Exhibit 1.2
HIGH COUNTRY BANCORP, INC.
SALIDA BUILDING AND LOAN ASSOCIATION
765,000 to 1,035,000 Shares
Common Stock
(Par Value $0.01 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
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Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Dear Sirs:
High Country Bancorp, Inc., a Colorado-chartered corporation (the
"Company"), and Salida Building and Loan Association, a federally chartered and
insured mutual savings association (the "Association"), hereby confirm, as of
__________ _____, 1997, their respective agreements with Trident Securities,
Inc. ("Trident"), a broker-dealer registered with the Securities and Exchange
Commission ("Commission") and a member of the National Association of Securities
Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Association intends to convert from a federally
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chartered mutual savings association to a federally chartered stock savings
association as a wholly owned subsidiary of the Company (together with the
Offerings, as defined below, the issuance of shares of common stock of the
Association to the Company and the incorporation of the Company, the
"Conversion") pursuant to a plan of conversion adopted on May 15, 1997 (as
amended, the "Plan"). In accordance with the Plan, the Company is offering
shares of its common stock, par value $0.01 per share (the "Shares" and the
"Common Stock"), pursuant to nontransferable subscription rights in a
subscription offering (the "Subscription Offering") to certain depositors and
borrowers of the Association and to the Association's tax-qualified employee
benefit plans (i.e., the Association's Employee Stock Ownership Plan (the
"ESOP")). Concurrently with the Subscription Offering, shares of the Common
Stock not sold in the Subscription Offering are being offered to the general
public in a community offering, with preference being given to natural persons
and trusts of natural persons permanently residing in Chaffee, Lake, Fremont and
Saguache Counties, Colorado (the "Community Offering") (the Subscription and
Community Offerings are sometimes referred to collectively as the "Offerings"),
subject to the right of the Company and the Association, in their absolute
discretion, to reject orders in the Community Offering in whole or in part. In
the Offerings, the Company is offering between 765,000 and 1,035,000 Shares,
with the possibility of offering up to 1,190,250 Shares without a resolicitation
of subscribers, as contemplated by Title 12 of the Code of Federal Regulations,
Part 563b. With the exception of the ESOP, no person, individually or together
with associates of and persons acting in concert with such person, may purchase
in the aggregate more than $250,000 of the Shares issued in the Conversion.
Trident Securities, Inc.
Sales Agency Agreement
Page 2
The Company and the Association have been advised by Trident that it
will utilize its best efforts in assisting the Company and the Association with
the sale of the Shares in the Offerings and, if deemed necessary by the Company
in a syndicated community offering. Prior to the execution of this Agreement,
the Company has delivered to Trident the Prospectus dated __________ ___, 1997
(as hereinafter defined) and all supplements thereto to be used in the
Offerings. Such Prospectus contains information with respect to the Company, the
Association and the Shares.
2. Representations and Warranties.
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(a) The Company and the Association jointly and severally
represent and warrant to Trident that:
(i) The Company has filed with the Commission a
registration statement, including exhibits and an amendment or
amendments thereto, on Form SB-2 (No. 333-________), including a
Prospectus relating to the Offerings, for the registration of the
Shares under the Securities Act of 1933, as amended (the "Act");
and such registration statement has become effective under the Act
and no stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the Company's best
knowledge, threatened by the Commission. Except as the context may
otherwise require, such registration statement, as amended or
supplemented, on file with the Commission at the time the
registration statement became effective, including the Prospectus,
financial statements, schedules, exhibits and all other documents
filed as part thereof, as amended and supplemented, is herein
called the "Registration Statement," and the prospectus, as
amended or supplemented, on file with the Commission at the time
the Registration Statement became effective is herein called the
"Prospectus," except that if the prospectus filed by the Company
with the Commission pursuant to Rule 424(b) of the general rules
and regulations of the Commission under the Act (together with the
enforceable published policies and actions of the Commission
thereunder, the "SEC Regulations") differs from the form of
prospectus on file at the time the Registration Statement became
effective, the term "Prospectus" shall refer to the Rule 424(b)
prospectus from and after the time it is filed with or mailed for
filing to the Commission and shall include any amendments or
supplements thereto from and after their dates of effectiveness or
use, respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and, if any, the Community
Offering, the Company (i) will promptly file with the Commission a
post-effective amendment to such Registration Statement relating
to the results of the Subscription Offering and, if any, the
Community Offering, any additional information with respect to the
proposed plan of distribution and any revised pricing information
or (ii) if no such post-effective amendment is required, will file
with, or mail for filing to, the Commission a prospectus or
prospectus supplement containing information
Trident Securities, Inc.
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Page 3
relating to the results of the Subscription and the Community
Offerings and pricing information pursuant to Rule 424(c) of the
Regulations, in either case in a form reasonably acceptable to the
Company and Trident.
(ii) The Association has filed an Application for
Approval of Conversion on Form AC, including exhibits (as amended
or supplemented, the "Form AC" and together with the Form H-(e)1-S
referred to below, the "Conversion Application") with the Office
of Thrift Supervision (the "Office") under the Home Owners' Loan
Act, as amended (the "HOLA") and the enforceable rules and
regulations, including published policies and actions, of the
Office thereunder (the "OTS Regulations"), which has been approved
by the Office; and the Prospectus and the proxy statement for the
solicitation of proxies from members for the special meeting to
approve the Plan (the "Proxy Statement") included as part of the
Form AC have been approved for use by the Office. No order has
been issued by the Office preventing or suspending the use of the
Prospectus or the Proxy Statement; and no action by or before the
Office revoking such approvals is pending or, to the Association's
best knowledge, threatened. The Company has filed with the Office
the Company's application on Form H-(e)1-S promulgated under the
savings and loan holding company provisions of the Home Owners'
Loan Act and the regulations promulgated thereunder ("HOLA") and
has received approval of its acquisition of the Association from
the Office.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (i) the
Registration Statement and the Prospectus (as amended or
supplemented, if amended or supplemented) complied with the Act
and the Regulations, (ii) the Registration Statement (as amended
or supplemented, if amended or supplemented) did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (iii) the Prospectus (as
amended or supplemented, if amended or supplemented) did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. Representations or
warranties in this subsection shall not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company or the Association relating
to Trident by or on behalf of Trident expressly for use in the
Registration Statement or Prospectus.
Trident Securities, Inc.
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Page 4
(iv) The Company has been duly incorporated as a Colorado
corporation, and the Association has been duly organized as a
mutual savings association under the laws of the United States,
and each of them is validly existing and in good standing under
the laws of the jurisdiction of its organization with full power
and authority to own its property and conduct its business as
described in the Registration Statement and Prospectus; the
Association is a member in good standing of the Federal Home Loan
Bank of Topeka; and the deposit accounts of the Association are
insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation ("FDIC")
up to the applicable legal limits. Each of the Company and the
Association is not required to be qualified to do business as a
foreign corporation in any jurisdiction where non-qualification
would have a material adverse effect on the Company and the
Association, taken as a whole. The Association does not own equity
securities of or an equity interest in any business enterprise
except as described in the Prospectus. Upon amendment of the
Association's charter and bylaws as provided in the rules and
regulations of the Office and completion of the sale by the
Company of the Shares as contemplated by the Prospectus, (i) the
Association will be converted pursuant to the Plan to a federally
chartered capital stock savings association with full power and
authority to own its property and conduct its business as
described in the Prospectus, (ii) all of the authorized and
outstanding capital stock of the Association will be owned of
record and beneficially by the Company, and (iii) the Company will
have no direct subsidiaries other than the Association.
