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Expires: December 31, 1997
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ______) *
BA Merchant Services, Inc.
-------------------------
(Name of Issuer)
CLASS A COMMON STOCK
--------------------
(Title of Class of Securities)
055239-10-7
-----------
(CUSIP Number)
Cheryl Sorokin, Group Executive Vice President and Secretary
Bank of America National Trust and Savings Association
555 California Street, 6th Floor
San Francisco, California 94104
(415) 622-2091
-------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 1, 1997
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [___].
Check the following box if a fee is being paid with the statement [_]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership five percent or less of such class. (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 055239-10-7
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON BankAmerica Corporation
S.S. or I.R.S. IDENTIFICATION I.R.S. Number 94-1681731
NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS* 00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER 0
NUMBER OF
SHARES
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 30,900,000
EACH
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 30,900,000
--------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 30,900,000
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 65.5%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON* HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION)
<PAGE>
SCHEDULE 13D
CUSIP No. 055239-10-7
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Bank of America National Trust &
S.S. or I.R.S. IDENTIFICATION Savings Association
NO. OF ABOVE PERSON I.R.S. Number 94-1687665
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS* 00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES OF AMERICA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER 0
NUMBER OF
SHARES
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 30,900,000
EACH
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 30,900,000
--------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 30,900,000
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 65.5%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON* BK
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION)
<PAGE>
ITEM 1. SECURITY AND ISSUER
Class A Common Stock
BA Merchant Services, Inc. (BAMS)
One South Van Ness Avenue
San Francisco, California 94103
ITEM 2. IDENTITY AND BACKGROUND
BankAmerica Corporation (BAC) is incorporated in the state of Delaware.
Its principal business is a bank holding company. The address of its principal
place of business and principal office is: 555 California Street, San
Francisco, California, 94104.
Bank of America National Trust & Savings Association (BofA) is a national
banking association organized and existing under the laws of the United States
of America. Its principal business is banking. The address of its principal
place of business and principal office is: 555 California Street, San
Francisco, California, 94104.
During the last five years, neither BAC nor BofA nor, to the best of their
knowledge, any person named in Schedules A or B attached hereto, has been (a)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to federal or
state securities laws or finding any violation with respect to such laws.
Because of the nature of their businesses, both BAC and BofA are subject to
various threatened or pending legal actions, including (without limitation)
civil and administrative litigation and other proceedings before courts,
arbitration tribunals, administrative agencies and regulatory bodies. Certain
of such actions may involve, among others, claims under antitrust, unfair
competition, fraud, unfair labor practices or discrimination laws. Any
litigation deemed material to BAC or the Bank is disclosed in the Annual Reports
on Form 10-K and Quarterly Reports on Form 10-Q of BAC, and from time to time in
Current Reports on Form 8-K. No adverse findings, consent decrees or adverse
final actions of the type mentioned in this question were disclosed in BAC's
Form 10-K for the year ended December 31, 1996 or in the Forms 10-Q for the
quarters ended March 31 or June 30, 1997 or in any Current Report on Form 8-K
filed during 1997 to date. BAC filed a Current Report on Form 8-K dated May 5,
1997 in which it reported that the Bank had been sued by the City of San
Francisco and several related public entities, and by the State of California,
in an action entitled State of California, etc. ex rel Stull. v. Bank of America
----------------------------------------------------------
NT&SA, et al. (No. 968-484). The case was instituted on April 1, 1995 in the
- -------------
Superior Court for the City and County of San Francisco. The City of San
Francisco and related public entitles intervened in the case on May 1, 1997, and
the State of California took over prosecution of the case on May 5, 1997. The
chief allegation of this suit is that the Bank retained unclaimed funds related
to bonds and coupons which were not presented by bondholders rather than
returning them to certain bond issuers or escheating such funds to the State.
The suit
<PAGE>
also alleges False Claims Act exposure for alleged fee overcharges and
claims that the Bank improperly invested bond program funds.
The amount of any ultimate exposure cannot be determined with certainty at
this time. Based on the results of BAC's investigation to date and on the
advice of counsel, BAC does not expect the final outcome of any threatened or
filed suits to have a material adverse effect on its financial position. To the
best of its knowledge, BAC has not been the subject of any criminal proceedings.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On June 2, 1997, BofA, a wholly-owned subsidiary of BAC, acquired 150,000
shares of BAMS' Class B Common Stock (Class B Common Stock is convertible into
Class A Common Stock under certain conditions described in Item 5, below) in
exchange for transferring to BAMS BofA's merchant processing business in
Thailand pursuant to an Asian Acquisition Agreement between BofA and BAMS, a
copy of which is attached.
On July 1, 1997, BofA acquired 550,000 shares of BAMS' Class B Common Stock
in exchange for transferring to BAMS BofA's merchant processing business in the
Philippines pursuant to an Asian Acquisition Agreement between BofA and BAMS.
ITEM 4. PURPOSE OF TRANSACTION
BofA acquired the 700,000 shares of BAMS' Class B Common Stock in
consideration for the transfer to BAMS of BofA's merchant processing businesses
in Thailand and the Philippines. On September 30, 1997, BofA acquired
additional securities in exchange for its merchant processing businesses in
Taiwan. Other than in connection with the Taiwan merchant processing business,
BofA currently does not have plans to acquire additional shares of BAMS'
securities.
BofA owns 100% of the outstanding Class B Common Stock of the Company,
which represents beneficial ownership of approximately 65.5% of BAMS' Class A
Common Stock as of August 31, 1997. Such ownership also represents 95.0% of the
combined voting power of the Company's outstanding Class A and Class B Common
Stock. BofA also has the ability to elect all of the members of the Board of
Directors of BAMS and to exercise a controlling influence over the business and
affairs of BAMS, including any determinations with respect to mergers or other
business combinations involving the Company, the acquisition or disposition of
assets by the Company (including capital expenditures), the incurrence of
indebtedness by the Company, the issuance by the Company of any additional
Common Stock or other securities and the payment of any dividends with respect
to the Common Stock. The size of the Board of Directors is currently fixed at
six. Two of the present members of the Board of Directors are independent of
BankAmerica.
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
BofA is the record owner of 30,900,000 shares of BAMS' Class B Common
Stock, as of August 31, 1997. BofA's ownership of Class B Common Stock
represents beneficial ownership of 65.5% shares. BofA has the power to vote,
direct the vote, dispose and direct the disposition of its Class B Common Stock,
and, if converted to Class A Common Stock as described below, of the Class A
Common Stock. For marketing purposes, BAC may be deemed the beneficial owner of
the shares owned by BofA.
One share of Class B Common Stock is convertible into one share of Class A
Common Stock under conditions set forth in the Amended and Restated Certificate
of Incorporation of BA Merchant Services, Inc. (BAMS), on file with BAMS' Annual
Report on Form 10-K. Generally, Class A Common Stock is convertible into Class
B Common Stock prior to a tax-free spin-off: a) at any time, at the holder's
option; b) automatically, for any shares retained by BAC or its subsidiaries
after transfer of more than a 50% economic interest in the Common Stock in a
single transaction to a person who is not an affiliate of BAC (Class B
Transferee); c) automatically, upon transfer of a share to a person other than
BAC or its subsidiaries or a Class B Transferee or its subsidiaries; d)
automatically, if shares owned by BAC or its subsidiaries or a Class B
Transferee or its subsidiaries in the aggregate constitute less than 30% of the
economic ownership of the shares of Class A and Class B Common Stock combined.
Shares transferred to BAC stockholders or to stockholders of a Class B
Transferee in a tax-free spin-off do not convert upon the spin-off. After a
tax-free spin-off, Class A shares automatically convert into Class B shares on
the fifth anniversary of a tax-free spin-off, unless counsel opines that the
conversion could adversely affect the ability to secure a tax-free ruling from
the Internal Revenue Service, or the Service has adopted a non-ruling policy and
the conversion could adversely affect the tax-free status of the distribution,
in which case shareholders must approve the conversion (unless counsel opines
that approval could adversely affect the tax-free status of the distribution).
