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Exhibit 1.2
2,000,000 Shares
BIRMAN MANAGED CARE, INC.
AGREEMENT AMONG UNDERWRITERS
New York, New York
February __, 1997
Royce Investment Group, Inc.
As Representative of the Several Underwriters
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Sirs:
1. Underwriting Agreement. We understand that Birman Managed Care,
Inc., a Delaware corporation (the "Company"), proposes to enter into an
underwriting agreement in the form attached hereto as Exhibit A (the
"Underwriting Agreement") with the underwriters named in Schedule A to the
Underwriting Agreement (the "Underwriters") acting severally and not jointly
with respect to the purchase of an aggregate of 2,000,000 shares (the "Stock")
of Common Stock, $.001 par value, of the Company.
Unless the context indicates otherwise, the term "Stock" shall also
include an additional 300,000 shares of Common Stock, all or any part of which
the Representative, individually and not as Representative of the Underwriters,
is entitled to purchase from certain selling stockholders the Company upon
exercise of the Representative's option referred to in Section 2(b) of the
Underwriting Agreement.
This is to confirm that we agree to purchase, in accordance with the
terms hereof and of the Underwriting Agreement, the number of shares of Stock
set forth opposite our name in Schedule A to the Underwriting Agreement, plus
such number of shares of Stock, if any, which we may become obligated to
purchase pursuant to Section 4 hereof ("our Stock"). The ratio which the number
of shares of our Stock bears to the total number of shares of Stock purchased
pursuant to the Underwriting Agreement is herein called "our underwriting
proportion."
2. Registration Statement and Prospectus. We have heretofore received
and examined a copy of the registration statement, as amended to the date
hereof, and the related
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prospectus in respect of the Stock, as filed with the Securities and Exchange
Commission. The registration statement, as amended at the time it becomes
effective, including financial statements and exhibits, is hereinafter referred
to as the "Registration Statement," and the prospectus in the form first filed
with the Securities and Exchange Commission pursuant to Rule 424(b) after the
Registration Statement becomes effective is referred to as the "Prospectus."
We confirm that the information furnished to you by us for use in
the Registration Statement and in the Prospectus is correct and is not
misleading insofar as it relates to us. We consent to being named as an
Underwriter in such Registration Statement and we are willing to accept our
responsibilities under the Securities Act of 1933, as a result thereof. We
confirm that we have authorized you to advise the Company on our behalf (a) as
to the statements to be included in any Preliminary Prospectus and in the
Prospectus under the heading "Underwriting" insofar as they relate to us and (b)
that there is no other information about us required to be stated in the
Registration Statement or Prospectus. We further confirm that, upon request by
you, as Representative, we have furnished a copy of any amended preliminary
prospectus to each person to whom we have furnished a copy of any previous
preliminary prospectus, and we confirm that we have delivered, and we agree that
we will deliver, all preliminary and final prospectuses required for compliance
with the provisions of Rule 15c2-8 under the Securities Exchange Act of 1934.
3. Authority of the Representative. We authorize you, acting as
Representative, to execute and deliver on our behalf the Underwriting Agreement,
and to agree to any variation of its terms (except as to the purchase price and
the number of our Stock) which, in your judgment, is not a variation which
materially and adversely affects our rights and obligations. We also authorize
you, in your discretion and on our behalf, with approval of counsel for the
Underwriters, to approve the Prospectus and to approve of, or object to, any
further amendments to the Registration Statement, or amendments or supplements
to the Prospectus. We further authorize you to exercise all the authority and
discretion vested in the Underwriters and in you by the provisions of the
Underwriting Agreement and to take all such action as you, in your discretion,
may believe desirable to carry out the provisions of the Underwriting Agreement
and of this Agreement, including the extension of any date specified in the
Underwriting Agreement, the exercise of any right of cancellation or
termination, and to determine all matters relating to the public advertisement
of the Stock; provided, however, that, except with the consent of Underwriters
who shall have agreed to purchase in the aggregate 50% or more of the Stock, no
extension of the time by which the Registration Statement is to become
effective, as provided in Section 5(a) of the Underwriting Agreement, shall be
for a period in excess of two business days. We authorize you to take such
action as in your discretion may be necessary or desirable to effect the sale
and distribution of the Stock, including, without limiting the generality of the
foregoing, the right to determine the terms of any proposed offering, the
concession to Selected Dealers (as hereinafter defined) and the reallowance, if
any, to other
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dealers and the right to make the judgments provided for in Sections ____ and
