Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MASTERCARD INCORPORATED
THE UNDERSIGNED, for the purpose of forming a corporation pursuant to
Section 102 of the Delaware General Corporation Law (the "DGCL"), does hereby
certify the following:
FIRST: The name of the corporation is MasterCard Incorporated (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 100 West Tenth Street, City of Wilmington, County of New
Castle, and the name of the registered agent of the Corporation in the State of
Delaware at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
FOURTH: The name and mailing address of the Sole Incorporator is Noah
J. Hanft, 2000 Purchase Street, Purchase, New York 10577.
FIFTH: The Corporation shall have the authority to issue shares of
common stock, $.01 par value per share, in three classes, all of which shall be
nonassessable: Class A Common Stock ("Class A Stock"), Class B Common Stock
("Class B Stock") and Class C Common Stock ("Class C Stock" and, together with
the Class A Stock and the Class B Stock, the "Common Stock"). The number of
shares of Class A Stock that the Corporation may issue is limited to 275
million. The number of shares of Class B Stock that the Corporation may issue is
limited to 25 million. The number of shares of Class C Stock that the
Corporation may issue is limited to 75 million.
1. Class A Stock and Class B Stock. The Class A Stock and the
Class B Stock and the holders thereof shall have the rights, preferences and
privileges and be subject to the restrictions set forth below.
a. The shares of Class A Stock and the shares of Class B Stock
shall participate equally in any dividends declared by the Corporation's board
of directors (the "Board").
b. (i) Each share of Class B Stock (other than a share of
Class B Stock that constitutes a share of "ec Picto Stock," as that term is
defined in the Share Exchange and Integration Agreement, dated as of February
13, 2002, by and among the Corporation, MasterCard International Incorporated
("MCI") and Europay International S.A. (as amended, modified, supplemented or
restated from time to time, the "Integration Agreement")) shall automatically be
converted into one share of Class A Stock, without further action by the
Corporation or the holder of the share, at the close of business New York City
time, on the Transition Date (as defined in the Integration Agreement);
provided, however, that if such date is not a day on which banks in New York
City are open for business, then the conversion shall take place at the close of
business, New York City time, on the next date on which banks in New York City
are open for business (the "First Conversion Date"). Each share of ec Picto
Stock shall automatically be converted into one share of Class A Stock at the
close of business, New York City time, on the second anniversary of the First
Conversion Date; provided, however, that if such date is not a day on which
banks in New York City are open for business, then the conversion shall take
place at the close of business, New York City time, on the next date on which
banks in New York City are open for business.
(ii) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class A Stock solely for
the purpose of effecting the conversion of Class B Stock such number of shares
of Class A Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Class B Stock.
(iii) Upon the conversion of any shares of Class B Stock, the
shares of Class B Stock so converted shall be cancelled and shall no longer be
issuable by the Corporation.
c. (i) Except as otherwise provided in this paragraph, the
holders of Class A Stock shall have the right to one vote for each share of
Class A Stock held by them and, prior to and including the Transition Date, the
holders of Class B Stock shall have the right to one vote for each share of
Class B Stock held by them. The Class B Stock shall have no voting rights
following the Transition Date.
(ii) In any vote for the election of directors of the
Corporation, no holder of capital stock eligible to be voted in that election,
together with its Affiliates (as defined below), shall be entitled to exercise
voting power in excess of 7% (the "Percentage Voting Limitation") of the
outstanding shares of capital stock entitled to be voted in that election. At
any time following the Transition Date, either the Board, by the affirmative
vote of not less than a majority of the entire Board, or the stockholders, by a
resolution approved by the affirmative vote of the holders of not less than a
majority of the outstanding shares of Class A Stock, may amend, modify or delete
the Percentage Voting Limitation; provided, however, that the affirmative vote
of at least 75% of the members of the Board present at a meeting at which a
quorum is present shall be required to increase the Percentage Voting Limitation
to an amount greater than 15%. This paragraph (1)(c)(ii) of Article FIFTH shall
not be amended, modified or deleted without the approval of at least 75% of the
members of the Board present at a meeting at which a quorum is present and the
approval of at least a majority of the outstanding shares of Class A Stock (or,
prior to and including the Transition Date, the holders of not less than a
majority of the outstanding shares of Class A Stock and of Class B Stock, voting
together as a single class). The term "Affiliate", as used in this Certificate
of Incorporation, shall mean any direct or indirect parent entity of the holders
of Class A Stock (or, prior to and including the Transition Date, the holders of
Class A Stock and/or Class B Stock), and any direct or indirect majority-owned
subsidiary of any such holder or any of its parents.
d. The Corporation shall not issue any Class B Stock except in
accordance with the provisions of Sections 1.1, 1.2, 1.3 and 1.4 of the
Integration Agreement.
e. Shares of Class A Stock and Class B Stock may be redeemed
by the Corporation in order to effectuate any reallocation of shares among the
stockholders in accordance with Sections 1.3 and 1.4 of the Integration
Agreement.
2. Class C Stock. The Class C Stock may be issued from time to
time in one or more series, each of which will have such voting powers (or no
voting powers), designations, preferences and relative, participating, optional
or other special rights, and qualifications or restrictions of those powers,
preferences or rights, as are stated in the resolution or resolutions of the
Board providing for the issuance of the series; provided, however, that in no
event shall any shares of Class C Stock be entitled to voting rights, rights to
dividends or rights to participate in a liquidation that are greater than the
corresponding rights of the Class A Stock. The rights which the Board may (but
will not be required to) give to the holders of one or more series of Class C
Stock will include, but not be limited to, (a) the right to receive dividends at
such rates, on such conditions and at such times, as may be stated in the
resolution or resolutions providing for the issuance of the series, (b) such
rights upon the dissolution of the Corporation as may be stated in the
resolution or resolutions providing for the issuance of the series and
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(c) such rights to convert shares of the series into, or exchange shares of the
series for, shares of any other class or classes or any other series of the same
or any other class of stock of the Corporation, as may be stated in the
resolution or resolutions providing for the issuance of the series.