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
a. Asset Transfer Agreement Between BofA and BAMS: On December 31, 1996,
----------------------------------------------
BofA transferred the assets and liabilities of the domestic business
now known as BA Merchant Services, Inc. in exchange for 30,200,000
shares of Class B Common Stock pursuant to an Asset Transfer Agreement
Between BofA and BAMS.
b. Asian Acquisition Agreement Between BofA and BAMS: On December 3,
-------------------------------------------------
1996, BofA entered into the agreement to transfer merchant processing
businesses in Thailand and the Philippines to BAMS, in exchange for
150,000 shares of Class B Common Stock for the Thailand merchant
processing business and 550,000 shares of Class B Common Stock for the
Philippines merchant processing business.
c. First Amendment to Asian Acquisition Agreement: On September 30,
----------------------------------------------
<PAGE>
1997, BofA and BAMS amended the Asian Acquisition Agreement. The
Amendment did not amend, modify or change the number of shares of
common stock issued in exchange for the merchant processing
businesses.
d. Taiwan Business and Hong Kong Administrative Office Acquisition
---------------------------------------------------------------
Agreement Between BofA and BAMS: On September 30, 1997, BofA entered
-------------------------------
into the agreement to transfer merchant processing businesses in
Taiwan to BAMS, in exchange for 1,500,000 shares of Class B Common
Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Asset Transfer Agreement Between BofA and BAMS, dated December 3,
1996, incorporated by reference to Exhibit 10.8 to amendment 3 of
BAMS' Form S-1, filed December 9, 1996, Commission file number 1-7377.
2. Asian Acquisition Agreement Between BofA and BAMS, dated December 3,
1996, incorporated by reference to Exhibit 10.12 to BAMS' 1996 Annual
Report on Form 10-K, filed March 28, 1997, Commission file number 1-
7377.
3. First Amendment to Asian Acquisition Agreement, dated September 30,
1997.
4. Taiwan Business and Hong Kong Administrative Office Acquisition
Agreement Between BofA and BAMS, dated September 30, 1997.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BANKAMERICA CORPORATION
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
October 17, 1997 By: /s/ R. SCOTT MCMILLEN
---------------------------------
Name: R. Scott McMillen
Title: Senior Counsel
Bank of America National Trust
& Savings Association
<PAGE>
SCHEDULE A
BankAmerica Corporation
Director and Executive Officers Information
The following table sets forth the names, addresses and principal
occupations of the executive officers and directors of BankAmerica Corporation
(directors are indicated by asterisk). Each such person is a citizen of the
United States.
<TABLE>
<S> <C> <C>
* Joseph F. 1955 North Surveyor Chairman of the Board and CEO
Alibrandi Simi Valley, CA Whittaker Corporation
Simi Valley, CA
(principal business: aerospace manufacturing)
* Peter B. 270 Lafayette Circle Chairman of the Board and
Bedford Lafayette, CA 94549 Chief Executive Officer
Bedford Property Investors, Inc.
Lafayette, CA
(principal business: real estate investment trust)
Kathleen J. 555 California Street Vice Chairman and Personnel Relations Officer
Burke 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Richard A. 123 Mission St., Room H17 Retired Chairman of the Board and
Clarke San Francisco, CA 94106 Chief Executive Officer
Pacific Gas & Electric Company
San Francisco, CA
(principal business: gas and electric utility)
* David A. 555 California Street Chairman of the Board, President
Coulter 40th Floor and Chief Executive Officer
San Francisco, CA 94104 Bank of America NT&SA
San Francisco, CA
(principal business: banking and finance)
* Timm F. c/o Hallmark Cards, Inc. Retired Chairman
Crull 1024 E. Balboa Blvd. Nestle USA, Inc.
Newport Beach, CA 92661 Glendale, CA
(principal business: food and related products
processing)
* Kathleen 147 Clifton Street President
Feldstein Belmont, MA 02178 Economics Studies, Inc.
Belmont, MA
(principal business: economics consulting)
</TABLE>
1
<PAGE>
<TABLE>
<S> <C> <C>
* Donald E. Pacific Telesis Center Chairman Emeritus
Guinn 130 Kearny St., Room 3704 Pacific Telesis Group
San Francisco, CA 94108 San Francisco, CA
(principal business: telecommunications)
* Frank L. 2726 Shelter Island Dr. Consulting Architect
Hope Suite 250 San Diego, CA
San Diego, CA 92106 (principal business: architecture)
H. Eugene 555 California Street President, Global Retail Bank
Lockhart 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Walter E. Office of the President President
Massey 830 Westview Drive., S.W. Morehouse College
Atlanta, GA 30314 Atlanta, GA
(principal business: education)
Jack L. 555 California Street Vice Chairman
Meyers 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
Michael J. 555 California Street President, Global Wholesale Bank
Murray 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
Michael E. 555 California Street Vice Chairman and
O'Neill 40th Floor Chief Financial Officer
San Francisco, CA 94104 Bank of America NT&SA
San Francisco, CA
(principal business: banking and finance)
* John M. 227 West Monroe Street Of Counsel to the law firm of Wachtell, Lipton,
Richman Suite 4825 Rosen & Katz
Chicago, IL 60606 Chicago, IL
(principal business: law)
* Richard M. 555 California Street Retired Chairman and Chief Executive Officer
Rosenberg 5th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* A. Michael Memorial Way, Room 140 Dean of Graduate School of Business
Spence Stanford, CA 94305 Stanford University
Stanford, CA
(principal business: education)
</TABLE>
2
<PAGE>
<TABLE>
<S> <C> <C>
Martin A. 555 California Vice Chairman
Stein 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Solomon D. 1801 California Street President and Chief Executive Officer
Trujillo 52nd Floor US West Communications Group
Denver, CO 80202 Denver, CO
(principal business: communication)
</TABLE>
3
<PAGE>
SCHEDULE B
Bank of America National Trust and Savings Association
Director and Executive Officers Information
The following table sets forth the names, addresses and principal
occupations of the executive officers and directors of Bank of America National
Trust and Savings Association (directors are indicated by asterisk). Each such
person is a citizen of the United States.
<TABLE>
<S> <C> <C>
* Joseph F. 1955 North Surveyor Ave. Chairman of the Board and CEO
Alibrandi Simi Valley, CA 93063 Whittaker Corporation
Simi Valley, CA
(principal business: aerospace manufacturing)
* Peter B. 270 Lafayette Circle Chairman of the Board and
Bedford Lafayette, CA 94549 Chief Executive Officer
Bedford Property Investors, Inc.
Lafayette, CA
(principal business: real estate investment trust)
Kathleen J. 555 California Street Vice Chairman
Burke 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Richard A. 123 Mission St., Room H17F Retired Chairman of the Board and
Clarke San Francisco, CA 94106 Chief Executive Officer
Pacific Gas & Electric Company
San Francisco, CA
(principal business: gas and electric utility)
* David A. 555 California Street Chairman of the Board, President
Coulter 40th Floor and Chief Executive Officer
San Francisco, CA 94104 Bank of America NT&SA
San Francisco, CA
(principal business: banking and finance)
* Timm F. c/o Hallmark Cards, Inc. Retired Chairman
Crull 1024 E. Balboa Blvd. Nestle USA, Inc.
Newport Beach, CA 92661 Glendale, CA
(principal business: food and related products
processing)
* Kathleen 147 Clifton Street President
Feldstein Belmont, MA 02178 Economics Studies, Inc.
Belmont, MA
(principal business: economics consulting)
</TABLE>
1
<PAGE>
<TABLE>
<S> <C> <C>
* Donald E. Pacific Telesis Center Chairman Emeritus
Guinn 130 Kearny St., Room 3704 Pacific Telesis Group
San Francisco, CA 94108 San Francisco, CA
(principal business: telecommunications)
* Frank L. 2726 Shelter Island Dr. Consulting Architect
Hope Suite 250 San Diego, CA
San Diego, CA 92106 (principal business: architecture)
H. Eugene 555 California Street President, Global Retail Bank
Lockhart 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Walter E. Office of the President President
Massey 830 Westview Drive., S.W. Morehouse College
Atlanta, GA 30314 Atlanta, GA
(principal business: education)
Jack L. 555 California Street Vice Chairman
Meyers 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
Michael J. 555 California Street President, Global Wholesale Bank
Murray 40th Floor Bank of America N&SA
San Francisco, CA 94104 San Francisco, CA
(principal busines: banking and finance)
Michael E. 555 California Street Vice Chairman, Cahier and
O'Neill 40th Floor Chief Financial Oficer
San Francisco, CA 94104 Bank of America N&SA
San Francisco, CA
(principal busines: banking and finance)
* John M. 227 West Monroe Street Of Counsel to the law firm of Wachtell, Lipton,
Richman Suite 4825 Rosen & Katz
Chicago, IL 60606 Chicago, IL
(principal busines: law)
* Richard M. 555 California Street Retired Chairman nd Chief Executive Officer
Rosenberg 5th Floor Bank of America N&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* A. Michael Memorial Way, Room 140 Dean of Graduate School of Business
Spence Stanford, CA 94305 Stanford University
Stanford, CA
(principal business: education)
</TABLE>
2
<PAGE>
<TABLE>
<S> <C> <C>
Martin A. 555 California Street Vice Chairman
Stein 40th Floor Bank of America NT&SA
San Francisco, CA 94104 San Francisco, CA
(principal business: banking and finance)
* Solomon D. 1801 California Street President and Chief Executive Officer
Trujillo 52nd Floor US West Communications Group
Denver, CO 80202 Denver, CO
(principal business: communication)
</TABLE>
3
<PAGE>
EXHIBIT 3
FIRST AMENDMENT TO ASIAN ACQUISITION AGREEMENT
This FIRST AMENDMENT to the Asian Acquisition Agreement dated December 3rd, 1996
("The Agreement"), is made this 30th day of September, 1997 by and between Bank
of America National Trust & Savings Association, a national banking association
("BANK"), and BA Merchant Services Inc., a Delaware corporation ("BAMS").