____ of the Underwriting Agreement.
4. Authority of Representative as to Defaulting Underwriters. Until the
termination of this Agreement, we authorize you to arrange for the purchase by
other persons, who may include you or any of the other Underwriters, of any
Stock not taken up by any defaulting Underwriter. In the event that such
arrangements are made, the respective amounts of the Stock to be purchased by
the non-defaulting Underwriters and by such other person or persons, if any,
shall be taken as the basis for all rights and obligations hereunder; but this
shall not in any way affect the liability of any defaulting Underwriter to the
other Underwriters for damages resulting from its default, nor shall any such
default relieve any other Underwriter of any of its obligations hereunder or
under the Underwriting Agreement except as herein or therein provided.
In the event of default by one or more Underwriters in respect of
their obligations (a) under the Underwriting Agreement to purchase the Stock
agreed to be purchased by them thereunder, or (b) under this Agreement to take
up and pay for any Stock purchased, or (c) to deliver any Stock sold or
over-allotted by you for the respective accounts of the Underwriters pursuant to
Section 9 hereof, or to bear their respective share of expenses or liabilities
pursuant to Sections 11, 13 and 14 hereof, and to the extent that arrangements
shall not have been made by you for any persons to assume the obligations of
such defaulting Underwriter or Underwriters, we agree to assume our
proportionate share of the obligations of each defaulting Underwriter or
Underwriters (subject in the case of clause (a) above to the limitations
contained in Section 11 of the Underwriting Agreement) without relieving any
such defaulting Underwriter or Underwriters of its liability therefor.
5. Offering of Stock. We understand that you will notify us when the
initial public offering of the Stock is to be made and of the initial public
offering price. We hereby authorize you, in your sole discretion, after the
initial public offering, to change the public offering price, the concession and
the reallowance. The offering price at any time in effect is hereinafter
referred to as the "public offering price." We agree that we will not offer any
of the Stock for sale at a price other than the public offering price or allow
any discount therefrom except as herein otherwise specifically provided.
We agree that public advertisement of the offering shall be made by
you on behalf of the Underwriters on such date as you shall determine. We have
not advertised the offering and will not do so until after such date. We
understand that any advertisement we may then make will be our own
responsibility and at our own expense.
We authorize you to reserve and offer for sale to institutions and
other retail purchasers and to dealers (the "Selected Dealers") to be selected
by you (such dealers may include
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any Underwriter) such of our Stock as you, in your sole discretion, shall
determine. Any such offering to Selected Dealers may be made pursuant to a
Selling Agreement, in the form attached hereto as Exhibit B, or otherwise, as
you may determine. The form of Selling Agreement attached hereto as Exhibit B is
satisfactory to us.
We authorize you to make purchases and sales of the Stock from or to
any Selected Dealers or Underwriters at the public offering price, less all or
any part of the concession and, with your consent, any Underwriter may make
purchases or sales of the Stock from or to any Selected Dealer or Underwriter at
the public offering price, less all or any part of the concession.
We understand that you will notify each Underwriter promptly upon the
release of the Stock for public offering as to the amount of Stock reserved for
sale to Selected Dealers and retail purchasers. Stock not so reserved may be
sold by each Underwriter for its own account, except that from time to time you
may, in your discretion, add to the Stock reserved for sale to Selected Dealers
and retail purchasers any Stock retained by an Underwriter remaining unsold. We
agree to notify you, from time to time, upon request, of the amount of our Stock
retained by us remaining unsold. If all of the Stock reserved for offering to
Selected Dealers and retail purchasers is not promptly sold by you, any
Underwriter may, from time to time, with your consent, obtain a release of all
or any Stock of such Underwriter then remaining unsold, and Stock so released
shall thereafter be deemed not to have been reserved. Stock of any Underwriter
so reserved which remains unsold, or, if sold, has not been paid for at any time
prior to the termination of this Agreement may, in your discretion or upon the
request of such Underwriter, be delivered to such Underwriter for carrying
purposes only, but such Stock shall remain subject to redelivery to you upon
demand for disposition by you until this Agreement is terminated.