(v) The Association has good, marketable and insurable
title to all assets material to its business and to those assets
described in the Prospectus as owned by it, free and clear of all
material liens, charges, encumbrances or restrictions, except for
liens for taxes not yet due, except as described in the Prospectus
and except as could not in the aggregate have a material adverse
effect upon the operations or financial condition of the
Association; and all of the leases and subleases material to the
operations or financial condition of the Association, under which
it holds properties, including those described in the Prospectus,
are in full force and effect as described therein.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary actions on the part
of each of the Company and the Association, and this Agreement is
a valid and binding obligation with valid execution and delivery
of each of the Company and the Association, enforceable in
accordance with its terms (except as the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
Trident Securities, Inc.
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Page 5
creditors of savings and loan holding companies the accounts of
whose subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or pursuant to Section 23A
of the Federal Reserve Act, 12 U.S.C. Section 371c
("Section 23A")).
(vii) There is no litigation or governmental proceeding
pending or, to the best knowledge of the Company or the
Association, threatened against or involving the Company, the
Association, or any of their respective assets which individually
or in the aggregate would reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
results of operations and business, including the assets and
properties, of the Company and the Association, taken as a whole.
(viii) The Company and the Association have received the
opinions of Housley Kantarian & Bronstein, P.C. with respect to
federal tax consequences of the Conversion, and of Grimsley,
White & Company with respect to the Colorado tax consequences of
the Conversion, to the effect that the Conversion will constitute
a tax-free reorganization under the Internal Revenue Code of 1986,
as amended, and will not be a taxable transaction for the
Association or the Company under the laws of Colorado, and the
facts relied upon in such opinions are accurate and complete.
(ix) Each of the Company and the Association has all such
corporate power, authority, authorizations, approvals and orders
as may be required to enter into this Agreement and to carry out
the provisions and conditions hereof, subject to the limitations
set forth herein and subject to the satisfaction of certain
conditions imposed by the Office in connection with its approvals
of the Form AC and the Application H-(e)1-S, and except as may be
required under the securities, or "blue sky," laws of various
jurisdictions, and in the case of the Company, as of the Closing
Date, will have such approvals and orders to issue and sell the
Shares to be sold by the Company as provided herein, and in the
case of the Association, as of the Closing Date, will have such
approvals and orders to issue and sell the Shares of its Common
Stock to be sold to the Company as provided in the Plan, subject
to the issuance of amended charter in the form required for
federally chartered stock savings associations (the "Stock
Charter"), the form of which Stock Charter has been approved by
the Office.
(x) Neither the Company nor the Association is in
violation of any rule or regulation of the Office or the FDIC that
could reasonably be expected to result in any enforcement action
against the Company, the Association, or their
Trident Securities, Inc.
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Page 6
officers or directors that might have a material adverse effect on
the condition (financial or otherwise), operations, businesses,
assets or properties of the Company and the Association, taken as
a whole.
(xi) The consolidated financial statements and any
related notes or schedules which are included in the Registration
Statement and the Prospectus fairly present the consolidated
financial condition, income, retained earnings and cash flows of
the Association at the respective dates thereof and for the
respective periods covered thereby and comply as to form with the
applicable accounting requirements of the Regulations and the
applicable accounting regulations of the Office. Such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as set forth therein, and such financial
statements are consistent with financial statements and other
reports filed by the Association with supervisory and regulatory
authorities except as such generally accepted accounting
principles may otherwise require. The tables in the Prospectus
accurately present the information purported to be shown thereby
at the respective dates thereof and for the respective periods
therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business,
including assets and properties, of the Company and the
Association, taken as a whole, since the latest date as of which
such condition is set forth in the Prospectus, except as set forth
therein; and the capitalization, assets, properties and business
of each of the Company and the Association conform to the
descriptions thereof contained in the Prospectus. None of the
Company nor the Association has any material liabilities of any
kind, contingent or otherwise, except as set forth in the
Prospectus.
(xiii) There has been no breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under, or creation or imposition
of any lien, charge or other encumbrance upon any of the
properties or assets of the Company and the Association pursuant
to any of the terms, provisions or conditions of, any agreement,
contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the Association is a party or
by which any of them or any of their respective assets or
properties may be bound or is subject, or violation of any
governmental license or permit or any enforceable published law,
administrative regulation or order or court order, writ,
injunction or decree, which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or
properties of the Company and the Association taken as a whole;
all agreements which are material to the condition (financial or
otherwise), results of operations or business of the Company and
the
Trident Securities, Inc.
Sales Agency Agreement
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Association taken as a whole are in full force and effect, and no
party to any such agreement has instituted or, to the best
knowledge of the Company and the Association, threatened any
action or proceeding wherein the Company or the Association would
be alleged to be in default thereunder.
(xiv) None of the Company or the Association is in
violation of its respective charter or bylaws. The execution and
delivery hereof and the consummation of the transactions
contemplated hereby by the Company and the Association do not
conflict with or result in a breach of the charter or bylaws of
the Company or the Association (in either mutual or stock form) or
constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, give rise to any right of termination, cancellation or
acceleration contained in, or result in the creation or imposition
of any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Association pursuant to
any of the terms, provisions or conditions of, any material
agreement, contract, indenture, bond, debenture, note, instrument
or obligation to which the Company or the Association is a party
or violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its approval
of the Conversion Application), which breach, default, encumbrance
or violation would have a material adverse effect on the condition
(financial or otherwise), operations or business of the Company
and the Association taken as a whole.
(xv) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus
and prior to the Closing Date (as hereinafter defined), except as
otherwise may be indicated or contemplated therein, none of the
Company or the Association has issued any securities which will
remain issued at the Closing Date or incurred any liability or
obligation, direct or contingent, or borrowed money, except
borrowings in the ordinary course of business, or entered into any
other transaction not in the ordinary course of business and
consistent with prior practices, which is material in light of the
business of the Company and the Association, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company shall be
within the range as set forth in the Prospectus under the caption
"Capitalization," and no Common Stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance
and the sale of the Shares of the Company have been duly
authorized by all necessary action of the Company and approved by
the Office and, when issued in accordance with the terms of the
Plan and paid for, shall be validly issued,
Trident Securities, Inc.
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Page 8
fully paid and nonassessable and shall conform to the description
thereof contained in the Prospectus; the issuance of the Shares is
not subject to preemptive rights, except as set forth in the
Prospectus; and good title to the Shares will be transferred by
the Company upon issuance thereof against payment therefor, free
and clear of all claims, encumbrances, security interests and
liens against the Company whatsoever. The certificates
representing the Shares will conform in all material respects with
the requirements of applicable laws and regulations. The issuance
and sale of the capital stock of the Association to the Company
has been duly authorized by all necessary action of the
Association and the Company and appropriate regulatory authorities
(subject to the satisfaction of various conditions imposed by the
Office in connection with its approval of the Conversion
Application), and such capital stock, when issued in accordance
with the terms of the Plan, will be fully paid and nonassessable
and will conform in all material respects to the description
thereof contained in the Prospectus.
(xvii) No approval of any regulatory or supervisory or
other public authority is required in connection with the
execution and delivery of this Agreement or the issuance of the
Shares, except for the declaration of effectiveness of any
required post-effective amendment by the Commission and approval
thereof by the Office and approval of the Company's application on
Form H-(e)1-S by the Office, the issuance of the Stock Charter by
the Office and as may be required under the securities laws of
various jurisdictions.
