<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-Q
(MARK ONE)
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 1-12365
----------------
BA MERCHANT SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 94-3252840
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
ONE SOUTH VAN NESS AVENUE
SAN FRANCISCO, CALIFORNIA 94103
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
415-241-3390
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
----------------
NONE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR,
IF CHANGED SINCE LAST REPORT)
----------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes^[X] No [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class A Common Stock, $0.01 par value--16,241,092 outstanding on June 30, 1997
Class B Common Stock, $0.01 par value--30,350,000 outstanding on June 30, 1997
This document serves both as an analytical review for analysts,
shareholders, and other interested persons, and as the quarterly report on
Form 10-Q of BA Merchant Services, Inc. to the Securities and Exchange
Commission, which has taken no action to approve or disapprove the report or
to pass upon its accuracy or adequacy. Additionally, this document is to be
read in conjunction with BA Merchant Services, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1996, including the consolidated
financial statements and notes thereto.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
INDEX
BA MERCHANT SERVICES, INC.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements:
Consolidated Balance Sheet.............................................. 1
Consolidated Statement of Operations.................................... 2
Consolidated Statement of Cash Flows.................................... 3
Consolidated Statement of Changes in Stockholders' Equity............... 4
Notes to Consolidated Financial Statements.............................. 5
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations:
Highlights.............................................................. 9
Results of Operations................................................... 9
Balance Sheet Review ................................................... 10
Liquidity and Capital Resources......................................... 10
Forward-Looking Statements.............................................. 10
PART II OTHER INFORMATION
Item 2(c). Changes in Securities: Equity Securities Sold That Were Not
Registered Under the Securities Act................................ 11
Item 4. Submission of Matters to a Vote of Security Holders............... 11
Item 6. Exhibits and Reports on Form-8-K.................................. 12
Exhibit Index............................................................. 13
</TABLE>
i
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BA MERCHANT SERVICES, INC.
CONSOLIDATED BALANCE SHEET
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
----------- ------------
(UNAUDITED)
ASSETS
------
<S> <C> <C>
Current assets:
Cash and cash equivalents........................... $218,497 $138,398
Short-term investments.............................. 21,571 --
Drafts in transit................................... 28,331 87,803
Accounts receivable................................. 45,719 35,282
Other current assets................................ 11,032 4,778
-------- --------
Total current assets.............................. 325,150 266,261
Property and equipment, net........................... 18,056 16,760
Other assets.......................................... 7,911 3,700
-------- --------
Total assets...................................... $351,117 $286,721
======== ========
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
<S> <C> <C>
Current liabilities:
Accounts payable.................................... $ 741 $ 415
Merchants payable................................... 54,528 14,092
Accrued liabilities................................. 5,373 5,603
Accrued credit card association and interchange
fees............................................... 9,346 5,060
Income taxes payable................................ 4,321 3,188
Other current liabilities........................... 8,338 6,238
-------- --------
Total current liabilities......................... 82,647 34,596
-------- --------
Stockholders' equity:
Class A Common Stock, par value $0.01 (authorized
200,000,000 shares; issued and outstanding 16,241,092
shares).............................................. 162 162
Class B Common Stock, par value $0.01 (authorized
50,000,000 shares; issued and outstanding 30,350,000
shares).............................................. 304 302
Additional paid-in capital............................ 249,985 249,622
Retained earnings..................................... 17,972 2,039
Accumulated foreign currency translation adjustments.. 47 --
-------- --------
Total stockholders' equity........................ 268,470 252,125
-------- --------
Total liabilities and stockholders' equity........ $351,117 $286,721
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
1
<PAGE>
BA MERCHANT SERVICES, INC.
CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
(DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
--------------- ---------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Net revenue.................................... $35,965 $31,430 $68,855 $59,672
------- ------- ------- -------
Operating expense (Note 6):
Data processing and communications........... 8,228 7,055 15,793 13,733
Salaries and employee benefits............... 7,805 6,220 15,207 12,180
General and administrative................... 4,327 4,191 8,961 7,390
Depreciation................................. 2,556 2,134 4,656 4,037
Occupancy.................................... 653 468 1,273 936
Amortization of intangibles.................. 108 282 221 570
------- ------- ------- -------
Total operating expense.................... 23,677 20,350 46,111 38,846
------- ------- ------- -------
Income from operations......................... 12,288 11,080 22,744 20,826
Net interest income............................ 2,563 -- 4,413 --
------- ------- ------- -------
Income before income taxes..................... 14,851 11,080 27,157 20,826
Provision for income taxes..................... 6,138 4,577 11,224 8,602
------- ------- ------- -------
Net income................................. $ 8,713 $ 6,503 $15,933 $12,224
======= ======= ======= =======
Earnings per common and common equivalent
share......................................... $ 0.19 N/A $ 0.34 N/A
Earnings per common share--assuming full
dilution...................................... $ 0.19 N/A $ 0.34 N/A
</TABLE>
See Notes to Consolidated Financial Statements.
