**Exhibit10.5**

 

**PLACEMENT AGENT AGREEMENT**

 

September7, 2004

 

Howe Barnes Investments, Inc.222 South Riverside Plaza

7th FloorChicago, Illinois 60606-5808

 

Re: Access AnytimeBancorp, Inc.

 

Ladiesand Gentlemen:

 

*Section 1.**                  Introductory.*  Access Anytime Bancorp, Inc. (the *“Company”*), has authorized the issuance and sale of common stock(the *“Securities”*).  The Securities will be issued in theaggregate purchase price of up to $3,120,000 on such terms as are disclosed inthe Placement Memorandum (as defined below).

 

The Company intends to sell the Securities to alimited number of accredited investors (each a *“Purchaser”*)in reliance upon available exemptions from the registration requirements of theSecurities Act of 1933, as amended (the *“1933 Act”*),and state securities laws.  The Companyhas requested you to assist it as placement agent in the private placement ofSecurities, and you have indicated your willingness to do so, subject to thesatisfactory completion of such investigation and inquiry as you deemappropriate under the circumstances and subject to the conditions set forthbelow.

 

*Section 2.**                  Appointmentof Placement Agent; Placement of Securities.*  (a) The Company hereby appoints you asthe placement agent (the *“Placement Agent”*)in connection with the placement of the Securities.  Subject to the performance by the Company ofits obligations contained herein and to the completeness and accuracy of itsrepresentations and warranties contained herein, you hereby accept such agencyand agree, on the terms and conditions set forth herein, to use your “bestefforts” to locate and place the Securities with qualified Purchasers for theSecurities.  Your agency hereunder shallcontinue until the date upon which the last of the Securities is sold to aPurchaser, unless this Agreement is terminated prior to such date pursuant toSection 8 hereof.

 

(b)         ThePlacement Agent will offer the Securities only to persons who are “accreditedinvestors” within the meaning of Regulation D under the 1933 Act and onlyin accordance with Rule 502(c) of said Regulation D.  Company counsel will determine the categoriesof investors to whom the Securities may be offered without registration orqualification under the state securities or “Blue Sky” laws of the variousstates, and Placement Agent agrees that it will offer the Securities only tosuch investors in such states.  All salesof the Securities are subject to 

 

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acceptance by the Company.  The Placement Agent agrees that it will notoffer or sell any of the Securities:

 

(i)             toany offeree who does not constitute an “accredited investor” within the meaningof Regulation D under the 1933 Act, without the prior approval of theCompany; or

 

(ii)          bymeans of any form of general solicitation or general advertisement, including butnot limited to (x) any advertisement, article, notice or othercommunication published in any newspaper, magazine or similar media orbroadcast over television or radio, (y) any seminar or meeting if anyperson other than an “accredited investor” attends or is invited to attend orwhose attendees have been invited by any general solicitation or generaladvertising and (z) any letter, circular, notice or other writtencommunication unless such communication is directed solely to investorsidentified as “accredited investors.”

 

(c)          It isexpressly agreed that the Placement Agent’s agency hereunder shall constitute a“best efforts” agency undertaking and that this Agreement shall not beunderstood as a commitment, expressed or implied, by the Placement Agent tounderwrite, purchase or pay for any of the Securities.

 

(d)         It isunderstood and expressly agreed that nothing contained in this Agreement shallprevent the Placement Agent from entering into any agency agreements,underwriting agreements or other similar agreements governing the offer andsale of securities with any other issuer or issuers of securities, and nothingcontained herein shall be construed in any way as precluding or restricting theright of the Placement Agent to sell or offer for sale securities issued by anyperson; provided, however that the Placement Agent shall have no authority tobind the Company.

 

(e)          The Companyagrees that in connection with the placement of the Securities, the PlacementAgent may use such data and information that the Company furnishes to thePlacement Agent, subject to the limitations of Section 12.  The Placement Agent shall not deliver any ofsuch data and information to prospective Purchasers of the Securities unlessthe Company has given its prior express consent to such delivery.  The Placement Agent shall not distribute anyoffering material in connection with the offer and sale of the Securities otherthan the Private Placement Memorandum relating to the Securities dated on orabout the date hereof, as supplemented (the *“Placement Memorandum”*)or other materials consented to in advance by the Company.  Neither the Placement Agent nor any personemployed by the Placement Agent shall provide any information or make anyrepresentations to Purchasers other than such information and representationsas are contained in or incorporated by reference into the Placement Memorandumor as are not inconsistent with information set forth in the PlacementMemorandum and have been pre-approved by the Company in writing.