The following Recitals are a material part of this FIRST AMENDMENT:
BANK and BAMS wish to amend The Asian Acquisition Agreement to conform The
Agreement to the Asset Transfer Agreement executed by and among BANK, Bank of
America NW, N.A. and BAMS dated December 3rd, 1996 and the Taiwan Acquisition
Agreement between BANK and BAMS dated as of September 30 1997.
NOW, THEREFORE, in consideration of the premises, representations, warranties,
mutual covenants and agreements set forth herein, and set forth in The
Agreement, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, BANK and BAMS hereby covenant and agree as
follows:
1. Section 1.1(a) of The Agreement is hereby restated in its entirety to read
as follows:
(1) RECEIVABLES. All accounts receivable, notes receivable, payments
-----------
by or on behalf of such Asian business, advances by or on behalf
of such Asian business and outstanding at the closing;
2. Section 1.3 of The Agreement is amended to add a new subparagraph (a) and to
renumber the subsequent paragraphs. The new subparagraph (a) will read as
follows:
(a) Drafts in transit outstanding as of the date hereof
which are retained by the Bank;
3. Except as specifically amended herein the terms of The Agreement remain in
full force and effect.
BANK OF AMERICA BA MERCHANT SERVICES, INC.
NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ BARRY L. PYLE By: /s/ JAMES M. WILLIAMS
------------------------ --------------------------
Date: 09/30/97 Date: 09/30/97
---------------------- -----------------------
<PAGE>
EXHIBIT 4
TAIWAN BUSINESS
AND
HONG KONG
ADMINISTRATIVE OFFICE
ACQUISITION AGREEMENT
THIS TAIWAN BUSINESS AND HONG KONG ADMINISTRATIVE OFFICE ACQUISITION AGREEMENT
(this "Agreement") is made this 30th day of September, 1997 by and between BANK
----
OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a national banking association
- -----------------------------------------------
("Bank"), and BA MERCHANT SERVICES, INC., a Delaware corporation ("BAMS")
--------------------------
effective as of August 1, 1997 (the "Effective Date") nunc pro tunc.
RECITALS
A. Bank. Bank is an existing national banking association duly
----
organized and in good standing under the laws of the United States with its
principal executive offices located in San Francisco, California.
B. BAMS. BAMS is an existing corporation, formed under the laws
----
of the State of Delaware, with its principal executive offices located in San
Francisco, California.
C. Corporate Approvals. Each of the parties to this Agreement
-------------------
has obtained all necessary corporate approvals for the execution and delivery of
this Agreement.
D. Arm's Length Relationship. The parties to this Agreement
-------------------------
intend to conduct their relationships hereunder on an arm's length basis.
E. BAC/BAMS Transactions. Bank, a subsidiary of BankAmerica
---------------------
Corporation, a Delaware corporation ("BAC"), currently owns 65.5% of the total
outstanding common stock of BAMS, and 100% of the total outstanding shares of
Class B Common Stock.
F. Asian Acquisition Agreement. Bank and BAMS have entered into
---------------------------
an Asian Acquisition Agreement dated as of December 3, 1996, as amended, (the
"Asian Acquisition Agreement") pursuant to which Bank and BAMS have agreed to
(1) transfer to BAMS certain merchant processing businesses conducted by Bank in
Thailand and the Philippines, and (2) work cooperatively and use their
reasonable commercial efforts to enable BAMS to acquire the merchant processing
business conducted by the Bank in Taiwan (the "Taiwan Business") and certain
other Asian countries.
G. Acquisition of Taiwan Business. Pursuant to the terms and
------------------------------
conditions set forth in this Agreement, Bank desires to transfer the Taiwan
Business to BAMS, and BAMS desires to acquire the Taiwan Business, by purchasing
the Assets (as hereinafter defined) in exchange for shares of Class B Common
Stock, par value $.01 per share ("Class B Common Stock") of
1
<PAGE>
BAMS and the assumption by BAMS of the Assumed Liabilities (as hereinafter
defined) as set forth herein.
H. Acquisition of Hong Kong Administrative Office. Pursuant to
----------------------------------------------
the terms and conditions set forth in this Agreement, Bank desires to transfer
the Hong Kong Administrative Office to BAMS, and BAMS desires to acquire the
Hong Kong Administrative Office, by purchasing the Assets (as herein defined)
and the assumption by BAMS of the Assumed Liabilities (as hereafter defined).
The Hong Kong Administrative Office includes, primarily, personnel expenses and
office equipment and does not generate revenue. The purchase of the Assets and
assumption of the Assumed Liabilities relating to the Hong Kong Administrative
Office have been included in calculating the number of shares of Class B Stock
comprising the Consideration (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises, representations,
warranties, mutual covenants and agreements hereinafter set forth, and for good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Bank and BAMS hereby covenant and agree as follows:
ARTICLE I
TRANSFER OF ASSETS
------------------
Section 1.1 Transferred Assets. At the Closing (as hereinafter
------------------
defined), Bank shall sell, assign, grant, convey, transfer and deliver to BAMS,
and BAMS shall acquire from Bank, all of Bank's right, title and interest in and
to all of the tangible and intangible assets primarily related to and used
primarily by the Taiwan Business and the Hong Kong Administrative Office, as
they exist as of the Effective Date, together with all accrued benefits and
rights pertaining thereto (collectively, the "Assets"), other than the Excluded
Assets (as hereinafter defined), including, without limitation:
(a) Receivables. All accounts receivable, notes receivable,
-----------
prepayments by or on behalf of the Taiwan Business, advances by or on behalf of
the Taiwan Business;
(b) Claims. All claims, demands and causes of action in favor of
------
Bank arising primarily out of the Taiwan Business;
(c) Inventories. All raw materials, work-in-process, finished goods,
-----------
supplies and other inventories in each case intended for use or sale by the
Taiwan Business;
(d) Real Property. Those certain premises or parcels of land, in each
-------------
case leased by Bank and used in the conduct of the Taiwan Business and the Hong
Kong Administrative Office as listed on Schedule l.l(d) ("Real Property"),
together with any and all buildings, plants and other structures and
improvements thereon, any and all rights and privileges pertaining thereto,
including, without limitation, ownership interests, leasehold interests,
easements, transferable permits, licenses, rights of way, leases, and purchase
and option agreements with respect to any
2
<PAGE>
such Real Property and, any and all fixtures, machinery, equipment and other
property appurtenant thereto;
(e) Personal Property. Any and all machinery, furniture, tools, spare
-----------------
parts, automobiles and other vehicles, office and computer equipment and other
personal property in each case used exclusively in the operation of the Taiwan
Business and the Hong Kong Administrative Office;
(f) Contracts. Subject to Section 7.1, all contracts, agreements,
---------
leases and offers open for acceptance of any nature, whether written or oral,
exclusively relating to the Taiwan Business and the Hong Kong Administrative
Office, including, without limitation, all assignable merchant customer
agreements for the provision of merchant processing services by the Taiwan
Business ("Merchant Agreements") and all other customer contracts, leases of
personal property and purchase orders;
(g) Merchant Accounts. All security interests in each demand deposit
-----------------
or current or similar account, either with Bank or another financial
institution, linked to a customer under a Merchant Agreement, in accordance with
Section 5.3;
(h) Operating Permits. Subject to Section 7.1, all licenses, permits
-----------------
and authorizations, environmental or otherwise, in each case exclusively used to
operate the Taiwan Business and the Hong Kong Administrative Office;
(i) Computer Programs. All interests of the Taiwan Business and the
-----------------
Hong Kong Administrative Office in the software and computer programs and
documentation used exclusively in conducting the Taiwan Business and the Hong
Kong Administrative Office, including flow charts, diagrams, descriptive texts
and programs, computer printouts, underlying tapes, computer data bases and
similar items;
(j) Books and Records. All books and records exclusively relating to
-----------------
the Taiwan Business and the Hong Kong Administrative Office, including, without
limitation, all customer and supplier lists, accounts and records, forms and
office supplies, advertising and promotional literature and price lists, all
manuals and reports and other publications relating exclusively to the Taiwan
Business and the Hong Kong Administrative Office;
(k) Cash balances for the Taiwan Business existing as of the
Effective Date; and
(l) Any employee plan assets ("Plan Assets") maintained by Bank for
the benefit of the employees of the Taiwan Business and the Hong Kong
Administrative Office (collectively, the "Employee Benefit Plans") effective
control of which was conveyed to BAMS by Bank as of July 22, 1997.
