Exhibit 1.2
CAROLINA BANK HOLDINGS, INC.
_________ Shares of Common Stock
($1.00 par value)
SELECTED DEALER AGREEMENT
__________ __, 2002
Ladies and Gentlemen:
1. We have agreed to sell, as selling agent for Carolina Bank Holdings,
Inc., a North Carolina corporation (the "Company"), on a best efforts basis, up
to _______ shares of the Company's common stock, par value $1.00 per share (the
"Shares"). The Shares and the terms under which they are to be offered for sale
are more particularly described in the Company's Prospectus, dated ________ __,
2002, with respect to the Shares (the "Prospectus").
2. The Shares are to be offered to the public by us, as selling agent for
the Company, in accordance with the terms of offering set forth in the
Prospectus. We have advised you by telecopy of the per share price of the Shares
(the "Offering Price"). In consideration for assisting in the sale of the
Shares, we will pay a selling commission of $_____ for each Share sold by you.
3. Except with our consent, and except as provided herein, you shall not,
prior to termination of this Agreement, deal, trade, bid for, purchase, attempt
to purchase, or sell, directly or indirectly, for your own account, in the open
market or otherwise, or attempt to induce others to deal, trade, bid for,
purchase, attempt to purchase, or sell, either before or after the sale of the
Shares, and either for long or short account, any Shares or other shares of the
Company's common stock. You shall be required to represent that you have
complied with Regulation M under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and, prior to completion of your participation in the
distribution (as defined in Regulation M), you shall comply with Regulation M.
4. Subject to the terms and conditions hereof, we are offering a portion
of the Shares for sale to the customers of certain dealers, which are actually
engaged in the investment banking or securities business and who are either (i)
members in good standing of the National Association of Securities Dealers, Inc.
(the "NASD") that are registered with the NASD and maintain net capital pursuant
to Rule 15c3-1 under the 1934 Act of not less than $25,000 or (ii) dealers with
their principal place of business located outside the United States, its
territories and its possessions and not registered as brokers or dealers under
the 1934 Act, who have agreed not to make any sales within the United States,
its territories or its possessions or to persons who are nationals thereof or
residents therein (such dealers through whom Shares will be sold are hereinafter
called "Selected Dealers"), at the Offering Price. The Selected Dealers have
agreed to comply with the provisions of Rule 2740 of the Conduct Rules of the
NASD and, if any such
dealer is a foreign dealer and not a member of the NASD, such Selected Dealer
also has agreed to comply with the NASD's interpretation with respect to
free-riding and withholding, to comply, as though it were a member of the NASD,
with Rules 2730 and 2750 of such Conduct Rules, to comply with Rule 2420 as that
rule applies to non-member foreign dealers and to comply with the provisions of
Rule 15c2-4 under the 1934 Act in the sale of the Shares.
5. If you desire to purchase any of the Shares in this best efforts
offering as agent for your customers, your application should reach us promptly
by telephone, telegraph or telecopy at our office at XxXxxxxx & Company, Inc.,
000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000. We reserve the right to reject
subscriptions in whole or in part, to make allotments and to close the
subscription books at any time without notice. The Shares allocated to you will
be confirmed, subject to the terms and conditions of this Agreement.
6. Any Shares purchased through you shall be purchased for your customers
under the terms of this Agreement only upon orders already received from
subscribers for the Shares in accordance with the terms of offering set forth in
the Prospectus, subject to, if applicable, the securities or blue sky laws of
the various states or other jurisdictions.
7. You agree to advise us from time to time, upon request, of the amount
of Shares requested by you hereunder and remaining unsold at the time of such
request and, if in our opinion such Shares shall be needed to make delivery of
the Shares sold, you will, forthwith upon our request, reduce the number of
Shares allocated to you to an amount equal to the number of Shares actually
subscribed for by your customers.
8. No expense shall be charged to you. A single transfer tax, if payable,
upon the sale of the Shares to you on behalf of your customers will be paid when
such Shares are delivered. However, you shall pay any transfer tax on sales of
Shares by you and you shall pay your proportionate share of any transfer tax
(other than the single transfer tax described above) in the event that any such
tax shall from time to time be assessed against you and other Selected Dealers
as a group or otherwise.
9. Neither you nor any other person is or has been authorized to give any
information or to make any representation in connection with the sale of the
Shares other than as contained in the final Prospectus.
10. Paragraphs 6 and 7 will terminate when we shall have determined that
the offering of the Shares has been completed and upon telegraphic notice to you
of such termination, but, if not so terminated, paragraphs 6 and 7 will
terminate at the close of business on the 30th calendar day after the date
hereof; provided, however, that we shall have the right to extend such provision
for a further period or periods, not exceeding 30 calendar days in the
aggregate, upon telegraphic notice to you.