We agree that in connection with sales and offers to sell the Stock, if
any, made by us outside the United States or its territories or possessions, (a)
we will furnish to each person to whom any such offer or sale is made such
prospectus, advertisement or other offering document containing information
relating to the Stock or the Company, as may be required under the laws of the
jurisdiction in which such offer or sale is made and (b) we will furnish to each
person to whom any such offer is made a copy of the then current preliminary
prospectus, and to each person to whom any such sale is made, a copy of the
Prospectus referred to in the Underwriting Agreement (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto). Any prospectus, advertisement or other offering document (other than
any such preliminary prospectus or Prospectus) furnished by us to any person in
accordance with the preceding sentence and all such additional offering
material, if any, as we may furnish to any person (i) shall comply in all
respects with the laws of the jurisdiction in which it is so furnished, (ii)
shall be prepared and so furnished at our sole risk and expense, and (iii) shall
not contain information relating to the Stock or the Company which is
inconsistent in any respect with information contained in the then current
preliminary prospectus or in the
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Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), as the case may be.
We recognize the importance of a broad distribution of the Stock
among bona fide investors and we agree to use our best efforts to obtain such
broad distribution and, to that end, to the extent we deem practicable, to give
priority to small orders.
We agree that we will not sell to any account over which we exercise
discretionary authority any of the Stock which we have agreed to purchase
pursuant to the Underwriting Agreement.
6. Compensation to Representative. We authorize you to charge to our
account, as compensation for your services as Representative in connection with
this offering, including the purchase from the Company of the Stock and the
management of the offering, an amount equal to $0. per share in respect to each
of our shares of Stock.
7. Payment and Delivery. At or before 9:00 a.m., New York City time, on
the Closing Date as defined in the Underwriting Agreement, we agree to deliver
to you at your office a certified or official bank check payable in New York
Clearing House funds to your order, in an amount equal to the initial public
offering price, less the concession to the Selected Dealers in respect of that
portion of our Stock which has been retained by or released to us for direct
sales.
In the event that our funds are not received by you when required,
you are authorized, in your discretion, but shall not be obligated, to make
payment for our account pursuant to the Underwriting Agreement by advancing your
own funds. Any such payment by you shall not relieve us from any of our
obligations hereunder or under the Underwriting Agreement.
We authorize you to hold and deliver against payment any of our
Stock which have been sold or reserved for sale to Selected Dealers or retail
purchasers. Any of our Stock not sold or reserved by you as aforesaid will be
available for delivery to us at your office as soon as practicable after such
Stock has been delivered to you.
Upon the termination of this Agreement, or prior thereto at your
discretion, you will deliver to us any of our Stock reserved by you for sale to
Selected Dealers or retail purchasers, but not sold and paid for against payment
by us of an amount equal to the initial public offering price of such Stock,
less the concession to the Selected Dealers in respect thereof.
8. Authority to Borrow. We authorize you to arrange loans for our
account and to execute and deliver any notes or other instruments in connection
therewith, and to pledge
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as security therefor all or any part of our Stock, as you may deem necessary or
advisable to carry out the purchase, carrying and distribution of the Stock, and
to advance your own funds, charging current interest rates.