 

(f)            ThePlacement Agent represents and warrants, as of the date hereof and at the ClosingDate with respect to the issuance and sale of the Securities, that it islicensed as a broker-dealer authorized to offer and sell the Securities by theSecurities and Exchange Commission and 

 

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the securities authorities of each state in which thePlacement Agent will offer or has offered the Securities.

 

(g)         Theparties agree that (i) Securities may not be sold to any Purchaser, with theexception of HBI Private Equity Fund I, L.P., or affiliated entities, if suchpurchase would result in the Purchaser owning more than 9.0% of the outstandingshares of the Company’s common stock following this offering, (ii) in no eventwill the Securities offering price be less than the price of $13.00 set forthin the fairness opinion obtained by the Company on August 25, 2004, and (iii)the amount of Securities sold shall not exceed 19.0% of the Company’s commonstock outstanding before this offering.

 

*Section 3.**                  Representationsand Warranties of the Company.*  TheCompany hereby represents and warrants to, and agrees with, the PlacementAgent, that:

 

(a)          Atthe date hereof and at each closing date with respect to the issuance and saleof the Securities (each, a *“Closing Date”*),the Company has been and will have been duly organized and is and will bevalidly existing as a corporation in active status under the laws of the stateof its incorporation, with corporate power and authority to own or lease itsproperty and conduct its business as presently conducted.  At such date, the Company is duly qualifiedto transact business in all jurisdictions in which the conduct of its businessrequires such qualification and the failure to so qualify could reasonably beexpected to have a material adverse effect on the business or condition,financial or otherwise of the Company and its subsidiaries, taken as a whole (*“Material Adverse Effect”*).

 

(b)         Atthe date hereof and at the Closing Date, the Company has and will have thecorporate power and authority to authorize the issuance and sale of theSecurities as contemplated hereby.  Ateach such date, this Agreement has been and will have been duly and validly authorized,executed and delivered by the Company and constitutes and will constitute thelegal, valid and binding obligation of the Company, enforceable against theCompany in accordance with its terms, except as such obligations may be limitedby bankruptcy, insolvency, reorganization and other similar laws affecting therights of creditors generally and the application of general equitableprinciples (regardless of whether the issue of enforceability is considered ina proceeding in equity or at law).  Atthe Closing Date, all documents relating to the Securities issuance (the *“Transaction Documents”*) will have been duly and validlyauthorized, executed and delivered by the Company and will constitute thelegal, valid and binding obligations of the Company, enforceable against theCompany in accordance with their respective terms, except as such obligationsmay be limited by bankruptcy, insolvency, reorganization, and other similarlaws affecting the rights of creditors generally and the application of generalequitable principles (regardless of whether the issue of enforceability isconsidered in a proceeding in equity or at law).

 

(c)          Exceptas disclosed in writing to the Placement Agent, at the date hereof and at theClosing Date, the business and operations of the Company have been and will beconducted in compliance in all material respects with all applicable laws,rules and 

 

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regulations of all governmental and regulatoryauthorities having jurisdiction over the Company.  At each such date, the Company holds and isoperating in compliance with in all material respects, and will hold and willbe operating in compliance with in all material respects, all materiallicenses, approvals, certificates and permits from governmental and regulatoryauthorities which are necessary to the conduct of its businesses.  At each such date, no proceedings on the partof such governmental or regulatory authorities are or will be pending or, tothe Company’s knowledge, threatened which might result in the suspension,revocation or material limitation of any such licenses, approvals, certificatesand permits.  At each such date, eachapproval, consent, authorization, declaration or filing of the Company by orwith any regulatory, administrative or other governmental body which is thennecessary in connection with the execution and delivery by the Company of thisAgreement and the consummation of the transactions contemplated hereby andthereby has been and will have been obtained or made and is and will be in fullforce and effect.

 

(d)         Atthe date hereof and at the Closing Date, the Company is not or will not be inviolation of or default under its charter or bylaws or under any permit,judgment, decree, order, statute, rule or regulation applicable to the Company,or under any agreement, lease, contract, loan agreement, indenture or otherinstrument or obligation to which the Company is a party or by which it isbound, except where such violations or defaults could not reasonably beexpected to have a Material Adverse Effect. At each such time, the consummation of the transactions contemplatedhereby and the fulfillment of the terms hereof and of the Securities do not andwill not conflict with or result in a violation of or default under the charteror bylaws of the Company, or under any permit, judgment, decree, order,statute, rule or regulation applicable to the Company, or under any agreement,lease, contract, loan agreement, indenture or other instrument or obligation towhich the Company is a party or by which it or any of its properties is bound,except where such conflict, violation or default could not reasonably beexpected to have a Material Adverse Effect.