2
<PAGE>
BA MERCHANT SERVICES, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
------------------
1997 1996
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income................................................. $ 15,933 $ 12,224
Adjustments to net income to arrive at cash provided by
operating activities:
Depreciation............................................. 4,656 4,037
Amortization of intangibles.............................. 221 570
Provision for (benefit from) deferred income taxes....... (755) 671
Amortization of restricted stock......................... 373 --
Amortization of loan fees................................ 169 --
Changes in operating assets and liabilities:
(Increase) decrease in drafts in transit............... 59,472 (10,220)
(Increase) in accounts receivable...................... (10,437) (1,558)
(Increase) in other current assets..................... (6,254) (94)
Increase (decrease) in accounts payable................ 326 (134)
Increase in current income taxes payable............... 1,133 --
Increase in merchants payable.......................... 40,436 2,535
Increase (decrease) in accrued liabilities............. (230) 125
Increase (decrease) in accrued credit card association
and interchange fees.................................. 4,286 (754)
Other, net............................................. (1,746) (639)
-------- --------
Net cash provided by operating activities............ 107,583 6,763
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment......................... (5,847) (6,316)
Purchase of short-term investments......................... (21,571) --
-------- --------
Net cash used for investing activities............... (27,418) (6,316)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in underwriting expense........................... (113) --
BAC's change in funding.................................... -- 225
-------- --------
Net cash provided by (used for) financing activities. (113) 225
-------- --------
EXCHANGE RATE EFFECT ON CASH............................... 47 --
-------- --------
Increase in cash and cash equivalents...................... 80,099 672
Cash and cash equivalents at beginning of period........... 138,398 345
-------- --------
Cash and cash equivalents at end of period................. $218,497 $ 1,017
======== ========
CASH PAID DURING THE PERIOD FOR:
Income taxes............................................. $ 10,846 $ 7,931
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
3
<PAGE>
BA MERCHANT SERVICES, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(UNAUDITED)
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30,
------------------
1997 1996
-------- --------
<S> <C> <C>
CLASS A COMMON STOCK:
Balance at beginning of period.............................. $ 162 $ --
Issuance of additional stock................................ -- --
Dividends................................................... -- --
-------- --------
Balance at end of period.................................. 162 --
CLASS B COMMON STOCK:
Balance at beginning of period.............................. 302 --
Issuance of additional stock................................ 2 --
-------- --------
Balance at end of period.................................. 304 --
ADDITIONAL PAID-IN CAPITAL:
Balance at beginning of period.............................. 249,622 --
Amortization of unvested portion of restricted stock........ 373 --
Additional underwriting expenses............................ (113) --
Issuance of additional stock................................ 103 --
-------- --------
Balance at end of period.................................. 249,985 --
CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENT:
Balance at beginning of period.............................. -- --
Translation adjustments..................................... 47 --
-------- --------
Balance at end of period.................................. 47 --
RETAINED EARNINGS:
Balance at beginning of period.............................. 2,039 --
Net income.................................................. 15,933 --
-------- --------
Balance at end of period.................................. 17,972 --
BAC'S EQUITY INTEREST:
Balance at beginning of period.............................. -- 99,168
Net income.................................................. -- 12,224
BAC's change in funding..................................... -- 225
-------- --------
Balance at end of period.................................. -- 111,617
-------- --------
Total stockholders' equity end of period................ $268,470 $111,617
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
4
<PAGE>
BA MERCHANT SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1--ORGANIZATION AND NATURE OF OPERATIONS
BA Merchant Services, Inc. ("BAMS" or the "Company") was incorporated on
October 11, 1996 and commenced operations December 4, 1996, upon the transfer
by Bank of America National Trust & Savings Association (the "Bank") and Bank
of America NW, National Association ("BANW", formerly Seattle-First National
Bank) of their respective United States merchant processing businesses to BAMS
in consideration for 30.2 million shares of Class B Common Stock (the
"Reorganization"). Effective January 1, 1997, BANW was merged into the Bank.
The Bank is a wholly owned subsidiary of BankAmerica Corporation ("BAC").
References in the consolidated financial statements and these Notes to
Consolidated Financial Statements to "BAC" shall be deemed to be references to
BankAmerica Corporation and its subsidiaries and affiliates, including the
Bank and, prior to January 1, 1997, BANW. The Bank owns 100% of the Company's
Class B Common Stock.
BAC's transfer to BAMS of certain assets and liabilities of its United
States merchant processing businesses (net assets) was accounted for as a
reorganization of entities under common control and, accordingly, the transfer
of these net assets was accounted for at historical cost. Included in the
transfer of net assets was Seafirst Merchant Services, Inc., a wholly owned
subsidiary of BANW.
During December 1996, BAMS issued 16.1 million shares of Class A Common
Stock in underwritten initial public offerings (the "Offerings") which
generated gross cash proceeds of $249.6 million less the underwriters'
discount and expense totaling $16.7 million, resulting in net cash proceeds of
$232.9 million. In late December 1996, $126.3 million of the net proceeds were
used to pay down the outstanding balance on a revolving line of credit with an
affiliate. The borrowings had been used to finance operations between the
Reorganization and the Offerings.
In connection with the Reorganization, BAMS entered into a definitive
agreement with BAC to acquire its merchant processing businesses in Thailand
(the "Thailand Operations") and the Philippines and to work cooperatively to
allow BAMS to acquire BAC's merchant processing businesses in Taiwan and other
countries in Asia, subject to the approval of the local regulatory authorities
in each country. On June 2, 1997, BAMS acquired the Thailand Operations (net
assets of approximately $132,000) in consideration for the issuance by the
Company of 150,000 shares of Class B Common Stock. The acquisition of the
Thailand Operations was accounted for as a reorganization of entities under
common control and, accordingly, the transfer of net assets was accounted for
at historical cost. The accompanying consolidated financial statements include
the financial results of the Thailand Operations only since June 2, 1997.
Periods prior to June 2, 1997 have not been restated because the impact would
not be material to the consolidated financial statements.
BAMS provides an array of payment processing and related information
products and services to merchants throughout the United States and certain
Asian countries who accept credit, charge and debit cards as payment for goods
and services. BAMS is one of the largest processors of merchant debit and
credit card transactions in the United States.
NOTE 2--FINANCIAL STATEMENT PRESENTATION
The unaudited consolidated financial statements of BAMS and its subsidiary,
Seafirst Merchant Services, Inc., are prepared in conformity with generally
accepted accounting principles for interim financial information, the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X. In the opinion of
management, all adjustments necessary for a fair presentation of the financial
position and results of operations for the periods presented have been
included. All such adjustments are of a normal recurring nature. These
unaudited financial statements should be read in conjunction with the audited
consolidated financial statements included in BAMS' Annual Report on Form 10-K
for the year ended December 31, 1996. Results for the interim periods should
not be considered indicative of results to be expected for the full year.
5
<PAGE>
BA MERCHANT SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The accompanying consolidated financial statements have been prepared as if
BAMS had operated as a separate entity for all periods presented. The
Statements of Operations for the three and six month periods ended June 30,
1996 represent the combined historical results of operations of the United
States merchant processing businesses of BAC. Financial statements for periods
presented subsequent to the Reorganization include the consolidated results of
operations and assets and liabilities of the Company. For simplicity of
presentation, these financial statements are referred to herein as
Consolidated Financial Statements.
Prior to the Reorganization, changes in BAC's equity interest represented
net income of the Company adjusted for net cash transfers to and from BAC.
Additionally, the pre-Reorganization Consolidated Financial Statements include
allocations of certain assets (primarily property and equipment) and expenses
relating to the merchant processing businesses transferred from BAC.