Without limiting the foregoing, the Assets shall consist of all assets
relating to the Taiwan Business and the Hong Kong Administrative Office that
would be reflected on a consolidated balance sheet prepared as of the Effective
Date in accordance with generally accepted accounting principles consistent with
the audited balance sheet of BA Merchant
3
<PAGE>
Services (Asia) at December 31, 1995 and the unaudited balance sheet of BA
Merchant Services (Asia) at June 30, 1996.
Section 1.2 Excluded Assets. Notwithstanding anything contained
---------------
herein to the contrary, the Assets shall not include, and Bank will not transfer
to BAMS and BAMS will not accept any of the following (collectively, the
"Excluded Assets"):
(a) Drafts in transit outstanding as of the Effective Date which are
retained by Bank;
(b) Books of original financial entry and internal accounting
documents and records relating to the Taiwan Business and the Hong Kong
Administrative Office and any other books and records relating to the Taiwan
Business and the Hong Kong Administrative Office that Bank is required to retain
pursuant to statute, rule or regulation, but BAMS in such event shall have the
right to inspect and copy such books, documents and records for any proper
purpose;
(c) Any assets of employee benefit plans, other than the Plan
Assets;
(d) All rights to refunds of all federal, state, local, foreign and
provincial income, capital gains, gross receipts, profits, property, transfer,
sales, mercantile, value added, capital stock, franchise or other taxes,
including estimated taxes relating thereto and any interest and penalties
imposed thereon (collectively, "Taxes") relating to the Assets or the Taiwan
Business and the Hong Kong Administrative Office to the extent such Taxes relate
to a period commencing prior to the Effective Date and were not paid by BAMS;
(e) Any of the right, title and interest in the bank accounts of the
Taiwan Business, subject to Section 5.3;
(f) Policies of insurance, fidelity, surety or similar bonds and the
coverages afforded thereby;
(g) Any assets of Bank or any affiliate thereof not primarily related
to or used primarily by the Taiwan Business or the Hong Kong Administrative
Office as conducted prior to the Effective Date; and
(h) All rights, causes of action and claims to the extent arising out
of any of the Excluded Assets described in paragraphs (a) through (h) hereof or
any of the Retained Liabilities (as hereinafter defined), including, without
limitation, any rights to reimbursement for damages, fees or expenses.
Section 1.3 Terms Related to the Transfer of Assets. Title to and
---------------------------------------
risk of loss or damage to the Assets for the Taiwan Business and the Hong Kong
Administrative Office shall pass to BAMS as of the Effective Date. Bank's
insurance coverage for the Taiwan Business and the Hong Kong Administrative
Office and the Assets shall cease as of the Effective Date as to losses arising
from events occurring on or after the date thereof.
4
<PAGE>
Section 1.4 Warranty.
--------
(a) Bank represents and warrants that at the Effective Date (i) the
Assets constitute all of the assets necessary for the conduct of the Taiwan
Business and the Hong Kong Administrative Office and (ii) Bank will have
transferred to BAMS good and marketable title to or a valid leasehold interest
in all personal property and other assets relating to the Taiwan Business and
the Hong Kong Administrative Office, free and clear of all liens, encumbrances
and defects which could materially affect the value of such assets or materially
interfere with the use made and proposed to be made of such Assets by BAMS.
(b) Bank agrees to assign to BAMS such rights as Bank may have the
right to assign under any warranty made by any vendor, manufacturer or
contractor with respect to any of the Assets. Except as otherwise provided
herein, all of the Assets shall remain "as is" and "where is" on the Effective
Date.
ARTICLE II
ASSUMPTION OF LIABILITIES
-------------------------
Section 2.1 Assumed Liabilities and Obligations. As of the Effective
-----------------------------------
Date, Bank shall delegate to BAMS, and BAMS shall assume and agree to thereafter
pay, satisfy, perform and discharge, as if the Taiwan Business and the Hong Kong
Administrative Office had been operated by BAMS from the commencement thereof
and had never been owned by Bank, all of the obligations and liabilities to the
extent arising out of or relating to the Taiwan Business and the Hong Kong
Administrative Office or the Assets, known or unknown, accrued, absolute,
contingent or otherwise, whether arising from pending or threatened claims
against Bank related to the Taiwan Business and the Hong Kong Administrative
Office or the Assets, including, without limitation, environmental liabilities,
whether arising as a result of the transactions contemplated hereby, whether
existing as of the Effective Date or arising at any time or from time to time
after the Effective Date, and whether based on circumstances, events or actions
arising theretofore or thereafter, and whether or not such obligations and
liabilities shall have been disclosed herein or reflected on the books and
records of the Taiwan Business and the Hong Kong Administrative Office
(collectively, the "Assumed Liabilities"), other than the Retained Liabilities
(as hereinafter defined).
Section 2.2 Retained Liabilities and Obligations. The Assumed
------------------------------------
Liabilities shall not include, and Bank will not assign to BAMS, and BAMS will
not assume any of the following (collectively, the "Retained Liabilities"):
(a) Any liability to the employees of the Taiwan Business and the Hong
Kong Administrative Office prior to or as of the Effective Date to provide
benefits to such employees under those employee benefit plans which provide
medical, dental, disability or life insurance coverage (collectively, "Employee
Insurance Plans") for claims arising from occurrences (as defined in the
relevant plan) prior to the Effective Date;
5
<PAGE>
(b) Liabilities for which an insurer has liability under a Bank
insurance policy, to the extent of actual coverage under such policy, and to the
extent arising out of occurrences (as defined in such policy) prior to the
Effective Date; provided that, notwithstanding the foregoing, Bank shall not
retain any environmental liabilities of the Taiwan Business and the Hong Kong
Administrative Office whether based on circumstances, events or actions arising
before or after the Effective Date or whether arising under present or future
laws or any actual or alleged contractual obligations of Bank or BAMS or the
Taiwan Business and the Hong Kong Administrative Office;
(c) Liabilities solely for Taxes relating to the Assets or the Taiwan
Business and the Hong Kong Administrative Office to the extent such Taxes relate
to any period prior to the Effective Date;
(d) Liabilities exclusively arising out of or related to any of the
Excluded Assets; and
(e) With respect to liabilities that are required to be reflected on a
balance sheet prepared in accordance with generally accepted accounting
principles, those liabilities that would not be reflected on a consolidated
balance sheet prepared as of the Effective Date in accordance with generally
accepted accounting principles consistent with the audited balance sheet of BA
Merchant Services (Asia) at December 31, 1995 and the unaudited balance sheet of
BA Merchant Services (Asia) at June 30, 1996.
ARTICLE III
PURCHASE PRICE
--------------
Section 3.1 Purchase Price. BAMS will assume the Assumed Liabilities
--------------
and will deliver 1,500,000 shares of its Class B Common Stock (the
"Consideration") to Bank as consideration for Bank's selling, granting,
assigning, conveying, transferring and delivering to BAMS all of its right,
title and interest in and to the Assets relating to the Taiwan Business and the
Hong Kong Administrative Office.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.1 Representations and Warranties of Bank. Bank hereby
--------------------------------------
represents and warrants to BAMS that:
(a) Incorporation and Good Standing. Bank is a national banking
-------------------------------
association duly organized, validly existing and in good standing under the laws
of the United States of America, with requisite corporate power to own and
operate the Assets and to carry on the Taiwan Business and the Hong Kong
Administrative Office as now being conducted.
