESOURCES,
LLC
COMMON UNITS, PREFERRED UNITS,
WARRANTS,
DEBT SECURITIES AND
GUARANTIES
ATLAS ENERGY FINANCE
CORP.
ATLAS ENERGY OPERATING COMPANY,
LLC
DEBT SECURITIES AND
GUARANTIES
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission utilizing a
shelf registration process. Under this shelf
process, we may, from time to time, sell any combination of the
securities described in this prospectus in one or more
offerings. We may offer and sell securities from time to time in
amounts, at prices and on terms that we will determine at the
times of the offerings. This prospectus also covers guarantees
of our obligations under any debt securities, which may be given
from time to time by one or more of our direct or indirect
subsidiaries, on terms to be determined at the time of the
offering.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. The supplement may
also add, update or change information contained in this
prospectus. You should read this prospectus and any supplement
carefully before you invest.
Our common units are listed for trading on the New York Stock
Exchange under the symbol ATN.
An investment in these securities entails material risks and
uncertainties. See Risk Factors on page 2 of
this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is July 8, 2009
TABLE OF
CONTENTS
You should rely only on the information contained in or
incorporated by reference in this prospectus, any prospectus
supplement or free writing prospectus. We have not
authorized anyone to provide you with information that is
different. This document may only be used where it is legal to
sell these securities. The information in this prospectus is
accurate only as of its date.
INFORMATION
REGARDING FORWARD-LOOKING STATEMENTS
The matters discussed or incorporated by reference in this
prospectus may include forward-looking statements. These
statements may be identified by the use of forward-looking
terminology such as anticipate, believe,
continue, could, estimate,
expect, intend, may,
might, plan, potential,
predict, should, or will, or
the negative thereof or other variations thereon or comparable
terminology. In particular, statements about our expectations,
beliefs, plans, objectives, assumptions or future events or
performance contained in this report are forward-looking
statements. We have based these forward-looking statements on
our current expectations, assumptions, estimates and
projections. While we believe these expectations, assumptions,
estimates and projections are reasonable, such forward-looking
statements are only predictions and involve known and unknown
risks and uncertainties, many of which are beyond our control.
These and other important factors may cause our actual results,
performance or achievements to differ materially from any future
results, performance or achievements expressed or implied by
these forward-looking statements. Some of the key factors that
could cause actual results to differ from our expectations
include:
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business strategy;
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financial strategy;
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drilling locations;
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natural gas and oil reserves;
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realized natural gas and oil prices;
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production volumes;
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leasing operating expenses, general and administrative expenses
and finding and development costs;
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future operating results; and
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plans, objectives, expectations and intentions.
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Other factors that could cause actual results to differ from
those implied by the forward-looking statements in this report
are more fully described in the Risk Factors section
of this prospectus. Given these risks and uncertainties, you are
cautioned not to place undue reliance on these forward-looking
statements. The forward-looking statements included or
incorporated by reference in this prospectus are made only as of
the date hereof. We do not undertake and specifically decline
any obligation to update any such statements or to publicly
announce the results of any revisions to any of these statements
to reflect future events or developments.
WHERE YOU
CAN FIND MORE INFORMATION
This prospectus constitutes only a part of the registration
statement and does not contain all of the information set forth
in the registration statement, its exhibits and its schedules.
You will find additional information about our company in the
registration statement. Any statements made in this prospectus
concerning the provisions of legal documents are not necessarily
complete and you should read the documents that are filed as
exhibits to the registration statement or otherwise filed with
the SEC for a more complete understanding of the document or
matter.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SECs web
site at
http://www.sec.gov
or at our website at
www.atlasenergyresources.com
. You
may also read and copy any document we file at the SECs
public reference room at 100 F. Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for additional information on the public reference room.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with it. This means that we can disclose
important information to you by referring to these documents.
The information incorporated by reference is an important part
of this prospectus, and information that we file later with the
SEC under Sections 13, 14 or 15(d)
ii
of the Securities Exchange Act of 1934 will automatically update
and supersede this information (excluding any information
furnished pursuant to Item 2.02 and Item 7.01 on any
Current Report on Form 8-K).
We are incorporating by reference the following documents that
we have previously filed with the SEC (other than information in
such documents that is deemed not to be filed):
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our annual report on Form 10-K for the year ended
December 31, 2008 (including information specifically
incorporated by reference from our definitive proxy statement
filed on April 30, 2009);
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our quarterly report on Form 10-Q for the quarter ended
March 31, 2009; and
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our current reports on Form 8-K or Form 8-K/A filed on
September 12, 2007 (other than Exhibit 99.3 thereto),
February 9, 2009, March 27, 2009, April 17, 2009,
April 27, 2009, April 28, 2009, May 6, 2009 and
June 5, 2009.
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You may request a copy of any document incorporated by reference
in this prospectus without charge by writing or calling us at:
Atlas Energy Resources, LLC
Westpointe Corporate Center One
1550 Coraopolis Heights Road
Moon Township, PA 15108
(412) 262-2830
Attn: Brian Begley
You should rely only on the information incorporated by
reference or provided in this prospectus, any prospectus
supplement or free writing prospectus. We have not
authorized anyone else to provide you with different
information. We are not making an offer to sell these securities
or soliciting an offer to buy these securities in any state
where the offer or sale is not permitted. You should not assume
that the information in this prospectus or the documents we have
incorporated by reference is accurate as of any date other than
the date on the front of those documents.
The statements that we make in this prospectus or in any
document incorporated by reference in this prospectus about the
contents of any other documents are not necessarily complete,
and are qualified in their entirety by referring you to copies
of those documents that are filed as exhibits to the
registration statement, of which this prospectus forms a part,
or as an exhibit to the documents incorporated by reference. You
can obtain copies of these documents from the SEC or from us, as
described above.
iii
INFORMATION
ABOUT ATLAS ENERGY RESOURCES, LLC
We are a publicly-traded Delaware limited liability company
(NYSE: ATN) formed in June 2006. We are an independent developer
and producer of natural gas and oil, with operations in the
Appalachian Basin, where we focus on the development of the
Marcellus Shale, northern Michigans Antrim Shale, and
Indianas New Albany Shale. Our Appalachian Basin major
operations are located in eastern Ohio, western Pennsylvania,
and north central Tennessee, and we have additional operations
in New York, West Virginia and Kentucky. We specialize in the
development of these natural gas basins because they provide us
with repeatable, lower-risk drilling opportunities. We are a
leading sponsor and manager of tax-advantaged, direct investment
natural gas and oil partnerships in the United States. Our focus
is to increase our own reserves, production, and cash flows
through a balanced mix of generating new opportunities of
geologic prospects, natural gas and oil exploitation and
development, and sponsorship of investment partnerships. We
generate both upfront and ongoing fees from the drilling,
production, servicing, and administration of our wells in these
partnerships.
We were formed in June 2006 to own and operate substantially all
of the natural gas and oil assets and the investment partnership
management business of Atlas America. We are managed by Atlas
Energy Management, Inc., a wholly-owned subsidiary of Atlas
America. Our class B units are traded on the New York Stock
Exchange under the symbol ATN.
Our principal executive offices are located at Westpointe
Corporate Center One, 1550 Coraopolis Heights Road, Moon
Township, PA 15108 and our telephone number is
(412) 262-2830.
Our website is
www.atlasenergyresources.com.
Except as
described in Incorporation of Certain Documents by
Reference, the information found on, or otherwise
accessible through, our website is not incorporated into, and
does not form a part of, this prospectus or any other report or
document we file with or furnish to the SEC.
Recent
Developments
On April 27, 2009, we, Atlas Energy Management and Atlas
America entered into an agreement and plan of merger, which we
refer to as the merger agreement, pursuant to which we will
become a wholly-owned subsidiary of Atlas America.
Subject to the terms and conditions of the merger agreement, if
and when the merger is completed, each of Atlas Energy
Resources outstanding common units, other than treasury
units and common units owned by Atlas America and its
subsidiaries, will be cancelled and converted into the right to
receive 1.16 shares of Atlas America common stock.
Following the announcement of the merger agreement, five
separate class actions were filed against us in Delaware
Chancery Court purporting to challenge the merger. On
June 15, 2009, the Chancery Court issued an order of
consolidation. Plaintiffs filed a Verified Consolidated
Class Action Complaint on July 1, 2009, which has
superseded all prior complaints. The complaint advances claims
of breach of fiduciary duty in connection with the merger
agreement and violation of disclosure obligations in the
preliminary proxy filed by Atlas America, and seeks monetary
damages or injunctive relief, or both. Predicting the outcome of
this lawsuit is difficult. An adverse judgment for monetary
damages could have a material adverse effect on the operations
of the combined company after the merger. A preliminary
injunction could delay or jeopardize the completion of the
merger, and an adverse judgment granting permanent injunctive
relief could indefinitely enjoin completion of the merger. Based
on the facts known to date, the defendants believe that the
claims asserted against them are without merit, and intend to
defend themselves vigorously against the claims.
1
RISK
FACTORS
You should carefully consider the specific risks described in
our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 and our
Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2009, the risk factors
described under the caption Risk Factors in any
applicable prospectus supplement and any risk factors set forth
in our other filings with the SEC pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act before making an
investment decision. See Where You Can Find More
Information.
USE OF
PROCEEDS
Except as otherwise provided in a prospectus supplement, the net
proceeds from the sale of the securities will be used for
general company purposes. If we do not use the net proceeds
immediately, we may temporarily invest them in short-term,
interest-bearing obligations.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for our predecessor, Atlas America E&P Operations,
before the date of our initial public offering on
December 18, 2006, and our ratio after that date for the
periods indicated. Atlas America E&P Operations were the
subsidiaries of Atlas America which held its natural gas and oil
development and production assets and liabilities, substantially
all of which Atlas America transferred to us upon the completion
of our initial public offering. References to fiscal 2005 and
2004 are to Atlas America E&P Operations fiscal year
end, which was September 30. In 2006, Atlas America
E&P Operations changed its year end to December 31, so
data is provided for the three months ended December 31,
2005.
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Three months
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Three months
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Years ended
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ended
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ended
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September 30,
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December 31,
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Years ended December 31,
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March 31,
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2004
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2005
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2005
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2006
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2007
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2008
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2009
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Income statement data:
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Ratio of earnings to fixed charges
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4.47
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x
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3.24
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x
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2.59
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x
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There was no interest expense in periods prior to the year ended
December 31, 2007. For purposes of this computation, the
ratio of earnings to fixed charges represents income from
continuing operations before income taxes, minority interest and
accounting changes plus fixed charges. Fixed charges means
interest expense plus estimated element of rental expense. We
have not issued any preferred securities as of the date of this
prospectus, and, accordingly, we have not paid any preferred
dividends.
DESCRIPTION
OF COMMON UNITS
We describe our common units under the heading Our Limited
Liability Company Agreement.
DESCRIPTION
OF PREFERRED UNITS
Any prospectus supplement relating to a particular series of
preferred units will contain a description of the specific terms
of that series as fixed by our board of directors, including, as
applicable:
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the number of units;
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the designation;
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the voting powers;
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votes per unit;
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liquidation preferences;
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relative participating, optional or other rights;
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conversion or exchange rights;
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redemption rights;
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the terms or conditions of redemption;
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put and sinking fund provisions;
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dividend rights; and
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any other applicable terms.
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In some cases, the issuance of preferred units could delay a
change in control of us and make it harder to remove present
management. Under certain circumstances, preferred units could
also restrict dividend payments to holders of our common units.
DESCRIPTION
OF THE DEBT SECURITIES
General
The debt securities to be offered will constitute either senior
or subordinated debt of us or Atlas Energy Operating Company,
LLC. The senior debt securities and the subordinated debt
securities will be issued under separate indentures between us
or Atlas Energy Operating Company, LLC and a trustee to be named
in any prospectus supplement. A prospectus supplement will
contain summaries of the indentures.
Specific
Terms of Each Series of Debt Securities in the Prospectus
Supplement
A prospectus supplement and a supplemental indenture or
authorizing resolutions relating to any series of debt
securities being offered will include specific terms relating to
the offering. These terms will include some or all of the
following:
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the issuer of the debt securities;
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whether Atlas Energy Finance Corp. will be a co-issuer of the
debt securities;
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the guarantors of the debt securities, if any;
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whether the debt securities are senior or subordinated debt
securities;
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the title of the debt securities;
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the total principal amount of the debt securities;
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the assets, if any, that are pledged as security for the payment
of the debt securities;
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whether we will issue the debt securities in individual
certificates to each holder in registered form, or in the form
of temporary or permanent global securities held by a depository
on behalf of holders;
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the prices at which we will issue the debt securities;
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the portion of the principal amount that will be payable if the
maturity of the debt securities is accelerated;
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the currency or currency unit in which the debt securities will
be payable, if not U.S. dollars;
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the dates on which the principal of the debt securities will be
payable;
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the interest rate that the debt securities will bear and the
interest payment dates for the debt securities;
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any conversion or exchange provisions;
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any optional redemption provisions;
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any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
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any changes to or additional events of default or
covenants; and
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any other terms of the debt securities.
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We may offer and sell debt securities, including original issue
discount debt securities, at a substantial discount below their
principal amount. The prospectus supplement will describe
special U.S. federal income tax and any other
considerations applicable to those securities. In addition, the
prospectus supplement may describe certain special
U.S. federal income tax or other considerations applicable
to any debt securities that are denominated in a currency other
than U.S. dollars.
3
The
Trustee
We will enter into the indentures with a trustee that is
qualified to act under the Trust Indenture Act of 1939, as
amended, and with any other trustees chosen by us and appointed
in a supplemental indenture for a particular series of debt
securities.
Resignation
or Removal of Trustee
If the trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act, the trustee shall
either eliminate its conflicting interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and the applicable
indenture. Any resignation will require the appointment of a
successor trustee under the applicable Indenture in accordance
with the terms and conditions of such indenture.
The trustee may resign or be removed by us with respect to one
or more series of debt securities and a successor trustee may be
appointed to act with respect to any such series. The holders of
a majority in aggregate principal amount of the debt securities
of any series may remove the trustee with respect to the debt
securities of such series.
Limitations
on Trustee if it is Our Creditor
Each indenture will contain certain limitations on the right of
the trustee, in the event that it becomes a creditor of an
issuer or a guarantor, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of
any such claim as security or otherwise.
Annual
Trustee Report to Holders of Debt Securities
The trustee is required to submit an annual report to the
holders of the debt securities regarding, among other things,
the trustees eligibility to serve as such, the priority of
the trustees claims regarding certain advances made by it,
and any action taken by the trustee materially affecting the
debt securities.
Certificates
and Opinions to be Furnished to Trustee
Each indenture will provide that, in addition to other
certificates or opinions that may be specifically required by
other provisions of an indenture, every application by us for
action by the trustee shall be accompanied by a certificate of
certain of our officers and an opinion of counsel (who may be
our counsel) stating that, in the opinion of the signers, all
conditions precedent to such action have been complied with by
us.
DESCRIPTION
OF WARRANTS
General
We may issue warrants to purchase common units, preferred units
or any combination of these securities and these warrants may be
issued by us independently or together with any underlying
securities and may be attached to or separate from the
underlying securities. We will issue each series of warrants
under a separate warrant agreement to be entered into between us
and a warrant agent. The warrant agent will be identified in the
applicable prospectus supplement. The warrant agent will act
solely as our agent in connection with the warrants of the
series for which it is appointed and will not assume any
obligation or relationship of agency for or with holders or
beneficial owners of warrants of that series.
4
The following outlines some of the general terms and provisions
of the warrants. Further terms of the warrants and the
applicable warrant agreement will be stated in the applicable
prospectus supplement. The following description and any
description of the warrants in a prospectus supplement may not
be complete and is subject to, and qualified in its entirety by,
reference to the terms and provisions of the warrant agreement,
a form of which has been filed as an exhibit to the registration
statement which contains this prospectus.
The applicable prospectus supplement will describe the terms of
any warrants that we may offer, including the following:
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the title of the warrants;
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the total number of warrants;
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the price or prices at which the warrants will be issued;
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the currency or currencies investors may use to pay for the
warrants;
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the designation and terms of the underlying securities
purchasable upon exercise of the warrants;
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the price at which and the currency or currencies, including
composite currencies, in which investors may purchase the
underlying securities purchasable upon exercise of the warrants;
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the date on which the right to exercise the warrants will
commence and the date on which the right will expire;
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whether the warrants will be issued in registered form or bearer
form;
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information with respect to book-entry procedures, if any;
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if applicable, the minimum or maximum amount of warrants which
may be exercised at any one time;
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if applicable, the designation and terms of the underlying
securities with which the warrants are issued and the number of
warrants issued with each underlying security;
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if applicable, the date on and after which the warrants and the
related underlying securities will be separately transferable;
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if applicable, a discussion of material United States federal
income tax considerations;
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the identity of the warrant agent;
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the procedures and conditions relating to the exercise of the
warrants; and
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any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Warrant certificates may be exchanged for new warrant
certificates of different denominations, and warrants may be
exercised at the warrant agents corporate trust office or
any other office indicated in the applicable prospectus
supplement. Prior to the exercise of their warrants, holders of
warrants exercisable for common or preferred units will not have
any rights of holders of common or preferred units and will not
be entitled to dividend payments, if any, or voting rights of
the common or preferred units.
