Exhibit 10.14
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made and entered into as
of this 3rd day of December, 1996 by and among BANK OF AMERICA NT & SA, a
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national banking association (the "Bank"), and BANK OF AMERICA NW, NATIONAL
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ASSOCIATION, a national banking association ("BANW" and, collectively with the
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Bank, the "Holders") and XX XXXXXXXX SERVICES, INC., a Delaware corporation
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("BAMSI").
RECITALS
A. The Holders. The Bank and BANW are each an existing national banking
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association duly organized and in good standing under the laws of the United
States with their respective principal executive offices located in San
Francisco, California and Seattle, Washington.
B. BAMSI. BAMSI is an existing corporation, formed under the laws of the
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State of Delaware, with its principal executive offices located in San
Francisco, California.
C. BAC/BAMSI Transactions; The Offering. The Bank and BANW, each a
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subsidiary of BankAmerica Corporation ("BAC"), currently own 100% of the
outstanding common stock of BAMSI. The Bank and BANW have entered or will enter
into certain agreements with BAMSI (1) transferring the Bank's United States
domestic merchant processing business and the BANW merchant processing business
to BAMSI and (2) covering the contemplated transfer of the Philippine and
Thailand merchant processing businesses of the Bank to BAMSI upon the receipt of
certain governmental approvals (collectively, the "Asset Transfers"). BAMSI is
contemplating the issuance of shares of BAMSI's Class A common stock, $.01 par
value per share (the "Class A Common Stock"), in an initial public offering (the
"Offering") and following the Offering, the Bank and BANW will each be the
beneficial and record owner of 25,670,000 shares and 4,530,000 shares,
respectively, of BAMSI's Class B common stock, $.01 par value per share (the
"Class B Common Stock").
D. OCC Approval and Restrictions on BAMSI's Activities. On November 14,
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1996, the Office of the Comptroller of the Currency (the "OCC") approved the
application of BANW to hold the shares of Class B Common Stock (the "BANW
Shares"). As a condition to the OCC approval, the Holders and BAMSI have agreed
to provisions contained in this Agreement which provide to BANW certain rights
to restrict the activities of BAMSI as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration had and
received, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Restrictions on BAMSI's Activities.
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(a) During the term of this Agreement and for so long as BANW owns any of
the BANW Shares, BAMSI shall engage only in activities that are permissible for
national
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banks. BAMSI shall be prohibited from engaging in any new activities without
prior notice to and approval by BANW in accordance with Section 1(b).
(b) Following the receipt of a notice from BAMSI under Section 1(a), BANW
shall, in its sole discretion, determine (i) whether the proposed activities are
permissible for national banks, and (ii) whether regulatory applications should
be filed seeking approval for the proposed activities. If BANW determines that
such activities are so permissible, it shall so notify BAMSI and BAMSI may
engage in such activities, subject to regulatory approval, if deemed necessary
by BANW. Notwithstanding anything to the contrary contained herein, if BANW, or
any regulatory agency with authority over BANW, the Bank or BAMSI, determines
that such new activities are not permissible for national banks, at the sole
option of BANW, (x) BAMSI shall be prohibited from engaging in such activities,
or (y) BANW shall sell to the Bank and the Bank shall purchase from BAMSI the
BANW Shares. The price of the BANW Shares pursuant to the foregoing sentence
shall be the fair market value of the same at the time of sale as reasonably
agreed to by the Bank and BANW.
2. Term. The term of this Agreement and the provisions of Section 1
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shall commence on the date hereof and shall continue for so long as BANW owns
the BANW Shares and until terminated pursuant to Section 3.
3. Termination. This Agreement shall terminate upon the occurrence of
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any of the following events: (a) termination of BANW's investment in BAMSI
pursuant to Section 1(b)(ii); or (b) BANW no longer owns any of the BANW Shares
or any shares of Class B Common Stock or Class A Common Stock.
4. Arbitration. Any dispute, controversy or claim between any of the
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parties hereto arising out of or relating to this Agreement or any agreements or
instruments relating hereto or delivered in connection herewith, 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.
5. Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California without regard to principles of
conflicts of laws.
6. Notices. Any notice permitted or required by this Agreement shall be
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deemed given when sent by personal service, by certified or registered mail
return receipt requested, postage prepaid, by facsimile transmission or by
overnight delivery by a nationally recognized courier and addressed as follows:
if to BAMSI, to XX Xxxxxxxx Services, Inc., Xxx Xxxxx Xxx Xxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, attention: General Counsel #3710; if to the Bank,
to Bank of America NT & SA, 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX
00000, attention: Corporate Secretary #3018, with a copy to BankAmerica
Corporation, 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000,
attention: General Counsel; and, if to BANW, to Bank of America NW, N.A., 000
Xxxxx Xxxxxx, Xxxxxxx, XX 00000, attention: General Counsel # 3922. Actual
receipt of notice or other communication shall overcome any deficiency in manner
of delivery thereof.
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7. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed by all of the parties to this
Agreement, shall be deemed to be an original, and all of which counterparts
together shall constitute one and the same instrument.
8. Entire Agreement. This Agreement constitutes the entire agreement of
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the parties with respect to its subject matter, superseding all prior oral and
written communications, proposals, negotiations, representations,
understandings, courses of dealing, agreements, contracts, and the like between
the parties.
9. Amendments. This Agreement may be changed, amended, modified, or
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rescinded only by an instrument in writing signed by the party against which
enforcement of such change, amendment, modification or rescission is sought.
10. Third Party Beneficiaries. Except as expressly provided in this
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Agreement, the parties hereto intend that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
BANKAMERICA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice Chairman
BANK OF AMERICA NW, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President of the
Seafirst Bank Division
XX XXXXXXXX SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
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