9. Over-allotment; Stabilization. We authorize you, for the account of
each Underwriter, prior to the termination of this Agreement, and for such
longer period as may be necessary to cover any short position incurred for the
accounts of the several Underwriters pursuant to this Agreement, (a) to
over-allot in arranging for sales of Stock to Selected Dealers and others and,
if necessary, to purchase Stock (whether pursuant to exercise of the option set
forth in Section 2(b) of the Underwriting Agreement or otherwise) at such prices
as you may determine for the purpose of covering such over-allotments, and (b)
for the purpose of stabilizing the market in the Stock, to make purchases and
sales of Stock on the open market or otherwise, for long or short account, on a
when-issued basis or otherwise, at such prices, in such amounts and in such
manner as you may determine; provided, however, that at no time shall our net
commitment, either for long or short account, under this Section 9 exceed 15% of
the amount of our Stock. Such purchases, sales and over-allotments shall be made
for the respective accounts of the several Underwriters as nearly as practicable
to their respective underwriting proportions. We agree to take up on demand at
cost any Stock so purchased for our account and deliver on demand any Stock so
sold or over-allotted for our account. We authorize you to sell for the account
of the Underwriters any Stock purchased pursuant to this Section 9, upon such
terms as you may deem advisable, and any Underwriter, including yourselves, may
purchase such Stock. You are authorized to charge the respective accounts of the
Underwriters with broker's commissions or dealer's xxxx-up on purchases and
sales effected by you.
If pursuant to the provision of the preceding paragraph and prior to
the termination of this Agreement (or prior to such earlier date as you may have
determined) you purchase or contract to purchase for the account of any
Underwriter in the open market or otherwise any Stock which was retained by, or
released to, us for direct sale, or any Stock which may have been issued in
exchange for such Stock, we authorize you either to charge our account with an
amount equal to the concession to Selected Dealers with respect thereto, which
amount shall be credited against the cost of such Stock, or to require us to
repurchase such Stock at a price equal to the total cost of such purchase,
including transfer taxes and broker's commissions or dealer's xxxx-up, if any.
In lieu of such action you may, in your discretion, sell for our account the
Stock so purchased and debit or credit our account for the loss or profit
resulting from such sale.
You will notify us promptly if and when you engage in any
stabilization transaction pursuant to this Section 9 or otherwise and will
notify us of the date of termination of stabilization. We agree to file with you
any reports required of us including "Not as Manager" reports pursuant to Rule
17a-2 under the Securities Exchange Act of 1934 not later than five business
days following the day upon which such stabilization transaction was terminated,
and
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we authorize you to file on our behalf with the Securities and Exchange
Commission any reports required by such Rule.
10. Limitation on Transactions by Underwriters. Except as permitted by
you, we will not, during the term of this Agreement, bid for, purchase, sell or
attempt to induce others to purchase or sell, directly or indirectly, any Stock
other than (i) as provided in the Underwriting Agreement and in this agreement,
(ii) purchases from or sales to dealers of the Stock at the public offering
price, less all or any part of the reallowance to dealers, or (iii) purchases or
sales by us of any Stock as broker or unsolicited orders for the account of
others.
We represent that we have not participated in any transaction
prohibited by the preceding paragraph and that we have at all times complied
with the provisions of Rule 10b-6 of the Securities and Exchange Commission
applicable to this offering.
We may, with your prior consent, make purchases of the Stock from
and sales to other Underwriters at the public offering price, less all or any
part of the concession to dealers.
11. Allocation and Payment of Expenses. We understand that all expenses
of a general nature incurred by you, as Representative, in connection with the
purchase, carrying, marketing and sale of the Stock shall be borne by the
Underwriters in accordance with their respective share of the underwriting
obligations. We authorize you to charge our account with our share, based on our
underwriting obligation, of the aforesaid expenses, including all transfer taxes
paid on our behalf on sales or transfers made for our account.
As promptly as possible after the termination of this Agreement, the
accounts arising pursuant hereto shall be settled and paid. Your ascertainment
of all expenses and the apportionment thereof shall be conclusive.
Notwithstanding any settlement or settlements hereunder, we will remain liable
for our share of all expenses and liabilities which may be incurred by or for
the accounts of the Underwriters, including any expenses and liabilities
referred to in Sections 13 and 14(b) hereof, which shall be determined as
provided in this Section 11.
12. Termination. Unless this Agreement or any provision hereof is
earlier terminated by you, and except for provisions herein that contemplate
obligations surviving the termination hereof as noted in the next paragraph,
this Agreement will terminate at the close of business on the 30th day after the
date hereof, but in your discretion, may be extended by you for a further period
not exceeding 30 days with the consent of the Underwriters who have agreed to
purchase in the aggregate 50% or more of the Stock. No termination or suspension
pursuant to this Section shall affect your authority under Section 9 to cover
any short position under this Agreement.