 

(e)          Thefinancial statements and schedules previously delivered to the Placement Agentfairly present, in all material respects, the financial condition and resultsof operations of the Company at the dates and for the periods presentedtherein.  Such financial statements havebeen prepared in accordance with generally accepted accounting principles consistentlyapplied throughout the periods presented, and all adjustments necessary for afair presentation of the financial condition and results of operations of theCompany at such dates and for such periods have been made (except in the caseof interim financial statements, year end adjustments or nonrecurring items).

 

(f)            Atthe date hereof, none of the Company, any affiliate of the Company, any personacting on behalf of the Company or any person acting on behalf of any suchaffiliate, has, directly or indirectly, offered or sold or attempted to offeror sell any of the Securities to, or solicited offers to purchase anySecurities from, any prospective purchaser thereof in such a manner as torequire the registration of the Securities under the 1933 Act, except aspreviously disclosed to the Placement Agent with respect to the Company’s “RabbiTrust.”

 

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(g)         Atthe date hereof and at the Closing Date, neither the Company nor any affiliateis or will be a party to or bound by any placement agency agreement, finder’sfee agreement, or other agreement pursuant to which either of them is or may berequired to pay any person other than the Placement Agent any commission,finder’s fee or other similar amount with respect to the placement and sale ofthe Securities or is restricted from offering or selling the Securities ascontemplated hereby.

 

(h)         Theinformation contained in the Placement Memorandum will not contain any untruestatement of a material fact or omit to state a material fact required to bestated therein or necessary to make the statements therein, in the light of thecircumstances under which they were made, not misleading.

 

(i)             Ifbetween the date of this Agreement and the Closing Date, the Company hasknowledge of a fact or event which would cause the Placement Memorandum tocontain an untrue statement of a material fact or to omit to state a materialfact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made, not misleading,the Company shall notify the Placement Agent and will amend or supplement thePlacement Memorandum in a form and in a manner reasonably approved by theCompany and the Placement Agent.

 

*Section 4.**                  CertainAgreements of the Company.*  TheCompany hereby agrees with the Placement Agent that:

 

(a)          Noneof the Company, any affiliate of the Company or any person acting on behalf ofthe Company or any such affiliate (other than the Placement Agent or any otherinvestment banking firm retained by the Placement Agent and approved by theCompany (an *“Approved Agent”*)), will, directly orindirectly, offer or sell or attempt to offer or sell any of the Securities to,or solicit offers to purchase any Securities from, any prospective Purchaserthereof, except pursuant to an exemption from, or in a transaction not subjectto, the registration requirements of the 1933 Act.  Until March 1, 2005, none of the Company, anyaffiliate of the Company or any person acting on behalf of the Company or anysuch affiliate (other than the Placement Agent) will, directly or indirectly,offer or sell or attempt to offer or sell any securities of the Company, or anyaffiliate of the Company, to, or solicit offers to purchase any such securitiesfrom, any non-insider to whom the Placement Agent offered to sell any of theSecurities.  Such persons will beidentified by the Placement Agent on the earlier of the Closing Date or on thetermination date set forth in Section 8 hereof.

 

(b)         TheCompany will make available to the Placement Agent and its counsel suchadditional documents and information regarding the Company as the PlacementAgent and such counsel may from time to time reasonably request.

 

(c)          TheCompany will make available to each potential Purchaser identified by thePlacement Agent, but subject to applicable law and in any case involvingnonpublic information to receipt by the Company from the potential Purchaser ofa confidentiality agreement satisfying (in the Company’s reasonable judgment)the 

 

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requirements of Rule 100(b)(2)(ii) ofRegulation FD under the 1933 Act, prior to the Closing Date, (i) suchinformation as may be requested by such potential Purchaser in order toevaluate an investment in the Securities, as applicable, and (ii) anopportunity to ask questions of, and receive answers from, the Company withrespect to such matters.

 

(d)         Ateach Closing Date, the Company will deliver to the Placement Agent the following:

 

(i)             theopinion of Keleher & McLeod, P.A., counsel to the Company, dated theClosing Date, in substantially the form as Exhibit A hereof;

 

(ii)          theopinion of regulatory counsel to the Company, dated the Closing Date, in formand substance acceptable to the Placement Agent;

 

(iii)       certificatessigned by the president or vice president of the Company dated the ClosingDate, to the effect that the respective representations and warranties of theCompany contained in this Agreement are true and correct in all materialrespects on and as of the Closing Date with the same effect as if made on theClosing Date, and that the Company has performed all the agreements andsatisfied all the conditions to be performed or satisfied by the Company, inall material respects, under this Agreement at or prior to the Closing Date;

 

(iv)      theexecuted Transaction Documents; and

 

(v)         suchadditional closing certificates, opinions and other closing documents as thePlacement Agent or its counsel may reasonably have requested.