(b) Authorization. The execution, delivery and performance by Bank of
-------------
this Agreement are within the corporate power of Bank, has been duly authorized
by all necessary
6
<PAGE>
corporate action and does not contravene or constitute a default under any
provision of the articles of association or by-laws of Bank. To the knowledge of
Bank, except for the approval of the Board of Governors of the Federal Reserve
System (which was obtained on December 9, 1996) and the Taiwan Approvals (as
hereinafter defined), the execution, delivery and performance by Bank of this
Agreement requires no action by or in respect of, or filing with, any
governmental body, agency or official, and no consents or approvals of any
public body or authority except after the fact approval of the transfer of the
Hong Kong Administrative Office to BAMS. This Agreement constitutes a valid and
binding agreement of Bank, enforceable against Bank in accordance with its
terms.
(c) Absence of Restrictions. To the knowledge of Bank, the execution
-----------------------
and delivery of this Agreement by Bank and the performance by Bank of its
obligations hereunder does not and will not contravene, constitute a default
under, or give rise to or result in any right of termination, cancellation or
acceleration or in the creation of any lien under, any material agreement,
judgment, injunction, order, decree or other instrument to which Bank is a
party.
(d) Litigation. To the knowledge of Bank, there is no action,
----------
proceeding or investigation pending or threatened against Bank which questions
or challenges the validity of this Agreement or any action taken or to be taken
by Bank pursuant to this Agreement or in connection with the transactions
contemplated hereby.
(e) Compliance With Laws. To the knowledge of Bank, Bank is not in
--------------------
violation of any applicable federal, state, or local law, regulation or order or
any other requirement of any governmental, regulatory or administrative agency
or authority or court or other tribunal relating specifically to the Assets or
the Taiwan Business and the Hong Kong Administrative Office, where such
violation could reasonably be expected to have a material adverse effect on the
Assets, the Taiwan Business and the Hong Kong Administrative Office or Bank's
ability to transfer the Taiwan Business and the Hong Kong Administrative Office
to BAMS.
(f) Financial Statements. The audited financial statements of BA
--------------------
Merchant Services (Asia) at and for the year ended December 31, 1995 and the
unaudited financial statements of BA Merchant Services (Asia) at and for the
nine months ended June 30, 1996 have been prepared in accordance with generally
accepted accounting principles on a consistent basis and fairly present as of
the periods then ended the financial position and results of operations of the
Bank's Asian merchant processing businesses on a combined basis and reflect all
assets and liabilities that are part of such businesses.
Section 4.2 Representations and Warranties of BAMS. BAMS hereby
--------------------------------------
represents and warrants to Bank that:
(a) Incorporation and Good Standing. BAMS is a corporation duly
-------------------------------
incorporated, validly existing and in good standing under the laws of the State
of Delaware with requisite corporate power to own and operate its assets and
properties and to carry on its business as now being conducted and as proposed
to be conducted. BAMS is duly qualified to do business and is in good standing
as a foreign corporation in the State of California.
7
<PAGE>
(b) Authorization. The execution, delivery and performance of this
-------------
Agreement by BAMS is within BAMS' corporate power and has been duly authorized
by all necessary corporate action and does not contravene or constitute a
default under any provision of BAMS' certificate of incorporation or by-laws.
To the knowledge of BAMS, except for the Taiwan Approvals, BAMS' execution,
delivery and performance of this Agreement requires no action by or in respect
of, or filing with, any governmental body, agency or official, and no consents
or approvals of any public body or authority. This Agreement constitutes a
valid and binding agreement of BAMS, enforceable against BAMS in accordance with
its terms.
(c) Absence of Restrictions. To the knowledge of BAMS, the execution
-----------------------
and delivery of this Agreement and the performance by BAMS of its obligations
hereunder does not and will not contravene, constitute a default under, or give
rise to or result in any right of termination, cancellation or acceleration or
in the creation of any lien under, any material agreement, judgment, injunction,
order, decree or other instrument to which BAMS is a party.
(d) Litigation. To the knowledge of BAMS, there is no action,
----------
proceeding or investigation pending or threatened against or involving BAMS,
which questions or challenges the validity of this Agreement or any action taken
or to be taken by BAMS pursuant to this Agreement or in connection with the
transactions contemplated hereby.
(e) Compliance With Laws. To the knowledge of BAMS, BAMS is not in
--------------------
violation of any applicable federal, state, or local law, regulation or order or
any other requirement of any governmental, regulatory or administrative agency
or authority or court or other tribunal relating to it, where such violation
could reasonably be expected to have a material adverse effect on its ability to
carry out the transactions contemplated under this Agreement.
(f) Class B Stock. The Class B Stock, upon delivery to Bank as part
-------------
of the Consideration, will be fully paid, validly issued and non-assessable
shares of BAMS' Class B common stock, issued upon proper corporate approval from
BAMS' authorized and unissued shares, and will be free from liens or
encumbrances on its title.
ARTICLE VI
COVENANTS OF BANK
-----------------
Section 5.1 Pre-Closing Activities. From and after the date of this
----------------------
Agreement until the earlier of the Closing or until this Agreement shall
terminate pursuant to Article XII, except as otherwise agreed in writing, Bank
will use reasonable commercial efforts (a) to conduct the Taiwan Business and
the Hong Kong Administrative Office in the ordinary course and in a manner
consistent with past practices, except as may otherwise be permitted hereby, or
(b) as necessary or appropriate to consummate the transactions contemplated
hereby.
Section 5.2 Approvals and Consents.
----------------------
(a) Bank shall use reasonable commercial efforts to obtain any
governmental or regulatory approvals or consents, including the Taiwan
Approvals, and make or cause to be
8
<PAGE>
made (or assist BAMS in making) any declarations, filings and registrations with
governmental or regulatory authorities, which are necessary for Bank to
consummate the sale of the Taiwan Business and the Hong Kong Administrative
Office; provided, however, that Bank shall not be obligated to pay any
consideration therefor (except for filing fees and other similar charges).
(b) Bank shall use reasonable commercial efforts to obtain any
consent, substitution, approval or amendment required to novate or assign all
agreements, leases, licenses and other rights of any nature whatsoever relating
to the Taiwan Business and the Hong Kong Administrative Office; provided,
however, that Bank shall not be obligated to pay any consideration therefor
(except for filing fees and other similar charges) to the third party from whom
such consents, approvals, substitutions and amendments are requested.
Section 5.3 Bank Accounts and Powers; Merchant Accounts.
-------------------------------------------
(a) As of the Effective Date, Bank will close all of the bank accounts
of the Taiwan Business and revoke, and shall hereby be deemed to have revoked,
all guarantees by Bank made with respect to such bank accounts and the Assets,
and will revoke, and shall hereby be deemed to have revoked, authorizations and
powers of attorney of employees of the Taiwan Business to act on behalf of the
Taiwan Business or otherwise, except (i) with respect to the accounts listed on
Schedule 5.3 as to which Bank will use reasonable efforts to transfer to BAMS'
name, subject to agreement by the relevant financial institution if not Bank,
and (ii) any such accounts shall remain open and any funds contained in such
accounts as of the Effective Date shall remain on deposit therein to the extent
necessary pursuant to the following sentence. Bank agrees that any outstanding
claims against funds contained in those accounts as of the Effective Date due to
checks or drafts written against such funds in the ordinary course of business
consistent with past practice but not yet cleared by the financial institution
shall be paid when presented for payment to the appropriate financial
institution, in the order in which presented up to but not in excess of the
amount of funds contained in the respective accounts as of the Effective Date.
(b) As a part of the Closing, Bank will, at BAMS' reasonable request
and without further consideration, except for reimbursement of out-of-pocket
expenses, execute such additional security agreements, instruments or other
documents as BAMS may require to effect the assignment and transfer to BAMS of
Bank's security interest in each Merchant Account pursuant to Section 1.1(g).
Section 5.4 Further Assurances. After the Closing, Bank will, at
------------------
BAMS' reasonable request and without further consideration, except for
reimbursement of out-of-pocket expenses, execute such additional instruments of
conveyance and transfer and provide to BAMS such additional documents as BAMS
may require to effect or evidence the transfer of the Taiwan Business and the
Hong Kong Administrative Office and the Assets to BAMS.
Section 5.5 Employee Benefit Plans and Employee Insurance Plans.
---------------------------------------------------
Bank agrees that with respect to the employee benefit plans listed on Schedule
5.5, benefits accrued to employees of the Taiwan Business and the Hong Kong
Administrative Office who participate in those plans will become vested on the
Effective Date, and, for purposes of such plans, such employees will cease to be
employees of Bank as of the Effective Date and will be treated as "terminated"
as of the Effective Date.
