Exhibit 2.2
Chicago Mercantile Exchange Inc.
Registration Statement on Form S-4
AGREEMENT AND PLAN OF MERGER
OF
CME Transitory Co. and Chicago Mercantile Exchange INC.
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of March 1, 2000, between CME Transitory Co., a Delaware
nonstock corporation ("Transitory"), and Chicago Mercantile Exchange Inc., a
Delaware stock corporation ("CME" or "Surviving Corporation"), said corporations
hereinafter sometimes referred to jointly as the "Constituent Corporations."
WITNESSETH:
WHEREAS, Transitory is a nonstock corporation duly organized and
existing under the Delaware General Corporation Law, having as its registered
agent The Corporation Trust Company;
WHEREAS, CME is a stock corporation duly organized and existing under
the Delaware General Corporation Law, having as its registered agent The
Corporation Trust Company;
WHEREAS, the Constituent Corporations propose, pursuant to the
applicable provisions of the Delaware General Corporation Law, for Transitory to
merge with and into CME in consideration for which the Membership Interests in
Transitory will be converted into shares of the Common Stock of CME (the
"Merger"); and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have determined that it is advisable that Transitory be merged with
and into CME and have approved such Merger on the terms and conditions
hereinafter set forth in accordance with the applicable provisions of law
permitting such Merger;
NOW, THEREFORE, in consideration of the foregoing and of the
agreements, covenants and provisions hereinafter set forth, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to the words defined elsewhere in this Agreement, the following
words have the following respective meanings, and such definitions shall be
equally applicable to both the singular and plural forms of any of the words
herein defined:
"CME Certificate of Incorporation" means the amended and restated
certificate of incorporation of CME as in effect on the Effective Date.
"Consent" means any consent, license, permit, waiver, approval,
authorization or other action of, by or with respect to, or registration,
declaration or filing with, any court, Governmental Authority or Person.
"DGCL" means the General Corporation Law of the State of Delaware, as
amended.
"Effective Date" means the date on which the Merger becomes effective
as provided by the applicable provisions of the DGCL.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Governmental Approval" means any Consent of, with or to any
Governmental Authority, including the expiration of any waiting or other
time period required to pass before governmental consent or acquiescence
may be assumed or relied on.
"Governmental Authority" means any court or governmental authority,
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, any tribunal or arbitrators of competent jurisdiction and any
self-regulatory organization.
"Member" means the owner of a Membership Interest, or any portion
thereof, in Transitory. An owner of two or more Membership Interests, or
portions thereof, shall be deemed to be a separate Member with respect to
each individual interest owned.
"Membership Division" means a Membership Interest in any one or more
of the following four divisions of Membership Interests in Transitory: (i)
Chicago Mercantile Exchange; (ii) International Monetary Market; (iii)
Index and Options Market; and (iv) Growth and Emerging Markets.
"Membership Interest" means all the rights or interests of each Member
of Transitory, including, but not limited to, any floor access and
electronic trading rights, rights to clearing membership and clearing fees,
any right to vote, any rights with regard to earnings, surplus or assets of
Transitory, and any other rights in liquidation, merger, reorganization or
conversion of Transitory.
"Person" means an individual, corporation, joint venture, partnership,
association, trust, trustee, unincorporated entity, organization or
government or any department or agency thereof. A Person who owns a
Membership Interest in more than one capacity shall be deemed to be a
separate Person in each such capacity.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
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MERGER
Section 2.1 Effect of the Merger. Subject to the terms of this Agreement,
and as more fully set forth and supplemented by other provisions herein, upon
the Effective Date and pursuant to the Merger:
(a) Transitory will merge with and into CME, the separate existence
of Transitory shall cease, except to the extent provided by the laws of the
State of Delaware in the case of a corporation after its merger into
another corporation, and CME shall be the Surviving Corporation.
(b) All Membership Interests in Transitory shall be converted into
shares of the common stock of CME as provided in Section 3.1 of this
Agreement.