Management believes these allocations are reasonable. Certain of the pre-
Reorganization expenses in the Consolidated Financial Statements are not
necessarily indicative of the costs that would have been incurred if the
Company had performed these functions as a stand-alone entity. Therefore,
prior to the Reorganization, the Consolidated Financial Statements may not
necessarily reflect the Company's consolidated results of operations, changes
in equity and cash flows as they would have been had the Company been a
separate, stand-alone entity during the periods presented. Subsequent to the
Reorganization, the Company performed these functions using its own resources
and purchased services (from BAC and other companies) and was responsible for
the costs and expenses associated with the management of a stand-alone entity.
Certain amounts in prior periods have been reclassified to conform to the
current presentation.
NOTE 3--INCOME TAXES
The following is a summary of the components of income tax expense:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED SIX MONTHS
JUNE 30, ENDED JUNE 30,
------------- --------------
1997 1996 1997 1996
------ ------ ------- ------
(DOLLAR AMOUNTS IN
THOUSANDS)
<S> <C> <C> <C> <C>
Provision for income taxes:
Federal.................................... $4,754 $3,517 $ 8,693 $6,609
State...................................... 1,384 1,060 2,531 1,933
------ ------ ------- ------
Total.................................... $6,138 $4,577 $11,224 $8,602
====== ====== ======= ======
</TABLE>
BAMS' estimated annual effective income tax rate for the three and six month
periods ended June 30, 1997 and 1996 was 41.3%. This rate is higher than the
federal statutory tax rate of 35% due principally to state income taxes.
Income taxes payable to BAC were $2.8 million at June 30, 1997 and $3.2
million at December 31, 1996.
6
<PAGE>
BA MERCHANT SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 4--EARNINGS PER COMMON SHARE
Historical earnings per share have not been presented for the three and six
month periods ended June 30, 1996 since the Company had no outstanding stock as
of that date and such information would not be meaningful. Pro forma earnings
per share for the three and six month periods ended June 30, 1996 are listed
below and have been computed by dividing net income by the weighted average
number of common shares outstanding assuming the stock issued in the
Reorganization and Offerings had been outstanding since January 1, 1994.
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
--------------- ---------------
1997 1996 1997 1996
------- ------- ------- -------
(AMOUNTS IN THOUSANDS, EXCEPT
EARNINGS
PER SHARE DATA)
<S> <C> <C> <C> <C>
Net income................................ $ 8,713 $ 6,503 $15,933 $12,224
Average number of shares outstanding...... 46,687 N/A 46,687 N/A
Pro forma average number of shares
outstanding.............................. N/A 46,300 N/A 46,300
Earnings per share........................ $ .19 N/A $ .34 N/A
Pro forma earnings per share.............. N/A $ .14 N/A $ .26
Pro forma earnings per share, as adjusted
(a)...................................... N/A $ .16 N/A $ .31
</TABLE>
- --------
(a) Pro forma earnings per share, as adjusted, assumes that proceeds from the
Offerings in the fourth quarter of 1996 were available from January 1, 1994
and were invested in short-term investments.
NOTE 5--CHANGES IN EARNINGS PER SHARE CALCULATIONS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS No.
128"), which is effective for periods ending after December 15, 1997. BAMS
expects to adopt SFAS No. 128 in the fourth quarter of 1997. Upon the adoption,
BAMS will be required to change the method currently used to compute earnings
per share and to restate all prior periods presented. SFAS No. 128 eliminates
"primary" earnings per share and earnings per share, assuming full dilution,
and requires only "basic" and "diluted" earnings per share. As a result, under
the new requirements, BAMS' computation of earnings per common and common
equivalent share will be replaced by earnings per common share which excludes
any dilutive effects of outstanding stock options and warrants. Also, BAMS'
computation of earnings per common share, assuming full dilution, will be
replaced with diluted earnings per share and will be based on the average
market price of the Class A Common Stock for the period. There is no impact
expected in connection with the adoption of SFAS No. 128 for the three and six
month periods ended June 30, 1997.
NOTE 6--RELATED PARTIES
The Company and BAC engage in various intercompany transactions and
arrangements including the provision by BAC of various services to the Company.
Such services are currently provided pursuant to various intercompany
agreements which, among other things, grant to the Company a license to use the
Bank of America name and certain trademarks and service marks in connection
with the Company's business.
Additional services provided under the intercompany agreements include
product distribution services, direct access processing services, direct access
marketing services, system support services, association and network
sponsorship and representation in the credit card associations,
telecommunications services, tax and treasury services, regulatory and
compliance, legal, accounting and audit services and other miscellaneous
support and administrative services.
7
<PAGE>
BA MERCHANT SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The Company believes that the cost of services provided under the
intercompany arrangements are not materially different from the costs that
would have been incurred if the Company were unaffiliated with BAC.
NOTE 7--SUBSEQUENT EVENTS
On July 1, 1997, BAMS acquired BAC's merchant processing business in the
Philippines (net assets of approximately $263,000) in consideration for the
issuance by BAMS of 550,000 shares of Class B Common Stock. Based on levels of
sales volume processed, the Philippines and Thailand (see Note 1) merchant
processing businesses represent approximately one percent of BAMS' volume as
of June 30, 1997. Unaudited pro forma financial information is not presented
for the Philippines acquisition as the impact thereof would not be material to
the Consolidated Financial Statements.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
HIGHLIGHTS
Sales processed by BA Merchant Services, Inc. ("BAMS" or the "Company") for
the first six months of 1997 were up $2.9 billion or 25 percent over the same
period last year and reflect the expansion of internal sales staff. During the
six month period ended June 30, 1997, BAMS opened sales offices in Orlando,
Florida; Atlanta, Georgia; Philadelphia, Pennsylvania; and Boston,
Massachusetts. Additionally, BAMS now has a sales presence in Colorado,
Nebraska and Oklahoma.
BAMS completed the acquisition of two Asian merchant processing businesses
of BankAmerica Corporation ("BAC"). The BAC Thailand and Philippines merchant
processing businesses were acquired on June 2 and July 1, 1997, respectively,
in consideration for the issuance by BAMS of a total of 700,000 shares of
Class B Common Stock. See Notes 1 and 7 to the Consolidated Financial
Statements for a more detailed description of these transactions. These
acquisitions provide BAMS an entry into selected Asian markets which BAMS
believes to have potential for significant future growth. Based on levels of
sales volume processed, these two businesses represent approximately one
percent of BAMS' volume as of June 30, 1997.