9
<PAGE>
ARTICLE VI
COVENANTS OF BAMS
-----------------
Section 6.1 Approvals and Consents.
----------------------
(a) BAMS shall use reasonable commercial efforts to obtain all
governmental or regulatory approvals and consents, including the Taiwan
Approvals, and make or cause to be made (or assist Bank in making) any
declarations, filings and registrations with governmental or regulatory
authorities which are necessary for BAMS to consummate the purchase and sale of
the Taiwan Business and the Hong Kong Administrative Office.
(b) BAMS shall use reasonable commercial efforts to obtain any
consent, substitution, approval or amendment required for the assignment or
novation of all agreements, leases, licenses and other rights of any nature
whatsoever relating to the Taiwan Business and the Hong Kong Administrative
Office.
Section 6.2 Further Assurances. After the Closing, BAMS will, at
------------------
Bank's reasonable request, and without further consideration, except for
reasonable out-of-pocket expenses, execute such additional instruments of
assumption and provide to Bank such additional documents as Bank may require to
effect or ensure the proper assignment and assumption of the Assumed Liabilities
by BAMS.
Section 6.3 Preservation of Books and Records Post-Closing Access.
-----------------------------------------------------
From and after the Effective Date, BAMS agrees that it shall preserve and keep
the books and records of the Taiwan Business and the Hong Kong Administrative
Office delivered to it hereunder for such period of time as may be required by
any government agency or ongoing investigation, litigation or proceeding, and
shall make its books, records and employees available to Bank as may be
reasonably required in connection with any legal proceedings against or
governmental investigations of Bank, in connection with any tax examination or
filing of Bank, or for any other reasonable business purpose arising from or
relating to the Assumed Liabilities or the Retained Liabilities.
Section 6.4 Employees. Effective as of the Effective Date, all
---------
employees of the Taiwan Business and the Hong Kong Administrative Office will
cease to be employees of Bank. BAMS agrees that it will offer employment to
every employee of the Taiwan Business and the Hong Kong Administrative Office.
All current employees are listed on Schedule 6.4, which schedule shall be
updated by Bank as of the Effective Date.
ARTICLE VII
FURTHER COVENANTS OF THE PARTIES
--------------------------------
Section 7.1 Non-assignable Contracts and Permits. Nothing in this
------------------------------------
Agreement shall be construed as an attempt to assign to BAMS any contract,
commitment, or other agreement or permit, license or authorization which is by
law or its terms nonassignable or the assignment of which would constitute a
violation of statute, rule, regulation, contract, commitment or other
10
<PAGE>
agreement. If, as of the Effective Date, an attempted assignment of any
contract, commitment or other agreement would be ineffective or would affect
Bank's rights thereunder so that BAMS would not in fact receive all such rights,
Bank shall cooperate with BAMS in a mutually acceptable arrangement, at BAMS'
cost, to provide for BAMS the benefit (including the economic benefit) of such
contract, commitment or other agreement (other than legal title). If and so long
after the Effective Date as such assignment shall not have been made, Bank will
(a) to the extent that such action will not result in a violation of such
contract, commitment or other agreement, transfer to BAMS all assets and rights,
including all monies, received in respect of such contract and hold such
contract, commitment or other agreement in trust for BAMS and (b) to the extent
that the provisions of clause (a) above are not sufficient to transfer all of
the benefits (including the economic benefit) of such contract, commitment or
other agreement (other than legal title), or any of such contract, commitment or
other agreement has been canceled as a result of the attempted assignment, take
such actions (which, without limitation, may include entering into
subcontracting arrangements with BAMS, but in no event shall Bank be obligated
to enter into a commercially unreasonable arrangement) as are necessary to
provide all of the benefits (or the equivalent thereof, including the economic
benefit) of such contract, commitment or other agreement (other than legal
title) to BAMS. BAMS shall obtain, at its own expense, as of the Effective Date
or as soon thereafter as practicable, all permits, licenses or authorizations
required by any governmental agency with respect to the Taiwan Business and the
Hong Kong Administrative Office or the Assets without any guaranty or liability
of Bank with respect thereto, except for those permits, licenses or
authorizations which can be assigned by Bank at the Closing without the consent
of any third party. Subsequent to the Closing, Bank shall have the right to
cancel any permits, licenses or authorizations and bonds or guarantees related
thereto which are applicable to the Taiwan Business and the Hong Kong
Administrative Office or the Assets but are unable to be assigned within 90 days
from the Closing. BAMS shall reimburse Bank for any and all costs associated
with the assignment or failure to cancel any such non-assignable contracts,
commitments or other agreements (including, without limitation, the costs of
providing to BAMS the benefits thereunder) or permits, licenses or
authorizations.
Section 7.2 Conduct of Litigation. BAMS and Bank shall cooperate
---------------------
fully in the prosecution or defense of any action, proceeding or claim arising
out of or relating to the Retained Liabilities, on the one hand, and the Assumed
Liabilities, on the other hand, and shall consult and confer with one another
with respect thereto, at no cost to BAMS, on the one hand, or Bank, on the other
hand.
Section 7.3 Modification of Marketing and Administrative Services
-----------------------------------------------------
Agreements. As a part of the Closing, BAMS and Bank shall modify the Marketing
- ----------
Agreement and the Administrative Services Agreement, each between Bank and BAMS
and dated as of December 3, 1996, to provide for the inclusion of the Taiwan
Business within the provisions thereof on mutually agreeable terms.
11
<PAGE>
ARTICLE VIII
TAX MATTERS
-----------
Section 8.1 Cooperation. BAMS will cooperate with the Bank in
-----------
connection with any audit by the United States Internal Revenue Service or any
other tax authority of any tax return in connection with the operations of the
Taiwan Business prior to the Effective Date.
Section 8.2 Tax Agreement. Bank and BAMS agree that the Tax
-------------
Allocation Agreement between BankAmerica Corporation and BAMS dated December 3,
1996 (the "Tax Agreement") shall govern all tax matters between them relating to
the Taiwan Business following the Effective Date.
ARTICLE IX
CONDITIONS PRECEDENT TO
OBLIGATIONS OF BANK AND BAMS FOR THE CLOSING
--------------------------------------------
The obligations of Bank and BAMS to be discharged under this Agreement
on or prior to the Closing are subject only to receipt of the local regulatory
approvals (collectively, the "Approvals"), as set forth for in Section 9.1.
Section 9.1 Closing of the Purchase and Sale. Bank and/or BAMS
--------------------------------
shall have received:
(a) Such approvals of the Ministry of Finance of Taiwan ("MOF")
necessary for BAMS to engage in the Taiwan Business, including
without limitation approval of the MOF for BAMS to process
merchant payment and debit card transactions in Taiwan;
(b) Such approvals as are necessary to ensure that BAMS revenue from
the conduct of the Taiwan Business will be taxed on a net revenue
basis and not on a gross revenue basis; and
(c) Such other governmental approvals and consents as are necessary
for Bank to transfer the Taiwan Business and the Hong Kong
Administrative Office to BAMS.
ARTICLE X
CLOSING
-------
Section 10.1 The Closing.
-----------
(a) The consummation of the purchase and sale of the Taiwan Business
and the Hong Kong Administrative Office (the "Closing") contemplated by this
Agreement shall take
12
<PAGE>
place at 10:00 a.m. local time on a date determined in accordance with Sections
10.1(b) and (c) at the offices of Bank, 555 California Street, San Francisco,
California 94104, or at such other time, date and place as the parties hereto
may agree.
(b) The Closing for the purchase and sale of the Taiwan Business and
the Hong Kong Administrative Office and the Assets shall take place on a date as
soon as practicable following satisfaction of the conditions set forth in
Article IX, but in no event later than the Final Closing Date.
(c) Notwithstanding anything to the contrary contained herein, in no
event shall the Closing be consummated after September 30, 1997 (the "Final
Closing Date").
Section 10.2 Deliveries at the Closing.
-------------------------
(a) At the Closing, Bank and BAMS shall deliver or cause to be
delivered, the following documents duly executed by the appropriate parties and
acknowledged where appropriate:
(i) delivery by BAMS to Bank of the Consideration;
(ii) a Bill of Sale in the form of Exhibit A, executed by
Bank;
(iii) an Instrument of Assumption of Liabilities in the form
of Exhibit B, executed by BAMS;
(iv) such other documents, certificates and instruments as are
required to assign and transfer the Assets to BAMS and to
effect the assumption of the Assumed Liabilities by BAMS,
including such documents, certificates and instruments that
may be required under applicable local laws and
regulations. (b) The delivery of all documents and the
performance of all acts at the Closing shall be deemed to
have occurred or to have been taken simultaneously,
effective August 1, 1997.