(c) The Surviving Corporation shall thereupon and thereafter possess
all the rights, privileges, immunities, powers and franchises, as well of a
public as of a private nature, of each of the Constituent Corporations, and
all property, real, personal and mixed, all debts due on whatever account,
including subscriptions to shares or membership interests and all other
choses in action, and all and every other interest of, or belonging to,
each of the Constituent Corporations shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act
or deed; and the title to all real estate, or any interest therein, vested
in either of the Constituent Corporations shall not revert or be in any way
impaired by reason of the Merger.
(d) The Surviving Corporation shall be responsible and liable for all
the liabilities and obligations of each of the Constituent Corporations,
and any claim existing or action or proceeding pending by or against either
of the Constituent Corporations may be prosecuted to judgment as if the
merger had not taken place, or the Surviving Corporation may be substituted
in its place, and neither the rights of creditors nor any liens upon the
property of either of the Constituent Corporations shall be impaired by the
Merger.
(e) (i) The respective assets of Transitory and CME shall be taken up
or continued on the books of the Surviving Corporation in the amounts at
which such assets shall have been carried on their respective books
immediately prior the Effective Date; and (ii) the respective liabilities
and reserves of Transitory and CME shall be taken up or continued on the
books of the Surviving Corporation in the amounts at which such liabilities
and reserves shall have been carried on their respective books immediately
prior to the Effective Date.
(f) All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of Transitory, its Members, Board of Directors
and committees thereof, officers and agents, which were valid and effective
immediately prior to the Effective Date shall be taken for all purposes as
the acts, plans, policies, agreements, arrangements, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to Transitory.
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Section 2.2 Charter and By-Laws. The CME Certificate of Incorporation
and By-Laws as in effect on the Effective Date shall be and constitute the
certificate of incorporation and by-laws of the Surviving Corporation until the
same shall be altered, amended or changed in accordance with their respective
terms and applicable law.
Section 2.3 Directors and Officers. The directors and officers of
Transitory prior to the Effective Date shall serve as the directors and officers
of the Surviving Corporation on and after the Effective Date, until new
directors and officers have been duly elected and qualified pursuant to the CME
Certificate of Incorporation and CME's By-laws, or until their earlier
resignation, removal or replacement.
Section 2.4 Employees and Agents. The employees and agents of Transitory
shall become the employees and agents of the Surviving Corporation and shall
continue to be entitled to the same rights and benefits which they enjoyed as
employees and agents of Transitory.
ARTICLE III
CONVERSION OF MEMBERSHIP INTERESTS
Section 3.1 Conversion of Membership Interests. On the Effective Date,
and without any further action by Transitory or CME, all Membership Interests in
Transitory shall be converted into common stock of CME in accordance with the
following:
(a) Each individual Chicago Mercantile Exchange division Membership
Interest in Transitory shall be converted into (i) 16,200 fully paid and
nonassessable shares of the Class A Common Stock, $.01 par value of CME and
(ii) one fully paid and nonassessable share of the Class B Common Stock,
Series B-1, $.01 par value of CME.
(b) Each individual International Monetary Market division Membership
Interest in Transitory shall be converted into (i) 10,800 fully paid and
nonassessable shares of the Class A Common Stock, $.01 par value of CME and
(ii) one fully paid and nonassessable share of the Class B Common Stock,
Series B-2, $.01 par value of CME.
(c) Each individual Index and Option Market division Membership
Interest in Transitory shall be converted into (i) 5,400 fully paid and
nonassessable shares of the Class A Common Stock, $.01 par value of CME and
(ii) one fully paid and nonassessable share of the Class B Common Stock,
Series B-3, $.01 par value of CME.
(d) Each full individual Growth and Emerging Markets division
Membership Interest in Transitory shall be converted into one fully paid
and nonassessable share of the Class B Common Stock, Series B-4, $.01 par
value of CME.
