Exhibit 1.2
VESTIN GROUP, INC.
Up To
$600,000,000
of Subordinated Notes
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
VESTIN CAPITAL, INC., as the dealer manager ("Dealer Manager") for
VESTIN GROUP, INC., a Delaware corporation (the "Company"), invites you (the
"Dealer") to participate in the distribution of subordinated notes to be issued
by the Company ("Notes") subject to the following terms of this Selected Dealer
Agreement ("Agreement"):
I. Dealer Manager Agreement
The Dealer Manager has entered into an agreement with the Company called
the Dealer Manager Agreement dated _________, 2003, in the form to which this
Agreement is attached as Exhibit A. By your acceptance of this Agreement, you
will become one of the Dealers referred to in such Dealer Manager Agreement and
you agree to become subject to all terms and conditions of the Dealer Manager
Agreement, which is incorporated herein by this reference, and will be entitled
and subject to the indemnification provisions contained in such Dealer Manager
Agreement, including the provisions of such Dealer Manager Agreement (Section 4)
wherein the Dealers severally agree to indemnify and hold harmless the Company
and Dealer Manager and each officer and director thereof, and each person, if
any, who controls the Company or Dealer Manager within the meaning of the
Securities Act of 1933. Except as otherwise specifically stated herein, all
terms used in this Agreement have the meanings provided in the Dealer Manger
Agreement. The Notes are offered solely through broker-dealers who are members
of the National Association of Securities Dealers, Inc. ("NASD").
Dealer hereby agrees to use its best efforts to sell the Notes for cash
on the terms and conditions stated in the Prospectus. Nothing in this Agreement
shall be deemed or construed to make Dealer an employee, agent, representative
or partner of the Dealer Manager or of the Company and Dealer is not authorized
to act for the Dealer Manager or the Company or to make any representations on
their behalf except as set forth in the Prospectus and such other printed
information furnished to Dealer by the Dealer Manager or the Company to
supplement the Prospectus ("supplemental information").
II. Submission of Subscription Agreements
Those persons who purchase Notes will be instructed by the Dealer to
make their checks payable to the Company. Any Dealer receiving a check not
conforming to the foregoing instructions shall return such check directly to
such subscriber not later than the end of the next business day following its
receipt. Checks received by the Dealer which conform to the foregoing
instructions shall be transmitted for deposit pursuant to one of the methods in
this Article II. Transmittal of received investor funds will be made in
accordance with the following procedures:
1
Where, pursuant to the Dealer's internal supervisory procedures,
internal supervisory review is conducted at the same location at
which subscription documents and checks are received from
subscribers, checks will be transmitted in care of the Dealer
Manager by the end of the next business day following receipt by
the Dealer for deposit to the Company.
Where, pursuant to the Dealer's internal supervisory procedures,
final and internal supervisory review is conducted at a different
location, checks will be transmitted by the end of the next
business day following receipt by the Dealer to the office of the
Dealer conducting such final internal supervisory review (the
"Final Review Office"). The Final Review Office will in turn by
the end of the next business day following receipt by the Final
Review Office, transmit such checks for deposit to the Company.
III. Pricing
Notes shall be offered to the public at the offering price set forth in
supplements to the Prospectus.
IV. Dealers' Commissions
The Dealer's compensation for the offering and sale of Notes will be
sales commissions of up to four percent (4%), marketing incentive fees of up to
one half of one percent (0.5%) and reimbursement of accountable expenses of up
to one-half of one percent (0.5%) of the aggregate proceeds generated from the
sale of Notes by such Dealer. For these purposes, a "sale of Notes" shall occur
if and only if a transaction has closed with a purchaser of Notes pursuant to
all applicable offering and subscription documents and the Company has
thereafter distributed the commission to the Dealer Manager in connection with
such transaction. The Dealer hereby waives any and all rights to receive payment
of commissions due until such time as the Dealer Manager is in receipt of the
commission from the Company. The Dealer affirms that the Dealer Manager's
liability for commissions payable is limited solely to the proceeds of
commissions receivable associated therewith.
V. Payment
Payments of selling commissions will be made by the Dealer Manager to
Dealer within 30 days of the receipt by the Dealer Manager of the gross
commission payments from the Company.
VI. Right to Reject Order or Cancel Sales
All orders, whether initial or additional, are subject to acceptance by
and shall only become effective upon confirmation by the Company; the Company
reserves the right to reject any order in whole or in part. If an order is
rejected, cancelled or rescinded for any reason, the Dealer agrees to return to
the Dealer Manager any commission theretofore paid with respect to such order.