(xviii) All contracts and other documents required to be
filed as exhibits to the Registration Statement or the Conversion
Application have been filed with the Commission and/or the Office,
as the case may be.
(xix) Grimsley, White & Company, which has audited the
financial statements of the Association at June 30, 1997 and 1996
and for the years ended June 30, 1997 and 1996 included in the
Prospectus, is an independent public accountant within the meaning
of the Code of Professional Ethics of the American Institute of
Certified Public Accountants and Title 12 of the Code of Federal
Regulations, Section 571.2(c)(3).
(xx) For the past five years, the Company and the
Association have timely filed all required federal, state and
local franchise tax returns, and no material deficiency has been
asserted with respect to such returns by any taxing authorities,
and the Company and the Association have paid all taxes that have
become due and, to the best of their knowledge, have made adequate
reserves for similar future tax liabilities, except where any
failure to make such filings, payments and reserves, or the
assertion of such a deficiency, would not have a
Trident Securities, Inc.
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material adverse effect on the condition of the Company and the
Association taken as a whole.
(xxi) All of the loans represented as assets of the
Association on the most recent financial statements of the
Association included in the Prospectus meet or are exempt from all
requirements of federal, state or local law pertaining to lending,
including without limitation truth in lending (including the
requirements of Regulation Z and 12 C.F.R. Part 226 and Section
563.99), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if
asserted, would not have a material adverse effect on the Company
and the Association taken as a whole.
(xxii) The records of account holders, depositors,
borrowers and other members of the Association delivered to
Trident by the Association or its agent for use during the
Conversion have been prepared or reviewed by the Association and,
to the best knowledge of the Company and the Association, are
reliable and accurate.
(xxiii) None of the Company, the Association, or the
employees of the Company or the Association has made any payment
of funds of the Company or the Association prohibited by law, and
no funds of the Company or the Association have been set aside to
be used for any payment prohibited by law.
(xxiv) To the best knowledge of the Company and the
Association, the Company and the Association are in compliance
with all laws, rules and regulations relating to the discharge,
storage, handling and disposal of hazardous or toxic substances,
pollutants or contaminants and neither the Company nor the
Association believes that the Company or the Association is
subject to liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or
any similar law, except for violations which, if asserted, would
not have a material adverse effect on the Company and the
Association, taken as a whole. There are no actions, suits,
regulatory investigations or other proceedings pending or, to the
best knowledge of the Company or the Association, threatened
against the Company or the Association relating to the discharge,
storage, handling and disposal of hazardous or toxic substances,
pollutants or contaminants. To the best knowledge of the Company
and the Association, no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants,
including petroleum and gas products, as any of such terms may be
defined under federal, state or local law, has been caused by the
Company or the Association or, to the best knowledge of the
Company or the Association, has occurred on, in or at any of the
facilities or
Trident Securities, Inc.
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properties of the Company or the Association, except such
disposal, release or discharge which would not have a material
adverse effect on the Company and the Association, taken as a
whole.
(xxv) At the Closing Date, the Company and the Association
will have completed the conditions precedent to, and shall have
conducted the Conversion in all material respects in accordance
with, the Plan, the OTS Regulations and all other applicable laws,
regulations, published decisions and orders, including all terms,
conditions, requirements and provisions precedent to the
Conversion imposed by the Office.
(b) Trident represents and warrants to the Company and the
Association that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and the
NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Association hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part of
Trident, and this Agreement is a legal, valid and binding
obligation of Trident, enforceable in accordance with its terms
(except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of registered broker-dealers
accounts of whose may be protected by the Securities Investor
Protection Corporation or by general equity principles, regardless
of whether such enforceability is considered in a proceeding in
equity or at law, and except to the extent that the provisions of
Sections 8 and 9 hereof may be unenforceable as against public
policy or pursuant to Section 23A).
(iv) Each of Trident and, to Trident's knowledge, its
employees, agents and representatives who shall perform any of the
services required hereunder to be performed by Trident shall be
duly authorized and shall have all licenses, approvals and permits
necessary to perform such services, and Trident is a registered
selling agent in the jurisdictions listed in Exhibit A hereto and
will remain registered in such jurisdictions in which the Company
is relying on such registration for the sale of the Shares, until
the Conversion is consummated or terminated.
Trident Securities, Inc.
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(v) The execution and delivery of this Agreement by
Trident, the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby shall not
violate or conflict with the corporate charter or bylaws of
Trident or violate, conflict with or constitute a breach of, or
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, any material agreement,
indenture or other instrument by which Trident is bound or under
any governmental license or permit or any law, administrative
regulation, authorization, approval or order or court decree,
injunction or order.
(vi) Any funds received by Trident to purchase Common
Stock will be handled in accordance with Rule 15c2-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state
or federal court concerning Trident's activities as a broker-
dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the
------------------------------------------------------
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, the Company and the Association hereby
employ Trident as their agent to utilize its best efforts in assisting the
Company with the Company's sale of the Shares in the Subscription Offering and
Community Offering. The employment of Trident hereunder shall terminate
(a) forty-five (45) days after the Subscription and Community Offering closes,
unless the Company and the Association, with the approval of the Office, are
permitted to extend such period of time, or (b) upon consummation of the
Conversion, whichever date shall first occur.
In the event the Company is unable to sell a minimum of 765,000 Shares
(or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Association
shall refund promptly to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them, together with interest as
provided in the Prospectus, and no party to this Agreement shall have any
obligation to the other party hereunder, except as set forth in Sections 6, 8(a)
and 9 hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in special interest-bearing accounts with the
Association until all Shares are sold and paid for were made prior to the
commencement of the Subscription and Community Offering, with provision for
prompt refund to the purchasers as set forth above, or for delivery to the
Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares
Trident Securities, Inc.
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on the Closing Date against payment to the Company by any means authorized
pursuant to the Prospectus, at the principal office of the Company at 130 W. 2nd
Street, Salida, Colorado or at such other place as shall be agreed upon between
the parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Association for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Association on or
before twelve noon on the next business day following the debit date for deposit
in a segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident
shall receive the following compensation for its services hereunder:
(a) A commission equal to 1.70% of the aggregate dollar
amount of Common Stock sold to residents in the State of Colorado in
the Subscription and Community Offerings, and a commission of 1.20% of
the aggregate dollar amount of Common Stock sold to residents outside
the State of Colorado in the Subscription and Community Offerings. All
such fees are to be payable in next-day funds to Trident on the Closing
Date. No commissions shall be payable on shares purchased by the
Association's officers, directors, employees or their associates or
employee plans.
(b) For stock sold by other NASD member firms under selected
dealer's agreements, the commission shall not exceed a fee to be agreed
upon jointly by Trident and the Association to reflect market
requirements at the time of the stock allocation in a Syndicated
Community Offering.
(c) Trident shall be reimbursed for allocable expenses,
incurred by it whether or not the Offerings are successfully completed;
provided, however, that reimbursable legal fees will not exceed $25,000
(excluding out of pocket expenses for which Trident will use its best
efforts to ensure that such expenses are reasonable), that other
reimbursable expenses will not exceed $10,000 and that neither the
Company nor the Association shall pay or reimburse Trident for any of
the foregoing expenses accrued
Trident Securities, Inc.