 

The Placement Agent and its counsel shall be anaddressee of, or expressly authorized to rely upon, the certificates, opinionsof counsel and other closing documentation so delivered.  All such certificates, opinions of counseland other closing documentation, and the Securities shall be in form andsubstance reasonably satisfactory to the Placement Agent and its counsel.

 

(e)          Atany time that the Company is not subject to Section 13 or 15(d) of theSecurities Exchange Act of 1934, as amended (the *“1934 Act”*),the Company will furnish to any holder of the Securities and any prospectivepurchaser of the Securities, upon request of such holder or prospectivepurchaser, the information required to be delivered pursuant toRule 144A(d)(4) under the 1933 Act.  This covenant is intended to be for thebenefit of the prospective purchasers designated by such holders from time totime.

 

*Section 5.**                  Compensation;Payment of Expenses.*  (a) Inconsideration of the Placement Agent’s services hereunder, the Company agreesto pay to the Placement Agent a fee in an amount equal to four percent (4.00%)of the aggregate offering price of the Securities to investors other than theHBI Private Equity Fund I, L.P., or affiliated entities, and three percent(3.00%) for 

 

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such a placement. Such fee shall be paid by the Company to the Placement Agent inimmediately available funds on the Closing Date.  The Company shall have no obligation to payany fees with respect to any placement of Securities which is notcompleted.  The Placement Agent shall beresponsible for all fees payable to any Approved Agent.

 

(b)         Whetheror not the transaction contemplated hereby is consummated, the Company shallpay all costs, fees and expenses incurred by it in connection with suchtransactions, including, without limitation, (i) the fees and expenses ofcounsel to the Company and of the Company’s accountants and consultants,(ii) the expenses of preparing and reproducing the Securities, thePlacement Memorandum and the Transaction Documents, (iii) the expenses, fees(including any “Blue Sky” fees) and taxes, if any, incident to the issuance ofthe Securities, and (iv) the expenses of the Company’s performance of andcompliance with all agreements and conditions contained and incorporatedherein.

 

(c)          Otherthan the reasonable fees of counsel to the Placement Agent (not to exceed $5,000)and certain reasonable offering expenses (not to exceed $2,000), the Companyshall not be obligated to pay the costs, fees and expenses incurred by thePlacement Agent in connection with the transaction.  The Company is obligated to pay thereasonable fees of counsel to the Placement Agent and the reasonable offeringexpenses whether or not the transaction contemplated hereby is consummated.

 

*Section 6.**                  Conditionsto the Placement Agents’ Obligations.* The obligation of the Placement Agent to provide the services providedfor hereunder is subject to the accuracy of the representations and warrantiesof the Company contained herein and to the performance by the Company of itsagreements and obligations contained herein.

 

*Section 7.**                  Indemnificationand Contribution.*  (a) TheCompany agrees to indemnify and hold harmless the Placement Agent and eachperson, if any, who controls the Placement Agent within the meaning of the 1933Act or the 1934 Act (each, an *“Agent Indemnified Party”*),against any and all losses, claims, damages or liabilities to which thePlacement Agent or such controlling person may become subject insofar as suchlosses, claims, damages or liabilities (or actions or proceedings in respectthereof) arise out of or are based upon (i) any untrue statement oralleged untrue statement of a material fact contained in any offering materialsprepared by or on behalf of the Company in connection with the offer and saleof the Securities or in any information furnished or made available by or onbehalf of the Company to prospective Purchasers or their respectiverepresentatives (all such offering materials and information collectivelyreferred to herein as the *“Offering Materials”*)or any amendment thereof or supplement thereto, or (ii) the omission oralleged omission to state in the Offering Materials a material fact necessaryin order to make the statements therein, in the light of the circumstancesunder which they are made, not misleading, and will reimburse the PlacementAgent and each such controlling person for any legal or other expensesreasonably incurred by the Placement Agent or such controlling person in connectionwith investigating or defending against any such loss, claim, damage,liability, action or proceeding.  TheCompany shall not be liable hereunder to any Agent Indemnified Party to extentthat the losses, claims, damages or liabilities incurred by the AgentIndemnified Party arise from such person’s fraudulent act or omission.  This indemnity agreement will be in additionto any liability which the Company may otherwise have.