Exercise
of Warrants
A warrant will entitle the holder to purchase for cash an amount
of securities at an exercise price that will be stated in, or
that will be determinable as described in, the applicable
prospectus supplement. The exercise price for the warrants will
be subject to adjustment in accordance with the applicable
prospectus supplement. Warrants may be exercised at any time up
to the close of business on the expiration date set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the applicable
prospectus supplement. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office
indicated in the prospectus supplement, we will, as soon as
practicable, forward the securities purchasable upon such
exercise. If less than all of the warrants represented by such
warrant certificate are exercised, a new warrant certificate
will be issued for the remaining warrants.
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Enforceability
of Rights
The holders of warrants, without the consent of the warrant
agent, may, on their own behalf and for their own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against us to enforce their rights to exercise and
receive the securities purchasable upon exercise of their
warrants.
OUR
LIMITED LIABILITY COMPANY AGREEMENT
The following is a summary of our limited liability company
agreement, as amended through the date of this prospectus. The
limited liability company agreement defines the rights and
obligations pertaining to the common units.
Organization
Our company was formed in June 2006 and will remain in existence
until dissolved in accordance with our limited liability company
agreement.
Purpose
Under our limited liability company agreement, we are permitted
to engage, directly or indirectly, in any activity that our
board of directors approves and that a limited liability company
organized under Delaware law lawfully may conduct; provided,
that our board of directors shall not cause us to engage,
directly or indirectly, in any business activities that it
determines would cause us to be treated as an association
taxable as a corporation or otherwise taxable as an entity for
federal income tax purposes.
Although our board of directors has the ability to cause us and
our operating subsidiaries to engage in activities other than
the exploitation, development and production of natural gas
reserves, our board of directors has no current plans to do so.
Our board of directors is authorized in general to perform all
acts it deems to be necessary or appropriate to carry out our
purposes and to conduct our business.
Fiduciary
Duties
Our limited liability company agreement provides that our
business and affairs shall be managed under the direction of our
board of directors. Our limited liability company agreement
further provides that the authority and function of our board of
directors and officers shall be identical to the authority and
functions of a board of directors and officers of a corporation
organized under the Delaware General Corporation Law, or DGCL.
However, our directors and officers do not owe us the same
duties that the directors and officers of a corporation
organized under the DGCL would owe to their corporation. Rather,
our limited liability company agreement provides that the
fiduciary duties and obligations owed to us and our members by
our board of directors and officers is generally to act in good
faith in the performance of their duties on behalf. If our
conflicts committee approves a transaction involving potential
conflicts, or if a transaction is on terms generally available
from unaffiliated third parties or an action is taken that is
fair and reasonable to the company, unitholders will not be able
to assert that such approval constituted a breach of fiduciary
duties owed to them by our directors and officers.
We are unlike publicly-traded partnerships whose business and
affairs are managed by a general partner with fiduciary duties
to the partnership. While our manager manages our day-to-day
operations pursuant to the management agreement, subject to the
oversight of our board of directors, we have no general partner
with fiduciary duties to us. Our managers duties to us are
contractual in nature and arise solely under the management
agreement. As a consequence, our manager does not owe a
fiduciary duty to us similar to that owed by a general partner
to its limited partners or a board of directors to a corporation.
Agreement
to be Bound by Limited Liability Company Agreement; Power of
Attorney
By purchasing a common unit in us, you will be admitted as a
member of our company and will be deemed to have agreed to be
bound by the terms of our limited liability company agreement.
Pursuant to this agreement, each unitholder and each person who
acquires a common unit from a unitholder grants to our board of
directors (and, if
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appointed, a liquidator) a power of attorney to, among other
things, execute and file documents required for our
qualification, continuance or dissolution. The power of attorney
also grants our board of directors the authority to make certain
amendments to, and to make consents and waivers under and in
accordance with, our limited liability company agreement.
Capital
Contributions
Unitholders (including holders of common units) are not
obligated to make additional capital contributions, except as
described below under Limited Liability.
Distributions
of Available Cash
Overview
Our limited liability company agreement requires that, within
45 days after the end of each quarter, we distribute all of
our available cash to unitholders of record on the applicable
record date.
Definition
of Available Cash
Available cash generally means, for each fiscal quarter, all
cash on hand at the end of the quarter:
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less the amount of cash reserves established by our board of
directors to:
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provide for the proper conduct of our business (including
reserves for future capital expenditures and credit needs);
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comply with applicable law and any of our debt instruments or
other agreements; and
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provide funds for distributions (1) to our unitholders for
any one or more of the next four quarters or (2) with
respect to our management incentive interests;
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plus all cash on hand on the date of determination of available
cash for the quarter resulting from working capital borrowings
made after the end of the quarter.
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Working capital borrowings are borrowings that are made under
our credit facility or another arrangement and used solely for
working capital purposes or to pay distributions to unitholders.
Operating
Surplus and Capital Surplus
General
All cash we distribute to unitholders is characterized as either
operating surplus or capital surplus.
Our limited liability company agreement requires that we
distribute available cash from operating surplus differently
than available cash from capital surplus.
Definition
of Operating Surplus
Operating surplus generally means:
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$40.0 million (as described below); plus
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all of our cash receipts, including working capital borrowings
but excluding cash from (1) borrowings that are not working
capital borrowings, (2) sales of equity and debt securities
and (3) sales or other dispositions of assets outside the
ordinary course of business; plus
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working capital borrowings made after the end of a quarter but
before the date of determination of operating surplus for the
quarter; plus
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cash distributions paid on equity securities that we may issue
to finance all or a portion of the construction, replacement or
improvement of a capital asset (such as equipment or reserves)
during the period beginning on the date that we enter into a
binding obligation to commence the construction, acquisition or
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improvement of a capital improvement or replacement of a capital
asset and ending on the earlier to occur of the date the capital
improvement or capital asset is placed into service or the date
that it is abandoned or disposed of; less
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our operating expenditures (as defined below); less
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the amount of cash reserves established by our board of
directors to provide funds for future operating expenditures;
less
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all working capital borrowings not repaid within 12 months
after having been incurred.
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If a working capital borrowing, which increases operating
surplus, is not repaid during the twelve-month period following
the borrowing, it will be deemed repaid at the end of such
period, thus decreasing operating surplus at such time. When
such working capital borrowing is in fact repaid, it will not be
treated as a reduction in operating surplus because operating
surplus will have been previously reduced by the deemed
repayment.
Operating expenditures generally means all of our cash
expenditures, including taxes, reimbursement of expenses to our
manager, payments made in the ordinary course of business on
commodity hedge contracts, director and officer compensation,
repayment of working capital borrowings, debt service payments
and estimated maintenance capital expenditures, but do not
include:
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repayment of working capital borrowings deducted from operating
surplus pursuant to the last bullet point of the definition of
operating surplus when the repayment actually occurs;
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payments (including prepayments and prepayment penalties) of
principal and premium on indebtedness, other than working
capital borrowings;
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expansion capital expenditures;
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actual maintenance capital expenditures;
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investment capital expenditures;
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payment of transaction expenses relating to interim capital
transactions; or
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distributions to our members (including distributions with
respect to our management incentive interests).
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As described above, operating surplus does not reflect actual
cash on hand that is available for distribution to our
unitholders. For example, it includes a provision that will
enable us, if we choose, to distribute as operating surplus up
to $40.0 million of cash we receive in the future from
non-operating sources such as asset sales, issuances of
securities and long-term borrowings that would otherwise be
distributed as capital surplus. In addition, the effect of
including certain cash distributions on equity securities in
operating surplus would be to increase operating surplus by the
amount of the cash distributions. As a result, we may also
distribute as operating surplus up to the amount of the cash
distributions we receive from non-operating sources.
None of actual maintenance capital expenditures, investment
capital expenditures or expansion capital expenditures are
subtracted from operating surplus. Because actual maintenance
capital expenditures, investment capital expenditures and
expansion capital expenditures include interest payments (and
related fees) on debt incurred and distributions on equity
issued to finance all of the portion of the construction,
replacement or improvement of a capital asset (such as equipment
or reserves) during the period from when we enter into a binding
commitment to commence construction, acquisition or improvement
of a capital asset until the earlier to occur of the date any
such capital asset is placed into service or the date that it is
abandoned or disposed of, such interest payments and equity
distributions are also not subtracted from operating surplus
(except, in the case of maintenance capital expenditures, to the
extent such interest payments and distributions are included in
estimated maintenance capital expenditures).
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Capital
Expenditures
Maintenance
Capital Expenditures
For purposes of determining operating surplus, maintenance
capital expenditures are those capital expenditures we expect to
make on an ongoing basis to maintain our capital asset base at a
steady level over the long term. Examples of maintenance capital
expenditures include capital expenditures associated with the
replacement of equipment and oil and natural gas reserves
(including non-proved reserves attributable to undeveloped
leasehold acreage), whether through the development,
exploitation and production of an existing leasehold or the
acquisition or development of a new oil or natural gas property,
and plugging and abandonment costs. Maintenance capital
expenditures will also include interest (and related fees) on
debt incurred and distributions on equity issued to finance all
or any portion of a replacement asset during the period
beginning on the date that we enter into a binding obligation to
commence construction or development of the replacement asset
and ending on the earlier to occur of the date the replacement
asset is placed into service or the date that it is abandoned or
disposed of. Capital expenditures made solely for investment
purposes will not be considered maintenance capital expenditures.
Because our maintenance capital expenditures can be very large
and irregular, the amount of our actual maintenance capital
expenditures may differ substantially from period to period,
which could cause similar fluctuations in the amounts of
operating surplus, adjusted operating surplus and cash available
for distribution to our unitholders if we subtracted actual
maintenance capital expenditures from operating surplus. To
eliminate the effect on operating surplus of these fluctuations,
our limited liability company agreement requires that an
estimate of the average quarterly maintenance capital
expenditures (including estimated plugging and abandonment
costs) necessary to maintain our asset base over the long term
be subtracted from operating surplus each quarter as opposed to
the actual amounts spent. The amount of estimated maintenance
capital expenditures deducted from operating surplus is subject
to review and approval by our board of directors, including a
majority of our conflicts committee, at least once a year. We
make the estimate at least annually and whenever an event occurs
that is likely to result in a material adjustment to the amount
of our maintenance capital expenditures, such as a major
acquisition or the introduction of new governmental regulations
that will impact our business. For purposes of calculating
operating surplus, any adjustment to this estimate will be
prospective only.
The use of estimated maintenance capital expenditures in
calculating operating surplus will have the following effects:
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it will reduce the risk that maintenance capital expenditures in
any one quarter will be large enough to render operating surplus
less than the IQD to be paid on all the units for that quarter
and subsequent quarters;
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it will increase our ability to distribute as operating surplus
cash we receive from non-operating sources;
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it will be more difficult for us to raise our distribution above
the IQD and pay management incentive distributions; and
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it will reduce the likelihood that a large maintenance capital
expenditure during the Incentive Trigger Period, which we define
in The
12-Quarter
Test and the
4-Quarter
Test, will prevent the payment of a management incentive
distribution in respect of the Incentive Trigger Period since
the effect of an estimate is to spread the expected expense over
several periods, thereby mitigating the effect of the actual
payment of the expenditure on any single period.
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Expansion
Capital Expenditures
Expansion capital expenditures are those capital expenditures
that we expect to make to expand our capital asset base for the
longer than short term. Examples of expansion capital
expenditures include the acquisition of reserves or equipment,
the acquisition of new leasehold interests, or the development,
exploitation and production of an existing leasehold interests,
to the extent such expenditures are incurred to increase our
capital asset base. Expansion capital expenditures will also
include interest (and related fees) on debt incurred and
distributions on equity issued to finance all or any portion of
a capital improvement during the period beginning on the date
that we enter into a binding obligation to commence construction
or development of the capital improvement and ending on from the
earlier to occur of the commencement of construction or the
financing of the capital improvement until the
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earlier to occur of the date the capital improvement is placed
into service or the date that it is abandoned or disposed of.
Capital expenditures made solely for investment purposes will
not be considered expansion capital expenditures.
Investment
Capital Expenditures
Investment capital expenditures are those capital expenditures
that are neither maintenance capital expenditures nor expansion
capital expenditures. Investment capital expenditures largely
will consist of capital expenditures made for investment
purposes. Examples of investment capital expenditures include
traditional capital expenditures for investment purposes, such
as purchases of securities, as well as other capital
expenditures that might be made in lieu of such traditional
investment capital expenditures, such as the acquisition of a
capital asset for investment purposes or development of our
undeveloped properties in excess of maintenance capital
expenditures, but which are not expected to expand our asset
base for more than the short term.
Capital expenditures that are made in part for maintenance
capital purposes and in part for investment capital or expansion
capital purposes will be allocated as maintenance capital
expenditures, investment capital expenditures or expansion
capital expenditure by our board of directors, including a
majority of our conflicts committee, based upon its good faith
determination.
Definition
of Capital Surplus
Capital surplus will generally be generated only by:
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borrowings other than working capital borrowings;
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sales of debt and equity securities; and
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sales or other disposition of assets for cash, other than
inventory, accounts receivable and other current assets sold in
the ordinary course of business or as part of normal retirements
or replacements of assets.
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Characterization
of Cash Distributions
We will treat all available cash distributed as coming from
operating surplus until the sum of all available cash
distributed since we began operations equals the operating
surplus as of the most recent date of determination of available
cash. We will treat any amount distributed in excess of
operating surplus, regardless of its source, as capital surplus.
We do not anticipate that we will make any distributions from
capital surplus.
Distributions
of Available Cash from Operating Surplus
We will make distributions of available cash from operating
surplus for any quarter in the following manner:
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first
, 98% to the common unitholders, pro rata, and 2% to
the holder of our Class A units, until we distribute $0.48
per unit for the quarter (the First Target
Distribution); and
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after that
, any amount distributed with respect to the
quarter in excess of the First Target Distribution per common
unit will be distributed 98% to the holders of the common units,
pro rata, and 2% to the holder of our Class A units until
distributions become payable with respect to our management
incentive interests as described in Management
Incentive Interests below.
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The Class A units will be entitled to 2% of all cash
distributions from operating surplus, without any requirement
for future capital contributions by the holders of such
Class A units, even if we issue additional common units or
other senior or subordinated equity securities in the future.
The percentage interests shown above for the Class A units
assume they have not been converted into common units. If the
Class A units have been converted, the common units will
receive the 2% of distributions originally allocated to the
Class A units.
Management
Incentive Interests
Management incentive interests represent the right to receive
increasing amounts of quarterly distributions of available cash
from operating surplus after we have made payments in excess of
the First Target Distribution and the tests described below have
been met. Our manager currently holds the management incentive
interests, which are
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evidenced by the Class C limited liability company
interests, but may transfer these rights separately from its
Class A units, subject to restrictions in our limited
liability company agreement.
Before the end of the Incentive Trigger Period, we will not pay
any management incentive distributions. To the extent, however,
that during the Incentive Trigger Period we distribute available
cash from operating surplus in excess of the First Target
Distribution, our board of directors intends to cause us to
reserve an amount for payment of a one-time management incentive
distribution earned during the Incentive Trigger Period, after
such period ends. If during the Incentive Trigger Period we fail
to satisfy a condition specified in the next paragraph, our
board of directors will cause any such reserved amount to be
released from that reserve and restored to available cash.
The
12-Quarter
Test and the
4-Quarter
Test
We will make management incentive payments if two tests are met.