Sales Agency Agreement
Page 13
after Trident shall have notified the Company or the Association of its
election to terminate this Agreement pursuant to Section 11 hereof or
after such time as the Company or the Association shall have given
notice in accordance with Section 12 hereof that Trident is in breach
of this Agreement. Full payment to defray Trident's reimbursable
expenses shall be made in next-day funds on the Closing Date or, if the
Conversion is not completed and is terminated for any reason, within
ten (10) business days of receipt by the Company of a written request
from Trident for reimbursement of its expenses. Trident acknowledges
receipt of $10,000 advance payment from the Association which shall be
credited against the total reimbursement due Trident hereunder.
(d) Notwithstanding the limitations on reimbursement of
Trident for allocable expenses provided in the immediately preceding
paragraph (c), in the event that a resolicitation or other event causes
the Offerings to be extended beyond their original expiration date,
Trident shall be reimbursed for its allocable expenses incurred during
such extended period, provided that the allowance for allocable
expenses provided for in the immediately preceding paragraph (c) above
have been exhausted and subject to the following. Such reimbursement
shall be in amount equal to the product obtained by dividing $10,000
(original out-of-pocket expenses) by the total number of days of the
unextended Subscription Offering (calculated from the date of the
Prospectus to the intended close of the Subscription Offering as stated
in the Prospectus) and multiplying such product by the number of days
of the extension (that number of days from the date of the supplemental
prospectus used in the extended Subscription Offering to the closing of
the extension of the Subscription Offering described in such
supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment, supplies, transfer
agent charges, fees relating to auditing and accounting and costs of printing
all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident
--------
is assisting the Company on a best efforts basis in offering a minimum of
765,000 and a maximum of 1,035,000 Shares, with the possibility of offering up
to 1,190,250 Shares (except as the Office may permit to be decreased or
increased) in the Subscription and Community Offerings. The Shares are to be
offered to the public at the price set forth on the cover page of the Prospectus
and the first page of this Agreement.
5. Further Agreements. The Company and the Association jointly and
------------------
severally covenant and agree that:
Trident Securities, Inc.
Sales Agency Agreement
Page 14
(a) The Company shall deliver to Trident, from time to time,
such number of copies of the Prospectus as Trident reasonably may
request. The Company authorizes Trident to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon discovery,
and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement becomes effective or any
supplement to the Prospectus has been filed, (ii) of the issuance by
the Commission of any stop order relating to the Registration Statement
or of the initiation or the threat of any proceedings for that purpose,
(iii) of the receipt of any notice with respect to the suspension of
the qualification of the Shares for offering or sale in any
jurisdiction, and (iv) of the receipt of any comments from the staff of
the Commission relating to the Registration Statement. If the
Commission enters a stop order relating to the Registration Statement
at any time, the Company will make every reasonable effort to obtain
the lifting of such order at the earliest possible moment.
(c) During the time when a prospectus is required to be
delivered under the Act, the Company will comply so far as it is able
with all requirements imposed upon it by the Act, as now in effect and
hereafter amended, and by the Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares any event relating to or affecting the Company and the
Association, taken as a whole, shall occur as a result of which it is
necessary, in the opinion of counsel for Trident, with the concurrence
of counsel to the Company, to amend or supplement the Prospectus in
order to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company forthwith shall prepare and furnish to Trident
a reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement
the Prospectus so that, as amended or supplemented, the Prospectus
shall not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser of the Shares, not misleading.
The Company will not file or use any amendment or supplement to the
Registration Statement or the Prospectus of which Trident has not first
been furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection
the Company and the Association shall furnish such information with
respect to themselves as Trident from time to time may reasonably
request.
(d) The Company and the Association have taken or will take
all reasonably necessary action as may be required to qualify or
register the Shares for offer and sale
Trident Securities, Inc.
Sales Agency Agreement
Page 15
by the Company under the securities or blue sky laws of such
jurisdictions as Trident and either the Company or its counsel may
agree upon; provided, however, that the Company shall not be obligated
to qualify as a foreign corporation to do business under the laws of
any such jurisdiction. In each jurisdiction where such qualification or
registration shall be effected, the Company, unless Trident agrees that
such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or
reports as are, or reasonably may be, required by the laws of such
jurisdiction.
(e) Appropriate entries will be made in the financial records of
the Association sufficient to establish a liquidation account for the
benefit of eligible account holders as of December 31, 1995 and
supplemental eligible account holders as of September 30, 1997 in
accordance with the requirements of the Office.
(f) The Company will file a registration statement for the
Common Stock under Section 12(g) of the Exchange Act, prior to
completion of the stock offering pursuant to the Plan. The Company
shall maintain the effectiveness of such registration for a minimum
period of three years or for such shorter period as may be required by
applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
promulgated under the Act) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following
the effective date (as defined in said Rule 158) of the Registration
Statement.
(h) For a period of three (3) years from the date of this
Agreement (unless the Common Stock shall have been deregistered under
the Exchange Act), the Company will furnish to Trident, as soon as
publicly available after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will
furnish to Trident (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and
(ii) from time to time, such other public information concerning the
Company as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of the
Shares consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and
every condition set forth in Section 7 hereof has been satisfied,
unless such condition is waived by Trident.
Trident Securities, Inc.
Sales Agency Agreement
Page 16
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders and
supplemental eligible account holders and votes, in the case of other
members, and of the Shares in the event of an oversubscription and
shall provide Trident final instructions as to the allocation of the
Shares ("Allocation Instructions") in such event and such information
shall be accurate and reliable. Trident shall be entitled to rely on
such instructions and shall have no liability in respect of its
reliance thereon, including without limitation, no liability for or
related to any denial or grant of a subscription in whole or in part.
(l) The Company and the Association will take such actions and
furnish such information as are reasonably requested by Trident in
order for Trident to ensure compliance with the NASD's "Interpretation
Relating to Free-Riding and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated,
-------------------
the Company and the Association shall pay or reimburse Trident for (a) all
filing fees paid or incurred by Trident in connection with all filings with the
NASD with respect to the Subscription and Community Offerings and, (b) in
addition, if the Company is unable to sell a minimum of 765,000 Shares or such
lesser amount as the Office may permit or the Conversion is otherwise
terminated, the Company and the Association shall reimburse Trident for
allocable expenses incurred by Trident relating to the offering of the Shares as
provided in Section 3 hereof; provided, however, that neither the Company nor
the Association shall pay or reimburse Trident for any of the foregoing expenses
accrued after Trident shall have notified the Company or the Association of its
election to terminate this Agreement pursuant to Section 11 hereof or after such
time as the Company or the Association shall have given notice in accordance
with Section 12 hereof that Trident is in breach of this Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by
-----------------------------------
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable
opinions of Housley Kantarian & Bronstein, P.C., special counsel for
the Company and the Association, and _____________________, counsel to
the Association, dated the Closing Date, addressed to Trident,
substantially as set forth in Exhibits B and C, respectively, hereto.
In rendering such opinions, such counsel may rely as to matters of
fact on certificates of officers and directors of the Company and the
Association and certificates of public officials delivered pursuant
hereto. Such counsel may assume that any agreement is the valid and
binding obligation of any parties to such agreement other than
Trident Securities, Inc.