 

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(b)         ThePlacement Agent agrees to indemnify and hold harmless the Company and eachperson, if any, who controls the Company within the meaning of the 1933 Act orthe 1934 Act (each a *“Company Indemnified Party”*and together with the Agent Indemnified Parties, an *“IndemnifiedParty”*), against any and all losses, claims, damages or liabilitiesto which the Company or such controlling person may become subject insofar assuch losses, claims, damages or liabilities (or actions or proceedings inrespect thereof) arise out of or are based upon any untrue statement or allegeduntrue statement of a material fact contained in, or any omission or allegedomission from, any Offering Materials or any amendment thereof or supplementthereto to the extent the statement or alleged statement does not appear in thePlacement Memorandum and was made by the Placement Agent without priorauthorization by the Company as required by this Agreement, and will reimbursethe Company and each such controlling person for any legal or other expensesreasonably incurred by the Company or such controlling person in connectionwith investigating or defending against any such loss, claim, damage,liability, action or proceeding; *provided, however,*that the obligation of the Placement Agent to indemnify the Company IndemnifiedParties hereunder is limited to the total fees earned by the Placement Agenthereunder and costs, fees and expenses for which the Placement Agent has beenreimbursed by the Company.  The PlacementAgent shall not be liable hereunder to any Company Indemnified Party to theextent that the losses, claims, damages or liabilities incurred by the CompanyIndemnified Party arise from such person’s fraudulent act or omissions.  This indemnity agreement will be in additionto any liability which the Placement Agent may otherwise have.

 

(c)          Incase any proceeding (including any governmental investigation) shall beinstituted involving any Indemnified Party pursuant to this Section 7,such Indemnified Party shall promptly notify the party required to provideindemnification hereunder (the *“Indemnifying Party”*)in writing.  No indemnification providedfor in this Section 7 shall be available to any Indemnified Party whoshall fail to give written notice as provided in this Section 7(c) if theIndemnifying Party was unaware of the proceeding to which such notice wouldhave related and was prejudiced by the failure to give such notice, but thefailure to give such notice shall not relieve the Indemnifying Party from anyliability which it may have to the Indemnified Party for contribution orotherwise than on account of the indemnification provisions of thisSection 7.  In case any suchproceeding shall be brought against any Indemnified Party and it shall notifythe Indemnifying Party of the commencement thereof, the Indemnifying Partyshall be entitled to participate therein and assume the defense thereof withcounsel reasonably satisfactory to such Indemnified Party and shall pay asincurred the reasonable fees and disbursements of such counsel related to suchproceeding.  In any such proceeding, anyIndemnified Party shall have the right to retain its own counsel at its ownexpense.  Notwithstanding the foregoing,the Indemnifying Party shall pay as incurred the reasonable fees and expensesof the counsel retained by the Indemnified Party in the event that (i) theIndemnifying Party and the Indemnified Party shall have mutually agreed to theretention of such counsel or (ii) the named parties to any such proceeding(including any impleaded parties) include the Indemnifying Party and theIndemnified Party and representation of all parties by the same counsel would,in the reasonable judgment of the Indemnified Party, be inappropriate due toactual or potential differing interests between them or to differing or additionaldefenses which may be available to one of them. It is understood that the Indemnifying Party shall not, in connectionwith any proceeding or related proceedings in the same jurisdiction, be liablefor the fees and expenses of more than one 

 

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separate firm for all such Indemnified Parties.  The Indemnifying Party shall not be liablefor any settlement of any proceeding effected without its prior written consentbut if settled with such prior written consent or if there be a finalnonappealable judgment for the plaintiff, the Indemnifying Party agrees toindemnify the Indemnified Party from and against any loss or liability byreason of such settlement or judgment.