The first test is the
12-Quarter
Test, which requires that for the 12 full, consecutive,
non-overlapping calendar quarters that begin with the first
calendar quarter with respect to which we pay per unit cash
distributions from operating surplus to holders of Class A
and common units in an amount equal to or greater than the First
Target Distribution (we refer to such
12-quarter
period as the Incentive Trigger Period):
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we pay cash distributions from operating surplus to holders of
our outstanding Class A and common units in an amount that
on average exceeds the First Target Distribution on all of the
outstanding Class A units and common units over the
Incentive Trigger Period;
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we generate adjusted operating surplus (which we define below)
that on average is in an amount at least equal to all cash
distributions on the outstanding Class A and common units
plus the amount of any management incentive distributions that
would have been payable if both the
12-Quarter
Test and the
4-Quarter
Test were met. This equates to: (i) 100% of all
distributions on the outstanding Class A and common units
up to the First Target Distribution plus (ii) 117.65% of
any distributions in excess of the First Target Distribution up
to $0.59 (the Second Target Distribution) plus
(iii) 133.33% of any distributions in excess of the Second
Target Distribution; and
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we do not reduce the amount distributed per unit for any such 12
quarters;
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The second test is the
4-Quarter
Test, which requires that for each of (i) the last four
full, consecutive, non-overlapping calendar quarters in the
Incentive Trigger Period, or (ii) any four full,
consecutive and non-overlapping quarters occurring after such
last four quarters in the Incentive Trigger Period, provided
that we have paid at least the IQD in each calendar quarter
occurring between the end of the Incentive Trigger Period and
the beginning of the four full, consecutive and non-overlapping
quarters that satisfy the
4-Quarter
Test, or (iii) any four full, consecutive and
non-overlapping quarters occurring partially within and
partially after such last four quarters of the Incentive Trigger
Period:
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we pay cash distributions from operating surplus to the holders
of our outstanding Class A and common units that exceed the
First Target Distribution on all of the outstanding Class A
and common units;
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we generate adjusted operating surplus during each quarter in an
amount at least equal to all cash distributions on the
outstanding Class A and common units plus the amount of any
management incentive distributions that would have been payable
if both tests were met. This equates to (i) 100% of all
distributions on the outstanding Class A and common units
up to the First Target Distribution plus (ii) 117.65% of
any distributions in excess of the First Target Distribution up
to the Second Target Distribution plus (iii) 133.33% of any
distributions in excess of the Second Target
Distribution; and
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we do not reduce the amount distributed per unit with respect to
any of such four quarters.
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If both the
12-Quarter
Test and
4-Quarter
Test have been met, then:
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We will make a one-time management incentive distribution to the
holder of our management incentive interests (contemporaneously
with the distribution paid with respect to the Class A and
common units for the last calendar quarter in the
4-Quarter
Test) equal to the cumulative amount of the management incentive
distributions that would have been paid based on the level of
distributions made on our Class A and common
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units during the Incentive Trigger Period if the management
incentive distributions were payable on a quarterly basis rather
than after completion of the Incentive Trigger Period, that is,
(x) 17.65% of the sum of any cumulative amounts by which
quarterly cash distributions per unit paid on the outstanding
Class A and common units during the Incentive Trigger Period
exceeded the First Target Distribution up to the Second Target
Distribution and (y) 33.33% of the sum of any cumulative
amounts by which quarterly cash distributions per unit paid on
the outstanding Class A and common units during the
Incentive Trigger Period exceeded the Second Target Distribution.
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For each calendar quarter after the two tests are satisfied, the
holders of our Class A units, common units and management
incentive interests will receive:
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2%, 83% and 15%, respectively, of cash distributions from
available cash from operating surplus that we pay for the
quarter in excess of the First Target Distribution up to the
Second Target Distribution; and
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2%, 73% and 25%, respectively, of cash distributions from
available cash from operating surplus that we pay for the
quarter in excess of the Second Target Distribution.
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Effective April 27, 2009, we suspended further unitholder
distributions pursuant to the merger agreement among us, Atlas
America, Inc., Atlas Energy Management, Inc. and ATLS Merger
Sub, LLC dated of even date. Our suspension of the quarterly
distribution for the three months ended March 31, 2009
means that we will not comply with the terms of the 12 quarter
test and, as such, Atlas Energy Management will not receive the
management incentive distributions that were reserved for during
previous periods.
Definition
of Adjusted Operating Surplus
Adjusted operating surplus generally means, for any period:
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operating surplus generated with respect to that period; less
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any net increase in working capital borrowings with respect to
that period; less
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any net reduction in cash reserves for operating expenditures
with respect to that period not relating to an operating
expenditure made with respect to that period; plus
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any net decrease in working capital borrowings with respect to
that period; plus
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any net increase in cash reserves for operating expenditures
made with respect to that period required by any debt instrument
for the repayment of principal, interest or premium.
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Adjusted operating surplus is intended to reflect the cash
generated from our operations during a particular period and
therefore excludes net increases in working capital borrowings
and net drawdowns of reserves of cash generated in prior periods.
12
Percentage
Allocations of Available Cash from Operating Surplus
The following table illustrates the percentage allocations of
the available cash from operating surplus between the
unitholders and the owner of our management incentive interests
up to various distribution levels. The amounts set forth under
Marginal percentage interest in distributions are
the percentage interests of our Class A unitholders and
common unitholders and the holders of our management incentive
interests in any available cash from operating surplus we
distribute up to and including the corresponding amount in the
column Quarterly distribution level, until available
cash from operating surplus we distribute reaches the next
distribution level, if any. The percentage interests shown for
the IQD are also applicable to quarterly distribution amounts
that are less than the IQD. The percentage interests shown in
the table below assume that the Class A units have not been
converted into common units as described herein.
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Marginal Percentage Interest in Distributions
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Quarterly
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Management
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Distribution
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Class A
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Common
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Incentive
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Level
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Unitholders
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Unitholders
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Interests
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IQD
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$0.42
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2
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%
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98
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%
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0
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%
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First Target Distribution
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up to $0.48
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2
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%
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98
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%
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0
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%
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Second Target Distribution*
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above $0.48
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up to $0.59
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2
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%
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83
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%
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15
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%
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After that*
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above $0.59
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2
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%
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73
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%
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25
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%
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*
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Assumes the
12-Quarter
Test and the
4-Quarter
Test have been met. Until the
12-Quarter
Test and the
4-Quarter
Test are met and distributions with respect to the management
incentive interests become payable, quarterly distributions in
excess of the First Target Distribution will be made 2% to the
holder of the Class A units and 98% to the holders of
common units, pro rata.
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Distributions
from Capital Surplus
How We
Will Make Distributions from Capital Surplus
We will make distributions of available cash from capital
surplus, if any, in the following manner:
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First, 2% to the holder of our Class A units and 98% to all
common unitholders, pro rata, until we distribute for each
common unit that was issued in our initial public offering an
amount of available cash from capital surplus equal to the
initial public offering price; and
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After that, we will make all distributions of available cash
from capital surplus as if they were from operating surplus.
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Effect
of a Distribution from Capital Surplus
Our limited liability company agreement treats a distribution of
capital surplus as the repayment of the initial common unit
price from our initial public offering, which is a return of
capital. We refer to the initial public offering price less any
distributions of capital surplus per common unit as the
unrecovered initial common unit price. Each time we
make a distribution of capital surplus, the IQD, the First
Target Distribution and the Second Target Distribution will be
reduced in the same proportion as the corresponding reduction in
the unrecovered initial common unit price. Because distributions
of capital surplus will reduce the IQD, after we make any of
these distributions, it may be easier for our manager to receive
management incentive distributions. However, any distribution of
capital surplus before the unrecovered initial common unit price
is reduced to zero cannot be applied to the payment of the IQD.
Once we distribute capital surplus on a common unit issued in
our initial public offering in an amount equal to the initial
common unit price, we will reduce the IQD, the First Target
Distribution and the Second Target Distribution to zero. We will
then make all future distributions from operating surplus, with
2% being distributed to the holder of our Class A units,
73% being distributed to our common unitholders, pro rata, and
25% being distributed to the holder of our management incentive
interests. The percentage interests shown above for the
13
Class A units assume they have not been converted into
common units. If the Class A units have been converted, the
common units will receive the 2% of distributions originally
allocated to the Class A units.
Adjustment
to the IQD and Target Distribution Levels
In addition to adjusting the IQD, First Target Distribution and
Second Target Distribution to reflect a distribution of capital
surplus, if we combine our common units into fewer common units
or subdivide our common units into a greater number of common
units, we will proportionately adjust:
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the IQD;
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the First Target Distribution and Second Target
Distribution; and
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the unrecovered initial common unit price.
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For example, if a two-for-one split of the common units should
occur, the First Target Distribution, the Second Target
Distribution and the unrecovered initial common unit price would
each be reduced to 50% of its initial level. We will not make
any adjustment by reason of the issuance of additional units for
cash or property.
In addition, if legislation is enacted or if existing law is
modified or interpreted by a court of competent jurisdiction so
that we become taxable as a corporation or otherwise subject to
taxation as an entity for federal, state or local income tax
purposes, we will reduce the IQD, the First Target Distribution
and the Second Target Distribution for each quarter by
multiplying each by a fraction, the numerator of which is
available cash for that quarter (after deducting our board of
directors estimate of our aggregate liability for the
quarter for such income taxes payable by reason of such
legislation or interpretation) and the denominator of which is
the sum of available cash for that quarter plus our board of
directors estimate of our aggregate liability for the
quarter for such income taxes payable by reason of such
legislation or interpretation. To the extent that the actual tax
liability differs from the estimated tax liability for any
quarter, we will account for the difference in subsequent
quarters.
Distributions
of Cash upon Liquidation
General
If we dissolve in accordance with our limited liability company
agreement, we will sell or otherwise dispose of our assets in a
process called liquidation. We will first apply the proceeds of
liquidation to the payment of our creditors. We will distribute
any remaining proceeds to the unitholders and our manager in
accordance with their capital account balances, as adjusted to
reflect any gain or loss upon the sale or other disposition of
our assets in liquidation.
Manner
of Adjustments for Gain
The manner of the adjustment for gain is set forth in our
limited liability company agreement, and requires that we will
allocate any gain to the unitholders and holders of the
Class A units in the following manner:
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First, to the holders of common units who have negative balances
in their capital accounts to the extent of and in proportion to
those negative balances;
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Second, 2% to the holder of our Class A units and 98% to
the common unitholders, pro rata, until the capital account for
each common unit is equal to the sum of:
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(1) the unrecovered initial common unit price; and
(2) the amount of the IQD for the quarter during which our
liquidation occurs; and
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Third, 2% to the holder of our Class A units and 98% to the
common unitholders, pro rata, until the capital account for each
common unit is equal to the sum of:
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(1) the amount described above under the second bullet
point of this paragraph; and
(2) the excess of (I) over (II), where
14
(I) equals the sum of the excess of the First Target
Distribution per common unit over the IQD for each quarter of
our existence; and
(II) equals the cumulative amount per common unit of any
distributions of available cash from operating surplus in excess
of the IQD per common unit that we distributed 98% to our common
unitholders, pro rata, for each quarter of our
existence; and
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Fourth, 2% to the holder of our Class A units, 83% to the
common unitholders, pro rata, and 15% to the holder of our
management incentive interests until the capital account for
each common unit is equal to the sum of:
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(1) the amount described above under the second bullet
point of this paragraph; and
(2) the excess of (I) over (II), where
(I) equals the sum of the excess of the Second Target
Distribution per common unit over the First Target Distribution
for each quarter of our existence; and
(II) equals the cumulative amount per common unit of any
distributions of available cash from operating surplus in excess
of the First Target Distribution per common unit that we
distributed 83% to our common unitholders, pro rata, for each
quarter of our existence; and
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After that, 2% to the holder of our Class A units, 73% to
all common unitholders, pro rata, and 25% to the holder of our
management incentive interests.
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Manner
of Adjustments for Losses
Upon our liquidation, we will generally allocate any loss 2% to
the holder of the Class A units and 98% to the holders of
the outstanding common units, pro rata.
Adjustments
to Capital Accounts
We will make adjustments to capital accounts upon the issuance
of additional common units. In doing so, we will allocate any
unrealized and, for tax purposes, unrecognized gain or loss
resulting from the adjustments to the holder of the Class A
units, the common unitholders, and the holders of the management
incentive interests in the same manner as we allocate gain or
loss upon liquidation. In the event that we make positive
adjustments to the capital accounts upon the issuance of
additional common units, we will allocate any later negative
adjustments to the capital accounts resulting from the issuance
of additional common units or upon our liquidation in a manner
which results, to the extent possible, in the capital account
balances of the holders of the management incentive interests
equaling the amount which they would have been if no earlier
positive adjustments to the capital accounts had been made.
Limited
Liability
The Delaware Limited Liability Company Act, which we refer to as
the Delaware Act, provides that any unitholder who receives a
distribution and knew at the time of the distribution that the
distribution was in violation of the Delaware Act shall be
liable to the company for the amount of the distribution for
three years. Under the Delaware Act, a limited liability company
may not make a distribution to any unitholder if, after the
distribution, all liabilities of the company, other than
liabilities to unitholders on account of their limited liability
company interests and liabilities for which the recourse of
creditors is limited to specific property of the company, would
exceed the fair value of the assets of the company. For the
purpose of determining the fair value of the assets of a
company, the Delaware Act provides that the fair value of
property subject to liability for which recourse of creditors is
limited shall be included in the assets of the company only to
the extent that the fair value of that property exceeds the
nonrecourse liability. Under the Delaware Act, an assignee who
becomes a substituted unitholder of a company is liable for the
obligations of his assignor to make contributions to the
company, except the assignee is not obligated for liabilities
unknown to him at the time he became a unitholder and that could
not be ascertained from the limited liability company agreement.
15
Our subsidiaries currently conduct business only in Kentucky,
Michigan, New York, Ohio, Oklahoma, Pennsylvania, Tennessee and
West Virginia. We may decide to conduct business in other
states, and maintenance of limited liability for us, as a member
of our operating subsidiaries, may require compliance with legal
requirements in the jurisdictions in which the operating
subsidiaries conduct business, including qualifying our
subsidiaries to do business there. Limitations on the liability
of unitholders for the obligations of a limited liability
company have not been clearly established in many jurisdictions.
We will operate in a manner that our board of directors
considers reasonable and necessary or appropriate to preserve
the limited liability of our unitholders.
Voting
Rights
Holders of our common units and our Class A units have
voting rights on most matters. Our manager currently owns all of
our Class A units and Atlas America owns 29,352,996 of our
common units. Our manager also owns all of our management
incentive interests, which do not have voting rights. The
following matters require a unitholder vote:
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Election of members of the board of directors
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Class A and common unitholders, voting as a single class, elect
the board members. Please read Election of
Members of Our Board of Directors.
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Issuance of additional securities including common units
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No approval right.
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Amendment of our limited liability company agreement
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Certain amendments may be made by our board of directors without
unitholder approval. Other amendments generally require the
approval of our common units and Class A units, voting as a
single class. Please read Amendments of Our
Limited Liability Company Agreement.
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Merger of our company or the sale of all or substantially all
of our assets
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Common unit majority and Class A unit majority. Please read
Merger, Sale or Other Disposition of
Assets.
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Dissolution of our company
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Common unit majority and Class A unit majority. Please read
Termination or Dissolution.
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Matters requiring the approval of a common unit majority require
the approval of a majority of the outstanding common units
voting together as a single class and matters requiring the
approval of a Class A unit majority require the approval of
a majority of the outstanding Class A units voting together
as a single class.
Elimination
of Special Voting Rights of Class A Units
The class voting right of the Class A units can be
eliminated only upon a proposal submitted by or with the consent
of our board of directors and the vote of the holders of at
least
66
2
/
3
%
of our outstanding common units. If such elimination is so
approved, the Class A units will automatically convert into
common units on a one-for-one basis and our manager will have
the right to convert its management incentive interests into
common units based on their then fair market value.
Issuance
of Additional Securities
Our limited liability company agreement authorizes us to issue
an unlimited number of additional securities and authorizes us
to buy securities for the consideration and on the terms and
conditions determined by our board of directors without the
approval of the unitholders.
It is possible that we will fund acquisitions through the
issuance of additional units or other equity securities. Holders
of any additional units we issue will be entitled to share
equally with the then-existing holders of common units,
Class A units and management incentive interests in our
distributions of available cash. In addition, the issuance of
additional units or other equity securities may dilute the value
of the interests of the then-existing holders of units in our
net assets.
16
In accordance with Delaware law and the provisions of our
limited liability company agreement, we may also issue
additional securities that, as determined by our board of
directors, may have special voting or other rights to which the
units are not entitled.
The holders of units will not have preemptive or preferential
rights to acquire additional units or other securities.
Election
of Members of Our Board of Directors
Our board of directors is elected by our Class A units and
our common unitholders, voting together as a single class. The
board of directors is be subject to a re-election on an annual
basis at our annual meeting of members.
Removal
of Members of Our Board of Directors
Any director may be removed, with or without cause, by the
holders of a majority of the outstanding common units and
Class A units then entitled to vote at an election of
directors, voting as a single class.
Increase
in the Size of Our Board of Directors
The size of our board of directors may increase only with the
approval of a majority of the directors. If the size of our
board of directors is so increased, the vacancy created thereby
shall be filled by a person appointed by our board of directors
until the next annual meeting of members.