During the second quarter of 1997, the Company successfully converted and
integrated its Northwest operations acquired from Bank of America NW, National
Association ("BANW") into its primary merchant accounting system in San
Francisco. With one merchant accounting system for merchants in the United
States, BAMS expects to reduce costs by eliminating duplicate back office
operations and computer systems and restructuring certain customer service
functions.
The Company substantially completed the conversion of United States
merchants from its old transaction processing system to its new advanced
transaction processing system called Hostlink(TM) during the second quarter.
The new system is expected to allow the Company to reduce its dependence on
third party vendors and reduce incremental costs of processing new merchants.
RESULTS OF OPERATIONS
Second Quarter Review
Net Revenue--For the three-month period ended June 30, 1997, net revenue was
$36.0 million, up $4.5 million, or 14 percent over the three-month period
ended June 30, 1996. This increase was primarily attributable to a
$1.6 billion or 26 percent increase in sales volume processed over the
comparable prior year quarter. Increased sales volume resulted primarily from
growth in the Company's merchant base through continued emphasis on marketing
and sales growth, including expansion in new sales territories, such as New
York and Chicago. The growth rate in net revenue was lower than that for sales
volume processed primarily as a result of greater sales volume growth in lower
spread business (debit card and high volume merchants) and to a lesser degree,
declining spreads in existing business consistent with historical competitive
trends in the merchant processing industry.
Operating Expense--Total operating expense was $23.7 million for the second
quarter of 1997, an increase of $3.3 million, or 16 percent over the same
period a year ago. This increase was primarily attributable to a 25 percent
($1.6 million) increase in salaries and employee benefits, reflecting growth
in direct sales staff and related support personnel, and a 17 percent ($1.2
million) increase in data processing and communications expense due to
increased authorization expense and data processing contract services related
to growth in transaction volume.
Six Month Review
Net Revenue--Net revenue was $68.9 million for the first six months of 1997,
up 15 percent over the 1996 comparable period. Sales volume processed for the
six months ended June 30, 1997 was $14.3 billion, an increase of $2.9 billion
or 25 percent over the first six months of 1996. The net revenue percentage
growth rate was lower than the sales volume processed growth rate for the same
reasons discussed above.
9
<PAGE>
Operating Expense--Total operating expense for the first six months of 1997
increased 19 percent over the 1996 comparable period. On the same comparative
basis, salaries and employee benefits increased 25 percent and data processing
and communications increased 15 percent for the same reasons discussed for the
second quarter. General and administrative expense for the 1997 six month
period increased 21 percent over the comparable 1996 period, due to: (1)
increased merchant supplies expense from increased sales volume processed,
(2) increased administrative expense associated with being an independent
company (including insurance, accounting and financial reporting expense) and
(3) a one-time expense associated with the startup cost of a new merchant.
BALANCE SHEET REVIEW
The Company's assets totaled $351.1 million as of June 30, 1997, up $64.4
million from December 31, 1996. The increase was primarily due to increases in
cash and cash equivalents and short-term investments ($101.7 million) and
accounts receivable ($10.4 million), partially offset by a $59.5 million
decrease in drafts in transit. Total liabilities at June 30, 1997 amounted to
$82.7 million, up $48.1 million from December 31, 1996 primarily as a result
of a $40.4 million increase in merchants payable.
The balances in cash and cash equivalents, short-term investments, drafts in
transit and merchants payable can fluctuate greatly depending on the day of
the week in which the reporting period ends. The timing of payments received
from credit card associations and debit card networks, remittances to
merchants and weekend processing influence these balances. While the
individual balances in these accounts at June 30, 1997 were significantly
different from the balances at December 31, 1996, the net total of these
combined accounts was $213.9 million at June 30, 1997, versus $212.1 million
at December 31, 1996. The increase in accounts receivable was due to the
integration of BAMS' Northwest operations into its primary merchant accounting
system in San Francisco which shifted the collection of discount fees from the
last day of the month to the first few days of the next month.
LIQUIDITY AND CAPITAL RESOURCES
The Company generated net cash from operating activities of $107.6 million
and $6.8 million for the six month periods ended June 30, 1997 and 1996,
respectively. The increase for the 1997 period was primarily related to the
$59.5 million decrease in drafts in transit and the $40.4 million increase in
merchants payable as described above. Prior to the time BAC transferred its
merchant processing businesses to the Company in the fourth quarter of 1996,
funds generated by the Company's operations and not used for investments were
remitted to BAC.
Working capital improved by $10.8 million to $242.5 million at June 30,
1997. Average cash and cash equivalent and short-term investment balances were
$168.8 million during the six months ended June 30, 1997. The Company
anticipates utilizing these balances for funding the daily cash needs of the
business as well as for acquisitions, strategic technology investments and the
funding of research and product development.
The Company has a commitment for a $70 million revolving line of credit with
an affiliate. The commitment was not utilized as of June 30, 1997.
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements, usually containing the
words "estimate", "project", "expect" or similar expressions. These statements
are subject to uncertainties, including those discussed in this report and in
Management's Discussion and Analysis of Financial Condition and Results of
Operations--"Forward-Looking Statements" in BAMS' Annual Report on Form 10-K
for the year ended December 31, 1996, that could cause actual results to
differ materially. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof.
10
<PAGE>
PART II
OTHER INFORMATION
ITEM 2(C). CHANGES IN SECURITIES: EQUITY SECURITIES SOLD THAT WERE NOT
REGISTERED UNDER THE SECURITIES ACT
During the second quarter of 1997, BAMS issued shares of Class B Common
Stock to BAC in exchange for the Thailand merchant processing business of BAC.
After June 30, 1997, BAMS issued additional shares of Class B Common Stock to
BAC in exchange for the Philippines merchant processing business of BAC.
Each share of Class B Common Stock is convertible into one share of Class A
Common Stock at the holder's option. Details regarding the conversion features
are contained in BAMS' 1996 Annual Report on Form 10-K, Part II, Item 5 and
are incorporated herein by reference.
Thailand Acquisition: On June 2, 1997, BAMS issued 150,000 shares of Class
Common Stock to BAC in exchange for BAC's merchant processing operations in
Thailand. No underwriter was involved in the transaction. The transaction was
exempt from registration under Section 4 (2) of the Securities Act of 1933,
because it was a transaction of the issuer not involving any public offering.
Philippines Acquisition: On July 1, 1997, BAMS issued 550,000 shares of
Class B Common Stock to BAC in exchange for BAC's merchant processing
operations in the Philippines. No underwriter was involved in the transaction.