 

(d)         Ifthe indemnification provided for in this Section 7 is unavailable orinsufficient to hold harmless an Indemnified Party in respect of any losses,claims, damages or liabilities (or actions or proceedings in respect thereof)referred to therein, then the Indemnifying Party shall contribute to the amountpaid or payable by such Indemnified Party as a result of such losses, claims,damages or liabilities (or actions or proceedings in respect thereof) in suchproportion as is appropriate to reflect the relative benefits received by the Companyon the one hand and the Placement Agent on the other from the placement of theSecurities.  If, however, the allocationprovided by the immediately preceding sentence is not permitted by applicablelaw or if the Indemnified Party failed to give the written notice requiredunder Section 7(c) above, then the Company shall contribute to such amountpaid or payable by such Indemnified Party in such proportion as is appropriateto reflect not only such relative benefits but also the relative fault of theCompany on the one hand and the Placement Agent on the other in connection withthe statements or omissions which resulted in such losses, claims, damages orliabilities (or actions or proceedings in respect thereof), as well as anyother relevant equitable considerations. The relative benefits received by the Company on the one hand and thePlacement Agent on the other shall be deemed to be in the same proportion asthe total net proceeds from the placement received by the Company (afterdeducting the fee payable to the Placement Agent pursuant to Section 5(a)but before deducting other expenses payable by the Company) bear to the feereceived by the Placement Agent pursuant to Section 5(a).  The relative fault shall be determined byreference to, among other things, the parties’ relative intent, knowledge,access to information and opportunity to correct or prevent such statement oromission.  The amount paid or payable byan Indemnified Party as a result of the losses, claims, damages or liabilities(or actions or proceedings in respect thereof) referred to in thisSection 7(d) shall be deemed to include any legal or other expensereasonably incurred by such Indemnified Party in connection with investigatingor defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning ofSection 12(f) of the 1933 Act) shall be entitled to contribution from anyperson who was not guilty of such fraudulent misrepresentation.

 

(e)          Theobligations of the Company and the Placement Agent under this Section 7shall survive any termination of this Agreement, in whole or in part.

 

*Section 8.**                  Terminationof Agreement.*  Notwithstandinganything herein to the contrary, this Agreement: (a) shall be cancelled andterminated upon expiration or completion of the offering of Securities; and (b)may be cancelled and terminated by either party upon written notice to theother party in the event that (i) a party fails or refuses to perform anyof its respective agreements contained herein, (ii) any representation orwarranty of a party contained herein shall be untrue or incorrect or(iii) without cause upon 30 days prior written notice.  Any such cancellation shall be withoutliability of any party to any other party except that the provisions of Sections 5and 7 shall survive any such cancellation.

 

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*Section 9.**                  Representations,Warranties and Agreements to Survive.* All representations, warranties and agreements contained in thisAgreement or in closing documents delivered pursuant hereto shall remainoperative and in full force and effect regardless of any investigation made byor on behalf of the Placement Agent or the Company and shall survive deliveryof the Securities to the Purchasers.

 

*Section 10.**           Notices.*  All notices and other communications providedfor or permitted under this Agreement shall be in writing and shall be deemedto have been duly given if personally delivered, sent by courier or mailed byregistered mail, postage prepaid and return receipt requested, or transmittedby telecopy, telex or telegraph and confirmed by a similar mailed writing, ifto the Placement Agent, addressed to Howe Barnes Investments, Inc. at theaddress set forth on the first page of this Agreement, Attention:  Michael Iannaccone, telecopiernumber (312) 655-2680; and if to the Company, addressed to the Company at 5210Eubank N.E., P.O. Box 16810, Albuquerque, New Mexico 87191-6810,Attention:  Norman R. Corzine, telecopiernumber (505) 275-9350.

 

*Section 11.**           Parties.*  This Agreement shall inure to the benefit ofand be binding upon the Placement Agent, the Company and their respectivecontrolling persons and successors. Nothing in this Agreement is intended or shall be construed to give anyperson other than those referred to in the preceding sentence any legal orequitable right, remedy or claim under or in respect of this Agreement.  No Purchaser shall be deemed to be successorof the Company or the Placement Agent by reason of such purchase.  This Agreement cannot be assigned by a partyto this Agreement without the prior written consent of the other parties tothis Agreement.

 

*Section 12.**           Confidentiality.*  All information about the business,operations, activities and affairs of the Company shall be kept strictlyconfidential by the Placement Agent, shall not be used for the private benefitof the Placement Agent and the Placement Agent shall not disclose or permit thedisclosure of the same to any other person or entity without the Company’sprior consent, and even after obtaining such consent, in accordance withapplicable law.

 

*Section 13.**           Miscellaneous.*  This Agreement constitutes the entireagreement between the parties hereto with respect to the matters andtransactions contemplated hereby and supersedes all prior agreements andunderstandings whatsoever relating to such matters and transactions.  This Agreement may be amended only by writteninstrument executed by all parties hereto. Compliance with provisions of this Agreement may be waived only by writteninstrument executed by the party giving such waiver.  The headings in this Agreement are forreference only and shall not limit or otherwise affect the meaning of thisAgreement.  This Agreement may beexecuted in counterparts, each of which shall constitute an original but all ofwhich together shall constitute one instrument.