Amendment
of Our Limited Liability Company Agreement
General
Amendments to our limited liability company agreement may be
proposed only by or with the consent of our board of directors.
To adopt a proposed amendment, other than the amendments
discussed below, our board of directors is required to seek
written approval of the holders of the number of units required
to approve the amendment or call a meeting of the unitholders to
consider and vote upon the proposed amendment. Except as
described below, an amendment must be approved by a majority of
the common units and the Class A units, voting together as
a single class.
Prohibited
Amendments
No amendment may be made that would:
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enlarge the obligations of any unitholder without its consent,
unless approved by at least a majority of the type or class of
member interests so affected; or
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provide that we are not dissolved upon an election to dissolve
our company by our board of directors that is approved by a
common unit majority and a Class A unit majority.
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The provision of our limited liability company agreement
preventing the amendments having the effects described in any of
the clauses above can be amended upon the approval of the
holders of at least 75% of the outstanding common units, voting
together as a single class, and 75% of the outstanding
Class A units, voting together as a single class.
No
Unitholder Approval
Our board of directors may generally make amendments to our
limited liability company agreement without the approval of any
unitholder or assignee to reflect:
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a change in our name, the location of our principal place of our
business, our registered agent or our registered office;
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the admission, substitution, withdrawal or removal of members in
accordance with our limited liability company agreement;
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the merger of our company or any of our subsidiaries into, or
the conveyance of all of our assets to, a newly-formed entity if
the sole purpose of that merger or conveyance is to effect a
mere change in our legal form into another limited liability
entity;
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a change that our board of directors determines to be necessary
or appropriate for us to qualify or continue our qualification
as a company in which our members have limited liability under
the laws of any state or to ensure that neither we, our
operating subsidiaries nor any of its subsidiaries will be
treated as an association taxable as a corporation or otherwise
taxed as an entity for federal income tax purposes;
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an amendment that is necessary, in the opinion of our counsel,
to prevent us, our board of directors or our officers, agents or
trustees from in any manner being subjected to the provisions of
the Investment Company Act of 1940, the Investment Advisors Act
of 1940, or plan asset regulations adopted under the
Employee Retirement Income Security Act of 1974, or ERISA,
whether or not substantially similar to plan asset regulations
currently applied or proposed;
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an amendment that our board of directors determines to be
necessary or appropriate for the authorization of additional
securities or rights to acquire securities;
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any amendment expressly permitted in our limited liability
company agreement to be made by our board of directors acting
alone;
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an amendment effected, necessitated or contemplated by a merger
agreement that has been approved under the terms of our limited
liability company agreement;
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any amendment that our board of directors determines to be
necessary or appropriate for the formation by us of, or our
investment in, any corporation, partnership or other entity, as
otherwise permitted by our limited liability company agreement;
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a change in our fiscal year or taxable year and related changes;
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a merger, conversion or conveyance effected in accordance with
our limited liability company agreement; and
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any other amendments substantially similar to any of the matters
described in the clauses above.
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In addition, our board of directors may make amendments to our
limited liability company agreement without the approval of any
unitholder or assignee if our board of directors determines that
those amendments:
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do not adversely affect the unitholders (including any
particular class of unitholders as compared to other classes of
unitholders) in any material respect;
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are necessary or appropriate to satisfy any requirements,
conditions or guidelines contained in any opinion, directive,
order, ruling or regulation of any federal or state agency or
judicial authority or contained in any federal or state statute;
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are necessary or appropriate to facilitate the trading of units
or to comply with any rule, regulation, guideline or requirement
of any securities exchange on which the units are or will be
listed for trading, compliance with any of which our board of
directors deems to be in the best interests of us and our
unitholders;
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are necessary or appropriate for any action taken by our board
of directors relating to splits or combinations of units under
the provisions of our limited liability company
agreement; or
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are required to effect the intent expressed in this prospectus
or the intent of the provisions of our limited liability company
agreement or are otherwise contemplated by our limited liability
company agreement.
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18
Opinion
of Counsel and Unitholder Approval
Our board of directors will not be required to obtain an opinion
of counsel that an amendment will not result in a loss of
limited liability to our unitholders or result in our being
treated as an entity for federal income tax purposes if one of
the amendments described above under No
Unitholder Approval should occur. No other amendments to
our limited liability company agreement will become effective
without the approval of holders of at least 90% of the
outstanding common units and Class A units unless we obtain
an opinion of counsel to the effect that the amendment will not
affect the limited liability under applicable law of any
unitholder of our company.
Any amendment that would have a material adverse effect on the
rights or preferences of any type or class of outstanding units
in relation to other classes of units will require the approval
of at least a majority of the type or class of units so
affected. Any amendment that reduces the voting percentage
required to take any action is required to be approved by the
affirmative vote of unitholders whose aggregate outstanding
units constitute not less than the voting requirement sought to
be reduced.
Merger,
Sale or Other Disposition of Assets
Our board of directors is generally prohibited, without the
prior approval of the holders of a common unit majority and
Class A unit majority, from causing us to, among other
things, sell, exchange or otherwise dispose of all or
substantially all of our assets in a single transaction or a
series of related transactions, including by way of merger,
consolidation or other combination, or approving on our behalf
the sale, exchange or other disposition of all or substantially
all of the assets of our subsidiaries, provided that our board
of directors may mortgage, pledge, hypothecate or grant a
security interest in all or substantially all of our assets
without that approval. Our board of directors may also sell all
or substantially all of our assets under a foreclosure or other
realization upon the encumbrances above without that approval.
If the conditions specified in our limited liability company
agreement are satisfied, our board of directors may merge our
company or any of its subsidiaries into, or convey all of our
assets to, a newly-formed entity if the sole purpose of that
merger or conveyance is to effect a mere change in our legal
form into another limited liability entity. Our unitholders are
not entitled to dissenters rights of appraisal under our
limited liability company agreement or applicable Delaware law
in the event of a merger or consolidation, a sale of all or
substantially all of our assets or any other transaction or
event.
Termination
and Dissolution
We will continue as a company until terminated under our limited
liability company agreement. We will dissolve upon: (1) the
election of our board of directors to dissolve us, if approved
by the holders of a common unit majority and Class A unit
majority; (2) the sale, exchange or other disposition of
all or substantially all of the assets and properties of our
company and our subsidiaries; or (3) the entry of a decree
of judicial dissolution of our company.
Liquidation
and Distribution of Proceeds
Upon our dissolution, the liquidator authorized to wind up our
affairs will, acting with all of the powers of our board of
directors that the liquidator deems necessary or desirable in
its judgment, liquidate our assets and apply the proceeds of the
liquidation as described in Distributions of
Cash Upon Liquidation.
The liquidator may defer liquidation or distribution of our
assets for a reasonable period of time or distribute assets to
unitholders in kind if it determines that a sale would be
impractical or would cause undue loss to our unitholders.
Anti-Takeover
Provisions
Our limited liability company agreement contains specific
provisions that are intended to discourage a person or group
from attempting to take control of our company without the
approval of our board of directors. Specifically, our limited
liability company agreement provides that we will elect to have
Section 203 of the DGCL apply to transactions in which an
interested common unitholder (as described below) seeks to enter
into a merger or business
19
combination with us. Under this provision, such a holder will
not be permitted to enter into a merger or business combination
with us unless:
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before such time, our board of directors approved either the
business combination or the transaction that resulted in the
common unitholders becoming an interested common
unitholder;
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upon consummation of the transaction that resulted in the common
unitholder becoming an interested common unitholder, the
interested common unitholder owned at least 85% of our
outstanding common units at the time the transaction commenced,
excluding for purposes of determining the number of common units
outstanding those common units owned:
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by persons who are directors and also officers; and
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by employee common unit plans in which employee participants do
not have the right to determine confidentially whether common
units held subject to the plan will be tendered in a tender or
exchange offer; or
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at or after such time the business combination is approved by
our board of directors and authorized at an annual or special
meeting of our common unitholders, and not by written consent,
by the affirmative vote of the holders of at least
66
2
/
3
%
of our outstanding voting common units that are not owned by the
interested common unitholder.
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Section 203 defines business combination to
include:
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any merger or consolidation involving the company and the
interested common unitholder;
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any sale, transfer, pledge or other disposition of 10% or more
of the assets of the company involving the interested common
unitholder;
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subject to certain exceptions, any transaction that results in
the issuance or transfer by the company of any common units of
the company to the interested common unitholder;
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any transaction involving the company that has the effect of
increasing the proportionate share of the units of any class or
series of the company beneficially owned by the interested
common unitholder; or
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the receipt by the interested common unitholder of the benefit
of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the company.
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In general, an interested common unitholder is any
person or entity, other than Atlas America, our manager, their
affiliates or transferees, that beneficially owns (or within
three years did own) 15% or more of the outstanding common units
of the company and any entity or person affiliated with or
controlling or controlled by such entity or person.
The existence of this provision would be expected to have an
anti-takeover effect with respect to transactions not approved
in advance by our board of directors, including discouraging
attempts that might result in a premium over the market price
for common units held by common unitholders.
Our limited liability agreement also restricts the voting rights
of common unitholders by providing that any units held by a
person that owns 20% or more of any class of units then
outstanding, other than Atlas America, our manager, their
affiliates or transferees and persons who acquire such units
with the prior approval of our board of directors, cannot vote
on any matter.
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Limited
Call Right
If at any time any person owns more than 87.5% of the
then-issued and outstanding membership interests of any class,
such person will have the right, which it may assign in whole or
in part to any of its affiliates or to us, to acquire all, but
not less than all, of the remaining membership interests of the
class held by unaffiliated persons as of a record date to be
selected by our management, on at least 10 but not more than
60 days notice. The unitholders are not entitled to
dissenters rights of appraisal under our limited liability
company agreement or applicable Delaware law if this limited
call right is exercised. The purchase price in the event of this
purchase is the greater of:
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the highest cash price paid by such person for any membership
interests of the class purchased within the 90 days
preceding the date on which such person first mails notice of
its election to purchase those membership interests; or
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the closing market price as of the date three days before the
date the notice is mailed.
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As a result of this limited call right, a holder of membership
interests in our company may have his membership interests
purchased at an undesirable time or price. Please read
Risk factors Risks Related to Our
Structure. The tax consequences to a unitholder of the
exercise of this call right are the same as a sale by that
unitholder of his units in the market. Please read
Material Tax Consequences Disposition of
Common Units.
Meetings;
Voting
Except as described below regarding a person or group owning 20%
or more of units then outstanding, unitholders on the record
date will be entitled to notice of, and to vote at, meetings of
our unitholders and to act upon matters for which approvals may
be solicited.
All notices of meetings of unitholders shall be sent or
otherwise given in accordance with our limited liability company
agreement not less than 10 days nor more than 60 days
before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of
a special meeting, the general nature of the business to be
transacted (no business other than that specified in the notice
may be transacted) or (ii) in the case of the annual
meeting, those matters which the board of directors, at the time
of giving the notice, intends to present for action by the
unitholders (but any proper matter may be presented at the
meeting for such action). The notice of any meeting at which
directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the board of
directors intends to present for election. Any previously
scheduled meeting of the unitholders may be postponed, and any
special meeting of the unitholders may be cancelled, by
resolution of the board of directors upon public notice given
prior to the date previously scheduled for such meeting of
unitholders.
Units that are owned by an assignee who is a record holder, but
who has not yet been admitted as a member, shall be voted at the
written direction of the record holder by a proxy designated by
our board of directors. Absent direction of this kind, the units
will not be voted, except that units held by us on behalf of
non-citizen assignees shall be voted in the same ratios as the
votes of unitholders on other units are cast.
Any action required or permitted to be taken by our unitholders
may be taken at a duly called annual or special meeting of
unitholders or without a meeting if consents in writing
describing the action so taken are signed by holders of the
number of units as would be necessary to authorize or take the
action at a meeting. Special meetings of the unitholders may be
called only by the chairman or vice chairman of our board of
directors, our chief executive officer, president or board of
directors.
Unitholders may vote either in person or by proxy at meetings.
The holders of a majority of the outstanding units, represented
in person or by proxy, will constitute a quorum unless any
action by the unitholders requires approval by holders of a
greater percentage of the units, in which case the quorum will
be the greater percentage.
Each record holder of a unit has a vote according to his
percentage interest in us, although additional units having
special voting rights could be issued. Please read
Issuance of Additional Securities above.
However, if at any time any person or group, other than Atlas
America, our manager and their affiliates, or a direct or
subsequently approved transferee of Atlas America, our manager
or their affiliates, acquires, in the aggregate, beneficial
ownership of 20% or more of any class of units then outstanding,
that person or group will lose voting rights on all of its units
and the units may not be voted on any matter and will not be
considered to be outstanding
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when sending notices of a meeting of unitholders, calculating
required votes, determining the presence of a quorum or for
other similar purposes. Units held in nominee or street name
account will be voted by the broker or other nominee in
accordance with the instruction of the beneficial owner unless
the arrangement between the beneficial owner and his nominee
provides otherwise.
Any notice, demand, request, report or proxy material required
or permitted to be given or made to record holders of units will
be delivered to the record holder by us or by the transfer agent.
Non-Citizen
Assignees; Redemption
If we or any of our subsidiaries are or become subject to
federal, state or local laws or regulations that, in the
reasonable determination of our board of directors, create a
substantial risk of cancellation or forfeiture of any property
that we have an interest in because of the nationality,
citizenship or other related status of any unitholder or
assignee, we may redeem, upon 30 days advance notice,
the units held by the unitholder or assignee at their current
market price. To avoid any cancellation or forfeiture, our board
of directors may require each unitholder or assignee to furnish
information about his nationality, citizenship or related
status. If a unitholder or assignee fails to furnish information
about his nationality, citizenship or other related status
within 30 days after a request for the information or our
board of directors determines after receipt of the information
that the unitholder or assignee is not an eligible citizen, the
unitholder or assignee may be treated as a non-citizen assignee.
In addition to other limitations on the rights of an assignee
who is not a substituted unitholder, a non-citizen assignee does
not have the right to direct the voting of his units and may not
receive distributions in kind upon our liquidation.
Indemnification
Under our limited liability company agreement and subject to
specified limitations, we will indemnify to the fullest extent
permitted by law from and against all losses, claims, damages or
similar events any person who is or was our director or officer,
or while serving as our director or officer, is or was serving
as a tax matters member or, at our request, as a director,
manager, officer, tax matters member, employee, partner,
fiduciary or trustee of us or any of our subsidiaries.
Additionally, we shall indemnify to the fullest extent permitted
by law and authorized by our board of directors, from and
against all losses, claims, damages or similar events any person
is or was an employee or agent (other than an officer) of our
company.
Any indemnification under our limited liability company
agreement will only be out of our assets. We are authorized to
purchase insurance against liabilities asserted against and
expenses incurred by persons for our activities, regardless of
whether we would have the power to indemnify the person against
liabilities under our limited liability company agreement.
Books and
Reports
We are required to keep appropriate books of our business at our
principal offices. The books will be maintained for both tax and
financial reporting purposes on an accrual basis. For tax and
fiscal reporting purposes, our fiscal year is the calendar year.
We will furnish or make available to record holders of units,
within 120 days after the close of each fiscal year, an
annual report containing audited financial statements and a
report on those financial statements by our independent public
accountants. Except for our fourth quarter, we will also furnish
or make available summary financial information within
90 days after the close of each quarter.
We will furnish each record holder of a unit with information
reasonably required for tax reporting purposes within
90 days after the close of each calendar year. We furnish
this information in summary form so that some complex
calculations normally required of unitholders can be avoided.
Our ability to furnish this summary information to unitholders
will depend on the cooperation of unitholders in supplying us
with specific information. Every unitholder will receive
information to assist him in determining his federal and state
tax liability and filing his federal and state income tax
returns, regardless of whether he supplies us with information.
22
Right to
Inspect Our Books and Records
Our limited liability company agreement provides that a
unitholder can, for a purpose reasonably related to his interest
as a unitholder, upon reasonable demand and at his own expense,
have furnished to him:
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a current list of the name and last known address of each
unitholder;
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a copy of our tax returns;
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information as to the amount of cash, and a description and
statement of the agreed value of any other property or services,
contributed or to be contributed by each unitholder and the date
on which each became a unitholder;
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copies of our limited liability company agreement, the
certificate of formation of the company, related amendments and
powers of attorney under which they have been executed;
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information regarding the status of our business and financial
condition; and
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any other information regarding our affairs as is just and
reasonable.
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Our board of directors may, and intends to, keep confidential
from our unitholders information that it believes to be in the
nature of trade secrets or other information, the disclosure of
which our board of directors believes in good faith is not in
our best interests, information that could damage our company or
our business, or information that we are required by law or by
agreements with a third party to keep confidential.
