Exhibit 10.5(i)
MARKETING AGREEMENT
Bank of America NT&SA and NW
This Agreement, made as of December ____, 1996, is between Bank of
America NT&SA, a national banking association ("BofA"), and Bank of America NW,
N.A., a national banking association ("BANW") (collectively referred to as the
"Bank"), and XX Xxxxxxxx Services, Inc., a Delaware corporation ("BAMSI").
Recitals
--------
A. The Bank has been a processor of credit card, charge card, ATM card
and debit card transactions for merchants accepting any combination of credit
cards, charge cards, ATM cards and debit cards and a provider of check
verification services for payment at point of sale ("Merchant Services").
B. The parties desire that BAMSI and the Bank cooperate and work
together in joint marketing opportunities, account-acquisition channels and
related services and support.
C. The parties intend to conduct their relationships under this
Agreement on an arm's length basis.
D. BofA and BANW, each a subsidiary of BankAmerica Corporation ("BAC"),
a Delaware corporation, currently own 100% of the outstanding common stock of
BAMSI and have entered into certain agreements with BAMSI as of the date shown
above: (1) transferring BofA's U.S. domestic Merchant Services businesses and
BANW's Merchant Services business to BAMSI; and (2) covering the contemplated
transfer of Bank of America's Philippines, Taiwan and Thailand Merchant Services
businesses to BAMSI upon receipt of certain government approvals. BAMSI is
currently considering an initial public offering of shares of its Class A common
stock, $0.01 par value per share. BANW and BofA intend for BANW to merge into
BofA, effective January 1, 1997.
E. Concurrently with the execution and delivery of this Agreement,
BAMSI has entered into, as of the date shown above: (1) a Non-Competition and
Corporate Opportunities Allocation Agreement between BAC and BAMSI (the
"Corporate Opportunities Agreement"), (2) a Sponsorship and Processing Service
Agreement between BAMSI and the Bank (the "Sponsorship and Processing
Agreement"), (3) a Processing Service Agreement between BAMSI and certain other
BAC affiliates, (4) a Trademark License Agreement between BAMSI and BAC (the
"Trademark License Agreement"), (5) a Registration Rights Agreement among BAMSI,
BofA and BANW (the Registration Rights Agreement"), and (6) a
-1-
Tax Allocation Agreement between BAC and BAMSI (the "Tax Agreement").
NOW, THEREFORE, for valuable consideration, the parties hereby agree as
follows:
Agreement
---------
1. Marketing and Promotions.
------------------------
(a) BAMSI Services.
--------------
(1) During the term of this Agreement, the Bank and BAMSI will
cooperate and work together to market, promote and sell Merchant Services that
are provided by or may be transferred to BAMSI ("BAMSI Services") to existing
and prospective Merchant Services customers (collectively "Customers") according
to standards or requirements which the parties may establish from time to time
by mutual agreement. Except as provided in the Corporate Opportunities
Agreement, during the term of this Agreement, the Bank will not promote or offer
Merchant Services other than BAMSI Services. BAMSI Services which the Bank will
promote will include, among other things, authorization and processing services
for credit cards, charge cards, ATM cards and debit cards, check verification
and recovery services, and other Merchant Services products or services which
BAMSI develops or which an Association (defined below) develops and BAMSI
offers.
(2) The Bank will give BAMSI access to the Bank's retail and commercial
solicitation and distribution channels which include, without limitation, direct
mail, statement inserts, telemarketing, Internet and other on-line media and
cross-sell databases. If, through expansion, merger, acquisition or any other
means, the Bank acquires or adds new branches, commercial, corporate or
wholesale offices or sales forces, the Bank will give BAMSI access to any new or
additional solicitation and distribution channels available through the Bank's
new branches, offices or sales forces.
(b) Bank Services.
-------------
(1) During the term of this Agreement, the Bank and BAMSI will
cooperate and work together to market and promote the products and services of
the Bank or its affiliates ("Bank Services") to Customers. Bank Services will
include, without limitation, deposit-related accounts, credit-related products,
ATM sales and distribution, Business Banking, Commercial Cards (including
Corporate Cards and Purchasing Cards), interactive banking and home banking.
