EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 13, 2002
BY AND AMONG
MASTERCARD INTERNATIONAL INCORPORATED,
MASTERCARD INCORPORATED
AND
MASTERCARD MERGER SUB, INC.
TABLE OF CONTENTS
PAGE
----
ARTICLE I THE MERGER....................................... 1
Section 1.1. The Merger............................... 1
Section 1.2. Effective Time........................... 1
Section 1.3. Charter and Bylaws....................... 2
Section 1.4. Directors................................ 2
Section 1.5. Officers................................. 2
Section 1.6. Additional Actions....................... 2
Section 1.7. MC Parent Charter........................ 2
ARTICLE II EFFECTS OF THE MERGER........................... 2
Section 2.1. Effect on Membership..................... 2
ARTICLE III MISCELLANEOUS.................................. 3
Section 3.1. Termination.............................. 3
Section 3.2. Approval................................. 3
Section 3.3. Notices.................................. 3
Section 3.4. Amendments............................... 3
Section 3.5. Counterparts............................. 3
Section 3.6. Entire Agreement; No Third-Party
Beneficiaries......................................... 3
Section 3.7. Governing Law............................ 3
Exhibit A Form of Certificate of Incorporation for the
Surviving Corporation
Exhibit B Form of Bylaws for the Surviving Corporation
Exhibit C Directors
Exhibit D Form of Certificate of Incorporation of MC Parent
Exhibit E Form of Bylaws of MC Parent
i
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("AGREEMENT"), dated as of February 13,
2002 is by and among MASTERCARD INTERNATIONAL INCORPORATED (the "MCI"), a
nonstock corporation organized and existing under the
Delaware General
Corporation Law (the "DGCL"),
MASTERCARD INCORPORATED ("MC PARENT"), a stock
corporation organized and existing under the DGCL, and MASTERCARD MERGER SUB,
INC. ("MERGER SUB"), a nonstock corporation organized and existing under the
DGCL, that is a wholly-owned subsidiary of MC Parent.
RECITALS
The Boards of Directors of MCI, Merger Sub and MC Parent each has
determined that it is advisable and in the best interests of their respective
company, members and/or stockholders that upon the terms and subject to the
conditions set forth in this Agreement, Merger Sub will merge with and into MCI
(the "MERGER"), with MCI being the surviving entity of the Merger.
For United States federal income tax purposes, the parties intend that the
transactions contemplated by this Agreement and the related documents, including
(i) the Merger, pursuant to which, in substance, the principal members,
association members and travelers cheque members of MCI will effectively
transfer to MC Parent the equity rights associated with their membership
interests, in the form of a Class B membership interest in MCI, and retain the
rights as licensees associated with their existing membership interests in the
form of Class A membership interests in MCI and their existing license
agreements with MCI, (ii) the Share Exchange (as defined in the Share Exchange
and Integration Agreement by and among MC Parent, MCI and Europay International
S.A., as amended, modified, supplemented or restated from time to time, dated as
of February 13, 2002 (the "INTEGRATION AGREEMENT") and (iii) the reallocations
of shares of MC Parent Class A Stock and MC Parent Class B Stock among the
shareholders of MC Parent, shall together constitute an integrated series of
transactions consisting solely of transfers of property to MC Parent in exchange
for shares of MC Parent Class A Stock and MC Parent Class B Stock described in
Section 351(a) of the Internal Revenue Code of 1986, as amended.
AGREEMENT
In consideration of the representations, warranties, covenants and
agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as defined in Section 1.2), Merger Sub shall
be merged with and into MCI in accordance with the DGCL, whereupon the separate
corporate existence of Merger Sub shall cease and MCI shall be the surviving
company in the Merger (the "SURVIVING CORPORATION").
(b) The Merger shall have the effects set forth in the DGCL. Accordingly,
from and after the Effective Time, the Surviving Corporation shall possess all
the rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities, liabilities and duties of MCI and Merger Sub.
Section 1.2. Effective Time. The parties shall execute and file a
Certificate of Merger or other appropriate documents in accordance with the
DGCL, and shall make all other filings or recordings required with respect to
the Merger under the DGCL. The Merger shall become effective at the time of
acceptance for filing by the Secretary of State of the State of
Delaware of the
Certificate of Merger (the "EFFECTIVE TIME").
1
Section 1.3. Charter and Bylaws. The certificate of incorporation (the
"CHARTER") and bylaws (the "BYLAWS") of the Surviving Corporation at the
Effective Time shall be amended and restated to read substantially in the forms
set forth in EXHIBIT A and EXHIBIT B hereto, respectively, until further amended
in accordance with applicable
Delaware law.
Section 1.4. Directors. The persons set forth on EXHIBIT C shall be the
Directors of the Surviving Corporation from and after the Effective Time and
shall hold office until their respective successors are duly elected or
appointed and qualified in the manner provided in the Charter and Bylaws of the
Surviving Corporation, or as otherwise provided by law.