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Upon termination of this Agreement, all authorizations, rights and
obligations hereunder shall cease, except (i) the mutual obligations to settle
accounts under Section 11, (ii) our obligation to pay any transfer taxes which
may be assessed and paid on account of any sales hereunder for our account,
(iii) our obligation with respect to purchases which may be made by you from
time to time thereafter to cover any short position incurred under this
Agreement, (iv) the provisions of Sections 13 and 14, and (v) the obligations of
any defaulting Underwriter, all of which shall continue until fully discharged.
13. Liability of Representative and Underwriters. Neither as
Representative nor individually shall you be under any liability whatsoever to
any other Underwriter, nor shall you be under any liability in respect of any
matters connected herewith or action taken by you pursuant hereto, except for
the obligations expressly assumed by you in this Agreement. You shall be under
no liability for or in respect of the value of the Stock or the validity of the
form thereof, the Registration Statement, the Prospectus, or agreements or other
instruments executed by the Company or others; or for or in respect of the
delivery of the Stock; or for the performance by the Company or others of any
agreement on its or their part.
Nothing herein contained shall constitute the several Underwriters
an association, or partners with us or with each other, or, except as herein
expressly provided, render any Underwriter liable for the obligation of any
other Underwriter. The rights, obligations and liabilities of each of the
Underwriters are several, in accordance with their respective obligations, and
not joint. Notwithstanding any settlement of accounts under this Agreement, we
agree to pay our underwriting proportion of the amount of any claim, demand or
liability which may be asserted against and discharged by the Underwriters or
any of them, based on the claim that the Underwriters constitute an association,
unincorporated business or other entity, and also to pay our underwriting
proportion of expenses approved by you incurred by the Underwriters, or any of
them, in contesting any such claims, demands or liabilities. If the Underwriters
shall be deemed to constitute a partnership for income tax purposes, it is the
intent of each Underwriter to be excluded from the application of Sub-chapter K,
Chapter 1, Subtitle A of the Internal Revenue Code of 1954, as amended. Each
Underwriter elects to be so excluded and agrees not to take any position
inconsistent with such election. Each Underwriter authorizes you, in your
discretion, to execute and file on behalf of the Underwriters such evidence of
election as may be required by the Internal Revenue Service.
14. Indemnification and Future Claims.
(a) We agree to indemnify and hold harmless you and each other
Underwriter, and each person, if any, who controls you and such other
Underwriter within the meaning of Section 15 of the Securities Act of 1933, and
to reimburse their expenses, to the extent and upon the terms that we agree to
indemnify and hold harmless the Company and to reimburse expenses as set forth
in the Underwriting Agreement. Our indemnity agreement set
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forth in this Section 14 shall remain in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or controlling
person and shall survive the delivery of and payment for the Stock and the
termination of this Agreement.
(b) In the event that any time any claim or claims shall be
asserted against you, as Representative, or otherwise involving the Underwriters
generally, relating to the Registration Statement or any preliminary prospectus
or the Prospectus, as such may be from time to time amended or supplemented, the
public offering of the Stock or any of the transactions contemplated by this
Agreement, we authorize you to take such other action as you shall deem
necessary or desirable under the circumstances, including settlement of any such
claim or claims if such course of action shall be recommended by counsel
retained by you. We agree to pay to you on request, our underwriting proportion
of all expenses incurred by you (including, but not limited to, disbursements
and fees of counsel so retained) in investigating and defending against such
claim or claims and our underwriting proportion of any liability incurred by you
in respect of such claim or claims, whether such liability shall be the result
of a judgment or as a result of any such settlement.
15. Title to Securities. The Stock purchased by, or on behalf of, the
respective Underwriters shall remain the property of such Underwriters until
sold, and title to any such Stock shall not in any event pass to the
Representative by virtue of any of the provisions of this Agreement.