(b) The delivery of all documents and the performance of all acts
at the Closing shall be deemed to have occurred or to have been taken
simultaneously, effective August 1, 1997.
ARTICLE XI
NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES
---------------------------------------------
Section 11.1 Survival. The representations, warranties and covenants
--------
made by Bank and BAMS, including, without limitation, statements contained in
any certificate or Schedule or Exhibit delivered by Bank to BAMS pursuant to
this Agreement, shall survive the Closing.
13
<PAGE>
ARTICLE XII
TERMINATION
-----------
Section 12.1 Termination. This Agreement and the transactions
-----------
contemplated hereby may be terminated at any time prior to the Closing (a) by
mutual agreement of Bank and BAMS in writing, or (b) by Bank or BAMS on or after
December 31, 1997, provided that one or more of the conditions provided in
Article IX of this Agreement shall not yet have been fulfilled by December 31,
1997.
Section 12.2 Nondisclosure. If this Agreement is terminated, BAMS
-------------
will not, for a period of five years from the date of this Agreement, use in any
manner or disclose to any third party any documents or information regarding the
Taiwan Business and the Hong Kong Administrative Office or the transactions
contemplated by this Agreement, without Bank's prior written consent. Upon any
such termination, BAMS will immediately return to Bank all such documents.
ARTICLE XIII
MISCELLANEOUS
-------------
Section 13.1 Amendments. BAMS and Bank may only amend, modify or
----------
supplement this Agreement in such manner as may be agreed upon by both of them
in writing.
Section 13.2 Waivers. Either BAMS or Bank may, by written notice to
-------
the other, (i) waive any of the conditions to its obligations hereunder or
extend the time for the performance of any of the obligations or actions of the
other, (ii) waive any inaccuracies in the representations of the other contained
in this Agreement or in any documents delivered pursuant to this Agreement,
(iii) waive compliance with any of the covenants of the other contained in this
Agreement, and (iv) waive or modify performance of any of the obligations of the
other. No action taken pursuant to this Agreement, including without limitation
any investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
Section 13.3 Public Announcements. Neither of the parties shall
--------------------
make, issue or release any oral or written public announcement or statement
concerning, or acknowledge the existence of, or reveal the terms, conditions and
status of, the transactions contemplated by this Agreement, without the other
party's prior approval of, or concurrence in, the contents of such announcement,
acknowledgment or statement.
Section 13.4 Notices. Any notice, request, instruction or other
-------
document to be given hereunder shall be in writing and delivered personally or
sent by telecopy or prepaid overnight courier: if to BAMS, BA Merchant Services,
Inc., One South Van Ness Avenue, 5th Floor, San Francisco, CA 94103, attention:
General Counsel; and if to Bank, Bank of America NT & SA,
14
<PAGE>
555 California Street, 6th Floor, San Francisco, CA 94104, attention: Corporate
Secretary #3018, with a copy to BankAmerica Corporation, 555 California Street,
8th Floor, San Francisco, CA 94104, attention: General Counsel #3017. Any notice
or other communication transmitted in accordance with this Section 13.4 shall
for all purposes of this Agreement be treated as given or effective, if
personally delivered, upon receipt, or, if sent by courier, upon the earlier of
receipt or the end of the business day following the date of delivery to such
courier, or, if telecopied, upon transmission and confirmation of receipt.
Section 13.5 Entire Agreement. The Schedules and Exhibits are
----------------
incorporated into this Agreement by reference. This Agreement and the Schedules
and Exhibits hereto embody the entire agreement between the parties and any and
all prior oral or written agreements, representations or warranties, contracts,
understandings, correspondence, conversations, and memoranda, whether written or
oral, between BAMS and Bank or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest, with respect to the subject matter hereof, are merged herein and
replaced hereby.
Section 13.6 Assignability; Third Party Rights. Neither this
---------------------------------
Agreement nor any of the party's rights hereunder shall be assignable by either
party hereto without the prior written consent of the other party. In the event
that any such assignment is made, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. Nothing in this Agreement, express or implied, shall be deemed to
confer upon any other person, including without limitation, employees of the
Taiwan Business and the Hong Kong Administrative Office, any rights or remedies
under, or by reason of, this Agreement; provided, that such other persons shall
not be deemed to include affiliates, successors or permitted assigns of any
party.
Section 13.7 Governing Law; Arbitration.
--------------------------
(a) This Agreement shall be construed in accordance with the laws of
the State of California without giving effect to principles of conflict of laws.
(b) Any dispute, controversy or claim between Bank and BAMS arising
out of or relating to this Agreement or any agreements or instruments relating
hereto or delivered in connection herewith, if unable to be resolved by mutual
agreement of the parties, will be resolved by arbitration conducted in San
Francisco, California under the auspices and according to the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement.
Section 13.8 Expenses of Agreement. Each party shall pay its own
---------------------
costs and expenses incident to the negotiation, preparation and execution of
this Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, attorneys' and accounting fees, whether or not
the transactions contemplated herein are consummated. Bank and BAMS shall share
equally the cost of any sales, transfer, use or value added taxes, plus any
interest or penalties related thereto, payable with respect to the sale,
conveyance and transfer of the Assets and the transactions contemplated by this
Agreement.
15
<PAGE>
Section 13.9 Limitation on Liability. Neither BAMS nor Bank shall
-----------------------
have any liability to the other for costs, loss of anticipated profits or
otherwise if the transactions contemplated by this Agreement are terminated
pursuant to the provisions of this Agreement.
Section 13.10 Headings, Definitions. The section and other headings
---------------------
contained in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement. Wherever in this
Agreement words indicating the plural number appear, such words shall be
considered as words indicating the singular number and vice versa where the
context indicates the propriety of such use.
Section 13.11 Counterparts. This Agreement may be executed in
------------
counterparts, each of which when so executed shall be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
16
<PAGE>
IN WITNESS WHEREOF, BAMS and Bank have each caused this Agreement to
be executed as of the date first above written.
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ BARRY L. PYLE
-------------------------
Name: Barry L. Pyle
Title: Senior Vice President
BA MERCHANT SERVICES, INC.
By: /s/ SHARIF M. BAYYARI
-------------------------
Name: Sharif M. Bayyari
Title: President & Chief
Executive Officer
17
<PAGE>
List of Exhibits, Schedules and Related Documents
Exhibit A: Bill of Sale
Exhibit B: Instrument of Assumption of Liabilities
Schedule of Real Property (Section 1.1(d))
Schedule of Accounts (Section 5.3)
Schedule of Employees (Section 6.4)
Modified Marketing Agreement (Section 7.3)
Modified Administrative Services Agreement (Section 7.3)
18
<PAGE>
Exhibit A
BILL OF SALE
This Bill of Sale dated as of September 30, 1997 effective as of
August 1, 1997, is by Bank of America National Trust and Savings Association
("Bank"), as seller, to BA Merchant Services, Inc. ("BAMS"), as purchaser.
Capitalized terms not otherwise defined shall have the meaning given in the
Taiwan Business and Hong Kong Administrative Office Acquisition Agreement
between Bank and BAMS, dated September 30, 1997 (the "Acquisition Agreement").
Bank, for value received and in accordance with the Acquisition
Agreement, without recourse, has transferred, sold, assigned, conveyed, granted,
bargained, set over and delivered, and by these presents, does hereby transfer,
sell, assign, convey, grant, bargain, set over and deliver, to BAMS and its
successors and assigns forever, all of Bank's right, title and interest in and
to the Assets other than the Excluded Assets as of the Effective Date.
Seller:
Bank of America National Trust and
Savings Association
By /s/ BARRY L. PYLE
----------------------------
Barry L. Pyle
Senior Vice President
19
<PAGE>
Exhibit B
INSTRUMENT OF ASSUMPTION OF LIABILITIES
This Instrument of Assumption of Liabilities dated as of September 30,
1997 effective as of August 1, 1997 is between Bank of America National Trust
and Savings Association ("Bank"), and BA Merchant Services, Inc. ("BAMS"), and
is executed in accordance with the Taiwan Business and Hong Kong Administrative
Office Acquisition Agreement between Bank and BAMS dated September 30, 1997 (the
"Acquisition Agreement"). Capitalized terms not otherwise defined shall have the
meaning given in the Acquisition Agreement.