 

*Section 14.**           GoverningLaw.*  This Agreement shall begoverned by and construed in accordance with the laws of the State of NewMexico without regard to the conflict of laws provisions thereof.

 

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If the foregoing is in accordance with yourunderstanding, please sign and return to us the enclosed duplicate hereof,whereupon it will become a binding agreement between the undersigned inaccordance with its terms.

 
|   | Very truly yours,             |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | ACCESS ANYTIME BANCORP,  INC. |
|   |                          |
|   |                          |
|   | By                            | /s/ Norman R. Corzine |   |
|   |                          | Name: Norman R. Corzine |
|   |                          | Title: Chairman and  Chief Executive Officer |

 

ACCEPTEDAND AGREED to as of the date first written above:

 

HOWE BARNES INVESTMENTS,INC.

 

 
| By     | /s/ Daniel E. Coughlin                        |   |
|--------|-----------------------------------------------|--------|
|   | Name: Daniel E.  Coughlin                     |
|   | Title: President and  Chief Executive Officer |

 

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**EXHIBIT A**

 

**[FORM OF COMPANYCOUNSEL OPINION]**

 

September   , 2004

 

Howe Barnes Investments,Inc.222 South Riverside Plaza

7th FloorChicago, Illinois 60606-5808

 
| Re: |   | Access Anytime Bancorp,  Inc. |   |
|-----|--------|-------------------------------|--------|

 

Ladies and Gentlemen:

 

We have acted as counsel for Access Anytime Bancorp,Inc., a Delaware corporation (the *“Company”*), inconnection with the sale by the Company of its common stock in an aggregateamount of $3,120,000 (the *“Securities”*),pursuant to a Placement Agent Agreement, dated September 3, 2004 (the *“Placement Agreement”*), between you and the Company.  This Opinion Letter is being renderedpursuant to Section 4(d) of the Placement Agreement.  Except as otherwise indicated herein,capitalized terms used in this Opinion Letter are defined as set forth in thePlacement Agreement.  This Opinion Letteris limited to matters governed by the laws of the United States and the laws ofthe State of New Mexico.  We have notacted as counsel to the Company in connection with any federal or state bankingor financial institution matters, employee benefits or Employee Retirement IncomeSecurity Act matters or with the issuance of certain trust preferred securitiesissued by the Company on June 27, 2002 or July 17, 2001 (the “trust preferredsecurities”)(collectively, the “excluded matters”).

 

For purposes of this Opinion Letter, we have examinedthe original or a copy, certified or otherwise identified to our satisfactionas a true copy, of the following documents:

 

(i)             thePrivate Placement Memorandum, dated September    , 2004 (the *“Placement Memorandum”*) relating to the issuance and sale ofthe Securities;

 

(ii)          anexecuted copy of the Placement Agreement;

 

(iii)       aspecimen copy of the Securities;

 

(iv)      theCertificate of Incorporation or similar charter documents of the Company andeach of its subsidiaries;

 

(v)         Bylawsof the Company and each of its subsidiaries;

 

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(vi)   Resolutionsapproved by the Board of Directors of the Company on                     and September    , 2004, approving, among other things,execution and delivery of the Placement Agreement;

 

(vii)  A certificate of the Secretary of State ofDelaware, dated September    , 2004, attesting to the continuedcorporate existence and good standing of the Company in the State of Delawareand a certificate of the New Mexico Office of the Public Regulation Commission,dated September    , 2004, attesting to the authorization of theCompany to transact business in the State of New Mexico (collectively, the “goodstanding certificates”); and

 

(viii) Such otherdocuments as we have deemed necessary or appropriate as a basis for theopinions set forth below.

 

Based upon and subject to the foregoing, we are of theopinion that:

 

A.           TheCompany has been duly incorporated, is validly existing as a corporation underthe laws of the State of Delaware, has the corporate power and authority to ownits property and to conduct its business as described in the PlacementMemorandum and is duly qualified to transact business and is in good standingin each jurisdiction in which the conduct of its business or its ownership orleasing of property requires such qualification, except to the extent that thefailure to be so qualified or be in good standing would not have a materialadverse effect on the Company and its subsidiaries, taken as a whole.  In giving the opinion in this paragraph A, wehave relied solely upon the good standing certificates and no other inquiry orinvestigation has been made.

 

B.             ThePlacement Agreement has been duly authorized, executed and delivered by theCompany.

 

C.             TheSecurities have been duly authorized by the Company and, when executed anddelivered to and paid for by the purchasers, will be duly and validly issued,fully paid and non-assessable.

