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EXHIBIT 1.3
BIRMAN MANAGED CARE, INC.
1,550,000 UNITS
SELECTED DEALER AGREEMENT
, 1996
Dear Sirs:
W.B. McKee Securities, Inc. and the other Underwriters named in the
Prospectus relating to the above units (the "Underwriters"), acting through us
as Representative, is severally offering for sale an aggregate of 1,550,000
units (the "Firm Units"), each unit consisting of one share of common stock
("Common Stock") of Birman Managed Care, Inc. (the "Company") and one redeemable
common stock purchase warrant ("Warrant") at a price of $ per unit. In addition,
the several Underwriters have been granted an option to purchase from the
Company up to an additional 232,500 Units (the "Option Units") to cover
over-allotments in connection with the sale of the Firm Units. The Firm Units
and any Option Units purchased are herein called the "Units". The Units and the
terms under which they are to be offered for sale by the several Underwriters
are more particularly described in the Prospectus.
The Underwriters are offering the Units pursuant to a Registration Statement
(the "Registration Statement") under the Securities Act of 1933, as amended,
subject to the terms of (a) their Underwriting Agreement with the Company, (b)
this Agreement, and (c) the Representative's instructions which may be forwarded
to the Selected Dealers from time to time. This invitation is made by the
Representative only if the Units may be lawfully offered by dealers in your
state. The terms and conditions of this invitation are as follows:
Offer to Selected Dealers. The Representative is hereby soliciting offers to
buy, upon the terms and conditions hereof, a portion of the Units from Selected
Dealers who are to act as principal. Units are to be offered to the public at a
price of $____ per Unit (the "Offering Price"). Selected Dealers who are
members of the National Association of Securities Dealers, Inc. (the "NASD")
will be allowed, on all Units sold by them, a concession of $____ payable as
hereinafter provided. Selected Dealers may reallow other dealers who are members
of the NASD a portion of that concession up to the amount of $____ per Unit with
respect to Units sold by or through them. No NASD member may reallow commissions
to any non-member broker-dealer including foreign broker-dealers registered
pursuant to the Securities Exchange Act of 1934. This offer is solicited subject
to the Company's issuance and delivery of certificates and other documents
evidencing its Units and the acceptance thereof by the Representative, to the
approval of legal matters by counsel, and to the terms and conditions set forth
herein.
1. Revocation of Offer. The Selected Dealer's offer to purchase, if made
prior to the effective date of the Registration Statement, may be revoked in
whole or in part without obligation or commitment of any kind by it any time
prior to acceptance and no offer may be accepted by the Representative and no
sale can be made until after the Registration Statement covering the Units has
become effective with the Securities and Exchange
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Commission. Subject to the foregoing, upon execution by the Selected Dealer of
the Offer to Purchase below and the return of same to the Representative, the
Selected Dealer shall be deemed to have offered to purchase the number of Units
set forth in its offer on the basis set forth in Section 1 above. Any oral offer
to purchase made by the Selected Dealer shall be deemed subject to this
Agreement and shall be confirmed by the Representative by the subsequent
execution and return of this Agreement. Any oral notice by the Representative of
acceptance of the Selected Dealer's offer shall be followed by written or
telegraphic confirmation preceded or accompanied by a copy of the Prospectus. If
a contractual commitment arises hereunder, all the terms of this Selected Dealer
Agreement shall be applicable. The Representative may also make available to the
Selected Dealer an allotment to purchase Units, but such allotment shall be
subject to modification or termination upon notice from the Representative any
time prior to an exchange of confirmations reflecting completed transactions.
All references hereafter in this Agreement to the purchase and sale of Units
assume and are applicable only if contractual commitments to purchase are
completed in accordance with the foregoing.
2. Selected Dealer Sales. Any Units purchased by a Selected Dealer under
the terms of this Agreement may be immediately re-offered to the public at the
Offering Price in accordance with the terms of the offering thereof set forth
herein and in the Prospectus, subject to the securities or blue sky laws of the
various states or other jurisdictions. Units shall not be offered or sold by the
Selected Dealers below the Offering price. The Selected Dealer agrees to advise
the Representative, upon request, of any Units purchased by it remaining unsold
and, the Representative has the right to purchase all or a portion of such
Units, at the Public Offering Price less the selling concession or such part
thereof as the Representative shall determine.
3. Payment for Units. Payment for Units which the Selected Dealer purchases
hereunder shall be made by the Selected Dealer on or before five (5) business
days after the date of each confirmation by certified or bank cashier's check
payable to the Representative. Certificates for the securities shall be
delivered as soon as practicable after delivery instructions are received by the
Representative.
4. Open Market Transactions; Stabilization.
4.1 For the purpose of stabilizing the market in the Units, the
Representative has been authorized to make purchases and sales of the
Company's Units, Common Stock and Warrants, in the open market or otherwise,
and, in arranging for sales, to overallot. If, in connection with such
stabilization, the Representative contracts for or purchases in the open
market any Units, Common Stock or Warrants sold to the Selected Dealer
hereunder and not effectively placed by the Selected Dealer, the
Representative may charge the Selected Dealer for the accounts of the
several Underwriters an amount equal to the Selected Dealer concession on
such Units, Common Stock or Warrants, together with any applicable transfer
taxes, and the Selected Dealer agrees to pay such amount to the
Representative on demand. Certificates for Units, Common Stock or Warrants
delivered on such repurchases need not be the identical certificates
originally purchased.
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4.2 The Selected Dealer will not, until advised by the Representative
that the entire offering has been distributed and closed, bid for or
purchase Units, Common Stock or Warrants in the open market or otherwise
make a market in the Units, Common Stock or Warrants or otherwise attempt to
induce others to purchase Units, Common Stock or Warrants in the open
market. Nothing contained in this section shall prohibit the Selected Dealer
from acting as an agent in the execution of unsolicited orders of customers
in transactions effectuated for them through a market maker.