Sales Agency Agreement
Page 17
the Company and the Association. Such opinions may be governed by, and
interpreted in accordance with, the Legal Opinion Accord (the "Accord")
of the ABA Section of Business Law (1991), and, as a consequence,
references in such opinions to such counsel's "knowledge" may be
limited to "actual knowledge" as defined in the Accord (or knowledge
based on certificates). Such opinions may be limited to present
statutes, regulations and judicial interpretations and to facts as they
presently exist; in rendering such opinions, such counsel need assume
no obligation to revise or supplement them should the present laws be
changed by legislative or regulatory action, judicial decision or
otherwise; and such counsel need express no view, opinion or belief
with respect to whether any proposed or pending legislation, if
enacted, or any regulations or any policy statements issued by any
regulatory agency, whether or not promulgated pursuant to any such
legislation, would affect the validity of the execution and delivery by
the Company and the Association of this Agreement or the issuance of
the Shares.
(b) At the Closing Date, Trident shall receive the letter of
Housley Kantarian & Bronstein, P.C., special counsel for the Company
and the Association, dated the Closing Date, addressed to Trident,
substantially as set forth in Exhibit D, hereto.
(c) Counsel for Trident shall have been furnished such documents
as they reasonably may require for the purpose of enabling them to
review or pass upon the matters required by Trident, and for the
purpose of evidencing the accuracy, completeness or satisfaction of any
of the representations, warranties or conditions herein contained,
including but not limited to, resolutions of the Board of Directors of
the Company and the Association regarding the authorization of this
Agreement and the transactions contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion
of Trident, (i) there shall have been no material change in the
condition, financial or otherwise, business or results of operations of
the Company and the Association, taken as a whole, since the latest
date as of which such condition is set forth in the Prospectus, except
as referred to therein; (ii) there shall have been no transaction
entered into by the Company and the Association after the latest date
as of which the financial condition of the Company or the Association
is set forth in the Prospectus other than transactions referred to or
contemplated therein, transactions in the ordinary course of business,
and transactions which are not material to the Company and the
Association, taken as a whole; (iii) none of the Company or the
Association shall have received from the Office or Commission any
direction (oral or written) to make any change in the method of
conducting their respective businesses which is material to the
business of the Company and the Association, taken as a whole, with
which they have not complied; (iv) no action, suit or proceeding, at
law or in equity or before or by any federal or state commission, board
or other administrative agency, shall be pending or threatened against
the Company or the Association or affecting any of their respective
assets, wherein an unfavorable
Trident Securities, Inc.
Sales Agency Agreement
Page 18
decision, ruling or finding would have a material adverse effect on the
business, operations, financial condition or income of the Company and
the Association, taken as a whole; and (v) the Shares shall have been
qualified or registered for offering and sale by the Company under the
securities or blue sky laws of such jurisdictions as Trident and the
Company shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Association, dated the Closing Date, to
the effect that: (i) they have examined the Prospectus and, at the time
the Prospectus became authorized by the Company for use, the Prospectus
did not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
with respect to the Company or the Association; (ii) since the date the
Prospectus became authorized by the Company for use, no event has
occurred which should have been set forth in an amendment or supplement
to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations
of the Company or the Association and, the conditions set forth in
clauses (ii) through (iv) inclusive of subsection (d) of this Section 7
have been satisfied; (iii) to the best knowledge of such officers, no
order has been issued by the Commission or the Office to suspend the
Subscription Offering or the Community Offering or the effectiveness of
the Prospectus, and no action for such purposes has been instituted or
threatened by the Commission or the Office; (iv) to the best knowledge
of such officers, no person has sought to obtain review of the final
actions of the Office and division approving the Plan; and (v) all of
the representations and warranties contained in Section 2 of this
Agreement are true and correct, with the same force and effect as
though expressly made on the Closing Date.
(f) At the Closing Date, Trident shall receive, among other
documents, (i) copies of the letters from the Office authorizing the
use of the Prospectus and the Proxy Statement, (ii) a copy of the order
of the Commission declaring the Registration Statement effective;
(iii) copies of the letters from the Office evidencing the corporate
existence of the Association; (iv) a copy of the letter from the
appropriate Colorado authority evidencing the incorporation (and, if
generally available from such authority, good standing) of the Company;
(v) a copy of the Company's corporate charter certified by the
appropriate Colorado governmental authority; and, (vi) if available, a
copy of the letter from the Office approving the Association's Stock
Charter.
(g) As soon as available after the Closing Date, Trident shall
receive a copy of the Association's certified Federal Stock Charter
executed by the appropriate federal governmental authority.
Trident Securities, Inc.
Sales Agency Agreement
Page 19
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Grimsley, White & Company,
independent certified public accountants, addressed to Trident and the
Company, in substance and form satisfactory to counsel for Trident,
with respect to the financial statements and certain financial
information contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in
form and substance satisfactory to counsel for Trident from Grimsley,
White & Company, independent certified public accountants, dated the
Closing Date and addressed to Trident and the Company, confirming the
statements made by them in the letter delivered by them pursuant to the
preceding subsection as of a specified date not more than five (5) days
prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Association
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company and the
Association to Trident as to the statements made therein. If any condition to
Trident's obligations hereunder to be fulfilled prior to or at the Closing Date
is not so fulfilled, Trident may terminate this Agreement or, if Trident so
elects, may waive any such conditions which have not been fulfilled, or may
extend the time of their fulfillment. If Trident terminates this Agreement as
aforesaid, the Company and the Association shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company and the Association jointly and severally agree
to indemnify and hold harmless Trident, its officers, directors and
employees and each person, if any, who controls Trident within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage and expense
whatsoever and shall further promptly reimburse such persons for any
legal or other expenses reasonably incurred by each or any of them in
investigating, preparing to defend or defending against any such
action, proceeding or claim (whether commenced or threatened) arising
out of or based upon (A) any misrepresentation by the Company or the
Association in this Agreement or any breach of warranty by the Company
or the Association with respect to this Agreement or arising out of or
based upon any untrue or alleged untrue statement of a material fact or
the omission or alleged omission of a material fact required to be
stated or necessary to make not misleading any statements contained in
(i) the Registration Statement or the Prospectus or (ii) any
application (including the Form AC and the Form H-(e)1-S) or other
document or communication (in this Section 8 collectively called
"Application") prepared or executed by or on behalf
Trident Securities, Inc.
Sales Agency Agreement
Page 20
of the Company or the Association or based upon written information
furnished by or on behalf of the Company or the Association, whether or
not filed in any jurisdiction, to effect the Conversion or qualify the
Shares under the securities laws thereof or filed with the Office or
Commission, unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company or
the Association with respect to Trident by or on behalf of Trident
expressly for use in the Prospectus or any amendment or supplement
thereof or in any Application, as the case may be, or (B) the
participation by Trident in the Conversion. This indemnity shall be in
addition to any liability the Company and the Association may have to
Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for
any liability whatsoever arising out of (i) the Allocation Instructions
or (ii) any records of account holders, depositors, borrowers and other
members of the Association delivered to Trident by the Association or
its agents for use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company
and the Association, their officers, directors and employees and each
person, if any, who controls the Company and the Association within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Association to Trident, but only with respect to (A) statements or
omissions, if any, made in the Prospectus or any amendment or
supplement thereof, in any Application or to a purchaser of the Shares
in reliance upon, and in conformity with, written information furnished
to the Company or the Association with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any
Application; (B) any misrepresentation by Trident in Section 2(b) of
this Agreement; or (C) any liability of the Company or the Association
which is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have principally and directly
resulted from gross negligence or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 8 for any legal or other
expenses subsequently
Trident Securities, Inc.