The transaction was exempt from registration under Section 4 (2) of the
Securities Act of 1933, because it was a transaction of the issuer not
involving any public offering.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Set forth below is information concerning each matter submitted to a vote at
the Annual Meeting of Stockholders on May 28, 1997 ("Annual Meeting"):
Directors: Each of the following persons was elected as a director of BAMS,
to hold office until the 1998 Annual Meeting of Stockholders or until earlier
retirement, resignation or removal.
<TABLE>
<CAPTION>
NUMBER OF VOTES
--------------------
DIRECTOR'S NAME FOR WITHHELD
--------------- ----------- --------
<S> <C> <C>
Sharif M. Bayyari.................................. 313,205,650 89,450
Barbara J. Desoer.................................. 313,202,050 93,050
Donald R. Dixon.................................... 313,265,000 30,100
William E. Fisher.................................. 313,265,100 30,000
James G. Jones..................................... 313,261,500 33,600
H. Eugene Lockhart................................. 313,204,050 91,050
Thomas E. Peterson................................. 313,203,950 91,150
</TABLE>
11
<PAGE>
Long-Term Incentive Plan: The stockholders approved the adoption of the BA
Merchant Services, Inc. Long-Term Incentive Plan.
<TABLE>
<CAPTION>
NUMBER OF VOTES
-------------------------------------------
BROKER
FOR AGAINST ABSTENTIONS NON-VOTES
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Long-Term Incentive Plan........ 307,986,180 3,665,525 15,297 1,628,098
Short-Term Incentive Plan: The stockholders approved the adoption of the BA
Merchant Services, Inc. Short-Term Incentive Plan.
<CAPTION>
NUMBER OF VOTES
-------------------------------------------
BROKER
FOR AGAINST ABSTENTIONS NON-VOTES
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Short-Term Incentive Plan....... 312,631,963 648,790 14,347 0
Auditors: The shareholders ratified the appointment of Ernst & Young LLP,
Certified Public Accountants, as independent auditors of the Company for 1997.
<CAPTION>
NUMBER OF VOTES
-------------------------------------------
BROKER
FOR AGAINST ABSTENTIONS NON-VOTES
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Ernst & Young LLP as Independent
Auditors....................... 313,281,503 3,900 9,697 0
</TABLE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
<TABLE>
<C> <S>
3.b BA Merchant Services, Inc. Bylaws, as amended. Article II, Section 13
and Article II, Section 14 were amended, effective May 28, 1997.
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K:
The Company did not file any reports on Form 8-K during the quarterly period
ended June 30, 1997.
12
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
REFERENCE DESCRIPTION
--------- -----------
<C> <S>
3.b BA Merchant Services, Inc. Bylaws, as amended. Article II, Section
13 and Article II, Section 14 were amended, effective May 28, 1997.
27 Financial Data Schedule
</TABLE>
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BA MERCHANT SERVICES, INC.
(Registrant)
By Principal Executive Officer and
Duly Authorized Signatory:
/s/ Sharif M. Bayyari
_____________________________________
SHARIF M. BAYYARI
President and Chief Executive
Officer
August 13, 1997
By Principal Financial Officer and
Duly Authorized Signatory:
/s/ James H. Williams
_____________________________________
JAMES H. WILLIAMS
Executive Vice President, Chief
Financial Officer and Chief
Accounting Officer
August 13, 1997
14
<PAGE>
Exhibit 3.b
BYLAWS
OF
BA MERCHANT SERVICES, INC.
Adopted: October 11, 1996
Amended: Effective May 28, 1997 (upon adjournment of the
Annual Meeting of Stockholders on that date;
amendment was approved by the board of directors
on March 27, 1997)
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Offices.............................................. 1
Section 1. Registered Office............................... 1
Section 2. Other Offices................................... 1
ARTICLE II Meetings of Stockholders............................. 1
Section 1. Place of Meetings............................... 1
Section 2. Annual Meeting.................................. 1
Section 3. Notice of Annual Meeting........................ 1
Section 4. Stockholders List............................... 1
Section 5. Special Meetings................................ 2
Section 6. Notice of Special Meetings...................... 2
Section 7. Business........................................ 2
Section 8. Quorum and Adjournment.......................... 2
Section 9. Organization.................................... 2
Section 10. Voting.......................................... 3
Section 11. Action by Written Consent....................... 3
Section 12. Inspectors of Election.......................... 3
Section 13. Notice of Stockholder Business at Annual Meeting 3
Section 14. Notice of Stockholder Nominees.................. 4
ARTICLE III Directors............................................ 5
Section 1. Number, Election and Term....................... 5
Section 2. Vacancies and Newly Created Directorships....... 5
Section 3. Resignations.................................... 6
Section 4. General Powers.................................. 6
Section 5. Compensation of Directors....................... 6
Section 6. Advisory Directors.............................. 6
ARTICLE IV Meetings of the Board of Directors................... 6
Section 1. Place of Meetings............................... 6
Section 2. First Meeting................................... 6
Section 3. Regular Meetings................................ 7
Section 4. Special Meetings................................ 7
Section 5. Quorum.......................................... 7
Section 6. Action by Written Consent....................... 7
Section 7. Telephone Participation......................... 7
ARTICLE V Committees........................................... 7
Section 1. Committees of Directors......................... 7
Section 2. Other Committees................................ 8
Section 3. Committee Procedures............................ 8
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI Officers............................................. 8
Section 1. Number and Titles............................... 8
Section 2. Appointment..................................... 8
Section 3. Compensation.................................... 9
Section 4. Term of Office.................................. 9
Section 5. President....................................... 9
Section 6. Chairman of the Board........................... 9
Section 7. Vice Presidents................................. 9
Section 8. Secretary....................................... 9
Section 9. Treasurer....................................... 9
ARTICLE VII Capital Stock........................................ 10
Section 1. Certificates.................................... 10
Section 2. Registrars and Transfer Agents.................. 10
Section 3. Lost Certificates............................... 10
Section 4. Transfers of Stock.............................. 10
Section 5. Fixing Record Date.............................. 11
Section 6. Registered Stockholders......................... 11
Section 7. Dividends....................................... 11
Section 8. Reserves........................................ 11
ARTICLE VIII Indemnification...................................... 11
Section 1. Right to Indemnification........................ 11
Section 2. Right of Claimant to Bring Suit................. 12
Section 3. Non-Exclusivity of Rights....................... 13
Section 4. Insurance....................................... 13
ARTICLE IX Notices.............................................. 13
Section 1. Form of Notices................................. 13
Section 2. Waiver of Notice................................ 13
ARTICLE X Miscellaneous........................................ 14
Section 1. Annual Statements............................... 14
Section 2. Checks.......................................... 14
Section 3. Fiscal Year..................................... 14
Section 4. Seal 14
ARTICLE XI Amendments........................................... 14
</TABLE>
-ii-
<PAGE>
BA MERCHANT SERVICES, INC.