BAMS hereby assumes and agrees to pay, satisfy, perform and discharge,
as if the Taiwan Business and the Hong Kong Administrative Office had been
operated by BAMS from the commencement thereof and had never been owned by Bank,
all of the Assumed Liabilities other than the Retained Liabilities.
Seller: Purchaser:
BANK OF AMERICA NATIONAL BA MERCHANT SERVICES, INC.
TRUST AND SAVINGS ASSOCIATION
By /s/ BARRY L. PYLE By /s/ SHARIF M. BAYYARI
------------------------ ------------------------------
Barry L. Pyle Sharif M. Bayyari
Senior Vice President President & Chief Executive
Officer
20
<PAGE>
SCHEDULE OF REAL PROPERTY
(SECTION 1.1(D))
A. Leased Premises
Lessor: Shen Shin Enterprise Corp.
Location: 16/th/ Floor, IBM Building
2 Tun Hwa South Rd.
Section 1
Taipei, Taiwan
B. Leased Premises
Approximately 470 square feet will be utilized for the Hong Kong
Administrative office under service memorandum or "Letter of
understanding" with Bank of America NT&SA
Lessor: Bank of America, NT&SA
Location: Approximately 470 square feet
Devan House, 17/th/ Floor
979 King's Road
Quarry Bay
Hong Kong
Rent: Approximately US $2,028 per month, varies based on exchange rate.
21
<PAGE>
SCHEDULE OF ACCOUNTS
(SECTION 5.3)
Bank accounts used in the operation of the Taiwan Business which Bank will use
reasonable efforts to transfer to BAMS.
None
22
<PAGE>
SCHEDULE OF EMPLOYEES
(SECTION 6.4)
#9803 STAFF LIST
<TABLE>
<CAPTION>
ENGLISH EMPLOYEE DEPARTMENT POSITION GRADE
NAME DATE
<S> <C> <C> <C> <C>
Kao, Linda 02/19/68 Admini VP: Business Manager L4
Wang, Mark 07/04/78 Admini AVP: Risk Management 78
Huang, James 03/04/89 Admini Vice President L5
Chou, Mira 04/21/97 Admini Secretary 52
Pan, Angela 08/02/96 Credit Credit Review Officer 75
I, Cecilia 09/11/95 Credit Sr. Clerical Specialist 54
Yang, Gina 08/01/95 Credit Sr. Clerical Technician 51
Ke, Kevin 06/27/96 Credit Filing Clerk 51
Tsao, Louisa 06/29/77 Custom Associate Oprs. Specialist 75
Yang, Melinda 08/18/93 Custom Branch Specialist 52
Chung, Iris 05/12/97 Custom Branch Specialist 52
Wu, Sylvie 05/12/97 Custom Branch Specialist 52
Tseng, Gwendolyn 03/03/97 Legal Branch Specialist 52
Peng, Tina 01/23/67 Operati AVP 79
Chang, Ann 03/01/94 Operati Authorization Officer 75
Hsin, Jonathan 01/22/96 Operati Operations Manager 76
Fang, Michelle 05/15/96 Operati Associate Oprs. Specialist 75
Chen, Mark 03/23/79 Operati Operations Assistant 55
Chuang, Josephine 07/09/84 Operati Sr. Clerical Specialist 54
Yeh, Jacqueline 06/19/97 Operati Sr. Clerical Specialist 54
Hsu, Yolanda 11/10/87 Operati Clerical Specialist 53
Lee, Eleanor 11/14/95 Operati Clerical Specialist 53
Sun, Crissie 03/07/94 Operati Clerical Specialist 53
Lin, Rebecca 03/06/92 Operati Branch Specialist 52
Chang, Lisa 04/21/97 Operati Branch Specialist 52
Lin, Fion 05/02/97 Operati Branch Specialist 52
Lin, Lyman 05/29/97 Operati Branch Specialist 52
Yang, Vinecin 12/04/95 Operati Sr. Clerical Technician 51
Hsieh, Gloria 02/26/96 Operati Sr. Clerical Technician 51
Chi, Maggie 06/26/96 Operati Sr. Clerical Technician 51
Chen, Sophia 07/17/96 Operati Sr. Clerical Technician 51
Lin, Kitty 07/29/96 Operati Sr. Clerical Technician 51
Lee, Michael 08/26/96 Operati Sr. Clerical Technician 51
Hsu, Irene 04/14/97 Operati Sr. Clerical Technician 51
Tong, Ann 05/02/97 Operati Sr. Clerical Technician 51
Chen, Catherine 05/28/97 Operati Sr. Clerical Technician 51
Lin, Ann 07/01/96 Operati Data Capture 50
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Lin, Peggy 07/14/97 Operati Mail/Reception Clerk 50
Cheng, Hellen 05/19/97 Operati Data Capture 50
Yang, Alexandra 05/26/97 Operati Data Capture 50
Chou, Doris 03/19/97 Operati Data Capture 50
Ho, Peggy 06/02/97 Operati Data Capture 50
Lee, Maurice 10/26/77 Portfoli AVP: Portfolio Management 79
Yeh, Jimmy 02/15/74 Portfoli Sr. Cust. Liaison Officer 75
Lee, Frank 07/06/78 Portfoli Associate Opers. Specialist 75
Leong, Vivian 12/01/95 Project Account Manager 77
Chang, Cathy 10/03/88 Project Associate Account Manager 76
Wang, Phyllis 10/26/95 Project Associate Account Manager 76
Yu, Gina 03/17/97 Project Sr. Clerical Technician 51
Chen, Eric 06/13/88 Sales AVP: Merchant Rel. Rep. 78
Chuang, Simon 03/08/85 Sales Sr. Merchant Rel. Rep. 76
Bih, Michael 10/20/89 Sales Sr. Merchant Rel. Rep. 76
Chu, Samantha 03/21/90 Sales Sr. Merchant Rel. Rep. 76
Chen, Janet 05/03/93 Sales Sr. Cust. Liaison Officer 75
Shih, Sally 07/05/94 Sales Sr. Merchant Svc. Sales Rep. 54
Hsu, James C. 09/10/96 Sales Merchant Svc. Sales Rep. 53
Wang, Eddie 09/12/94 Sales Merchant Svc. Sales Rep. 52
Chang, Ricky 01/05/95 Sales Merchant Svc. Sales Rep. 52
Cheng, Frank 09/06/96 Sales Merchant Svc. Sales Rep. 52
Lu, Alice 03/17/97 Sales Merchant Svc. Sales Rep. 52
Ho, Andy 08/31/92 Tech S Sr. Clerical Specialist 54
Ni, Jack 05/13/96 Tech S. Sales Support Clerk 53
Yu, Sam 03/04/96 Tech S. Sr. Clerical Technician 51
Lai, Jacky 05/03/96 Tech S. Sr. Clerical Technician 51
Wang, Johnny 04/07/97 Tech S. Sr. Clerical Technician 51
</TABLE>
CONTRACTUAL EMPLOYEES
Date: 07/17/97
<TABLE>
<CAPTION>
Employee English Employee
Number Name Date
<S> <C> <C>
Fang, Thomas 08/16/93
Hsu, Hurries 10/29/94
Hsieh, Anny 04/02/96
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Wang, Edward 06/19/96
Huang, Charles 08/10/96
Chen, Shadow 09/15/96
Liu, Sam 09/16/96
Dai, Paul 01/20/97
Chang, James 01/20/97
Wang, Bryan 02/03/97
Chiu, Macy 04/02/97
Yang, Judy 06/02/97
Chiao, Wilson 07/13/97
Fang, Jacky 07/03/97
</TABLE>
BAMSI HONG KONG
Tran-Thi, Le IA L3
Dolson, John S. IA L4
25
<PAGE>
MODIFIED MARKETING AGREEMENT
(SECTION 7.3)
Marketing Agreement dated December 3, 1996 between Bank, Bank of America NW,
N.A. (subsequently merged with Bank) and BAMS
No amendment is necessary. The Agreement contemplates, in Recital D, the
transfer of Bank's Taiwan merchant services business. Section 1.(a)(1) of the
Agreement defines "BAMSI Services" as those "...that are provided by or may be
transferred to BAMSI..."
26
<PAGE>
MODIFIED ADMINISTRATIVE SERVICES AGREEMENT
(SECTION 7.3)
Administrative and Support Services Agreement dated December 3, 1996 by and
between Bank of America National Trust and Savings Association, a national
banking association, and BA Merchant Services, Inc., a Delaware corporation.
No amendment is necessary. The Agreement contemplates the provision of certain
services, as specifically set forth in Service Memorandum, which may include
services related to the Taiwan business and Hong Kong Administrative Office.
27