Registration
Rights
Under our limited liability company agreement, we have agreed to
register for sale under the Securities Act and applicable state
securities laws (subject to certain limitations) any common
units proposed to be sold by Atlas America, our manager or any
of their affiliates if an exemption from the registration
requirements is not available. These registration rights require
us to file up to three registration statements. We have also
agreed to include any securities held by Atlas America, our
manager or any of their affiliates in any registration statement
that we file to offer securities for cash, except an offering
relating solely to an employee benefit plan and other similar
exceptions. We are obligated to pay all expenses incidental to
the registration, excluding underwriting discounts and
commissions.
MATERIAL
TAX CONSEQUENCES
This section is a discussion of the material tax consequences
that may be relevant to prospective unitholders who are
individual citizens or residents of the United States and,
unless otherwise noted in the following discussion, is the
opinion of Ledgewood, P.C., counsel to us and our manager,
insofar as it relates to matters of United States federal income
tax law and legal conclusions with respect to those matters.
This section is based on current provisions of the Code,
existing and proposed regulations and current administrative
rulings and court decisions, all of which are subject to change.
Later changes in these authorities may cause the tax
consequences to vary substantially from the consequences
described below. Unless the context otherwise requires,
references in this section to us or we
are references to us and our and our subsidiaries.
This section does not address all federal income tax matters
that affect us or the unitholders. Furthermore, this section
focuses on unitholders who are individual citizens or residents
of the United States and has only limited application to
corporations, estates, trusts, non-resident aliens or other
unitholders subject to specialized tax treatment, such as
tax-exempt institutions, foreign persons, individual retirement
accounts (IRAs), employee benefit plans, real estate investment
trusts (REITs) or mutual funds. Accordingly, we urge each
prospective unitholder to consult, and depend on, his own tax
advisor in analyzing the federal, state, local and foreign tax
consequences particular to him of the ownership or disposition
of our common units.
No ruling has been or will be requested from the IRS regarding
any matter that affects us or prospective unitholders. Instead,
we will rely on opinions and advice of Ledgewood. Unlike a
ruling, an opinion of counsel represents only that
counsels best legal judgment and does not bind the IRS or
the courts. Accordingly, the opinions
23
and statements made in this discussion may not be sustained by a
court if contested by the IRS. Any contest of this sort with the
IRS may materially and adversely impact the market for our
common units and the prices at which our common units trade. In
addition, the costs of any contest with the IRS, principally
legal, accounting and related fees, will result in a reduction
in cash available for distribution to our unitholders and thus
will be borne directly by our unitholders. Furthermore, the tax
treatment of us, or of an investment in us, may be significantly
modified by future legislative or administrative changes or
court decisions. Any modifications may or may not be
retroactively applied.
All statements regarding matters of law and legal conclusions
set forth below, unless otherwise noted, are the opinion of
Ledgewood and are based on the accuracy of the representations
made by us. Statements of fact do not represent opinions of
Ledgewood.
For the reasons described below, Ledgewood has not rendered an
opinion with respect to the following specific federal income
tax issues:
(1) the treatment of a unitholder whose units are loaned to
a short seller to cover a short sale of units (please read
Tax Consequences of Unit
Ownership Treatment of Short Sales);
(2) whether our monthly convention for allocating taxable
income and losses is permitted by existing Treasury Regulations
(please read Disposition of Common
Units Allocations Between Transferors and
Transferees);
(3) whether percentage depletion will be available to a
unitholder or the extent of the percentage depletion deduction
available to any unitholder (please read Tax
Treatment of Operations Depletion
Deductions); and
(4) whether the deduction related to United States
production activities will be available to a unitholder or the
extent of such deduction to any unitholder (please read
Tax Treatment of Operations
Deduction for United States Production Activities).
Partnership
Status
Except as discussed in the following paragraph, a limited
liability company that has more than one member and that has not
elected to be treated as a corporation is treated as a
partnership for federal income tax purposes and, therefore, is
not a taxable entity and incurs no federal income tax liability.
Instead, each partner is required to take into account his share
of items of income, gain, loss and deduction of the partnership
in computing his federal income tax liability, even if no cash
distributions are made to him. Distributions by a partnership to
a partner are generally not taxable to the partner unless the
amount of cash distributed to him is in excess of his adjusted
basis in his partnership interest.
Section 7704 of the Code provides that publicly-traded
partnerships will, as a general rule, be taxed as corporations.
However, an exception, referred to in this discussion as the
Qualifying Income Exception, exists with respect to
publicly-traded partnerships 90% or more of the gross income of
which for every taxable year consists of qualifying
income. Qualifying income includes income and gains
derived from the exploration, development, mining or production,
processing, transportation and marketing of natural resources,
including oil, natural gas, and products thereof. Other types of
qualifying income include fee-based income derived from the
drilling, management and operation of oil and natural gas wells
for our investment partnerships, interest (other than from a
financial business), dividends, gains from the sale of real
property and gains from the sale or other disposition of assets
held for the production of income that otherwise constitutes
qualifying income. We estimate that less than 1% of our current
income does not constitute qualifying income; however, this
estimate could change from time to time. Based on and subject to
this estimate, the factual representations made by us, and a
review of the applicable legal authorities, Ledgewood is of the
opinion that more than 90% of our current gross income
constitutes qualifying income. The portion of our income that is
qualifying income can change from time to time.
No ruling has been or will be sought from the IRS, and the IRS
has made no determination as to our status or the status of our
operating subsidiaries for federal income tax purposes or
whether our operations generate qualifying income
under Section 7704 of the Code. Instead, we will rely on
the opinion of Ledgewood. Ledgewood is of the opinion, based
upon the Code, its regulations, published revenue rulings, court
decisions and the representations
24
described below, that we will be classified as a partnership,
and each of our operating subsidiaries will be disregarded as an
entity separate from us, for federal income tax purposes.
In rendering its opinion, Ledgewood has relied on factual
representations made by us. The representations made by us upon
which Ledgewood has relied include:
(a) Neither we, nor any of our subsidiaries, have elected
nor will we elect to be treated as a corporation; and
(b) For each taxable year, more than 90% of our gross
income will be income that Ledgewood has opined or will opine is
qualifying income within the meaning of
Section 7704(d) of the Code.
If we fail to meet the Qualifying Income Exception, other than a
failure that is determined by the IRS to be inadvertent and that
is cured within a reasonable time after discovery, we will be
treated as if we had transferred all of our assets, subject to
liabilities, to a newly formed corporation, on the first day of
the year in which we fail to meet the Qualifying Income
Exception, in return for stock in that corporation and then
distributed that stock to the unitholders in liquidation of
their interests in us. This deemed contribution and liquidation
would be tax-free to unitholders and us so long as we, at that
time, do not have liabilities in excess of the tax basis of our
assets. Thereafter, we would be treated as a corporation for
federal income tax purposes.
If we were taxable as a corporation in any taxable year, either
as a result of a failure to meet the Qualifying Income Exception
or otherwise, our items of income, gain, loss and deduction
would be reflected only on our tax return rather than being
passed through to the unitholders, and our net income would be
taxed to us at corporate rates. In addition, any distribution
made to a unitholder would be treated as taxable dividend income
to the extent of our current or accumulated earnings and
profits, or, in the absence of earnings and profits, a
nontaxable return of capital to the extent of the
unitholders tax basis in his units, or taxable capital
gain, after the unitholders tax basis in his units is
reduced to zero. Accordingly, taxation as a corporation would
result in a material reduction in a unitholders cash flow
and after-tax return and thus would likely result in a
substantial reduction of the value of the units.
The remainder of this section is based on Ledgewoods
opinion that we will be classified as a partnership for federal
income tax purposes.
Unitholder
Status
Unitholders who become our members will be treated as our
partners for federal income tax purposes. Also, assignees who
have executed and delivered transfer applications, and are
awaiting admission as members, and unitholders whose units are
held in street name or by a nominee and who have the right to
direct the nominee in the exercise of all substantive rights
attendant to the ownership of their units will be treated as our
partners for federal income tax purposes.
Because there is no direct or indirect controlling authority
addressing the federal tax treatment of assignees of units who
are entitled to execute and deliver transfer applications and
thereby become entitled to direct the exercise of attendant
rights, but who fail to execute and deliver transfer
applications, the opinion of Ledgewood does not extend to these
persons. Furthermore, a purchaser or other transferee of units
who does not execute and deliver a transfer application may not
receive some federal income tax information or reports furnished
to record holders of units unless the units are held in a
nominee or street name account and the nominee or broker has
executed and delivered a transfer application for those units.
A beneficial owner of units whose units have been transferred to
a short seller to complete a short sale would appear to lose his
status as a partner with respect to those units for federal
income tax purposes. Please read Tax
Consequences of Unit Ownership Treatment of Short
Sales.
Items of our income, gain, loss, or deduction are not reportable
by a unitholder who is not a partner for federal income tax
purposes, and any cash distributions received by a unitholder
who is not a partner for federal income tax purposes would
therefore be fully taxable as ordinary income. These unitholders
are urged to consult their own tax advisors with respect to the
consequences of their status as partners in us for federal
income tax purposes.
25
Tax
Consequences of Unit Ownership
Flow-through
of Taxable Income
We do not pay any federal income tax. Instead, each unitholder
is required to report on his income tax return his share of our
income, gains, losses and deductions without regard to whether
corresponding cash distributions are received by him.
Consequently, we may allocate income to a unitholder even if he
has not received a cash distribution. Each unitholder will be
required to include in income his share of our income, gain,
loss and deduction for our taxable year or years ending with or
within his taxable year. Our taxable year ends on
December 31.
Treatment
of Distributions
Distributions made by us to a unitholder generally will not be
taxable to him for federal income tax purposes to the extent of
his tax basis in his units immediately before the distribution.
Cash distributions made by us to a unitholder in an amount in
excess of his tax basis in his units generally will be
considered to be gain from the sale or exchange of those units,
taxable in accordance with the rules described under
Disposition of Common Units below. To
the extent that cash distributions made by us cause a
unitholders at risk amount to be less than
zero at the end of any taxable year, he must recapture any
losses deducted in previous years. Please read
Limitations on Deductibility of Losses.
Any reduction in a unitholders share of our liabilities
for which no partner bears the economic risk of loss, known as
non-recourse liabilities, will be treated as a
distribution of cash to that unitholder. A decrease in a
unitholders percentage interest in us because of our
issuance of additional units will decrease his share of our
nonrecourse liabilities and thus will result in a corresponding
deemed distribution of cash, which may constitute a non-pro rata
distribution. A non-pro rata distribution of money or property
may result in ordinary income to a unitholder, regardless of his
tax basis in his units, if the distribution reduces the
unitholders share of our unrealized
receivables, including recapture of intangible drilling
costs, depletion and depreciation recapture,
and/or
substantially appreciated inventory items, all as
defined in Section 751 of the Code, and collectively,
Section 751 Assets. To that extent, he will be
treated as having received his proportionate share of the
Section 751 Assets and having exchanged those assets with
us in return for the non-pro rata portion of the actual
distribution made to him. This latter deemed exchange will
generally result in the unitholders realization of
ordinary income. That income will equal the excess of
(1) the non-pro rata portion of that distribution over
(2) the unitholders tax basis for the share of
Section 751 Assets deemed relinquished in the exchange.
Basis
of Common Units
A unitholders initial tax basis for his common units will
be the amount he paid for the units plus his share of our
nonrecourse liabilities. That basis will be increased by his
share of our income and by any increases in his share of our
nonrecourse liabilities. That basis generally will be decreased,
but not below zero, by distributions to him from us, by his
share of our losses, by depletion deductions taken by him to the
extent such deductions do not exceed his proportionate share of
the adjusted tax basis of the underlying producing properties,
by any decreases in his share of our nonrecourse liabilities and
by his share of our expenditures that are not deductible in
computing taxable income and are not required to be capitalized.
A unitholders share of our nonrecourse liabilities will
generally be based on his share of our profits. Please read
Disposition of Common Units
Recognition of Gain or Loss.
Limitations
on Deductibility of Losses
The deduction by a unitholder of his share of our losses will be
limited to his tax basis in his common units and, in the case of
an individual unitholder or a corporate unitholder, if more than
50% of the value of its stock is owned directly or indirectly by
or for five or fewer individuals or some tax-exempt
organizations, to the amount for which the unitholder is
considered to be at risk with respect to our
activities, if that amount is less than his tax basis. A
unitholder must recapture losses deducted in previous years to
the extent that distributions cause his at-risk amount to be
less than zero at the end of any taxable year. Losses disallowed
to a unitholder or recaptured as a result of these limitations
will carry forward and will be allowable as a deduction in a
later year to the extent that his tax basis or at-risk amount,
whichever is the limiting factor, is subsequently increased.
Upon the taxable disposition of a common unit, any gain
recognized by a unitholder can be offset by losses that were
previously suspended by the at-risk
26
limitation but may not be offset by losses suspended by the
basis limitation. Any excess loss above that gain previously
suspended by the at risk or basis limitations is no longer
utilizable.
In general, a unitholder will be at risk to the extent of his
tax basis in his common units, excluding any portion of that
basis attributable to his share of our nonrecourse liabilities,
reduced by any amount of money he borrows to acquire or hold his
units, if the lender of those borrowed funds owns an interest in
us, is related to the unitholder or can look only to the common
units for repayment. A unitholders at-risk amount will
increase or decrease as the tax basis of the unitholders
common units increases or decreases, other than tax basis
increases or decreases attributable to increases or decreases in
his share of our nonrecourse liabilities. Moreover, a
unitholders at risk amount will decrease by the amount of
the unitholders depletion deductions and will increase to
the extent of the amount by which the unitholders
percentage depletion deductions with respect to our property
exceed the unitholders share of the basis of that property.
The at risk limitation applies on an
activity-by-activity
basis, and in the case of natural gas and oil properties, each
property is treated as a separate activity. Thus, a
taxpayers interest in each oil or gas property is
generally required to be treated separately so that a loss from
any one property would be limited to the at risk amount for that
property and not the at risk amount for all the taxpayers
natural gas and oil properties. It is uncertain how this rule is
implemented in the case of multiple natural gas and oil
properties owned by a single entity treated as a partnership for
federal income tax purposes. However, for taxable years ending
on or before the date on which further guidance is published,
the IRS will permit aggregation of oil or gas properties we own
in computing a unitholders at risk limitation with respect
to us. If a unitholder must compute his at risk amount
separately with respect to each oil or gas property we own, he
may not be allowed to utilize his share of losses or deductions
attributable to a particular property even though he has a
positive at risk amount with respect to his common units as a
whole.
The passive loss limitation generally provides that individuals,
estates, trusts and some closely held corporations and personal
service corporations are permitted to deduct losses from passive
activities, which are generally defined as trade or business
activities in which the taxpayer does not materially
participate, only to the extent of the taxpayers income
from those passive activities. The passive loss limitation is
applied separately with respect to each publicly-traded
partnership. Consequently, any losses we generate will be
available to offset only our passive income generated in the
future and will not be available to offset income from other
passive activities or investments, including our investments, a
unitholders investments in other publicly-traded
partnerships, or a unitholders salary or active business
income. If we dispose of all or only part of our interest in an
oil or gas property, unitholders will be able to offset their
suspended passive activity losses from our activities against
the gain, if any, on the disposition. Any previously suspended
losses in excess of the amount of gain recognized will remain
suspended. Notwithstanding whether a natural gas and oil
property is a separate activity, passive losses that are not
deductible because they exceed a unitholders share of
income we generate may be deducted by the unitholder in full
only when he disposes of his entire investment in us in a fully
taxable transaction with an unrelated party. The passive
activity loss rules are applied after certain other applicable
limitations on deductions, including the at-risk rules and the
tax basis limitation.
A unitholders share of our net income may be offset by any
of our suspended passive losses, but it may not be offset by any
other current or carryover losses from other passive activities,
including those attributable to other publicly-traded
partnerships.
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Limitation
on Interest Deductions
The deductibility of a non-corporate taxpayers
investment interest expense is generally limited to
the amount of that taxpayers net investment
income. Investment interest expense includes:
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interest on indebtedness properly allocable to property held for
investment;
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our interest expense attributable to portfolio income; and
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the portion of interest expense incurred to purchase or carry an
interest in a passive activity to the extent attributable to
portfolio income.
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The computation of a unitholders investment interest
expense will take into account interest on any margin account
borrowing or other loan incurred to purchase or carry a common
unit.
Net investment income includes gross income from property held
for investment and amounts treated as portfolio income under the
passive loss rules, less deductible expenses, other than
interest, directly connected with the production of investment
income, but generally does not include gains attributable to the
disposition of property held for investment. The IRS has
indicated that net passive income earned by a publicly-traded
partnership will be treated as investment income to its
unitholders. In addition, the unitholders share of our
portfolio income will be treated as investment income.