--------------------------
BYLAWS
------
ARTICLE I
---------
Offices
-------
Section 1. Registered Office. The registered office shall be in the City
-----------------
of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at such
-------------
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
----------
Meetings of Stockholders
------------------------
Section 1. Place of Meetings. All meetings of the stockholders for the
-----------------
election of directors shall be held in the City and County of San Francisco,
State of California, at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held
--------------
at such date and time as shall be designated from time to time by the board of
directors and stated in the notice of meeting, at which time the stockholders
shall elect by a majority vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Notice of Annual Meeting. Written notice of the annual meeting
------------------------
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than fifty (50) days before the date of the meeting.
Section 4. Stockholders List. The officer who has charge of the stock
-----------------
ledger of the corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in
-1-
<PAGE>
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. Special Meetings. Special meetings of the stockholders, for
----------------
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chairman of the board or the
president and shall be called by the chairman of the board or the president or
secretary at the request in writing of a majority of the board of directors, or
at the request in writing of stockholders owning a majority in amount of the
entire capital stock of the corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meetings. Written notice of a special
--------------------------
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten (10)
nor more than fifty (50) days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 7. Business. Business transacted at any special meeting of
--------
stockholders shall be limited to the purposes stated in the notice.
Section 8. Quorum and Adjournment. The holders of a majority of the stock
----------------------
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Organization. At every meeting of the stockholders the
------------
chairman of the board or, in his or her absence, the president, shall preside.
In the absence of said officers, any other officer of the rank of vice president
present shall call such meeting to order and preside. The secretary or, in the
secretary's absence, the appointee of the presiding officer of the meeting shall
act as secretary of the meeting.
-2-
<PAGE>
Section 10. Voting. When a quorum is present or represented at any
------
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Unless otherwise provided in the certificate of incorporation each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder. No proxy shall be voted on after three (3) years from
its date, unless the proxy provides for a longer period.
Section 11. Action by Written Consent. Unless otherwise provided in the
-------------------------
certificate of incorporation, any action required or permitted to be taken at
any annual or special meeting of stockholders of the corporation may be taken
without a meeting, without prior notice except as otherwise provided by
applicable law, and without a vote, if a consent in writing setting forth the
action so taken shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 12. Inspectors of Election. The board of directors may at any
----------------------
time appoint one or more persons to serve as inspectors of election at any
meeting of stockholders with respect to the votes of stockholders at such
meeting. If any inspector appointed is absent or refuses to act, a majority of
the inspectors, if such be present, may act. If a majority of the inspectors is
not present, the presiding officer of the meeting may appoint one or more
persons to serve as inspectors for the meeting. The inspectors appointed to act
at any meeting of the stockholders shall perform their duties faithfully and
impartially, and shall notify the secretary of the corporation in writing of the
votes cast at such meeting by the stockholders.
Section 13. Notice of Stockholder Business at Annual Meeting. At an
------------------------------------------------
annual meeting of the stockholders only such business shall be conducted as
shall have been properly brought before the meeting or any adjournment thereof
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the corporation entitled to vote at the meeting who complies with the notice
procedures set forth in this Section. For a stockholder to bring business
before an annual meeting for a vote by the stockholders, the stockholder must
give timely and complete notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the corporation not
less than ninety days nor more than one hundred-twenty days prior to the meeting
and this requirement shall not be affected by any adjournment of the meeting;
provided, however, that if less than forty days' notice of the date of the
- -------- -------
meeting is given to stockholders, notice by the stockholder to be timely must be
received not later than the close of business on the tenth day following the
-3-
<PAGE>
day on which public announcement of the date of such meeting is first made.
("Public announcement" means disclosure in a press release, national news
service or in a document publicly filed by the corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended). A stockholder's notice to the Secretary
shall be complete provided it sets forth as to each matter the stockholder
proposes to bring before the annual meeting for a vote by the stockholders (a) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation's stock which are owned by the stockholder, any material interest of
the stockholder in such business and (d) if the stockholder intends to solicit
proxies in support of such stockholder's proposal, a representation to that
effect; provided, however, that compliance by such stockholder with the notice
-----------------
provisions and other requirements in this Section shall not create a duty of the
corporation to include such stockholder's business or proposal in the
corporation's proxy statement or proxy, and notwithstanding such compliance the
corporation shall retain such discretion as it has to omit such business or
proposal from such proxy statement or proxy or both. Notwithstanding anything
in these By-laws to the contrary, no business shall be conducted at an annual
meeting (i) except in accordance with the procedures set forth in this Section
or (ii) if the stockholder solicits proxies in support of such stockholder's
proposal without having made the representation required by clause (d) of the
preceding sentence. If the Chairman of an annual meeting shall determine that
any business proposed at the meeting or any adjournment thereof (x) was not made
in accordance with the provisions of this Section, (y) is not proper under laws
or rules applicable to the meeting, or (z) was made by a stockholder who
solicited proxies in support of such stockholder's proposal without such
stockholder having made the representation required by clause (d) of this
Section, then the Chairman shall so declare to the meeting and any such business
shall not be transacted.
