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As filed with the Securities and Exchange Commission on January 22, 1997
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
BA MERCHANT SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3252840
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE SOUTH VAN NESS AVENUE
SAN FRANCISCO, CALIFORNIA 94103
(Address of Principal Executive Offices)
_______________
BA MERCHANT SERVICES, INC., LONG TERM INCENTIVE PLAN
(Full title of the plans)
_______________
CHERYL SOROKIN, ESQ.
SECRETARY
BA MERCHANT SERVICES, INC.
555 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE: (415) 622-2091
(Name, address and telephone number of agent for service)
Copies to:
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Jeffrey R. Lapic, Esq. Rodney R. Peck, Esq.
Assistant General Counsel Nathaniel M. Cartmell, Esq.
Bank of America NT & SA James C. Olson, Esq.
555 California Street, 8th Floor Pillsbury Madison & Sutro LLP
San Francisco, California 94104 235 Montgomery Street
(415) 622-2189 San Francisco, California 94104
(415) 983-1000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of registration
registered registered share(1) price(1) fee(1)
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Class A Common Stock, par
value $.01 per share 6,000,000 shares $16.44 $98,640,000 $29,891
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(1) Pursuant to Rule 457(h), the registration fee was computed on the basis of
the market value of the Class A Common Stock, computed in accordance with
Rule 457(c) on the basis of the average of the high and low prices per share
of such stock as reported on the New York Stock Exchange on January 16,
1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have heretofore been filed by the registrant
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference
herein and shall be deemed to be a part hereof:
(a) the description of the Common Stock of BA Merchant Services, Inc., set
forth in the Registration Statement on Form 8-A, dated October 25,
1996.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the registration statement and to be part thereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any person against expenses, judgments, fines
and settlements actually and reasonably incurred by any such person in
connection with a threatened, pending or completed action, suit or proceeding to
which such person is a party or is threatened to be made a party by reason of
the fact that he is or was a director, officer, employee or agent of such
corporation, provided, that (i) he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. If the action or suit
is by or in the right of the corporation, the corporation may indemnify any such
person against expenses actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation for negligence or misconduct in the
performance of his duty to the corporation, unless and only to the extent that
the Delaware Court of Chancery or the court in which the action or suit is
brought determines upon application that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court deems proper.
As permitted under the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation and Bylaws limit the personal liability of its
directors for violations of their fiduciary duty.
Under certain circumstances provided in Article VIII of the Registrant's
Bylaws, the Registrant will indemnify any director or officer or any former
director or officer of the Registrant or any other corporation or enterprise (if
serving at the request of the Registrant) against expenses, liability and loss
(including attorneys' fees,
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judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) actually incurred or suffered by such person by reason of the fact
that he is or was such director or officer in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
The parenthetical reference to the exhibit in the description of Exhibits
4.1 and 4.2 below is incorporated by reference from such exhibit to the
indicated report or registration statement of BA Merchant Services, Inc., filed
with the Securities and Exchange Commission.
4.1 Specimen of Class A Common Stock certificate of BA Merchant Services,
Inc. (incorporated by reference to Exhibit 4.1 to the Registration
Statement on Form S-1 of BA Merchant Services, Inc. (Reg. No. 333-
13985) filed December 9, 1996).
4.2 BA Merchant Services, Inc., Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.11 to the Registration Statement on Form S-1
of BA Merchant Services, Inc. (Reg. No. 333-13985) filed December 9,
1996).
5.1 Opinion of Pillsbury Madison & Sutro LLP regarding legality of
securities being issued.
23.1 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (see page II-4).
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) To include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To
reflect in the Prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; (iii) To include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offering therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on this 21st
day of January, 1997.
BA MERCHANT SERVICES, INC.
By /s/Sharif M. Bayyari
-------------------------
Sharif M. Bayyari
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Directors and Officers
of BA Merchant Services, Inc., a Delaware corporation, hereby constitute and
appoint Sharif M. Bayyari, James H. Williams, Cheryl Sorokin, Jeffrey R. Lapic,
Susan Lau and Benjamin M. Vandegrift, each with full power of substitution and
resubstitution, their true and lawful attorneys and agents to sign the names of
the undersigned Directors and Officers in the capacities indicated below to the
registration statement to which this Power of Attorney is filed as an exhibit,
and all amendments (including post-effective amendments) and supplements
thereto, and all instruments or documents filed as a part thereof or in
connection therewith and any related Rule 462(b) registration statement or
amendment thereto, and to file the same, with all exhibits thereto, and all
other instruments and documents in connection therewith, with the Securities and
Exchange Commission; and each of the undersigned hereby ratifies and confirms
all that said attorneys, agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Sharif M. Bayyari President, Chief Executive January 21, 1997
- ------------------------- Officer and Director
Sharif M. Bayyari (Principal Executive Officer)
/s/ James H. Williams Executive Vice President, Chief January 21, 1997
- ------------------------- Financial Officer and Treasurer
James H. Williams (Principal Financial Officer and
Principal Accounting Officer)
/s/ Thomas E. Peterson Chairman of the Board January 21, 1997
- ------------------------- of Directors
Thomas E. Peterson
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/S/ Barbara J. Desoer Director January 21, 1997
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Barbara J. Desoer
/S/ Donald R. Dixon Director January 21, 1997
- ------------------------------
Donald R. Dixon
/S/ James G. Jones Director January 21, 1997
- ------------------------------
James G. Jones
/S/ William E. Fisher Director January 21, 1997
- ------------------------------
William E. Fisher
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EXHIBIT INDEX
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EXHIBIT NUMBER DOCUMENT DESCRIPTION/*/
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4.1 Specimen of Class A Common Stock certificate of BA Merchant
Services, Inc. (incorporated by reference to Exhibit 4.1 to
the Registration Statement on Form S-1 of BA Merchant
Services, Inc. (Reg. No. 333-13985) filed December 9, 1996).
4.2 BA Merchant Services, Inc., Long Term Incentive Plan
(incorporated by reference to Exhibit 10.11 to the
Registration Statement on Form S-1 of BA Merchant Services,
Inc. (Reg. No. 333-13985) filed December 9, 1996).
5.1 Opinion of Pillsbury Madison & Sutro LLP regarding legality
of securities being issued.
23.1 Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (see page II-4).
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/*/ The parenthetical reference to the exhibit in the description of Exhibits
4.1 and 4.2 is incorporated by reference from such exhibit to the indicated
report or registration statement of BA Merchant Services, Inc., filed with the
Securities and Exchange Commission.
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EXHIBIT 5.1
[LETTERHEAD OF PILLSBURY MADISON & SUTRO LLP]
January 17, 1997
BA Merchant Services, Inc.
One South Van Ness Avenue
San Francisco, California 94103
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 filed by BA
Merchant Services, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 6,000,000 shares of the Company's Class A
Common Stock, par value $.01 per share (the "Shares"), to be issued in
connection with the Company's Long-Term Incentive Plan (the "Plan"), which Plan
is filed as an exhibit thereto:
We are of the opinion that the Shares have been duly authorized and, when
issued in the manner contemplated by the Registration Statement, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 dated January 22, 1997, pertaining to the BA Merchant Services,
Inc., Long Term Incentive Plan of our report dated October 11, 1996 with
respect to the combined financial statements of BA Merchant Services, Inc.
included in the Registration Statement (Form S-1, No. 333-13985) filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
January 21, 1997