5. Allotments. The Representative reserves the right to reject all
subscriptions, in whole or in part, to make allotments and to close the
subscription books at any time without notice. If an order from a Selected
Dealer is rejected or if a payment is received which proves insufficient, any
compensation paid to the Selected Dealer shall be returned by the Selected
Dealer either in cash or by a charge against the account of the Selected Dealer,
as the Representative may elect.
6. Reliance on Prospectus. The Selected Dealer agrees not to use any
supplemental sales literature of any kind without prior written approval of the
Representative unless it is furnished by the Representative for such purpose. In
offering and selling the Company's Units, the Selected Dealer will rely solely
on the representations contained in the Prospectus. Additional copies of the
current Prospectus will be supplied by the Representative in reasonable
quantities upon request.
7. Representations of Selected Dealer. By accepting this Agreement, the
Selected Dealer represents that it: (a) is registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended; (b) is qualified to act as a
Dealer in the States or other jurisdictions in which it offers the Units; (c) is
a member in good standing with the NASD; (d) will maintain all such
registrations, qualifications, and memberships throughout the term of this
Agreement; (e) will comply with all applicable Federal laws relating to the
offering, including, but not limited to, Rule 15c2-8 under the Securities
Exchange Act of 1934 and Release No. 4968 under the Securities Act of 1933
relating to delivery of preliminary and final prospectuses; (f) will comply with
the laws of the state or other jurisdictions concerned; (g) will comply the
rules and regulations of the NASD including, but not limited to, full compliance
with Sections 1, 8, 24, 25 and 36 of Article III of the NASD's Rules of Fair
Practice and the interpretations of such sections promulgated by the Board of
Governors of the NASD including an interpretation with respect to "Free-Riding
and Withholding" dated November 1, 1970, and as thereafter amended; and (h)
confirms that the purchase of the number of Units it has subscribed for and may
be obligated to purchase will not cause it to violate the net capital
requirements of Rule 15c3-1 under the Exchange Act.
8. Blue Sky Qualification. The Selected Dealer agrees that it will offer to
sell the Units only (a) in states or jurisdictions in which it is licensed as a
broker-dealer under the laws of such states, and (b) in which the Representative
has been advised by counsel that the Units have been qualified for sale under
the respective securities or Blue Sky laws of such states. The Representative
assumes no obligation or responsibility as to the right of any Selected Dealer
to sell the Units in any state or as to any sale therein.
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9. Expenses. No expenses will be charged to Selected Dealers. A single
transfer tax, if any, on the sale of the Units by the Selected Dealer to its
customers will be paid when such Units are delivered to the Selected Dealer for
delivery to its customers. However, the Selected Dealer will pay its
proportionate share of any transfer tax or any other tax (other than the single
transfer tax described above) if any such tax shall be from time to time
assessed against the Underwriters and other Selected Dealers.
10. No Joint Venture. No Selected Dealer is authorized to act as the
Underwriters' agent, or otherwise to act on our behalf, in the offering or
selling of Units to the public or otherwise. Nothing contained herein will
constitute the Selected Dealers an association or other separate entity or
partners with the Underwriters, or with each other, but each Selected Dealer
will be responsible for its share of any liability or expense based on any claim
to the contrary.
11. Communications. This Agreement and all communications to the
Underwriters shall be sent to the Representative at the following address or, if
sent by facsimile, to the number set forth below:
Mr. William B. McKee, Chairman
W.B. McKee Securities, Inc.
3003 North Central Avenue, Suite 100
Phoenix, AZ 85012
Fax No. (602)266-5774
Any notice to the Selected Dealer shall be properly given if mailed,
telephoned, or transmitted by facsimile to the Selected Dealer at its address or
number set forth below its signature to this Agreement. All communications and
notices initially transmitted by facsimile shall be confirmed in writing.
12. Governing Law. This Agreement shall be governed by and construed
according to the laws of the State of Arizona.
13. The Representative shall have full authority to take such actions as it
may deem advisable in respect of all matters pertaining to the offering or
arising thereunder. The Representative shall not be under any liability to the
Selected Dealer, except such as may be incurred under the Securities Act of 1933
and the rules and regulations thereunder, except for lack of good faith and
except for obligations assumed by it in this Agreement, and no obligation on its
part shall be implied or inferred herefrom.
14. Assignment. This Agreement may not be assigned by the Selected Dealer
without the Representative's prior written consent.
15. Termination. The Selected Dealer will be governed by the terms and
conditions of this Agreement until it is terminated. This Agreement will
terminate upon the termination of the Offering.
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16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one instrument. A copy of an executed counterpart of this Agreement may be sent
via facsimile by any party to the other party, and the other party may deem such
facsimile copy of the executed counterpart to be an original.
17. Application. If you desire to purchase any of the Units, please confirm
your application by signing and returning to us your confirmation on the
duplicate copy of this letter, even though you may have previously advised us
thereof by telephone or telegraph. Our signature hereon may be by facsimile.
W.B. MCKEE SECURITES, INC.
Dated: , 1996
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By:
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William B. McKee, Chairman
Dated: , 1996
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By:
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OFFER TO PURCHASE
The undersigned does hereby offer to purchase (subject to the right to
revoke set forth in Section 2) Units in accordance with the terms and conditions
set forth above.
By:
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Its:
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Address:
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Facsimile Number:
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Telephone Number:
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("Selected Dealer")
Date of Acceptance:
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Accepted By:
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IRS Employer Identification No.:
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Share Allocation:
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