11. On becoming a Selected Dealer, and in offering and selling the Shares,
you agree to comply with any applicable requirements of the Securities Act of
1933, as amended (the "1933 Act"), and the 1934 Act. You confirm that you are
familiar with (i) Rule 15c2-8 under the 1934 Act relating to the distribution of
preliminary and final prospectuses for securities of an
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issuer (whether or not the issuer is subject to the reporting requirements of
Section 13 or 15(d) of the 0000 Xxx) and (ii) Rule 15c2-4 under the 1934 Act and
confirm that you have complied with and will comply with such rules. You confirm
also that you are familiar with Release No. 4968 of the Securities and Exchange
Commission under the 1933 Act and that you have complied and will comply with
the requirements therein relating to the distribution of copies of the
preliminary Prospectus relating to the Shares. You confirm that you are
registered with the NASD and maintain net capital pursuant to Rule 15c3-1 under
the 1934 Act of not less than $25,000.
12. We hereby confirm that we will make available to you such number of
copies of the Prospectus (as amended or supplemented) as you may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act, or the
rules and regulations thereunder.
13. Upon request and if applicable, you will be informed as to the states
and other jurisdictions in which we have been advised that the Shares are
qualified for sale under the respective securities or blue sky laws of such
states and other jurisdictions, but we do not assume any obligation or
responsibility as to the right of any Selected Dealer to sell the Shares in any
state or other jurisdiction or as to the eligibility of the Shares for sale
therein.
14. You are not authorized to act as our agent or agent of the Company or
otherwise to act on our behalf or on behalf of the Company in offering or
selling the Shares to the public or otherwise or to furnish any information or
make any representation except as contained in the Prospectus.
15. Nothing will constitute the Selected Dealers an association or other
separate entity or partners with us, or with each other, but you will be
responsible for your share of any liability or expense based on any claim to the
contrary. We shall not be under any liability for or in respect of value,
validity or form of the Shares, of the delivery of the certificates representing
the Shares, or the performance by anyone of any agreement on its part, or the
qualification of the Shares for sale under the laws of any jurisdiction (if
applicable), or for or in respect of any other matter relating to this
Agreement, except for the lack of good faith and for obligations expressly
assumed by us in this Agreement and no obligation on our part shall be implied
herefrom. The foregoing provisions shall not be deemed a waiver of any liability
imposed under the 1933 Act.
16. The closing will be on _______ __, 2002 (the "Settlement Date"),
ex-clearing, delivery versus payment, versus our clearing agent, Xxxxxx
Financial Services, Inc. (DTC: 0234). You will submit orders to purchase Shares
for which you have previously received indications of interest from your
customers. You will send confirmations of the orders to such customers on the
next business day after the trade date and will debit the account of such
customers on the third business day after the trade date. Customers who
authorize you to debit their brokerage accounts are required to have funds in
the amount of the aggregate purchase price of the Shares ordered in their
account on, but not before, the Settlement Date and, after debiting such
accounts on the Settlement Date, you will remit funds, net of the selling
commission, on the Settlement Date in accordance with the other terms and
provisions of this Agreement.
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17. Notices to us should be addressed to us at the office of XxXxxxxx &
Company, Inc., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. Notices to
you shall be deemed to have been duly given if telegraphed or mailed to you at
the address to which this letter is addressed.
18. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia without giving effect to the choice of
law or conflicts of law principles thereof.
19. If you desire to reserve any Shares for purchase by your customers,
please confirm your application by signing and returning to us your confirmation
on the duplicate copy of this letter enclosed herewith, even though you may have
previously advised us thereof by telephone, telegraph or telecopy.
Very truly yours,
XxXXXXXX & COMPANY, INC.
By: _______________________________________
Xxxxxxx X. XxXxxxxx, Xx., President
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__________ __, 2002
XxXxxxxx & Company, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxx, Xx.
We hereby request an allocation of __________ shares of common stock of
Carolina Bank Holdings, Inc. for purchase by our customers in accordance with
the terms and conditions stated in the foregoing letter. We hereby acknowledge
receipt of the Prospectus referred to in the first paragraph thereof relating to
such shares of common stock. We further state that we have relied upon such
Prospectus and upon no other statement whatsoever, whether written or oral. We
confirm that we are a dealer actually engaged in the investment banking or
securities business and that we are either (i) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") that is registered
with the NASD and maintains net capital pursuant to Rule 15c3-1 under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), of not less than
$25,000, 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 hereby 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. We hereby agree to comply with the
provisions of Rule 2740 of the Conduct Rules of the NASD and, if we are a
foreign dealer and not a member of the NASD, we also agree to comply with the
NASD's interpretation with respect to free-riding and withholding, to comply, as
though we were a member of the NASD, with the provisions of Rules 2730 and 2750
of the Conduct Rules of the NASD, and to comply with Rule 2420 thereof as that
Rule applies to non-member foreign dealers. We also hereby confirm that we have
complied and will comply with Rules 15c2-4, 15c2-8, and Regulation M under the
1934 Act.
_______________________________________
(Name of Firm)
By: ___________________________________
Title: ________________________________
Address: ___________________________
___________________________
___________________________