Sales Agency Agreement
Page 21
incurred by such indemnified party in connection with the defense
thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects
to assume the defense of any such action and retain counsel acceptable
to the indemnified party, the indemnified party may retain additional
counsel, but shall bear the fees and expenses of such counsel unless
(i) the indemnifying party shall have specifically authorized the
indemnified party to retain such counsel or (ii) the parties to such
suit include such indemnifying party and the indemnified party, and
such indemnified party shall have been advised by counsel that one or
more material legal defenses may be available to the indemnified party
which may not be available to the indemnifying party, in which case the
indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding the indemnifying party's obligation to bear the
fees and expenses of such counsel. An indemnifying party against whom
indemnity may be sought shall not be liable to indemnify an indemnified
party under this Section 8 if any settlement of any such action is
effected without such indemnifying party's consent. To the extent
required by law, this Section 9 is subject to and limited by the
provisions of Section 23A.
9. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to Trident, the Company
and/or the Association other than in accordance with its terms, the Company or
the Association and Trident shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by said
indemnity agreement incurred by the Company or the Association and Trident (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Association on the one hand and Trident on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also the relative fault of the Company or the Association on the one hand and
Trident on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Association on the one hand and Trident on the other shall
be deemed to be in the same proportions as the total net proceeds from the
Conversion received by the Company and the Association bear to the total fees
received by Trident under this Agreement. The relative fault of the Company or
the Association on the one hand and Trident on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Association or by Trident
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Trident Securities, Inc.
Sales Agency Agreement
Page 22
The Company and the Association and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
-------------------------------------------------------
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Association
or any controlling person or indemnified party referred to in Section 8 hereof,
and shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Association and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
11. Termination. Trident may terminate this Agreement by giving the
-----------
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence
has materially disrupted the United States securities markets such as
to make it, in Trident's reasonable opinion, impracticable to proceed
with the offering of the Shares; or if trading on the New York Stock
Exchange shall have suspended; or if the United States shall have
become involved in a war or major hostilities; or if a general banking
moratorium has been declared by a state or federal authority which has
material effect on the Association or the Conversion; or if a
moratorium in foreign exchange trading by major international
associations or persons has been declared; or if there shall have been
a material change in the capitalization, condition or business of the
Company, or if the Association shall have sustained a material or
substantial loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act, whether or not said
loss
Trident Securities, Inc.
Sales Agency Agreement
Page 23
shall have been insured; or if there shall have been a material change
in the condition or prospects of the Company or the Association.
(b) If Trident elects to terminate this Agreement as provided
in this Section, the Company and the Association shall be notified
promptly by Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, and to fulfill its
obligations, if any, pursuant to Sections 3, 6, 8(a) and 9 of this
Agreement and upon demand, the Company and the Association shall pay
Trident the full amount so owing thereunder.
(d) The Association may terminate the Conversion in accordance
with the terms of the Plan. Such termination shall be without liability
to any party, except that the Company and the Association shall be
required to fulfill their obligations pursuant to Sections 3(b), 3(c),
6, 8(a) and 9 of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 4601
Six Forks Road, Suite 400, Raleigh, North Carolina 27609, Attention: Mr. Willis
Smith, II (with a copy to Malizia, Spidi, Sloane & Fisch, P.C., 1301 K Street,
N.W., Suite 700 East, Washington, D.C. 20005, Attention: Charles E. Sloane,
Esquire) and if sent to the Company or the Association shall be mailed,
delivered or telegraphed and confirmed to Salida Building and Loan Association,
130 W. 2nd Street, Salida, Colorado 81201-0309, Attention: Larry D. Smith,
President (with a copy to Housley Kantarian & Bronstein, P.C., Suite 700, 1220 -
19th Street, N.W., Washington, D.C. 20036, Attention: Howard S. Parris,
Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of North Carolina.
15. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Trident Securities, Inc.
Sales Agency Agreement
Page 24
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
HIGH COUNTRY BANCORP, INC. SALIDA BUILDING AND LOAN ASSOCIATION
By: By:
------------------------------- ------------------------------
Larry D. Smith Larry D. Smith
President President
Date: Date:
------------------------------- -------------------------------
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
-------------------------------
Date:
Exhibit A
Jurisdictions where Trident is a Registered Selling Agent
Trident Securities, Inc. is a registered selling agent in the jurisdictions
--
listed below:
Alabama Missouri
Arizona Nebraska
Arkansas Nevada
California New Hampshire
Colorado New Jersey
Connecticut New Mexico
Delaware New York
District of Columbia North Carolina
Florida North Dakota (Trident Securities, Inc.
only, no agents)
Georgia Ohio
Idaho Oklahoma
Illinois Oregon
Indiana Pennsylvania
Iowa Rhode Island
Kansas South Carolina
Kentucky Tennessee
Louisiana Texas
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Trident Securities, Inc. is not a registered selling agent in the jurisdictions
---
listed below:
Alaska
Hawaii
Montana
South Dakota
Utah
Exhibit B
__________ ____, 1997
Trident Securities, Inc.
4601 Six Forks Road
Suite 400
Raleigh, North Carolina 27609
Re: Salida Building and Loan Association
High Country Bancorp, Inc.
----------------------------------------
Ladies and Gentlemen:
We are rendering this opinion to Trident Securities, Inc. ("Trident" or
"you") as special counsel for Salida Building and Loan Association (the
"Association") and High Country Bancorp, Inc. (the "Company"), pursuant to
Section 7(a) of the Agency Agreement dated ____________ ____, 1997 (the "Agency
Agreement") by and among the Association, the Company and you, as agent for the
sale of up to 1,190,250 shares of common stock, par value $0.01 per share, of
the Company (the "Common Stock") issued in connection with the conversion of the
Association from a federally chartered mutual savings association to a federally
chartered capital stock savings association and the simultaneous issuance of all
of the issued and outstanding stock of the converted Association to the Company
(collectively, the "Conversion") in accordance with the Association's Plan of
Conversion (the "Plan"). All references in this opinion to instruments and other
defined terms shall mean the instruments and other terms as defined in the
Agency Agreement, except to the extent they are otherwise defined herein or the
context otherwise requires.
As special counsel for the Association and the Company, we have
reviewed such corporate records, certificates, and other documents, and such
questions of law, as we have considered necessary or appropriate for the purpose
of rendering this opinion. In the course of our review, we have assumed the
genuineness of all signatures on original documents, and the due execution and
delivery of all documents requiring due execution and delivery for the
effectiveness thereof, except with respect to execution and delivery of the
Agency Agreement by the Company and the Association as to which we have relied
upon representations of officers of the Association and the Company. With
respect to questions of good standing of the Association and the Company, we
have relied solely upon the official letters of appropriate governmental
authorities and representations of officers of the Association and the Company.
As to questions of fact material to the opinions hereinafter expressed,
we have relied upon the representations and warranties of the Company and the
Association made in the Agency
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Agreement and the certificates of officers delivered at the closing. We have
made no examination or investigation for purposes of these opinions to verify
the accuracy or completeness of any financial, accounting, pro forma, valuation,
or statistical information or information with respect to Trident set forth in
the Registration Statement, the Prospectus, the Agency Agreement, or any of the
documents referred to herein or otherwise furnished to Trident or with respect
to any other accounting or financial matters and express no opinion with respect
thereto. We have also assumed for the purposes of the opinions expressed herein
that the Agency Agreement is a valid and binding obligation of Trident.