Section 14. Notice of Stockholder Nominees. Only persons who are properly
------------------------------
nominated in accordance with the procedures set forth in this Section shall be
eligible for election as Directors. Nominations of persons for election to the
Board of Directors of the corporation may be made at a meeting of stockholders
or any adjournment thereof (a) by or at the direction of the Board of Directors
or (b) by any stockholder of the corporation entitled to vote for the election
of Directors at the meeting who has complied with the notice procedures set
forth in this Section. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely and
complete notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than ninety days nor
more than one hundred-twenty days prior to the meeting and this window period
shall not be effected by any adjournment of the meeting; provided, however, that
-------- -------
if less than forty days' notice of the date of the meeting is given to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
public announcement of the date of such meeting is first made. ("Public
announcement" is defined in Section 13 herein). A stockholder's notice shall be
complete provided it sets forth (a) as to each
-4-
<PAGE>
person whom the stockholder proposes to nominate for election or re-election as
a Director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the corporation which are owned
directly or beneficially by the person, (iv) a statement as to the person's
citizenship, and (v) such person's written consent to serve as a director if
elected; (b) as to the stockholder giving the notice (i) the name and address,
as they appear on the corporation's books, of such stockholder and (ii) the
class and number of shares of the corporation's stock which are owned by such
stockholder and (c) if the stockholder intends to solicit proxies in support of
such stockholder's nominee(s), a representation to that effect; provided,
---------
however, that compliance by a stockholder with the notice provisions and other
- -------
requirements in this Section shall not create a duty of the corporation to
include the stockholder's nominee in the corporation's proxy statement or proxy
if the stockholder's nominee is not nominated by the Board of Directors, and the
corporation shall retain any discretion it has to omit the nominee from the
corporation's proxy statement and proxy. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
Director shall furnish to the Secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in this
Section. If the Chairman of the meeting shall determine that a nomination made
at the meeting or any adjournment thereof (x) was not made in accordance with
the provisions of this Section, (y) is not proper under law or rules applicable
to the meeting, or (z) was made by a stockholder who solicited proxies in
support of such stockholder's nominee(s) without such stockholder having made
the representation required by clause (c) of this Section, then the Chairman
shall so declare to the meeting and the nomination shall be disregarded.
ARTICLE III
-----------
Directors
---------
Section 1. Number, Election and Term. The number of directors which shall
-------------------------
constitute the whole board shall be not less than five (5) and not more than
nine (9). The first board shall consist of three (3) directors. Thereafter,
within the limits above specified, the number of directors shall be determined
by resolution of the board of directors or the stockholders. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
such director's successor is elected and qualified or until such director's
earlier resignation or removal. Any director or the entire board of directors
may be removed at any time, with or without cause, by the holders of a majority
of shares then entitled to vote at an election of directors. Directors need not
be stockholders.
Section 2. Vacancies and Newly Created Directorships. Vacancies and newly
-----------------------------------------
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their successors are
elected and qualified, or until their earlier
-5-
<PAGE>
resignations or removals. If there are no directors in office, then an election
of directors may be held in the manner provided by statute.
Section 3. Resignations. Any director of the corporation may resign at
------------
any time by giving written notice to the chairman of the board, or to the
president, or to the secretary of the corporation. The resignation of any
director shall take effect at the date of receipt of such notice or at any later
date specified therein; and unless otherwise specified therein the acceptance of
such resignation by the board of directors shall not be necessary to make it
effective.
Section 4. General Powers. The business of the corporation shall be
--------------
managed by or under the direction of its board of directors which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these bylaws
directed or required to be exercised or done by the stockholders.
Section 5. Compensation of Directors. The directors may be paid their
-------------------------
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
and/or a stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed compensation
as determined by the board for attending committee meetings.
Section 6. Advisory Directors. The board of directors may, from time to
------------------
time, appoint one or more advisory directors, the number to be determined by the
board of directors. Such advisory directors shall serve at the pleasure of the
board and shall attend the meetings of the board for the purposes of providing
general policy advice. Advisory directors shall receive the same fees and
expenses as may be paid to the members of the board of directors.
ARTICLE IV
----------
Meetings of the Board of Directors
----------------------------------
Section 1. Place of Meetings. The board of directors of the corporation
-----------------
may hold meetings, both regular and special, either within or without the State
of Delaware.
Section 2. First Meeting. The first meeting of each newly elected board
-------------
of directors shall be held at such time and place as shall be fixed by the vote
of the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such
-6-
<PAGE>
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 3. Regular Meetings. Regular meetings of the board of directors
----------------
may be held without notice at such time and at such place as shall from time to
time be determined by the board.
Section 4. Special Meetings. Special meetings of the board may be called
----------------
by the chairman of the board or the president on at least two (2) days' notice
to each director, either personally or by mail, telegram, facsimile or other
electronic transmission; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of any two
directors.
Section 5. Quorum. At all meetings of the board a majority of the
------
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 6. Action by Written Consent. Unless otherwise restricted by the
-------------------------
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors may be taken without a
meeting, if all members of the board consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the board.
Section 7. Telephone Participation. Unless otherwise restricted by the
-----------------------
certificate of incorporation or these bylaws, members of the board of directors
may participate in a meeting of the board of directors by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at the meeting.
ARTICLE V
---------
Committees
----------
Section 1. Committees of Directors. The board of directors may, by
-----------------------
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exercise all the powers
and authority of the board of directors in the management of the
-7-
<PAGE>
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority to amend the certificate of
incorporation or these bylaws, to adopt an agreement of merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
to declare a dividend, to authorize the issuance of stock (unless specifically
authorized to do so in a resolution of the board of directors), or to appoint or
remove the president or the chairman of the board, all such powers and
authorities being reserved to the board of directors.
Section 2. Other Committees. The board of directors may from time to time
----------------
by resolution create such other committee or committees of directors, officers,
employees, or other persons designated by it for the purpose, and with such
functions, powers and responsibilities, as the board shall by resolution
prescribe. None of the powers and authorities reserved to the board of
directors by Section I of this Article V may be delegated to any such committee.
Section 3. Committee Procedures. Each committee created by the board of
--------------------
directors shall have such name as may be determined from time to time by
resolution adopted by the board of directors. The board of directors shall have
power to change the members of any such committee at any time, to fill
vacancies, and to dissolve any such committee at any time. Unless specifically
provided to the contrary in or otherwise restricted by the certificate of
incorporation, these bylaws or a resolution adopted by the board of directors,
the procedures set forth in Sections 1, 3, 4, 5, 6 and 7 of Article IV apply to
each committee created by the board of directors in the same manner as those
Sections apply to the board of directors, as though references therein to
directors were to members of the committee. Each such committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
ARTICLE VI
----------
Officers
--------
Section 1. Number and Titles. The officers of the corporation shall be
-----------------
appointed by the board of directors and shall be a chairman of the board, a
president, a secretary and a treasurer. The board of directors may also appoint
one or more vice presidents, one or more assistant secretaries and assistant
treasurers, and such other officers as the board may by resolution create, or as
may be appointed in accordance with Section 2 of this Article. Any one or more
vice presidents may be designated executive vice president or senior vice
president. One person may hold any number of offices, unless the certificate of
incorporation or these bylaws otherwise provide.