 

D.            Theexecution and delivery by the Company of, and the performance by the Company ofits obligations under, the Placement Agreement and the Securities will notcontravene any provision of applicable law or the Certificate of Incorporationor Bylaws of the Company or, to the best of our knowledge, any agreement orother instrument binding upon the Company or any of its subsidiaries that ismaterial to the Company and its subsidiaries, taken as a whole, or, to ourknowledge, any judgment, order or decree of any governmental body, agency orcourt having jurisdiction over the Company or any subsidiary, and no consent, approval,authorization or order of, or qualification with, any governmental body oragency is required for the performance by the Company of its obligations underthe Placement Agreement or the Securities, except such as may be required bythe 1933 Act and the securities or Blue Sky laws of the various states inconnection with the offer and sale of the Securities and further excepted thatin giving the opinions in this paragraph D, we express no opinion as to anylaws, agreements, judgments, orders, decrees, consents, approvals,authorizations or qualifications related to such excluded matters.

 

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E.              Afterdue inquiry, we do not know of any legal or governmental proceedings pending orthreatened to which the Company or any of its subsidiaries is a party or towhich any of the properties of the Company or any of its subsidiaries issubject other than proceedings fairly summarized in all material respects inthe Placement Memorandum or in documents incorporated by reference therein andproceedings which we believe are not likely to have a material adverse effecton the Company and its subsidiaries, taken as a whole, or on the power orability of the Company to perform its obligations under the Placement Agreementor the Securities or to consummate the transactions contemplated by thePlacement Memorandum.

 

F.              Basedupon the representations, warranties and agreements of the Company inSections 3(f) and 4 of the Placement Agreement and of the Placement Agentin Section 2(b) of the Placement Agreement, it is not necessary inconnection with the offer, sale and delivery of the Securities to thepurchasers to register the Securities under the Securities Act of 1933, asamended (the *“Securities Act”*), it being understoodthat no opinion is expressed as to any subsequent resale of any Security.  Also, we are not opining on the effect, ifany, of certain sales of common stock by the trustee of the Company’s RabbiTrust described in the Company’s Quarterly Report on Form 10-QSB for thequarter ended June 30, 2004.

 

In addition, we have participated in conferences withofficers and other representatives of the Company, representatives of theindependent accountants for the Company and you and your counsel at which thecontents of the Placement Memorandum and related matters were discussed.  Although we are not passing upon, and do notassume any responsibility for, the accuracy, completeness or fairness of thestatements contained in or incorporated by reference into the PlacementMemorandum, and have made no independent check or verification thereof, nothinghas come to our attention that causes us to believe that the PlacementMemorandum (except for the financial statements and financial schedules andother financial and statistical data, as to which we do not express any belief)when issued contained, or as of the date hereof contains, any untrue statementof a material fact or omitted or omits to state a material fact necessary inorder to make the statements therein, in the light of the circumstances underwhich they were made, not misleading. For purposes of the foregoing, we note that the Placement Memorandum hasbeen prepared in the context of a Regulation D transaction involving salesonly to accredited investors and not as part of a registration statement underthe Securities Act and may not contain all of the information that would berequired in a registration statement under the Securities Act.

 

In rendering this Opinion Letter, we have relied as tomatters of fact on (1) the representations and warranties of the Companyand the Placement Agent set forth in the Placement Agreement and(2) certificates of responsible officers of the Company and of publicofficials.

 

The qualificationof any opinion or statement herein by the use of the words “to our knowledge”or “known to us” means that, during the course of representation as describedin this Opinion Letter, no information has come to the attention of the lawyersin this firm involved in the transactions described which would give suchlawyers current actual knowledge of the existence of the facts soqualified.  Except as set forth herein,we have not undertaken any investigation to determine the existence of suchfacts, and no inference as to our knowledge thereof shall be drawn from thefact of our representation of any party or otherwise.

 

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This OpinionLetter (a) has been furnished to you at the request of the Company, and weconsider it to be a confidential communication that may not be furnished,reproduced, distributed or disclosed to anyone without our prior writtenconsent; (b) is rendered solely for your information and assistance inconnection with the transaction described above and may not be relied upon byany other person or for any other purpose without our prior written consent;(c) is rendered as of the date hereof, and we undertake no, and hereby disclaimany, obligation to advise you of any changes or any new developments whichmight affect any matters or opinions set forth herein; and (d) is limited tothe matters stated herein and no opinions may be inferred or implied beyond thematters expressly stated herein.

 

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