SIXTH: The Corporation shall not, without first obtaining (i) the
approval of at least 75% of the members of the Board present at a meeting at
which a quorum is present and (ii) the approval of the holders of not less than
a majority of the outstanding shares of Class A Stock (or, prior to and
including the Transition Date, the holders of not less than a majority of the
outstanding shares of Class A Stock and Class B Stock, voting together as a
single class):
a. (i) alter the Corporation's status as a stock corporation;
(ii) amend this Certificate of Incorporation to authorize the Corporation to
issue any stock other than Class A Stock, Class B Stock or Class C Stock; (iii)
sell, lease or exchange all or substantially all of the assets of the
Corporation or approve the sale, lease or exchange of all or substantially all
of the assets of MCI; (iii) consummate any merger or consolidation of the
Corporation or MCI with another corporation; or (iv) undertake an initial public
offering of any class of the Corporation's equity securities;
b. in its capacity as the Class B member of MCI, consent to
any proposed amendment to (i) Article FIFTH of the certificate of incorporation
of MCI as in effect from and after June 28, 2002, (ii) Article SEVENTH of the
certificate of incorporation of MCI as in effect from and after June 28, 2002,
(iii) Article NINTH, Section (b) of the certificate of incorporation of MCI as
in effect from and after June 28, 2002 or (iv) Article VI, Section 4(b) of the
bylaws of MCI as in effect from and after June 28, 2002; or
c. amend, modify or delete this Article SIXTH.
SEVENTH: The Corporation shall not:
a. issue shares of Class C Stock without first obtaining the
approval of at least two-thirds of the members of the Board present at a meeting
at which a quorum is present; provided, however, that if an issuance of shares
of Class C Stock, when taken together with all other issuances of shares of
Class C Stock made during the immediately preceding two years, represent greater
than 5% of the number of shares of Class A Stock and Class B Stock outstanding
before giving effect to that issuance, then the issuance of Class C Stock shall
not be made without the prior approval of at least 75% of the members of the
Board present at a meeting at which a quorum is present; provided, further, that
the affirmative vote of at least 75% of the members of the Board present at a
meeting at which a quorum is present shall be required to issue any shares of
Class C Stock with voting rights;
b. permit any stockholder of the Corporation (together with
its Affiliates) to own shares of capital stock representing more than 15% of the
outstanding shares of voting stock of the Corporation without the approval of at
least two-thirds of the members of the Board present at a meeting at which a
quorum is present;
c. amend, modify or delete clause (a) of this Article SEVENTH
and this clause (c) without the approval of at least 75% of the members of the
Board present at a meeting at which a quorum is present and the approval of the
holders of not less than a majority of the outstanding shares of Class A Stock
(or, prior to and including the Transition Date, the holders of not less than a
majority of the outstanding shares of Class A Stock and Class B Stock, voting
together as a single class); or
d. amend, modify or delete clause (b) of this Article SEVENTH
and this clause (d) without the approval of at least two-thirds of the members
of the Board present at a meeting at which a quorum is present and the approval
of the holders of not less than a majority of the outstanding shares of Class A
Stock (or, prior to and including the Transition Date, the holders of not less
than a majority of the outstanding
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shares of Class A Stock (or, prior to and including the Transaction Date, the
holders of not less than a majority of the outstanding shares of Class A Stock
and Class B Stock, voting together as a single class).
EIGHTH: Unless the Board by the affirmative vote of at least 75% of its
members present at a meeting at which a quorum is present decides otherwise, (i)
in addition to the eligibility criteria for directors of the Corporation set
forth in the Bylaws of the Corporation as in effect from and after June 28,
2002, no more than one-third of the number of members of the Board shall consist
of persons who are directors, officers or employees of, or consultants to,
stockholders designated as being part of a particular region of the Corporation;
and (ii) the Corporation shall not amend Section 2 of Article III of the Bylaws
of the Corporation as in effect from and after June 28, 2002. This Article
EIGHTH shall not be amended, modified or deleted without the approval of at
least 75% of the members of the Board present at a meeting at which a quorum is
present and the approval of the holders of not less than a majority of the
outstanding shares of Class A Stock (or, prior to and including the Transition
Date, the holders of not less than a majority of the outstanding shares of Class
A Stock and Class B Stock, voting together as a single class).
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized to make, alter or repeal the bylaws
of the Corporation.
TENTH: No director will have any personal liability to the Corporation
or its members for monetary damages for any breach of fiduciary duty as a
director, except (i) for any breach of the director's duty of loyalty to the
Corporation, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL or (iv) for any transaction from which the director obtained an
improper personal benefit.
ELEVENTH: Pursuant to Section 211(e) of the DGCL, directors shall not
be required to be elected by written ballot.
IN WITNESS WHEREOF, MasterCard Incorporated has caused this Amended and
Restated Certificate of Incorporation to be signed by its President and Chief
Executive Officer, and its corporate seal to be hereunto affixed and attested by
its Secretary, this 28th day of June, 2002.
MASTERCARD INCORPORATED
By: /s/ Robert W. Selander
-----------------------------
Name: Robert W. Selander
Title: President and Chief
Executive Officer
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