BAMSI will not promote banking products and services other than Bank Services
and will market
-2-
and promote Bank Services according to standards or requirements which the
parties may establish from time to time by mutual agreement.
(2) BAMSI will give the Bank access to BAMSI's retail and commercial
solicitation and distribution channels which include, without limitation, direct
mail, statement inserts, telemarketing, Internet and other on-line media and
cross-sell databases. If, through expansion, merger or acquisition, BAMSI
acquires or adds new businesses, offices or sales forces, BAMSI will give the
Bank access to any new or additional solicitation and distribution channels
available through BAMSI's new businesses, offices or sales forces.
2. Sales Training and Support.
--------------------------
(a) To facilitate the Bank's promotion of BAMSI Services, BAMSI, at
BAMSI's expense, will: (1) from time to time and as product changes warrant,
supply the Bank with sales and promotional information, literature and related
materials in any appropriate medium, which the Bank, to the extent reasonably
possible, will display and distribute to Customers, and (2) provide training and
related support services for the Bank's sales personnel. To facilitate BAMSI's
promotion of Bank Services, the Bank, at the Bank's expense, will: (1) from time
to time and as product changes warrant, supply BAMSI with sales and promotional
information, literature and related materials in any appropriate medium, which
BAMSI, to the extent reasonably possible, will distribute to Customers, and (2)
provide training and related support services for BAMSI's sales personnel.
(b) The Bank and BAMSI will coordinate and cooperate with each other to
conduct joint promotions, including joint and contemporaneous sales calls to
Customers, to complement the features and benefits of each other's products and
services.
3. Information Access.
------------------
The Bank will give BAMSI direct, on-line access to any account and
related information on each Customer on which the Bank has a record, including
access to checking-account balances for BAMSI's check verification services and
access to information needed for payment authorization services, to the extent
legally permissible. BAMSI will maintain the confidentiality of all such
information in accordance with Section 8 below.
4. Compensation.
------------
(a) Fees or Credit. BAMSI will pay, credit or
--------------
-3-
reimburse the Bank in accordance with the Compensation Schedule (attached as
Appendix A to this Agreement) for each Merchant Services application which the
Bank refers to BAMSI and which results in the acquisition of a new Customer. The
Bank will pay, credit or reimburse BAMSI in accordance with the Compensation
Schedule for each Bank product or service sold as a result of the referral or
promotion efforts of BAMSI. The rates of compensation in the Compensation
Schedule take into account the benefits and value which the Bank and BAMSI each
derive from joint and cooperative marketing efforts under this Agreement. The
parties may change the terms and rates of compensation from time to time by
mutual agreement. Each component of compensation between the parties will be
based on mutually agreeable and market-competitive pricing terms.
(b) Reports. As part of the compensation to the Bank for the Bank's
-------
marketing services, BAMSI will furnish the Bank with MIS reports on Customer
information on Customers acquired through the Bank, to the extent legally
permissible and operationally feasible for BAMSI.
(c) Payment. Unless the parties agree to use BAC's intercompany
-------
accounting system, each party will pay the other party by electronic transfer or
by check for the other party's services within 30 days following receipt of the
other party's itemized invoice.
5. Marks.
-----
(a) The Bank hereby authorizes BAMSI, in accordance with the Trademark
License Agreement, to use the Bank's trademarks, tradenames and service marks
(the "Bank's Marks") to market and promote the Bank's Services or BAMSI
Services. The Bank's Marks include, without limitation, Bank of America(R),
BankAmericard(R), Versatel(R) and Versateller(R).
(b) BAMSI hereby authorizes the Bank, in accordance with the Trademark
License Agreement, to use BAMSI's trademarks, tradenames and service marks
("BAMSI's Marks") to market and promote BAMSI Services or Bank Services.
BAMSI's Marks include, without limitation, XX Xxxxxxxx Services and PayLink.
6. Term; Termination.
-----------------
(a) The term of this Agreement will start as of the date first shown
above and continue without interruption for 5 years. After the initial 5-year
term, the term will automatically renew for 1-year terms unless either party
gives at least 6 months' advance written notice of termination. However, the
Bank may terminate this Agreement at any time upon 6 months' advance written
notice if BAC and its affiliates (other than BAMSI) beneficially own shares
representing less
-4-
than a majority of the voting power of the outstanding common stock of BAMSI.