16. Blue Sky Matters. It is understood that you assume no
responsibility with respect to the right of any Underwriter or other person to
offer or to sell Stock in any jurisdiction, notwithstanding any information
which you may furnish as to the jurisdictions under the securities laws of which
it is believed the Stock may be sold.
17. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
18. Capital Requirements. We confirm that the incurrence by us of our
obligation under this Agreement and under the Underwriting Agreement will not
place us in violation of the net capital requirements of Rule 15c3-1 under the
Securities Exchange Act of 1934 or of any applicable rules relating to capital
requirements of any securities exchange to which we are subject.
19. Miscellaneous. Any notice from you to us shall be deemed to have
been duly given if mailed, telephoned or telegraphed to us at the address set
forth in the Underwriters Questionnaire furnished by us to you. Any notice from
us to you shall be deemed to have been duly given if mailed, telephoned or
telegraphed to you at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000.
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We understand that you are a member in good standing of the NASD. We
hereby confirm that we are actually engaged in the investment banking or
securities business and are either (i) a member in good standing of the NASD or
(ii) a dealer with its principal place of business located outside the United
States, its territories and its possessions, and not registered as a broker or
dealer under the 1934 Act, who agrees not to make any sales within the United
States, its territories or its possessions, or to persons who are nationals
thereof or residents therein (except that we may participate in sales to
Selected Dealers and others under Section 5 of this Agreement). We hereby agree
to comply with the provisions of Rule 2740 of the NASD Conduct Rules and if we
are a foreign dealer and not a member of the NASD, we also hereby agree to
comply with the NASD's interpretation with respect to free-riding and
withholding and to comply, as though it were a member of the NASD, with the
provisions of Rules 2730 and 2750 of such Conduct Rules, and to comply with rule
2420 of such Conduct Rules as that Rule applies to a non-member foreign dealer.
In connection with sales and offers to sell Stock made by us outside the United
States, its territories and possessions (i) we will either furnish to each
person to whom any such sale or offer is made a copy of the then current
Preliminary Prospectus or the Prospectus, as the case may be, or inform such
person that such Preliminary Prospectus or Prospectus will be available upon
request, and (ii) we will furnish to each person to whom any such sale or offer
is made such prospectus, advertisement or other offering document containing
information relating to the Stock or the Company as may be required under the
law of the jurisdiction in which such sale or offer is made. Any prospectus,
advertisement or other offering document furnished by us to any person in
accordance with the preceding sentence and any such additional offering material
as we may furnish to any person (x) shall comply in all respects with the law of
the jurisdiction in which it is so furnished, (y) shall be prepared and so
furnished at our sole risk and expense and (z) shall not contain information
relating to the Stock or the Company which is inconsistent in any respect with
the information contained in the then current Preliminary Prospectus or in the
Prospectus, as the case may be.
We understand that, in consideration of your services in connection
with the public offering of the Stock, the Company has agreed with you
individually and not as Representative of the Underwriters (a) to sell to you
the Representative's warrants (the "Representative's Warrants") referred to in
Section 12 of the Underwriting Agreement for the sum of $100, (b) to pay to you
a non-accountable expense allowance referred to in Section 8(b) of the
Underwriting Agreement, (c) to enter into the M/A Agreement and Consulting
Agreement described in Sections __ and __ of the Underwriting Agreement. In
addition, you may, at your sole discretion, elect to exercise the over-allotment
option individually. We confirm to you that we shall make no claim to the
Representative's Warrants, the Company's securities underlying the
Representative's Warrants, the non-accountable expense allowance or, to the
over-allotment option, to the extent you elect to exercise such option
individually. You confirm to us that we shall have no obligations or liabilities
with respect to the purchase of the Representative's Warrants, the exercise
thereof, the Company's securities underlying the Representative's
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Warrants, or the non-accountable expense allowance or, to the over-allotment
option, to the extent you elect to exercise such option individually.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
____________________________________
By:_________________________________
(Attorney-in-fact for each of
the several Underwriters named
in Schedule A to the attached
Underwriting Agreement.)
Confirmed as of the date
first above written:
ROYCE INVESTMENT GROUP, INC.
as Representative
By:__________________________________
Its:_________________________________
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