Entity-level Collections
If we are required or elect under applicable law to pay any
federal, state or local income tax on behalf of any unitholder
or any former unitholder, we are authorized to pay those taxes
from our funds. That payment, if made, will be treated as a
distribution of cash to the unitholder on whose behalf the
payment was made. If the payment is made on behalf of a
unitholder whose identity cannot be determined, we are
authorized to treat the payment as a distribution to all current
unitholders. We are authorized to amend our limited liability
company agreement in the manner necessary to maintain uniformity
of intrinsic tax characteristics of common units and to adjust
later distributions, so that after giving effect to these
distributions, the priority and characterization of
distributions otherwise applicable under our limited liability
company agreement is maintained as nearly as is practicable.
Payments by us as described above could give rise to an
overpayment of tax on behalf of a unitholder in which event the
unitholder would be required to file a claim in order to obtain
a credit or refund.
Allocation
of Income, Gain, Loss and Deduction
In general, if we have a net profit, our items of income, gain,
loss and deduction will be allocated among the unitholders in
accordance with their percentage interests in us. If we have a
net loss for an entire year, the loss will be allocated to our
unitholders according to their percentage interests in us to the
extent of their positive capital account balances.
Specified items of our income, gain, loss and deduction have
been and will be allocated under Section 704(c) of the Code
to account for the difference between the tax basis and fair
market value of our assets at the time of our initial public
offering, which assets are referred to in this discussion as
Contributed Property. These allocations are required
to eliminate the difference between a partners
book capital account, credited with the fair market
value of Contributed Property, and the tax capital
account, credited with the tax basis of Contributed Property,
referred to in this discussion as the book-tax
disparity. In the event we issue additional units or
engage in certain other transactions in the future,
Section 704(c) allocations will be made to all holders of
partnership interests to account for the difference between the
book basis for purposes of maintaining capital
accounts and the fair market value of all property held by us at
the time of the future transaction. In addition, items of
recapture income will be allocated to the extent possible to the
unitholder who was allocated the deduction giving rise to the
treatment of that gain as recapture income in order to minimize
the recognition of ordinary income by other unitholders.
Finally, although we do not expect that our operations will
result in the creation of negative capital accounts, if negative
capital accounts nevertheless result, items of our income and
gain will be allocated in an amount and manner sufficient to
eliminate the negative balance as quickly as possible.
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An allocation of items of our income, gain, loss or deduction,
other than an allocation required by Section 704(c), will
generally be given effect for federal income tax purposes in
determining a unitholders share of an item of income,
gain, loss or deduction only if the allocation has substantial
economic effect. In any other case, a unitholders share of
an item will be determined on the basis of his interest in us,
which will be determined by taking into account all the facts
and circumstances, including:
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his relative contributions to us;
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the interests of all the unitholders in profits and losses;
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the interest of all the unitholders in cash flow; and
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the rights of all the unitholders to distributions of capital
upon liquidation.
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Ledgewood is of the opinion that, with the exception of the
issues described in Tax Consequences of Unit
Ownership Section 754 Election,
Uniformity of Common Units and
Disposition of Common Units
Allocations Between Transferors and Transferees,
allocations under our limited liability company agreement will
be given effect for federal income tax purposes in determining a
unitholders share of an item of income, gain, loss or
deduction.
Treatment
of Short Sales
A unitholder whose common units are loaned to a short
seller to cover a short sale of units may be considered as
having disposed of those units. If so, he would no longer be a
partner for tax purposes with respect to those units during the
period of the loan and may recognize gain or loss from the
disposition. As a result, during this period:
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none of our income, gain, loss or deduction with respect to
those units would be reportable by the unitholder;
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any cash distributions received by the unitholder with respect
to those units would be fully taxable; and
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all of these distributions would appear to be ordinary income.
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Because there is no direct or indirect controlling authority on
the issue, Ledgewood has not rendered an opinion regarding the
treatment of a unitholder whose units are loaned to a short
seller. Therefore, unitholders desiring to assure their status
as partners and avoid the risk of gain recognition are urged to
modify any applicable brokerage account agreements to prohibit
their brokers from loaning their units. The IRS has announced
that it is studying issues relating to the tax treatment of
short sales of partnership interests. Please also read
Disposition of Common Units
Recognition of Gain or Loss.
Tax
Rates
In general, the highest effective federal income tax rate for
individuals currently is 35% and the maximum federal income tax
rate for net capital gains of an individual currently is 15% if
the asset disposed of was held for more than 12 months at
the time of disposition.
Section 754
Election
We have made the election permitted by Section 754 of the
Code. That election is irrevocable without the consent of the
IRS. That election will generally permit us to adjust a unit
purchasers tax basis in our assets (inside
basis) under Section 743(b) of the Code to reflect
his purchase price. The Section 743(b) adjustment does not
apply to a person who purchases units directly from us, and it
belongs only to the purchaser and not to other unitholders.
Please also read, however, Allocation of
Income, Gain, Loss and Deduction above. For purposes of
this discussion, a unitholders inside basis in our assets
has two components: (1) his share of our tax basis in our
assets (common basis) and (2) his
Section 743(b) adjustment to that basis.
Treasury Regulations under Section 743 of the Code require,
if the remedial allocation method is adopted (which we have
adopted), a portion of the Section 743(b) adjustment
attributable to recovery property to be depreciated over the
remaining cost recovery period for the Section 704(c)
built-in gain.
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A Section 754 election is advantageous if the
transferees tax basis in his units is higher than the
units share of the aggregate tax basis of our assets
immediately prior to the transfer. In that case, as a result of
the election, the transferee would have, among other items, a
greater amount of depletion and depreciation deductions and his
share of any gain on a sale of our assets would be less.
Conversely, a Section 754 election is disadvantageous if
the transferees tax basis in his units is lower than those
units share of the aggregate tax basis of our assets
immediately prior to the transfer. Thus, the fair market value
of the units may be affected either favorably or unfavorably by
the election. A basis adjustment is required regardless of
whether a Section 754 election is made in the case of a
transfer of an interest in us if we have a substantial built-in
loss immediately after the transfer, or if we distribute
property and have a substantial basis reduction. Generally a
built-in loss or a basis reduction is substantial if it exceeds
$250,000.
The calculations involved in the Section 754 election are
complex and will be made on the basis of assumptions as to the
value of our assets and other matters. For example, the
allocation of the Section 743(b) adjustment among our
assets must be made in accordance with the Code. The IRS could
seek to reallocate some or all of any Section 743(b)
adjustment we allocated to our tangible assets to goodwill
instead. Goodwill, an intangible asset, is generally either
nonamortizable or amortizable over a longer period of time or
under a less accelerated method than our tangible assets. We
cannot assure you that the determinations we make will not be
successfully challenged by the IRS or that the resulting
deductions will not be reduced or disallowed altogether. Should
the IRS require a different basis adjustment to be made, and
should, in our opinion, the expense of compliance exceed the
benefit of the election, we may seek permission from the IRS to
revoke our Section 754 election. If permission is granted,
a subsequent purchaser of units may be allocated more income
than he would have been allocated had the election not been
revoked.
Tax
Treatment of Operations
Accounting
Method and Taxable Year
We use the accrual method of accounting and the tax year ending
December 31 for federal income purposes. Each unitholder will be
required to include in income his share of our income, gain,
loss and deduction for our taxable year ending within or with
his taxable year. In addition, a unitholder who has a different
taxable year than our taxable year and who disposes of all of
his units following the close of our taxable year but before the
close of his taxable year must include his share of our income,
gain, loss and deduction in income for his taxable year, with
the result that he will be required to include in income for his
taxable year his share of more than one year of our income,
gain, loss and deduction. Please read
Disposition of Common Units
Allocations Between Transferors and Transferees.
Depletion
Deductions
Subject to the limitations on deductibility of losses discussed
above, unitholders will be entitled to deductions for the
greater of either cost depletion or (if otherwise allowable)
percentage depletion with respect to our natural gas and oil
interests. Although the Code requires each unitholder to compute
his own depletion allowance and maintain records of his share of
the adjusted tax basis of the underlying property for depletion
and other purposes, we intend to furnish each of our unitholders
with information relating to this computation for federal income
tax purposes.
Percentage depletion is generally available with respect to
unitholders who qualify under the independent producer exemption
contained in Section 613A(c) of the Code. For this purpose,
an independent producer is a person not directly or indirectly
involved in the retail sale of oil, natural gas, or derivative
products or the operation of a major refinery. Percentage
depletion is calculated as an amount generally equal to 15%
(and, in the case of marginal production, potentially a higher
percentage) of the unitholders gross income from the
depletable property for the taxable year. The percentage
depletion deduction with respect to any property is limited to
100% of the taxable income of the unitholder from the property
for each taxable year, computed without the depletion allowance.
A unitholder that qualifies as an independent producer may
deduct percentage depletion only to the extent the
unitholders daily production of domestic crude oil, or the
natural gas equivalent, does not exceed 1,000 barrels. This
depletable amount may be allocated between natural gas and oil
production, with 6,000 cubic
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feet of domestic natural gas production regarded as equivalent
to one barrel of crude oil. The 1,000 barrel limitation
must be allocated among the independent producer and controlled
or related persons and family members in proportion to the
respective production by such persons during the period in
question.
In addition to the foregoing limitations, the percentage
depletion deduction otherwise available is limited to 65% of a
unitholders total taxable income from all sources for the
year, computed without the depletion allowance, net operating
loss carrybacks, or capital loss carrybacks. Any percentage
depletion deduction disallowed because of the 65% limitation may
be deducted in the following taxable year if the percentage
depletion deduction for such year plus the deduction carryover
does not exceed 65% of the unitholders total taxable
income for that year. The carryover period resulting from the
65% net income limitation is indefinite.
Unitholders that do not qualify under the independent producer
exemption are generally restricted to depletion deductions based
on cost depletion. Cost depletion deductions are calculated by
(i) dividing the unitholders share of the adjusted
tax basis in the underlying mineral property by the number of
mineral units (barrels of oil and Mcf of natural gas) remaining
as of the beginning of the taxable year and
(ii) multiplying the result by the number of mineral units
sold within the taxable year. The total amount of deductions
based on cost depletion cannot exceed the unitholders
share of the total adjusted tax basis in the property.
All or a portion of any gain recognized by a unitholder as a
result of either the disposition by us of some or all of our
natural gas and oil interests or the disposition by the
unitholder of some or all of his units may be taxed as ordinary
income to the extent of recapture of depletion deductions,
except for percentage depletion deductions in excess of the
basis of the property. The amount of the recapture is generally
limited to the amount of gain recognized on the disposition.
The foregoing discussion of depletion deductions does not
purport to be a complete analysis of the complex legislation and
Treasury Regulations relating to the availability and
calculation of depletion deductions by the unitholders. Further,
because depletion is required to be computed separately by each
unitholder and not by our partnership, no assurance can be
given, and counsel is unable to express any opinion, with
respect to the availability or extent of percentage depletion
deductions to the unitholders for any taxable year. We encourage
each prospective unitholder to consult his tax advisor to
determine whether percentage depletion would be available to him.
Deductions
for Intangible Drilling and Development Costs
Under our existing investment partnership agreements, all
intangible drilling and development costs, which we refer to as
IDCs, are allocated to investors in the partnerships and none to
us. IDCs generally include our expenses for wages, fuel,
repairs, hauling, supplies and other items that are incidental
to, and necessary for, the drilling and preparation of wells for
the production of oil, natural gas, or geothermal energy. The
option to currently deduct IDCs applies only to those items that
do not have a salvage value.
In future investment partnerships, a portion of IDCs may be
allocated to us. In addition, we may undertake drilling for our
own account. Should we be entitled to IDCs, we will elect to
currently deduct them.
Although we will elect to currently deduct IDCs that may be
available to us, each unitholder will have the option of either
currently deducting IDCs or capitalizing all or part of the IDCs
and amortizing them on a straight-line basis over a
60-month
period, beginning with the taxable month in which the
expenditure is made. If a unitholder makes the election to
amortize the IDCs over a
60-month
period, no IDC preference amount will result for alternative
minimum tax purposes.
Integrated oil companies must capitalize 30% of all their IDCs
(other than IDCs paid or incurred with respect to natural gas
and oil wells located outside of the United States) and amortize
these IDCs over 60 months beginning in the month in which
those costs are paid or incurred. If the taxpayer ceases to be
an integrated oil company, it must continue to amortize those
costs as long as it continues to own the property to which the
IDCs relate. An integrated oil company is a taxpayer
that has economic interests in crude oil deposits and also
carries on substantial retailing or refining operations. An oil
or gas producer is deemed to be a substantial retailer or
refiner if it is subject to the rules disqualifying retailers
and refiners from taking percentage depletion. In order to
qualify as an independent producer that is not
subject to these IDC deduction limits, a unitholder, either
directly or indirectly through certain related parties, may not
be involved in the refining of more than 75,000 barrels of
oil (or the equivalent amount of
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natural gas) on average for any day during the taxable year or
in the retail marketing of natural gas and oil products
exceeding $5 million per year in the aggregate.
IDCs previously deducted that are allocable to property
(directly or through ownership of an interest in a partnership)
and that would have been included in the adjusted basis of the
property had the IDC deduction not been taken are recaptured to
the extent of any gain realized upon the disposition of the
property or upon the disposition by a unitholder of interests in
us. Recapture is generally determined at the unitholder level.
Where only a portion of the recapture property is sold, any IDCs
related to the entire property are recaptured to the extent of
the gain realized on the portion of the property sold. In the
case of a disposition of an undivided interest in a property, a
proportionate amount of the IDCs with respect to the property is
treated as allocable to the transferred undivided interest to
the extent of any gain recognized. See
Disposition of Common Units
Recognition of Gain or Loss.
Deduction
for United States Production Activities
Subject to the limitations on the deductibility of losses
discussed above and the limitation discussed below, unitholders
will be entitled to a deduction, herein referred to as the
Section 199 deduction, equal to a specified percentage of
our qualified production activities income that is allocated to
such unitholder. The percentages are 6% for qualified production
activities income generated in the year 2009, and 9% thereafter.
Qualified production activities income is generally equal to
gross receipts from domestic production activities reduced by
cost of goods sold allocable to those receipts, other expenses
directly associated with those receipts, and a share of other
deductions, expenses and losses that are not directly allocable
to those receipts or another class of income. The products
produced must be manufactured, produced, expanded or extracted
in whole or in significant part by the taxpayer in the United
States.
For a partnership, the Section 199 deduction is determined
at the partner level. To determine his Section 199
deduction, each unitholder will aggregate his share of the
qualified production activities income allocated to him from us
with the unitholders qualified production activities
income from other sources. Each unitholder must take into
account his distributive share of the expenses allocated to him
from our qualified production activities regardless of whether
we otherwise have taxable income. However, our expenses that
otherwise would be taken into account for purposes of computing
the Section 199 deduction are only taken into account if
and to the extent the unitholders share of losses and
deductions from all of our activities is not disallowed by the
basis rules, the at-risk rules or the passive activity loss
rules. Please read Tax Consequences of Unit
Ownership Limitations on Deductibility of
Losses.
The amount of a unitholders Section 199 deduction for
each year is limited to 50% of the IRS
Form W-2
wages paid by the unitholder during the calendar year that are
deducted in arriving at qualified production activities income.
Each unitholder is treated as having been allocated IRS
Form W-2
wages from us equal to the unitholders allocable share of
our wages that are deducted in arriving at our qualified
production activities income for that taxable year.
It is not
anticipated that we or our subsidiaries will pay material wages
that will be allocated to our unitholders.
This discussion of the Section 199 deduction does not
purport to be a complete analysis of the complex legislation and
Treasury authority relating to the calculation of domestic
production gross receipts, qualified production activities
income, or IRS
Form W-2
Wages, or how such items are allocated by us to unitholders.
Further, because the Section 199 deduction is required to
be computed separately by each unitholder, no assurance can be
given, and counsel is unable to express any opinion, as to the
availability or extent of the Section 199 deduction to the
unitholders. Each prospective unitholder is encouraged to
consult his tax advisor to determine whether the
Section 199 deduction would be available to him.
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Lease
Acquisition Costs
The cost of acquiring natural gas and oil leaseholder or similar
property interests is a capital expenditure that must be
recovered through depletion deductions if the lease is
productive. If a lease is proved worthless and abandoned, the
cost of acquisition less any depletion claimed may be deducted
as an ordinary loss in the year the lease becomes worthless.
Please read Tax Treatment of Operations
Depletion Deductions.