Anything to the contrary, expressly stated or implied, notwithstanding,
each of the opinions hereinafter expressed is subject to the following further
qualifications whether or not such opinions refer to such qualifications:
(1) We offer no opinion and do not purport to opine as to the
enforceability of provisions contained in any documents relating to the
Conversion or contemplated by the Agency Agreement or documents as to which the
Association or the Company is a party (a) relating to disclaimers, liability
limitations with respect to third parties, releases, or legal or equitable
rights, or discharges of defenses and remedies, (b) fixing the amount of
liquidated damages, (c) requiring the payment of interest on interest, (d)
providing for indemnification or contribution, and (e) relating to the payment
of attorney's fees.
(2) Our opinions below are limited to the matters expressly set forth
in this opinion letter, and no opinion is to be implied or inferred beyond the
matters stated. Without limiting the foregoing, we express no opinion as to the
anti-fraud provisions of federal and state securities laws.
(3) We have made no independent investigation for purposes of these
opinions as to the accuracy or completeness of any representation, warranty,
date, or other information, written or oral, made or furnished in connection
with the Agency Agreement, and we have relied on the certificates of officers of
the Company and the Association that none of such information contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements made not misleading.
(4) We are not required to be licensed to practice law in any
jurisdiction other than the District of Columbia. The opinions expressed herein
are limited solely to the federal banking and securities laws and regulations
and Colorado corporate law applicable to the Agency Agreement and the
transactions contemplated thereby, and we do not opine on any other federal law
or the laws of any other applicable jurisdiction.
(5) We have acted as special counsel in connection with the application
of federal securities and banking law and regulations and Colorado corporate law
applicable to the Agency Agreement and the Conversion and, consequently, there
may exist matters of a legal nature concerning the Company, the Association,
their subsidiary, or affiliated parties in connection with which we have not
been consulted and have not represented the Company, the Association, or their
subsidiary.
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(6) This opinion should in no way be construed as an opinion as to the
materiality of the contents of the Registration Statement, the Prospectus, or
the Conversion Application.
(7) Except as otherwise expressly stated, this opinion shall be
governed and interpreted in accordance with the Legal Opinion Accord of the
American Bar Association Section of Business Law (1991).
Based upon and subject to the foregoing and in reliance thereon, and
subject to the assumptions, exceptions and qualifications set forth herein, it
is our opinion that:
(i) the Company has been duly incorporated, and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, and the Association is
validly existing as a mutual savings association in good standing
under the laws of the United States, each with full power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) the Association is a member of the Federal Home Loan
Bank of Topeka, and the deposit accounts of the Association are
insured by the SAIF up to the applicable legal limits;
(iii) to our actual knowledge, the activities of the
Association as such activities are described in the Prospectus are
permitted under federal and Colorado law to subsidiaries of a
Colorado business corporation and the Association does not have any
subsidiaries;
(iv) the Plan complies with, and, to our actual
knowledge, the Conversion of the Association from a federally
chartered mutual savings association to a federally chartered stock
savings association and the creation of the Company as a holding
company for the Association have been effected in all material
respects in accordance with, the HOLA and the OTS Regulations; to
our actual knowledge, all of the terms, conditions, requirements
and provisions with respect to the Plan and the Conversion imposed
by the Office in its letters approving the Plan and the Conversion,
except with respect to the filing or submission of certain required
post-Conversion reports or other materials by the Company or the
Association, have been complied with by the Company and the
Association; and, to our actual knowledge, no person has sought to
obtain regulatory or judicial review of the final action of the
Office in approving the Plan;
(v) the Company has authorized Common Stock as set forth
in the Registration Statement and the Prospectus, and the
description of such Common Stock in the Registration Statement and
the Prospectus is accurate in all material respects;
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(vi) the issuance and sale of the Shares have
been duly and validly authorized by all necessary corporate
action on the part of the Company; the Shares, upon receipt of
payment and issuance in accordance with the terms of the Plan
and this Agreement, will be validly issued, fully paid,
nonassessable and, except as disclosed in the Prospectus, free
of preemptive rights, and purchasers of the Shares from the
Company upon issuance thereof against payment therefore will
acquire such Shares free and clear of all claims,
encumbrances, security interests and liens created by the
Company;
(vii) the form of certificate used to evidence
the Shares is in proper form and complies in all material
respects with applicable Colorado law;
(viii) the issuance and sale of the capital stock
of the Association to the Company have been duly authorized by
all necessary corporate action of the Association and the
Company and have received the approval of the Office, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable and owned of record and, to our
actual knowledge, beneficially by the Company;
(ix) subject to the satisfaction of the
conditions to the Office's approval of the Conversion
Application, no further approval, authorization, consent or
other order of any federal government board or body is
required in connection with the execution and delivery of this
Agreement, issuance of the Shares and the consummation of the
Conversion, except with respect to the issuance to the
Association of the Stock Charter by the Office and as may be
required under the "blue sky" laws of various jurisdictions;
(x) the execution and delivery of this
Agreement and the consummation of the Conversion have been
duly and validly authorized by all necessary corporate action
on the part of each of the Company and the Association;
(xi) the statements in the Prospectus and
incorporated by reference in the Proxy Statement under the
captions "Regulation," "Taxation," "Dividend Policy," "Certain
Restrictions on Acquisition of the Company and the
Association" and "Description of Capital Stock," insofar as
they are, or refer to, statements of law or legal conclusions
(excluding financial data included therein, as to which an
opinion is not expressed), have been prepared or reviewed by
us and are correct in all material respects;
(xii) the Conversion Application has been
approved by the Office, and the Prospectus and the Proxy
Statement have been authorized for use by the Office; the
Registration Statement and any post-effective amendment
thereto has been declared effective by the Commission; and, to
our actual knowledge, no proceedings are pending by or before
the Commission or the Office seeking to revoke or rescind the
orders declaring the Registration Statement effective or
B-5
approving the Conversion Application or, to our actual
knowledge, are contemplated or threatened;
(xiii) the execution and delivery of this Agreement
and the consummation of the Conversion by the Company and the
Association do not conflict with or result in a breach of the
charter or bylaws of the Company or the Association (in either
mutual or stock form); and
(xiv) the Conversion Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each
case as amended, comply as to form in all material respects
with the requirements of the Act, the HOLA, the SEC
Regulations and the OTS Regulations, as the case may be
(except as to information with respect to Trident included
therein and financial statements, notes to financial
statements, financial tables and other financial and
statistical data, including the appraisal, included therein,
as to which no opinion is expressed); to our actual knowledge,
all documents and exhibits required to be filed with the
Conversion Application and the Registration Statement have
been so filed and the descriptions in the Conversion
Application and the Registration Statement of such documents
and exhibits are accurate in all material respects.
This opinion is being rendered solely for the benefit of the addressee
hereof and may not be relied upon by, nor may copies be delivered to, any other
person without our prior written consent. The opinion may be delivered to your
counsel. This opinion is given as of the date hereof and we assume no obligation
to advise you of changes that may hereafter be brought to our attention.
Very truly yours,
Housley, Kantarian & Bronstein, P.C.
B-6
Exhibit C
---------
[Letterhead of Local Attorneys]
__________ ____, 1997
Trident Securities, Inc.
4601 Six Forks Road
Suite 400
Raleigh, North Carolina 27609
Re: Salida Building and Loan Association
High Country Bancorp, Inc.