2
VII. Prospectus and Supplemental Information
Dealer is not authorized or permitted to give and will not give, any
information or make any representation concerning the Notes except as set forth
in the Prospectus and supplemental information. The Dealer Manager will supply
Dealer with reasonable quantities of the Prospectus, any supplements thereto and
any amended Prospectus, as well as any supplemental information, for delivery to
investors, and Dealer will deliver a copy of the Prospectus and all supplements
thereto and any amended Prospectus to each investor to whom an offer is made
prior to or simultaneously with the first solicitation of an offer to sell the
Notes to an investor. The Dealer agrees that it will not send or give any
supplements thereto and any amended Prospectus to that investor unless it has
previously sent or given a Prospectus and all supplements thereto and any
amended Prospectus to the investor or has simultaneously sent or given a
Prospectus and all supplements thereto and any amended Prospectus with such
supplemental information. Dealer agrees that it will not show or give to any
investor or reproduce any material or writing which is supplied to it by the
Dealer Manager and marked "dealer only" or otherwise bearing a legend denoting
that it is not to be used with respect to members of the public. Dealer further
agrees that it will not use in connection with the offer or sale of Notes any
materials or writings which have not been previously approved by the Dealer
Manager. On becoming a Dealer, and in offering and selling Notes, Dealer agrees
to comply with all the applicable requirements under the Securities Act of 1933
and the Securities Exchange Act of 1934, including, without limitation, the
provisions of Rule 15c2-4 of the Securities and Exchange Commission.
Notwithstanding the termination of this Agreement or the payment of any amount
to Dealer, Dealer agrees to pay Dealer' proportionate share of any claim, demand
or liability asserted against Dealer and the other Dealers on the basis that
Dealers or any of them constitute an association, unincorporated business or
other separate entity, including in each case Dealer's proportionate share of
any expenses incurred in defending against any such claim, demand or liability.
VIII. License and Association Membership
Dealer's acceptance of this Agreement constitutes a representation to
the Company, the Manager and Dealer Manager that Dealer is a properly registered
or licensed broker-dealer, duly authorized to sell Notes under Federal and state
securities laws and regulations and in all states where it offers or sells
Notes, and that it is a member in good standing of the NASD. This Agreement
shall automatically terminate if the Dealer ceases to be a member in good
standing of to NASD, or in the case of a foreign dealer, so to conform. Dealer
agrees to notify the Dealer Manager immediately if Dealer ceases to be a member
in good standing, or in the case of a foreign dealer, so to conform. The Dealer
Manager also hereby agrees to abide by the Conduct Rules of the NASD.
IX. Limitation of Offer
Dealer will offer Notes only to persons who meet all applicable
suitability requirements and will only make offers to persons in the states in
which it is advised in writing that the Notes are qualified for sale or that
such qualification is not required. Dealer Manager will not assume
3
any obligation or responsibility as to the right of Dealer to sell the Notes in
any jurisdiction. Dealer shall provide such certification as Dealer Manager may
reasonably request regarding its compliance with applicable law.
X. Termination
Dealer will suspend or terminate its offer and sale of Notes upon the
request of the Company or the Dealer Manager at any time and will resume its
offer and sale of Notes hereunder upon subsequent request of the Company or the
Dealer Manager. Dealer shall not in any event sell Notes after two years after
the effective date of the registration statement covering the Notes. Any party
may terminate this Agreement by written notice. Such termination shall be
effective 48 hours after the mailing of such notice. This Agreement is the
entire agreement of the parties and supersedes all prior agreement, if any,
between the parties hereto.
This Agreement may be amended at any time by the Dealer Manager by
written notice to the Dealer, and any such amendment shall be deemed accepted by
Dealer upon placing an order for sale of Notes after he has received such
notice.
XI. Notice
All notices will be in writing and will be duly given to the Dealer
Manager when mailed to ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, and to Dealer when mailed to the address specified by Dealer herein.
XII. Attorney's Fees and Applicable Law
In any action to enforce the provisions of this Agreement or to secure
damages for its breach, the prevailing party shall recover its costs and
reasonable attorney's fees. This Selected Dealer Agreement shall be construed
under the laws of the State of Nevada and shall take effect when signed by
Dealer and countersigned by the Dealer Manager.
THE DEALER MANAGER
VESTIN CAPITAL, INC.
Attest:
By: By:
----------------------- -----------------------
Name:
--------------------- -----------------------
Title:
---------------------
President
We have read the foregoing Selected Dealer Agreement and we hereby
accept and agree to the terms and conditions therein set forth. We hereby
represent that the list below of jurisdictions in which we are registered or
licensed as a broker or dealer and are fully authorized
4
to sell securities is true and correct, and we agree to advise you of any change
in such list during the term of this Selected Dealer Agreement.
1. Identity of Dealer:
Name:
---------------------------------------------------------------------------
Type of entity:
-----------------------------------------------------------------
(to be completed by Dealer) (corporation, partnership or
proprietorship)
Organized in the State of:
-----------------------------------------------------
(to be completed by Dealer) (State)
Licensed as broker-dealer in the following states:
--------------------------------------------------------------------------------
(to be completed by Dealer)
Tax I.D. #:
--------------------------------------
2. Person to receive notice pursuant to Section XI.
Name:___________________________________________________________________________
Company:________________________________________________________________________
Address:________________________________________________________________________
City, State and Zip Code:_______________________________________________________
Telephone No.: (___)________________
AGREED TO AND ACCEPTED BY THE DEALER:
--------------------------------------------
(Dealer's Firm Name)
By:
-----------------------------------------
Signature
Title:
--------------------------------------
5