Geophysical
Costs
The costs of geophysical exploration incurred in connection with
the exploration and development of oil and gas properties in the
United States are deducted ratably over a
24-month
period beginning on the date that such expense is paid or
incurred.
Operating
and Administrative Costs
Amounts paid for operating a producing well are deductible as
ordinary business expenses, as are administrative costs to the
extent they constitute ordinary and necessary business expenses
which are reasonable in amount.
Tax
Basis, Depreciation and Amortization
The tax basis of our assets, such as casing, tubing, tanks,
pumping units and other similar property, will be used for
purposes of computing depreciation and cost recovery deductions
and, ultimately, gain or loss on the disposition of these
assets. The federal income tax burden associated with the
difference between the fair market value of our assets and their
tax basis immediately prior to (i) [this offering] will be borne
by our existing unitholders, and (ii) any other offering
will be borne by our unitholders as of that time. Please read
Tax Consequences of Unit Ownership
Allocation of Income, Gain, Loss and Deduction.
To the extent allowable, we may elect to use the depreciation
and cost recovery methods that will result in the largest
deductions being taken in the early years after assets are
placed in service. Property we subsequently acquire or construct
may be depreciated using accelerated methods permitted by the
Code.
If we dispose of depreciable property by sale, foreclosure, or
otherwise, all or a portion of any gain, determined by reference
to the amount of depreciation previously deducted and the nature
of the property, may be subject to the recapture rules and taxed
as ordinary income rather than capital gain. Similarly, a
unitholder who has taken cost recovery or depreciation
deductions with respect to property we own will likely be
required to recapture some or all of those deductions as
ordinary income upon a sale of his interest in us. Please read
Tax Consequences of Unit Ownership
Allocation of Income, Gain, Loss and Deduction and
Disposition of Common Units
Recognition of Gain or Loss.
The costs incurred in selling our common units (called
syndication expenses) must be capitalized and cannot
be deducted currently, ratably or upon our termination. There
are uncertainties regarding the classification of costs as
organization expenses, which we may be able to amortize, and as
syndication expenses, which we may not amortize. The
underwriting discounts and commissions we incurred in our
initial public offering and may incur in future offerings will
be treated as syndication expenses.
Valuation
and Tax Basis of Our Properties
The federal income tax consequences of the ownership and
disposition of common units will depend in part on our estimates
of the relative fair market values and the tax bases of our
assets. Although we may from time to time consult with
professional appraisers regarding valuation matters, we will
make many of the relative fair market value estimates ourselves.
These estimates and determinations of basis are subject to
challenge and will not be binding on the IRS or the courts. If
the estimates of fair market value or basis are later found to
be incorrect, the character and amount of items of income, gain,
loss or deduction previously reported by unitholders might
change, and unitholders might be required to adjust their tax
liability for prior years and incur interest and penalties with
respect to those adjustments.
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Disposition
of Common Units
Recognition
of Gain or Loss
Gain or loss will be recognized on a sale of common units equal
to the difference between the unitholders amount realized
and the unitholders tax basis for the units sold. A
unitholders amount realized will equal the sum of the cash
or the fair market value of other property he receives plus his
share of our nonrecourse liabilities. Because the amount
realized includes a unitholders share of our nonrecourse
liabilities, the gain recognized on the sale of units could
result in a tax liability in excess of any cash received from
the sale.
Prior distributions from us in excess of cumulative net taxable
income for a common unit that decreased a unitholders tax
basis in that unit will, in effect, become taxable income if the
unit is sold at a price greater than the unitholders tax
basis in that unit, even if the price received is less than his
original cost.
Except as noted below, gain or loss recognized by a unitholder,
other than a dealer in units, on the sale or
exchange of a unit held for more than one year will generally be
taxable as capital gain or loss. A portion of this gain or loss,
which may be substantial, however, will be separately computed
and taxed as ordinary income or loss under Section 751 of
the Code to the extent attributable to assets giving rise to
unrealized receivables or inventory
items that we own. The term unrealized
receivables includes potential recapture items, including
depreciation, depletion, and IDC recapture. Ordinary income
attributable to unrealized receivables and inventory items may
exceed net taxable gain realized on the sale of a unit and may
be recognized even if there is a net taxable loss realized on
the sale of a unit. Thus, a unitholder may recognize both
ordinary income and a capital loss upon a sale of units. Net
capital loss may offset capital gains and no more than $3,000 of
ordinary income, in the case of individuals, and may only be
used to offset capital gain in the case of corporations.
The IRS has ruled that a partner who acquires interests in a
partnership in separate transactions must combine those
interests and maintain a single adjusted tax basis for all those
interests. Upon a sale or other disposition of less than all of
those interests, a portion of that tax basis must be allocated
to the interests sold using an equitable
apportionment method. Treasury Regulations under
Section 1223 of the Code allow a selling unitholder who can
identify units transferred with an ascertainable holding period
to elect to use the actual holding period of the units
transferred. Thus, according to the ruling, a unitholder will be
unable to select high or low basis units to sell as would be the
case with corporate stock, but, according to the regulations,
may designate specific units sold for purposes of determining
the holding period of units transferred. A unitholder electing
to use the actual holding period of units transferred must
consistently use that identification method for all subsequent
sales or exchanges of units. A unitholder considering the
purchase of additional units or a sale of units purchased in
separate transactions is urged to consult his tax advisor as to
the possible consequences of this ruling and those Treasury
Regulations.
Specific provisions of the Code affect the taxation of some
financial products and securities, including partnership
interests, by treating a taxpayer as having sold an
appreciated partnership interest, one in which gain
would be recognized if it were sold, assigned or terminated at
its fair market value, if the taxpayer or related persons
enter(s) into:
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a short sale;
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an offsetting notional principal contract; or
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a futures or forward contract with respect to the partnership
interest or substantially identical property.
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Moreover, if a taxpayer has previously entered into a short
sale, an offsetting notional principal contract or a futures or
forward contract with respect to the partnership interest, the
taxpayer will be treated as having sold that position if the
taxpayer or a related person then acquires the partnership
interest or substantially identical property. The Secretary of
the Treasury is also authorized to issue regulations that treat
a taxpayer who enters into transactions or positions that have
substantially the same effect as the preceding transactions as
having constructively sold the financial position.
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Allocations
between Transferors and Transferees
In general, our taxable income or loss will be determined
annually, will be prorated on a monthly basis and will be
subsequently apportioned among the unitholders in proportion to
the number of units owned by each of them as of the opening of
the applicable exchange on the first business day of the month,
which we refer to as the allocation date. However, gain or loss
realized on a sale or other disposition of our assets other than
in the ordinary course of business will be allocated among the
unitholders on the allocation date in the month in which that
gain or loss is recognized. As a result, a unitholder
transferring units may be allocated income, gain, loss and
deduction realized after the date of transfer.
Although simplifying conventions are contemplated by the Code
and most publicly-traded partnerships use similar simplifying
conventions, the use of this method may not be permitted under
existing Treasury Regulations and there is no direct or indirect
controlling authority on the issue. Accordingly, Ledgewood is
unable to opine on the validity of this method of allocating
income and deductions between unitholders although Ledgewood has
advised us that our decision to use this method is a reasonable
interpretation of the Treasury Regulations. If this method is
not allowed under the Treasury Regulations, or only applies to
transfers of less than all of the unitholders interest,
our taxable income or losses might be reallocated among the
unitholders. We are authorized to revise our method of
allocation between unitholders, as well as among unitholders
whose interests vary during a taxable year, to conform to a
method permitted under future Treasury Regulations.
A unitholder who owns units at any time during a quarter and who
disposes of them prior to the record date set for a cash
distribution for that quarter will be allocated items of our
income, gain, loss and deductions attributable to that quarter
but will not be entitled to receive that cash distribution.
Notification
Requirements
A unitholder who sells any of his units, other than through a
broker, generally is required to notify us in writing of that
sale within 30 days after the sale (or, if earlier, January
15 of the year following the sale). A person who purchases units
from another unitholder is required to notify us in writing of
that purchase within 30 days after the purchase, unless a
broker or nominee will satisfy such requirement. We are required
to notify the IRS of any such transfers of units and to furnish
specified information to the transferor and transferee. Failure
to notify us of a transfer of units may lead to the imposition
of substantial penalties. However, these reporting requirements
do not apply to a sale by an individual who is a citizen of the
United States and who effects the sale or exchange through a
broker.
Constructive
Termination
We will be considered to have terminated for tax purposes if
there is a sale or exchange of 50% or more of the total
interests in our capital and profits within a twelve-month
period. A constructive termination results in the closing of our
taxable year for all unitholders. In the case of a unitholder
reporting on a taxable year other than a year ending
December 31, the closing of our taxable year may result in
more than 12 months of our taxable income or loss being
includable in his taxable income for the year of termination. A
constructive termination occurring on a date other than December
31 will result in us filing two tax returns (and unitholders
receiving two Schedule K-1s) for one fiscal year and the cost of
the preparation of these returns will be borne by all
unitholders. We would be required to make new tax elections
after a termination, including a new election under
Section 754 of the Code, and a termination would result in
a deferral of our deductions for depreciation. A termination
could also result in penalties if we were unable to determine
that the termination had occurred. Moreover, a termination might
either accelerate the application of, or subject us to, any tax
legislation enacted before the termination.
Uniformity
of Common Units
Because we cannot match transferors and transferees of common
units, we must maintain uniformity of the economic and tax
characteristics of the common units to a purchaser of these
units. In the absence of uniformity, we may be unable to
completely comply with a number of federal income tax
requirements, both statutory and regulatory. A lack of
uniformity can result from a literal application of Treasury
Regulation Section 1.167(c)-1(a)(6).
Any non-uniformity could have a negative impact on the value of
the common units. Please read Tax Consequences
of Unit Ownership Section 754 Election.
35
We intend to depreciate the portion of a Section 743(b)
adjustment attributable to unrealized appreciation in the value
of Contributed Property, to the extent of any unamortized
book-tax disparity, using a rate of depreciation or amortization
derived from the depreciation or amortization method and useful
life applied to the common basis of that property, or treat that
portion as nonamortizable, to the extent attributable to
property the common basis of which is not amortizable,
consistent with the regulations under Section 743 of the
Code. This method is consistent with the Treasury Regulations
applicable to all of our depreciable property.
Tax-Exempt
Organizations and Other Investors
Ownership of units by employee benefit plans, other tax-exempt
organizations, non-resident aliens, foreign corporations and
other foreign persons raises issues unique to those investors
and, as described below, may have substantially adverse tax
consequences to them.
Employee benefit plans and most other organizations exempt from
federal income tax, including individual retirement accounts and
other retirement plans, are subject to federal income tax on
unrelated business taxable income. Virtually all of our income
allocated to a unitholder that is a tax-exempt organization will
be unrelated business taxable income and will be taxable to them.
A regulated investment company, or mutual fund, is
required to derive at least 90% of its gross income from certain
permitted sources. Income from the ownership of units in a
qualified publicly-traded partnership is generally
treated as income from a permitted source. We expect that we
will meet the definition of a qualified publicly-traded
partnership.
Non-resident aliens and foreign corporations, trusts or estates
that own units will be considered to be engaged in business in
the United States because of the ownership of units. As a
consequence they will be required to file federal tax returns to
report their share of our income, gain, loss or deduction and
pay federal income tax at regular rates on their share of our
net income or gain. Under rules applicable to publicly-traded
partnerships, we will withhold tax, at the highest effective
applicable rate, from cash distributions made quarterly to
foreign unitholders. Each foreign unitholder must obtain a
taxpayer identification number from the IRS and submit that
number to our transfer agent on a
Form W-8
BEN or applicable substitute form in order to obtain credit for
these withholding taxes. A change in applicable law may require
us to change these procedures.
In addition, because a foreign corporation that owns units will
be treated as engaged in a United States trade or business, that
corporation may be subject to the United States branch profits
tax at a rate of 30%, in addition to regular federal income tax,
on its share of our income and gain, as adjusted for changes in
the foreign corporations U.S. net equity,
that is effectively connected with the conduct of a United
States trade or business. That tax may be reduced or eliminated
by an income tax treaty between the United States and the
country in which the foreign corporate unitholder is a
qualified resident. In addition, this type of
unitholder is subject to special information reporting
requirements under Section 6038C of the Code.
Under a ruling issued by the IRS, a foreign unitholder who sells
or otherwise disposes of a unit will be subject to federal
income tax on gain realized on the sale or disposition of that
unit to the extent the gain is effectively connected with a
United States trade or business of the foreign unitholder. Apart
from the ruling, a foreign unitholder will not be taxed or
subject to withholding upon the sale or disposition of a unit if
he has owned less than 5% in value of the units during the
five-year period ending on the date of the disposition and if
the units are regularly traded on an established securities
market at the time of the sale or disposition.
Administrative
Matters
Information
Returns and Audit Procedures
We intend to furnish to each unitholder, within 90 days
after the close of each calendar year, specific tax information,
including a
Schedule K-1,
which describes his share of our income, gain, loss and
deduction for our preceding taxable year. In preparing this
information, which will not be reviewed by counsel, we will take
various accounting and reporting positions, some of which have
been mentioned earlier, to determine each unitholders
share of income, gain, loss and deduction.
36
We cannot assure you that those positions will yield a result
that conforms to the requirements of the Code, Treasury
Regulations or administrative interpretations of the IRS.
Neither we nor counsel can assure prospective unitholders that
the IRS will not successfully contend in court that those
positions are impermissible. Any challenge by the IRS could
negatively affect the value of the units.
The IRS may audit our federal income tax information returns.
Adjustments resulting from an IRS audit may require each
unitholder to adjust a prior years tax liability and
possibly may result in an audit of his own return. Any audit of
a unitholders return could result in adjustments not
related to our returns as well as those related to our returns.
Partnerships generally are treated as separate entities for
purposes of federal tax audits, judicial review of
administrative adjustments by the IRS and tax settlement
proceedings. The tax treatment of partnership items of income,
gain, loss and deduction are determined in a partnership
proceeding rather than in separate proceedings with the
partners. The Code requires that one partner be designated as
the tax matters partner for these purposes. The limited
liability company agreement appoints our manager as our tax
matters partner.
The tax matters partner will make some elections on our behalf
and on behalf of unitholders. In addition, the tax matters
partner can extend the statute of limitations for assessment of
tax deficiencies against unitholders for items in our returns.
The tax matters partner may bind a unitholder with less than a
1% profits interest in us to a settlement with the IRS unless
that unitholder elects, by filing a statement with the IRS, not
to give that authority to the tax matters partner. The tax
matters partner may seek judicial review, by which all the
unitholders are bound, of a final partnership administrative
adjustment and, if the tax matters partner fails to seek
judicial review, judicial review may be sought by any unitholder
having at least a 1% interest in profits or by any group of
unitholders having in the aggregate at least a 5% interest in
profits. However, only one action for judicial review will go
forward, and each unitholder with an interest in the outcome may
participate.
A unitholder must file a statement with the IRS identifying the
treatment of any item on his federal income tax return that is
not consistent with the treatment of the item on our return.
Intentional or negligent disregard of this consistency
requirement may subject a unitholder to substantial penalties.
Nominee
Reporting
Persons who hold an interest in us as a nominee for another
person are required to furnish to us:
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the name, address and taxpayer identification number of the
beneficial owner and the nominee;
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a statement regarding whether the beneficial owner is:
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a person that is not a United States person,
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a foreign government, an international organization or any
wholly owned agency or instrumentality of either of the
foregoing, or
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a tax-exempt entity;
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the amount and description of units held, acquired or
transferred for the beneficial owner; and
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specific information including the dates of acquisitions and
transfers, means of acquisitions and transfers, and acquisition
cost for purchases, as well as the amount of net proceeds from
sales.
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Brokers and financial institutions are required to furnish
additional information, including whether they are United States
persons and specific information on units they acquire, hold or
transfer for their own account. A penalty of $50 per failure, up
to a maximum of $100,000 per calendar year, is imposed by the
Code for failure to report that information to us. The nominee
is required to supply the beneficial owner of the units with the
information furnished to us.
Accuracy-related
Penalties
An additional tax equal to 20% of the amount of any portion of
an underpayment of tax that is attributable to one or more
specified causes, including negligence or disregard of rules or
regulations, substantial understatements
37
of income tax and substantial valuation misstatements, is
imposed by the Code. No penalty will be imposed, however, for
any portion of an underpayment if it is shown that there was a
reasonable cause for that portion and that the taxpayer acted in
good faith regarding that portion.
For individuals, a substantial understatement of income tax in
any taxable year exists if the amount of the understatement
exceeds the greater of 10% of the tax required to be shown on
the return for the taxable year or $5,000. The amount of any
understatement subject to penalty generally is reduced if any
portion is attributable to a position adopted on the return:
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for which there is, or was, substantial
authority, or
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as to which there is a reasonable basis and the relevant facts
of that position are disclosed on the return.