Section 1.5. Officers. The persons who immediately prior to the effective
time of the Merger are the officers of MCI shall be the officers of the
Surviving Corporation (each to hold the same office or offices) from and after
the Effective Time and shall hold office until their respective successors are
duly elected or appointed and qualified in the manner provided in the Charter
and Bylaws of the Surviving Corporation, or as otherwise provided by law.
Section 1.6. Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation determines that any deeds, bills of sale, assignments,
assurances or any other acts or things are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, its
right, title or interest in, to or under any of the rights, properties or assets
of Merger Sub by reason of, or as a result of, the Merger, or (b) otherwise to
carry out the purposes of this Agreement, then the Surviving Corporation and its
proper officers and directors shall be authorized to execute and deliver, in the
name and on behalf of Merger Sub, all such deeds, bills of sale, assignments and
assurances and to do, in the name and on behalf of Merger Sub, all such other
acts and things necessary or desirable to vest, perfect or confirm any and all
right, title or interest in, to or under such rights, properties or assets in
the Surviving Corporation or otherwise to carry out the purposes of this
Agreement.
Section 1.7. MC Parent Charter. It shall be a condition precedent to the
consummation of the Merger that at the Effective Time of the Merger the
certificate of incorporation of MC Parent (the "MC PARENT CHARTER") and bylaws
of MC Parent (the "MC PARENT BYLAWS") shall be amended and restated to read
substantially in the forms set forth in EXHIBIT D and EXHIBIT E hereto,
respectively.
ARTICLE II
EFFECTS OF THE MERGER
Section 2.1. Effect on Membership.
(a) Conversion of MCI Membership Interests. At the Effective Time, each of
the issued and outstanding principal, association and travelers cheque
membership interests in MCI shall be converted by virtue of the Merger,
automatically and without any action on the part of the holders thereof, into a
Class A Membership Interest in MCI and a number of fully paid and nonassessable
shares of MC Parent class A common stock, $.01 par value per share (the "MC
PARENT CLASS A STOCK"), and fully paid and nonassessable shares of MC Parent
class B common stock, $.01 par value per share ("MC PARENT CLASS B STOCK"),
equal to 0.046527 shares of MC Parent Class A Stock and 0.0088623 shares of MC
Parent Class B Stock for each vote held by such member according to the current
MCI global proxy formula as of September 30, 2000, for which the total votes
were 1,294,660,941; and immediately thereafter, and as an integral part of the
integrated series of transactions contemplated by this Agreement and the
Integration Agreement, the shares of MC Parent Class A Stock and MC Parent Class
B Stock shall be reallocated in accordance with Section 1.3 of the Integration
Agreement.
(b) Conversion of MC Parent Membership Interests. At the Effective Time, MC
Parent's membership in Merger Sub shall be converted by virtue of the Merger,
automatically and without any action on the part of the holder thereof, into one
MCI Class B membership.
2
ARTICLE III
MISCELLANEOUS
Section 3.1. Termination. This Agreement may be terminated and abandoned by
action of the Board of Directors of each of MCI, Merger Sub and MC Parent at any
time prior to the Effective Time, whether before or after approval by the
members of MCI, the members of Merger Sub and the stockholders of MC Parent, to
the extent shares of stock have been issued.
Section 3.2. Approval. The respective obligation of each party to effect
the Merger is subject to approval by at least a majority of the votes cast at a
meeting of the members of MCI at which a quorum is present. The requisite
approval of the member of Merger Sub has been obtained.
Section 3.3. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent by overnight courier (providing proof of
delivery) to the parties or sent by telecopy (providing confirmation of
transmission) at the following addresses or telecopy numbers (or at such other
address or telecopy number for a party as shall be specified by like notice):
(a) if to MCI, Merger Sub or MC Parent:
MasterCard International Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Section 3.4. Amendments. The Boards of Directors of each of MCI, Merger Sub
and MC Parent may amend this Agreement at any time prior to the filing of the
Certificate of Merger with the Secretary of State of the State of
Delaware,
provided that an amendment made subsequent to the adoption of the Agreement by
the members of Merger Sub, the members of MCI and the shareholders of MC Parent,
to the extent shares of stock have been issued, shall not: (1) alter or change
the amount or kind of memberships, shares, securities, cash, property and/or
rights to be received in exchange for or on conversion of all or any of the
memberships of any class or series thereof of any of Merger Sub, MCI or MC
Parent, (2) materially alter or change any term of the Charter to be effected by
the Merger or (3) alter or change any of the terms and conditions of this
Agreement, in each case if such alteration or change would adversely affect the
holders of any memberships of either Merger Sub or MCI or any shareholder of MC
Parent.
Section 3.5. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Agreement.
Section 3.6. Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the other agreements entered into in connection with the
transactions (a) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Agreement and (b) are not intended to
confer upon any person other than the parties hereto any rights or remedies.
Section 3.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING
EFFECT TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
3
IN WITNESS WHEREOF, each of MCI, Merger Sub and MC Parent has executed this
Agreement and Plan of Merger, or has caused this Agreement and Plan of Merger to
be executed on its behalf by a representative duly authorized, all as of the day
and year first above written.
MASTERCARD INTERNATIONAL INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
MASTERCARD INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
MASTERCARD MERGER SUB, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
4