(b) If a party materially fails to perform an obligation under this
Agreement, the other party may give written notice describing the failure to
perform, and if the failure is not corrected within 30 days, the notifying party
may terminate the Agreement immediately and will have the right to all available
remedies.
7. Independent Contractor.
----------------------
(a) Each party, in performing services under this Agreement, will be an
independent contractor of the other party, with exclusive control over its own
employees and agents who perform the terms under this Agreement.
(b) Each party is solely responsible for determining the terms and
conditions of employment between itself and its employees and agents, including,
without limitation, hiring, termination, hours of work, rates and payment of
compensation, and for the payment, reporting, collection and withholding of
taxes and similar contributions.
8. Confidentiality.
---------------
(a) BAMSI will treat as strictly confidential and as the Bank's
exclusive proprietary property all documents and information concerning the
Bank's marketing plans, marketing data, pricing plans, customer names or account
numbers, and related material which BAMSI receives in connection with this
Agreement (collectively the "Bank Information"). Except as authorized by the
Bank in a signed writing, BAMSI will not sell or disclose Bank Information,
directly or indirectly, to a third party. BAMSI will ensure that any agent
which BAMSI employs or retains to work with Bank Information will adhere to this
restriction of non-disclosure. This section does not apply to Bank Information
placed in the public domain other than by virtue of BAMSI's wrongful act or
omission.
(b) The Bank will treat as strictly confidential and as BAMSI's
exclusive proprietary property all documents and information concerning BAMSI's
marketing plans, marketing data, pricing plans, customer names or account
numbers, and related material which the Bank receives in connection with this
Agreement (collectively "BAMSI Information"). Except as authorized by BAMSI in
a signed writing, the Bank will not sell or disclose BAMSI Information, directly
or indirectly, to a third party. The Bank will ensure that any agent which the
Bank employs or retains to work with BAMSI Information will adhere to this
restriction of non-disclosure. This section
-5-
does not apply to BAMSI Information placed in the public domain other than by
virtue of the Bank's wrongful act or omission.
(c) If either party receives a subpoena or other legal process which
specifically seeks to discover Information created by or belonging to the other
party or which constitutes the other party's proprietary property, the party
served with the subpoena or process will notify the other party immediately and
will cooperate at the other party's expense to contest the subpoena or process
if that is the desire of the other party.
(d) Each party will provide a secure environment to protect the
Information of the other party, and will take reasonable precautions to prevent
its disclosure, loss or damage.
(e) Upon expiration or termination of this Agreement, each party will
return or destroy within 5 business days all written Information and marketing
materials in its possession relating to the other party or the other party's
products and services through a mutually agreeable method.
(f) This Section 8 will survive expiration or termination of this
Agreement.
9. Indemnification.
---------------
(a) By the Bank. The Bank will defend, indemnify and hold BAMSI and
-----------
each of its officers, directors, employees and agents harmless from and against
each liability, claim, demand, cost, damage, loss and cause of action
(collectively "Claim") arising from the Bank's failure to perform its
obligations under this Agreement, except in the case of BAMSI's gross negligence
or willful misconduct.
(b) By BAMSI. BAMSI will defend, indemnify and hold the Bank and each
--------
of its officers, directors, employees and agents harmless from and against each
Claim arising from BAMSI's failure to perform its obligations under this
Agreement, except in the case of the Bank's gross negligence or willful
misconduct.
(c) Notice. Either party seeking indemnification under this Agreement
------
will give prompt written notice to the other party of any Claim for which
indemnification is sought.
(d) Taxes. Each party will indemnify, reimburse and hold the other
-----
party harmless from and for any applicable sales or use taxes arising from the
indemnifying party's performance of the terms of this Agreement.
-6-
(e) This Section 9 will survive expiration or termination of this
Agreement.
10. Supervision and Regulation.
--------------------------
(a) The Bank is an insured institution subject to regulation and
supervision by the Office of the Comptroller of the Currency (OCC), and BAMSI is
a subsidiary of the Bank. Some of the services under this Agreement constitute
bank services under 12 U.S.C. (S)1867(c). To the extent required by law or
regulation, the parties will advise the OCC of the existence of this Agreement
and will cooperate with any examination which the OCC may wish to conduct in
connection with this Agreement or in connection with BAMSI's ongoing operations.