Section 2. Appointment. The board of directors at its first meeting after
-----------
each annual meeting of stockholders shall choose a chairman of the board, a
president, a secretary and a treasurer. The board of directors may appoint such
other officers and
-8-
<PAGE>
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 3. Compensation. The compensation of all officers and agents of
------------
the corporation shall be fixed by the board of directors or by a committee
created or officers designated for that purpose.
Section 4. Term of Office. The officers of the corporation shall hold
--------------
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
Section 5. President. The president shall be the chief executive officer
---------
of the corporation, shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 6. Chairman of the Board. The chairman of the board shall preside
---------------------
at all meetings of the stockholders and the board of directors and shall
exercise and perform such other powers and duties as may from time to time be
assigned by the board of directors or prescribed by these bylaws.
Section 7. Vice Presidents. Vice presidents shall perform such duties and
---------------
have such powers as the board of directors may from time to time prescribe. The
executive vice presidents shall be senior in rank to all other vice presidents,
including senior vice presidents, unless specifically provided otherwise in a
resolution of the board of directors.
Section 8. Secretary. The secretary shall have charge and custody of the
---------
corporate seal, records and minute books of the corporation, shall keep correct
written minutes of all meetings of stockholders and of the board of directors,
and shall give or cause to be given notice of all meetings of the stockholders
and of the board of directors in accordance with these bylaws and as required by
law. The duties of the secretary may be performed by any assistant secretary.
Section 9. Treasurer. The treasurer shall have the custody of the
---------
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. The treasurer shall also disburse the funds of the corporation as
may be ordered by the board of directors, at its regular meetings, or when the
board of directors so requires. The treasurer shall give an account of all
transactions as treasurer and of the financial condition of the corporation.
The duties of the treasurer may be performed by any assistant treasurer.
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<PAGE>
ARTICLE VII
-----------
Capital Stock
-------------
Section 1. Certificates. Every holder of stock in the corporation shall
------------
be entitled to have a certificate, signed by or in the name of the corporation
by the chairman of the board of directors, or the president or a vice president
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, certifying the number of shares owned by such
holder in the corporation. If the corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualification,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock a statement that the corporation will
furnish without charge to each stockholder who so requests, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Registrars and Transfer Agents. Where a certificate is
------------------------------
countersigned (1) by a transfer agent other than the corporation or its
employee, or, (2) by a registrar other than the corporation or its employee, any
other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Section 3. Lost Certificates. The board of directors may direct a new
-----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 4. Transfers of Stock. Upon surrender to the corporation or the
------------------
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, including evidence of approval
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<PAGE>
of such transfer by the corporation as required by the certificate of
incorporation, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5. Fixing Record Date. In order that the corporation may
------------------
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any right in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) days nor less
than five (5) days prior to the date of such meeting, nor more than sixty (60)
days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
Section 6. Registered Stockholders. The corporation shall be entitled to
-----------------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
Section 7. Dividends. Dividends upon the capital stock of the
---------
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 8. Reserves. Before payment of any dividend, there may be set
--------
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE VIII
Indemnification
---------------
Section 1. Right to Indemnification. Each person who was or is made a
------------------------
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the
-11-
<PAGE>
fact that such person, or another person of whom such person is the legal
representative, is or was a director, officer, or employee of the corporation or
is or was serving at the request of the corporation as a director, officer, or
employee of, or in some other representative capacity for, another corporation
or a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, or employee or in
any other capacity while serving as a director, officer, or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, or employee and shall inure to the benefit
of such person's heirs, executors and administrators; provided, however, that
except as provided in Section 2 hereof with respect to proceedings seeking to
enforce rights to indemnification, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law so requires, the payment
of such expenses incurred by a director, officer, employee or representative in
such person's capacity as a director, officer, employee or representative (and
not in any other capacity in which service was or is rendered by such person
while a director, officer, employee or representative, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such person, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Article or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of
-------------------------------
this Article is not paid in full by the corporation within ninety days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
Delaware General
-12-
<PAGE>
Corporation Law, nor an actual determination by the corporation (including its
board of directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and
-------------------------
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, or employee of the
corporation serving in any capacity on behalf of the corporation or at its
request for any other entity to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended, whether
or not the corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE IX
----------
Notices
-------
Section 1. Form of Notices. Whenever, under the provisions of the
---------------
statutes or of the certificate of incorporation or of these bylaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his or her address as it appears
on the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram or by
facsimile or other electronic transmission.
Section 2. Waiver of Notice. Whenever any notice is required to be given
----------------
under the provisions of the statutes or of the certificate of incorporation or
of these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, subject to any exceptions
provided in the Delaware corporation law.
-13-
<PAGE>
ARTICLE X
---------
Miscellaneous
-------------
Section 1. Annual Statements. The board of directors may present at any
-----------------
annual meeting, or at any special meeting of the stockholders when called for by
vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 2. Checks. All checks or demands for money and notes of the
------
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the corporation shall end on
-----------
December 31 of each year.
Section 4. Seal. The corporate seal shall be in such form as may be
----
approved from time to time by the board of directors, and said seal, or a
facsimile thereof, may be imprinted or affixed by any process or in any manner
reproduced. Affixing the seal is not necessary to make the execution of any
document effective or binding.
ARTICLE XI
----------
Amendments
----------
These bylaws may be altered, amended or repealed or new bylaws may be
adopted by the stockholders or by the board of directors at any regular or
special meeting of the stockholders or of the board of directors.
-14-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM JUNE 30,
1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1996
<PERIOD-START> JAN-01-1997 JAN-01-1996
<PERIOD-END> JUN-30-1997 JUN-30-1996
<CASH> 218,497 138,398
<SECURITIES> 21,571 0
<RECEIVABLES> 74,050 123,085
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 325,150 266,261
<PP&E> 53,409 47,719
<DEPRECIATION> 35,353 30,959
<TOTAL-ASSETS> 351,117 286,721
<CURRENT-LIABILITIES> 82,647 34,596
<BONDS> 0 0
0 0
0 0
<COMMON> 466 464
<OTHER-SE> 0 0
<TOTAL-LIABILITY-AND-EQUITY> 351,117 286,721
<SALES> 0 0
<TOTAL-REVENUES> 68,855 59,672
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 46,111 38,846
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (4,413) 0
<INCOME-PRETAX> 27,157 20,826
<INCOME-TAX> 11,224 8,602
<INCOME-CONTINUING> 15,933 12,224
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
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<NET-INCOME> 15,933 12,224
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