------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion to Trident Securities, Inc. ("Trident" or
"you") as general counsel to Salida Building and Loan Association (the
"Association") and High Country Bancorp, Inc. (the "Company") at the time of the
conversion of the Association from a federally chartered mutual savings
association to a federally chartered capital stock savings association and the
simultaneous issuance of all of the issued and outstanding stock of the
converted Association to the Company (the "Conversion") in accordance with the
Association's Plan of Conversion (the "Plan"). Except to the extent they are
otherwise defined herein or the context otherwise requires, all references in
this opinion to instruments and other defined terms shall mean the instruments
and other terms as defined in the Agency Agreement dated __________ _____, 1997
(the "Agreement") by and among the Association, the Company, and Trident. Our
representation was limited solely to matters of Colorado law and this opinion is
delivered to you pursuant to Section 7(a) of the Agreement.
As general counsel to the Company and the Association, with respect to
the Association and the Company, we have examined such corporate records,
certificates, and other documents, and such questions of law, as we have
considered necessary or appropriate for the purpose of rendering this opinion.
In the course of our examination, we have assumed the genuineness of all
signatures on original documents, and the due execution and delivery of all
documents requiring due execution and delivery for the effectiveness thereof. As
to matters of fact relating to our opinion, we have relied on certificates and
written statements of officers of the Association and the Company.
Based upon and subject to the foregoing and in reliance thereon, and
subject to the assumptions, exceptions, and qualifications set forth herein, it
is our opinion that:
(i) to our actual knowledge, the Association has
obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its
business as such business is described in the Prospectus, all
such licenses,
C-1
permits and other governmental authorizations are in full
force and effect and the Association is in all material
respects complying therewith, except where the failure to hold
such licenses, permits or governmental authorizations or the
failure to so comply would not have a material adverse effect
on the Company and the Association, taken as a whole;
(ii) there are no material legal or governmental
proceedings pending or, to our actual knowledge, threatened
against or involving the assets of the Company or the
Association (provided that for this purpose we do not regard
any litigation or governmental procedure to be "threatened"
unless the potential litigant or government authority has
manifested to the management of the Company or the
Association, or to us, a present intention to initiate such
litigation or proceeding);
(iii) to our actual knowledge, the execution and
delivery of the Agreement and the consummation of the
Conversion by the Company and the Association do not
constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, give rise to any right of termination,
cancellation or acceleration contained in, or result in the
creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the
Company or the Association pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to
which the Company or the Association is a party or violate any
governmental license or permit or any enforceable published
law, administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its
approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material
adverse effect on the condition (financial or otherwise),
operations, business, assets or properties of the Company and
the Association taken as a whole;
(iv) to our actual knowledge, there has been no
material breach of any provision of the Company's or the
Association's charter or bylaws or breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under any agreement,
contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the Association is a party
or by which any of them or any of their respective assets or
properties may be bound, or any governmental license or
permit, or a violation of any enforceable published law,
administrative regulation or order, or court order, writ,
injunction or decree which breach, default, encumbrance or
violation would have a material adverse effect on the
condition (financial or otherwise), operations, business,
assets or properties of the Company and the Association taken
as a whole; and,
C-2
(v) the Agreement is a legal, valid and binding
obligation of each of the Company and the Association,
enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization, receivership,
conservatorship or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
creditors of depository institutions whose accounts are
insured by the FDIC or savings and loan holding companies the
accounts of whose subsidiaries are insured by the FDIC or by
general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law, and except to the extent that the provisions of Sections
8 and 9 hereof may be unenforceable as against public policy
or pursuant to Section 23A, as to which we render no opinion);
This opinion is being rendered solely for the benefit of the addressee
hereof and that of the addressee's and the Company's counsel and may not be
relied upon by, nor may copies be delivered to, any other person without our
prior written consent. We hereby consent to the delivery of this opinion to your
counsel named in the Agreement and to the Company's counsel in connection with
the consummation of the Conversion. This opinion is given as of the date hereof
and we assume no obligation to advise you of changes that may hereafter be
brought to our attention.
Very truly yours,
----------------------------
C-3
Exhibit D
---------
__________ ____, 1997
Trident Securities, Inc.
4601 Six Forks Road
Suite 400
Raleigh, North Carolina 27609
Re: Salida Building and Loan Association
High Country Bancorp, Inc.
------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for High Country Bancorp, Inc. (the
"Company") and Salida Building and Loan Association (the "Association") in
connection with the preparation and filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's Registration Statement on Form SB-2 (No.
333-______), as amended, and the Association's Application for Conversion on
Form AC, as amended, relating to the offering of the Company's common stock (the
"Common Stock") in a subscription offering in connection with the conversion of
the Association from a federally chartered mutual savings association to a
federally chartered stock savings association (the "Conversion") and the
issuance of the Association's capital stock to the Company pursuant to the
Association's plan of conversion, originally adopted by the Association's Board
of Directors on May 15, 1997. Such registration statement, as amended, when it
became effective is herein called the "Registration Statement," and the related
Prospectus dated ____________ ____, 1997 is herein called the "Prospectus." Such
application for conversion, as amended, when it received approval is herein
called the "Conversion Application." This letter is furnished pursuant to
Section 7(b) of the Agency Agreement dated ___________ ____, 1997 (the "Agency
Agreement") among the Company, the Association, and Trident Securities, Inc.
("Trident" or "you").
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting, or statistical
matters and because of the wholly or partially non-legal character of many of
the statements contained in the Conversion Application, the Registration
Statement, and the Prospectus, for purposes of this letter, we are not passing
upon and do not assume any responsibility for the accuracy, completeness, or
fairness of the statements contained in the Conversion Application, the
Registration Statement, or the Prospectus and we make no representation that we
have independently verified the accuracy, completeness, or fairness of such
statements. Without limiting the foregoing, for purposes of this letter, we
assume no responsibility for, and have not independently verified, the accuracy,
completeness, or fairness of the financial statements and schedules and other
financial and statistical data and stock valuation information, or information
regarding you included in the
D-1
Conversion Application, the Registration Statement, and the Prospectus, and we
have not examined the accounting, financial, or statistical records from which
such financial statements, schedules, and data are derived. We note that,
although certain portions of the Conversion Application, the Registration
Statement, and the Prospectus (including financial statements and schedules and
stock valuation information) have been included therein on the authority of
"experts" within the meaning of the Securities Act, we are not such experts with
respect to any portion of the Conversion Application or the Registration
Statement, including without limitation such financial statements or schedules
or the other financial or statistical data included therein.
Based on such counsel's participation in conferences with
representatives of the Company, the Association, its counsel, the independent
appraiser, the independent certified public accountants, Trident and its
counsel, review of documents and understanding of applicable law (including the
requirements of Form SB-2 and the character of the Registration Statement
contemplated thereby) and the experience such counsel has gained in its practice
under the Act, nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement, as amended (except as to information
in respect of Trident contained therein and except as to the financial
statements, notes to financial statements, financial tables and other financial
and statistical data contained therein, as to which such counsel need express no
view), at the time it became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein not misleading, or that the
Prospectus, as amended (except as to information in respect of Trident contained
therein and except as to financial statements, notes to financial statements,
financial tables and other financial and statistical data contained therein as
to which such counsel need express no view), as of the date of the Prospectus
and as of the date hereof, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (in making
this statement such counsel may state that it has not undertaken to verify
independently the information in the Registration Statement or Prospectus and,
therefore, does not assume any responsibility for the accuracy or completeness
thereof).
We are furnishing this letter to you solely for your benefit. This
letter is not to be used, circulated, quoted, or otherwise referred to for any
other purpose, except that a copy may be provided to your counsel.
Very truly yours,
Housley, Kantarian & Bronstein, P.C.
D-2