(b) This Section 10 will survive expiration or termination of this
Agreement.
11. Arbitration.
-----------
(a) Any dispute, controversy or claim between the the Bank and BAMSI
arising from or relating to this Agreement, BAMSI Services or Bank Services or
any related agreements or instruments will be resolved by arbitration conducted
in San Francisco, California, under the auspices, and in accordance with the
Commercial Arbitration Rules, of the American Arbitration Association, and in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice-of-law provision in this Agreement.
(b) This Section 11 will survive termination of this Agreement.
12. Notices.
-------
Each notice under this Agreement will be in writing and signed and will
be deemed effective when one party delivers it in person or transmits it
electronically, or 3 days after the notice is mailed by registered or certified
mail, to the designated representative of the other party at the applicable
address below.
To the Bank:
-----------
Bank of America NT&SA
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Corporate Secretary #3018
-7-
w/copy to:
General Counsel #3017
BankAmerica Corporation
000 Xxxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxxxxxxx, XX 00000
To BAMSI:
--------
XX Xxxxxxxx Services, Inc. #0000
Xxx Xxxxx Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Director of Product/
Strategy/Technology Support
13. Assignment. Neither party may assign this Agreement without the
----------
written consent of the other party. Upon consent, this Agreement will be
binding on and inure to the benefit of the parties' respective successors and
assigns.
14. Governing Law.
-------------
The lf the State of California will govern this Agreement, and any
provisions on conflict of laws will have no effect.
15. Third-Party Beneficiaries.
-------------------------
Except as expressly provided in this Agreement, the parties to this
Agreement intend that this Agreement will not benefit or create any right or
cause of action in or on behalf of any person other than the parties to this
Agreement.
16. Entire Agreement.
----------------
This Agreement, including the attached Appendices, sets forth the entire
agreement between the parties relating to the subject matter of this Agreement,
superseding all prior written or oral understandings. This Agreement may not be
amended or modified without a writing signed by both parties.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
first date shown above.
BANK OF AMERICA NT&SA XX XXXXXXXX SERVICES, INC.
By __________________________ By ___________________________
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
Vice Chairman President & Chief Executive Officer
BANK OF AMERICA NW, N.A.
By __________________________
Xxxxx X. Xxxx
President
-8-
APPENDIX A
TO MARKETING AGREEMENT
Compensation Schedule
Compensation to the Bank.
------------------------
The Bank's compensation for marketing and promotional services described in
Section 1 above are:
Retail Branches
---------------
For each BAMSI Customer location acquired from referral by a branch:
. $55 reimbursement paid to the retail branch's region (if in the U.S.)
or to the branch (if outside the U.S.) for each Customer location up
to a maximum of 50 Customer locations for each Customer
Commercial Banking
------------------
For each BAMSI Customer location acquired from referral by a Commercial
Banking Officer:
. $55 reimbursement to the Commerical Banking Office for each Customer
location up to a maximum of 50 Customer locations for each Customer
Compensation to BAMSI.
---------------------
Float From Immediate Sales-Draft Credits. To the extent that a BAMSI
----------------------------------------
Customer has a demand deposit account with the Bank to which BAMSI deposits
same-day credit for processed credit-card and debit-card sales drafts of the
BAMSI Customer, the Bank will pay BAMSI each month the average interest
revenue earned as a result of the float period from the date of BAMSI's
deposit to the date that BAMSI collects the amounts of those
-9-
sales drafts through the applicable Association settlement system, calculated as
follows:
Paper and Electronic merchant sales will be retrieved from the merchant
database at the branch level.
- Paper sales float days for the average monthly sales is set at 2.95
days.
- Electronic sales float days for average monthly sales is set at 2.20
days.
On the 5th day of each month, BAC Corporate Treasury's three-year pool
rate for the prior calendar month will be applied to the calculated
float-days sales during the prior calendar month to arrive at the
monthly float amount.
Example:
Monthly float = ((Electronic sales x 2.20 days) + (Paper sales x 2.95
days)) x .00623/365
-10-