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If any item of income, gain, loss or deduction included in the
distributive shares of unitholders could result in that kind of
an understatement of income for which no
substantial authority exists, we would be required
to disclose the pertinent facts on our return. In addition, we
will make a reasonable effort to furnish sufficient information
for unitholders to make adequate disclosure on their returns to
avoid liability for this penalty. More stringent rules would
apply to an understatement of tax resulting from ownership of
units if we were classified as a tax shelter. We
believe we will not be classified as a tax shelter.
A substantial valuation misstatement exists if the value of any
property, or the adjusted basis of any property, claimed on a
tax return is 150% or more of the amount determined to be the
correct amount of the valuation or adjusted basis. No penalty is
imposed unless the portion of the underpayment attributable to a
substantial valuation misstatement exceeds $5,000 ($10,000 for a
corporation other than an S Corporation or a personal
holding company). If the valuation claimed on a return is 200%
or more than the correct valuation, the penalty imposed
increases to 40%.
Reportable
Transactions
If we were to engage in a reportable transaction, we
(and possibly you and others) would be required to make a
detailed disclosure of the transaction to the IRS. A transaction
may be a reportable transaction based upon any of several
factors, including the fact that it is a type of transaction
publicly identified by the IRS as a listed
transaction or that it produces certain kinds of losses in
excess of $2 million. Our participation in a reportable
transaction could increase the likelihood that our federal
income tax information return (and possibly your tax return) is
audited by the IRS. Please read Information
Returns and Audit Procedures above.
Moreover, if we were to participate in a listed transaction or a
reportable transaction (other than a listed transaction) with a
significant purpose to avoid or evade tax, you could be subject
to the following provisions of the American Jobs Creation Act of
2004:
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accuracy-related penalties with a broader scope, significantly
narrower exceptions, and potentially greater amounts than
described above at Accuracy-related
Penalties,
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for those persons otherwise entitled to deduct interest on
federal tax deficiencies, nondeductibility of interest on any
resulting tax liability, and
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in the case of a listed transaction, an extended statute of
limitations.
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We do not expect to engage in any reportable transactions.
State,
Local and Other Tax Considerations
In addition to federal income taxes, you will be subject to
other taxes, including state and local income taxes,
unincorporated business taxes, and estate, inheritance or
intangible taxes that may be imposed by the various
jurisdictions in which we do business or own property or in
which you are a resident. We currently do business and own
assets in Indiana, Kentucky, Michigan, New York, Ohio,
Pennsylvania, Tennessee and West Virginia. We may also own
property or do business in other states in the future. Although
an analysis of those various taxes is not presented here, each
prospective unitholder should consider their potential impact on
his investment in us. You may not be required to file a return
and pay taxes in some states because your income from that state
falls below the filing
38
and payment requirement. You will be required, however, to file
state income tax returns and to pay state income taxes in many
of the states in which we may do business or own property, and
you may be subject to penalties for failure to comply with those
requirements. In some states, tax losses may not produce a tax
benefit in the year incurred and also may not be available to
offset income in subsequent taxable years. Some of the states
may require us, or we may elect, to withhold a percentage of
income from amounts to be distributed to a unitholder who is not
a resident of the state. Withholding, the amount of which may be
greater or less than a particular unitholders income tax
liability to the state, generally does not relieve a nonresident
unitholder from the obligation to file an income tax return.
Amounts withheld may be treated as if distributed to unitholders
for purposes of determining the amounts distributed by us.
Please read Tax Consequences of Unit
Ownership Entity-Level Collections. Based
on current law and our estimate of our future operations, we
anticipate that any amounts required to be withheld will not be
material.
It is the responsibility of each unitholder to investigate
the legal and tax consequences, under the laws of pertinent
states and localities, of his investment in us. Ledgewood has
not rendered an opinion on the state local, or foreign tax
consequences of an investment in us. We strongly recommend that
each prospective unitholder consult, and depend on, its own tax
counsel or other advisor with regard to those matters. It is the
responsibility of each unitholder to file all tax return that
may be required.
PLAN OF
DISTRIBUTION
We may distribute our securities from time to time in one or
more transactions at a fixed price or prices. We may change
these prices from time to time. We may also distribute our
securities at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated
prices. We will describe the distribution method for each
offering in a prospectus supplement.
We may sell our securities in any of the following ways:
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through underwriters or dealers,
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through agents who may be deemed to be underwriters as defined
in the Securities Act,
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directly to one or more purchasers, and
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directly to holders of warrants exercisable for our securities
upon the exercise of their warrants.
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The prospectus supplement or any other offering materials we may
use for a particular offering will set forth the terms of the
securities we offer, the terms of the offering, purchase price,
the proceeds we will receive from the offering, any delayed
delivery arrangements, any underwriting arrangements, including
underwriting discounts and other items constituting
underwriters compensation, and any discounts or
concessions allowed or reallowed or paid to dealers. We may have
agreements with the underwriters, dealers and agents who
participate in the distribution to indemnify them against
certain civil liabilities, including liabilities under the
Securities Act, or to contribute to payments which they may be
required to make.
If we use underwriters in the sale, the securities we offer will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Our securities
may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The
underwriter or underwriters with respect to a particular
underwritten offering of our securities will be named in the
prospectus supplement or any other offering materials relating
to that offering, and if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the
cover of that prospectus supplement or in the other offering
materials.
If we use dealers in an offering of our securities, we will sell
the shares to the dealers as principals. The dealers may then
resell the shares to the public at varying prices to be
determined by those dealers at the time of resale. The names of
the dealers and the terms of the transaction will be set forth
in a prospectus supplement or other offering materials. Any
initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time.
39
We may also offer our securities directly, or though agents we
designate, from time to time at fixed prices, which we may
change, or at varying prices determined at the time of sale. We
will name any agent we use and describe the terms of the agency,
including any commission payable by us to the agent, in a
prospectus supplement or other offering materials. Unless
otherwise indicated in the prospectus supplement or any other
offering materials, any agent we use will act on a reasonable
best efforts basis for the period of its appointment.
In certain states, our securities may be sold only through
registered or licensed brokers or dealers. In addition, in
certain states, our securities may not be sold unless they have
been registered or qualified for sale in that state or an
exemption from registration or qualification is available and is
complied with.
Any common units sold pursuant to a prospectus supplement or any
other offering materials will be listed on the New York Stock
Exchange or other national securities exchange. Preferred units,
warrants and debt securities may or may not be listed on a
national securities exchange.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, certain legal and tax matters will be passed on for
us by Ledgewood.
EXPERTS
The consolidated financial statements of Atlas Energy Resources,
LLC incorporated by reference in this prospectus and elsewhere
in the registration statement, have been so incorporated by
reference in reliance upon the report (which report expressed an
unqualified opinion and contains an explanatory paragraph
relating to the Companys adoption of Financial Accounting
Standards Board Interpretation No. 47 in 2006) of Grant
Thornton LLP, independent registered public accountants, upon
the authority of said firm as experts in accounting and auditing
in giving said report.
The financial statements of DTE Gas & Oil Company
incorporated by reference in this prospectus and elsewhere in
the registration statement, have been so incorporated by
reference in reliance upon the report of Grant Thornton LLP,
independent registered public accountants, upon the authority of
said firm as experts in accounting and auditing in giving said
report.
40
ATLAS ENERGY RESOURCES,
LLC
ATLAS ENERGY OPERATING COMPANY,
LLC
ATLAS ENERGY FINANCE
CORP.
Common Units
Preferred Units
Warrants
Debt Securities
Guarantees
PROSPECTUS
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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Set forth below are the expenses (other than underwriting
discounts and commissions) we expect to pay in connection with
the issuance and distribution of the securities registered
hereby. With the exception of the SEC registration fee, the
amounts set forth below are estimated:
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Securities and Exchange Commission registration fee
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$
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(1)
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Printing fees and expenses(2)
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5,000
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Legal fees and expenses(2)
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20,000
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Accounting fees and expenses(2)
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20,000
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Trustee fees and expenses (including counsel fees)(2)
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10,000
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Miscellaneous
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10,000
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TOTAL
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$
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65,000
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(1)
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To be determined. Deferred in reliance upon Rules 456(b)
and 457(r).
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(2)
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Does not include expenses of preparing prospectus supplements
and other expenses relating to offerings of particular
securities.
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Item 15.
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Indemnification
of Directors and Officers
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The section of the prospectus entitled Our Limited
Liability Company Agreement Indemnification
discloses that we will generally indemnify our directors,
officers, managers and affiliates to the fullest extent
permitted by the law against all losses, claims, damages or
similar events and is incorporated herein by this reference.
Subject to any terms, conditions or restrictions set forth in
the limited liability company agreement,
Section 18-108
of the Delaware Limited Liability Act empowers a Delaware
limited liability company to indemnify and hold harmless any
member or other persons from and against all claims and demands
whatsoever.
To the extent that the indemnification provisions of our limited
liability company agreement purport to include indemnification
for liabilities arising under the Securities Act of 1933, in the
opinion of the SEC, such indemnification is contrary to public
policy and is therefore unenforceable.
The Exhibits furnished as part of this registration statement on
Form S-3
are identified in the Exhibit Index immediately following
the signature pages of this registration statement. Such
Exhibit Index is incorporated herein by reference.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no
II-1
more than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs 1(i), (1)(ii) and 1(iii)
of this section do not apply if the registration statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by a registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to the purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of a
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of an undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of an undersigned registrant or used or
referred to by an undersigned registrant;
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(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
an undersigned registrant or its securities provided by or on
behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by an undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of such
registrants annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by a registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
(8) To file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a)
of section 310 of the Trust Indenture Act
(Act) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the
Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY RESOURCES, LLC
Matthew A. Jones
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Edward
E. Cohen
|
|
Chairman and Chief Executive Officer (principal
executive officer)
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Vice Chairman
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President, Chief Operating Officer and Director
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial officer)
|
|
|
|
/s/ Sean
P. McGrath
Sean
P. McGrath
|
|
Chief Accounting Officer (principal accounting officer)
|
|
|
|
/s/ Ellen
C. Warren
Ellen
C. Warren
|
|
Director
|
|
|
|
/s/ Walter
C. Jones
Walter
C. Jones
|
|
Director
|
|
|
|
/s/ Bruce
M. Wolf
Bruce
M. Wolf
|
|
Director
|
II-4
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY OPERATING COMPANY, LLC
Matthew A. Jones
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Edward
E. Cohen
Edward
E. Cohen
|
|
Chief Executive Officer (principal executive officer)
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President and Chief Operating Officer
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial officer)
|
|
|
|
/s/ Sean
P. McGrath
Sean
P. McGrath
|
|
Chief Accounting Officer (principal accounting officer)
|
|
|
|
Atlas Energy Resources, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-5
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY FINANCE CORP.
Matthew
A. Jones
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Edward
E. Cohen
Edward
E. Cohen
|
|
Chairman and Chief Executive Officer (principal executive
officer)
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Vice Chairman
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President and Director
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
II-6
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY MICHIGAN, LLC
Matthew A. Jones
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
L. Redmond, Jr.
Richard
L. Redmond, Jr.
|
|
President and Chief Executive Officer (principal
executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
Atlas Energy Operating Company, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-7
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS GAS & OIL COMPANY, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Chairman
|
|
|
|
/s/ Richard
L. Redmond Jr.
Richard
L. Redmond Jr.
|
|
President and Chief Executive Officer (principal
executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal executive and
accounting officer)
|
|
|
|
Atlas Energy Michigan, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-8
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
WESTSIDE PIPELINE COMPANY, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Chairman
|
|
|
|
/s/ Richard
L. Redmond, Jr.
Richard
L. Redmond, Jr.
|
|
President and Chief Executive Officer (principal executive
officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
Atlas Gas & Oil Company, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-9
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY TENNESSEE, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Chief Executive Officer (principal executive officer)
|
|
|
|
/s/ Ronald
E. Huff
Ronald
E. Huff
|
|
President
|
|
|
|
/s/ John
Bonar
John
Bonar
|
|
Executive Vice President
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal executive and
accounting officer)
|
|
|
|
Atlas Energy Operating Company, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-10
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY INDIANA, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Chief Executive Officer (principal executive officer)
|
|
|
|
/s/ Richard
L. Redmond, Jr.
Richard
L. Redmond, Jr.
|
|
President
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
Atlas Energy Operating Company, LLC:
|
|
Sole member
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
|
II-11
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
AIC, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
President and Director (principal executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Director
|
II-12
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS ENERGY OHIO, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
President (principal executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Executive Vice President
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Vice President and Director
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Vice President and Director
|
II-13
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS RESOURCES, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Freddie
M. Kotek
Freddie
M. Kotek
|
|
Chairman, President, Chief Executive Officer and Director
(principal executive officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Executive Vice President and Director
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Executive Vice President and Director
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Director
|
|
|
|
/s/ Sean
P. McGrath
Sean
P. McGrath
|
|
Chief Accounting Officer (principal accounting officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial officer)
|
II-14
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS NOBLE, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Chairman and Director
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President (principal executive officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Executive Vice President and Director
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Executive Vice President and Director
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
II-15
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
ATLAS AMERICA, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Edward
E. Cohen
Edward
E. Cohen
|
|
Chairman
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President and Director (principal executive officer)
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Vice Chairman
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer and Director (principal
financial officer)
|
|
|
|
/s/ Sean
P. McGrath
Sean
P. McGrath
|
|
Chief Accounting Officer (principal accounting officer)
|
II-16
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
AER PIPELINE CONSTRUCTION, INC.
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
Chief Executive Officer, President and Director (principal
executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Vice President and Director
|
II-17
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
VIKING RESOURCES, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Chairman
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President (principal executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Vice President and Director
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Vice President and Director
|
II-18
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
RESOURCE ENERGY, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Richard
D. Weber
Richard
D. Weber
|
|
President (principal executive officer)
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
Executive Vice President and Director
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Executive Vice President and Director
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Jonathan
Z. Cohen
Jonathan
Z. Cohen
|
|
Director
|
II-19
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
RESOURCE WELL SERVICES, LLC
|
|
|
|
By:
|
/s/ Matthew
A. Jones
Matthew
A. Jones
Chief Financial Officer
|
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
President and Director (principal executive officer)
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
accounting officer)
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Vice President and Director
|
II-20
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Moon Township, Pennsylvania, on July 8, 2009.
REI-NY, LLC
Chief Financial Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Richard D. Weber
and Matthew A. Jones, and each of them, as their true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for them and in their names, places and
steads, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons on behalf of the registrant and in the capacities
indicated on July 8, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Jeffrey
C. Simmons
Jeffrey
C. Simmons
|
|
President and Director (principal executive officer)
|
|
|
|
/s/ Frank
P. Carolas
Frank
P. Carolas
|
|
Vice President and Director
|
|
|
|
/s/ Matthew
A. Jones
Matthew
A. Jones
|
|
Chief Financial Officer (principal financial and
principal accounting officer)
|
II-21
EXHIBIT INDEX
The following exhibits are filed herewith pursuant to the
requirements of Item 601 of
Regulation S-K:
|
|
|
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement
|
|
4
|
.1(1)
|
|
Form of common unit certificate
|
|
4
|
.2
|
|
Form of Senior Indenture between Atlas Energy Operating Company,
LLC and Atlas Energy Finance Corp., as issuers, Atlas Energy
Resources, as parent guarantor, U.S. Bank National Association,
as trustee, and the subsidiary guarantors named therein.
|
|
4
|
.3
|
|
Form of Subordinated Indenture of Atlas Energy Resources, LLC
|
|
4
|
.4*
|
|
Form of preferred stock certificate
|
|
4
|
.5*
|
|
Form of warrant agreement
|
|
5
|
.1
|
|
Opinion of Ledgewood as to the legality of the securities being
registered
|
|
8
|
.1
|
|
Opinion of Ledgewood relating to tax matters
|
|
12
|
.1
|
|
Ratios of Earnings to Fixed Charges
|
|
23
|
.1
|
|
Consent of Grant Thornton LLP
|
|
23
|
.2
|
|
Consent of Grant Thornton LLP
|
|
23
|
.3
|
|
Consent of Ledgewood (contained in Exhibits 5.1 and 8.1)
|
|
24
|
.1
|
|
Power of Attorney (included in signature pages)
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the Senior
Indenture
|
|
25
|
.2
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the
Subordinated Indenture
|
|
|
|
*
|
|
To be filed as an exhibit to a
Form 8-K
or in a post-effective amendment to this registration statement.
|
|
|
|
(1)
|
|
Previously filed as Exhibit A to Appendix A to our
Form S-1,
filed December 5, 2006.
|