EX-2.3 5 y49195a4ex2-3.txt AGREEMENT AND PLAN OF MERGER EXHIBIT 2.3 AGREEMENT AND PLAN OF MERGER DATED AS OF , 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 , 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 , 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 2000 Purchase Street Purchase, New York 10577-2509 Fax: (914) 249-4262 Attn: General Counsel with a copy to: Clifford Chance Rogers & Wells LLP 200 Park Avenue New York, New York 10166 Fax: (212) 878-8375 Attn: Kathleen L. Werner 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: -------------------------------------- Name: Title: MASTERCARD INCORPORATED By: -------------------------------------- Name: Title: MASTERCARD MERGER SUB, INC. By: -------------------------------------- Name: Title: 4