[Letterhead]
December 20, 1996
First Savings Bank, F.S.B.
P.O. Drawer 1569
Clovis, NM 88102
RE: Agreement for Subscription Agent Services
Ladies and Gentlemen:
The purpose of this letter is to reflect the agreement of Access Anytime
Bancorp, Inc. (the "Company") and First Savings Bank, F.S.B. (the "Bank")
regarding the Bank's acting as the Subscription Agent (as defined below) in
connection with the Company's offering (the "Subscription Offering") of up to
732,198 shares of its common stock, $.01 par value ("Common Stock"),
pursuant to non-transferable subscription rights at a subscription price of
$5.25 per share. The terms of the Subscription Offering are more fully
described in the Prospectus relating to such offering. A copy of the
Prospectus is attached hereto as Exhibit A (such document, in the form
declared effective by the Securities and Exchange Commission and as it may be
subsequently amended, shall be referred to herein as the "Prospectus").
Unless otherwise specified, capitalized terms used herein and defined in the
Prospectus shall have the same meanings herein as set forth for them in the
Prospectus.
1. APPOINTMENT OF SUBSCRIPTION AGENT. The Company hereby appoints the
Bank as the subscription agent (the "Subscription Agent") for the
Subscription Offering. As Subscription Agent, the Bank hereby agrees to
perform the following services for the Company in accordance with the terms
of the Prospectus:
(a) Issue new and replacement Subscription Warrants to Rights Holders;
(b) Mail offering materials to Rights Holders;
(c) Hold offering materials for Rights Holders whose addresses are
outside of the continental United States or are A.P.O. or F.P.O.
addresses;
(d) Collect checks from subscribing Rights Holders and hold the
proceeds in trust in an interest bearing account for the account
of the Company;
(e) Communicate with Depository Trust Company and all brokers
regarding their respective record date positions;
(f) Report to the Company daily on the total number of shares of
Common Stock subscribed for, the amount of funds received, and the
total number of Subscription Rights exercised;
(g) Consult with the Company for specific instructions as to
acceptance or rejection of subscriptions received after the
Expiration Date and subscriptions otherwise failing to comply
with the requirements of the Prospectus and the terms of the
Subscription Warrants;
(h) After the Expiration Date, consult with the Company regarding the
disposition of unused or canceled Subscription Warrants;
(i) Deposit subscription proceeds to the Company or escrow bank account;
(j) Issue certificates for Common Stock to subscribing Rights Holders;
and
(k) Update the Company's share register.
2. NO SOLICITATIONS. The Bank hereby agrees that it shall not at any time
advise any person as to whether such person should subscribe for shares of
Common Stock pursuant to the Subscription Offering or take any other action
that may be deemed a solicitation.
3. PAYMENT. In exchange for the Bank's Subscription Agent services, the
Company hereby agrees to pay the Bank $5,000, which payment shall be due
and payable upon completion of the Subscription Offering.
4. CONDITION TO SUBSCRIPTION AGENT'S PERFORMANCE. The Bank undertakes the
duties and obligations imposed hereby upon the following terms and
conditions, by all of which the Company shall be bound:
(a) The Bank may consult with legal counsel, who may be, but is not
required to be, legal counsel for the Company, and the opinion of
such counsel shall be full and complete authorization and
protection to the Bank as to any actions taken or omitted by the
Bank in good faith and in accordance with such opinion;
(b) Whenever, in the performance of its duties hereunder, the Bank
shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence
in respect thereof is herein specifically prescribed) may be deemed
to be conclusively proved and established by a certificate signed
by the Chairman and CEO or the President of the Company and
delivered to the Bank; and such certificate shall be full
authorization to the Bank for any action taken or suffered in
good faith by the Bank under the provisions hereof in reliance
upon such certificate;
(c) The Bank shall be liable hereunder only for its own negligence or
willful misconduct.
(d) The Bank shall not be liable for or by reason of the statements of
fact or recitals contained in the Prospectus or in the Subscription
Warrants or be required to verify the same, except for information
contained therein that relates to the Bank; all statements and
recitals contained in the Prospectus or in the Subscription Warrants
that do not relate to the Bank are and shall be deemed to have been
made by the Company only.
(e) The Bank shall not be under any responsibility in respect of the
validity of the Subscription Warrants, nor shall it be responsible
for any breach by the Company of any covenant or condition contained
in the Prospectus or in any Subscription Warrant; nor shall it by
any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock
to be issued pursuant to the Subscription Offering or any
Subscription Warrant or as to whether any Shares of Common Stock
will, when issued, be validly authorized and issued, fully paid,
and nonassessable.
(f) The Company agrees that it will indemnify the Subscription Agent
for, and to hold it harmless against, any loss, liability, or
expense incurred without negligence or bad faith on the part of
the Subscription Agent for anything done or omitted by the
Subscription Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses
of defending against any claim of liability in the premises,
provided that the Subscription Agent shall have provided the
Company with notice of any such claim promptly after such claim
became known to the Subscription Agent, and provided further that
the Company shall have the right to assume the defense of any such
claim upon receipt of written notice thereof from the Subscription
Agent. If the Company assumes the defense of any such claim, the
Subscription Agent shall be entitled to participate in, but not
control, the defense of any such claim at its own expense. The
Company shall not indemnify the Subscription Agent with respect
to any claim or action settled without its consent, which consent
shall not be unreasonably withheld.
(g) The Company agrees that it will perform, execute, acknowledge, and
deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Bank for the
carrying out or performing by the Bank of the provisions hereunder.
(h) Nothing herein shall preclude the Bank from acting in any other
capacity for the Company.
Please indicate your acceptance of the foregoing terms by executing this
letter on the line provided below and returning it to the undersigned.
Very truly yours,
ACCESS ANYTIME BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive
Officer
Accepted and agreed to
this 20th day of December, 1996:
FIRST SAVINGS BANK, F.S.B.
By: /s/ Xxx Xxxx, Xx.
----------------------------------
Xxx Xxxx, Xx.
President and Chief Executive
Officer