(e) Each fractional Growth and Emerging Markets division Membership
Interest in Transitory shall be converted into one fully paid and
nonassessable share of the Class B Common Stock, Series B-1, $.01 par value
of CME.
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Section 3.2 Further Rules. Transitory and CME are empowered to adopt
further rules and regulations, not inconsistent with the provisions of this
Agreement, regarding the conversion of Membership Interests in Transitory into
shares of the common stock of CME.
Section 3.3 Authority to Remedy Errors. Subject to the terms of this
Agreement, the Board of Directors of the Surviving Corporation may authorize and
issue additional shares of common stock and take any other action it deems
appropriate to remedy errors or miscalculations made in connection with this
Agreement.
ARTICLE IV
COVENANTS
Section 4.1 Further Actions. Each of the Constituent Corporations agrees
to use its reasonable efforts to take, or to cause to be taken, all actions and
to do, or to cause to be done, all things necessary, proper or advisable to
consummate and to make effective the transactions contemplated by this
Agreement, including, but not limited to:
(a) making, or causing to be made, all such filings and submissions
under any applicable law and giving such reasonable undertakings as may be
necessary to consummate this Agreement and the transactions contemplated
hereby;
(b) using reasonable efforts to obtain, or to cause to be obtained,
all Governmental Approvals and other Consents necessary to be obtained in
order to consummate this Agreement and the transactions contemplated
hereby; and
(c) using its reasonable efforts to take, or to cause to be taken,
all other actions, necessary, proper or advisable in order to fulfill its
obligations in respect of this Agreement and the transactions contemplated
hereby.
Each of the parties hereto will coordinate and cooperate with the other
party in exchanging such information and supplying such reasonable assistance as
may be requested by the other party in connection with the filings and other
actions contemplated by this Section 4.1.
ARTICLE V
CONDITIONS TO MERGER
Section 5.1 Conditions to Effectiveness. The obligation of each of the
parties hereto to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction on or prior to the Effective Date of the
Merger of following conditions:
(a) Consummation of Merger of Chicago Mercantile Exchange into and
with Transitory. The merger of Chicago Mercantile Exchange, an Illinois
not-for-profit corporation ("Existing CME"), into and with Transitory shall
have been consummated as provided in that certain Agreement and Plan of
Merger dated as of March 1, 2000 between Existing CME and Transitory.
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(b) No Injunctions or Restraints. Consummation of the transactions
contemplated by this Agreement shall not have been restrained, enjoined or
otherwise prohibited by any applicable law, including any order,
injunction, decree or judgment of any court or other Governmental
Authority, and no action or proceeding shall be pending or threatened by
any Governmental Authority on the Effective Date before any court or other
Governmental Authority to restrain, enjoin or otherwise prevent the
consummation of the transactions contemplated hereby or to recover any
material damages or obtain other material relief as a result of such
transactions. There shall not have been promulgated, entered, issued or
determined by any court or other Governmental Authority to be applicable to
this Agreement any applicable law making illegal the consummation of the
transactions contemplated hereby, and no proceeding with respect to the
application of any such applicable law shall be pending.
(c) Governmental and Regulatory Consents. All filings required to be
made prior to the Effective Date with, and all Consents, approvals, permits
and authorizations required to be obtained prior to the Effective Date from
any Governmental Authority, in connection with the execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby by the Constituent Corporations, and which, either individually or
in the aggregate, if not obtained would have a material adverse effect on
the business, assets, financial condition or results of operations of the
Surviving Corporation or would prevent consummation of this Agreement, will
have been made or obtained (as the case may be).
(d) Requisite Approvals. This Agreement shall have been approved by
the members or the stockholders, as the case may be, of each Constituent
Corporation, as required by applicable law.
ARTICLE VI
MEMBERSHIP INTERESTS
Section 6.1 Determination of Membership. The owner of a Membership
Interest as of a given date shall be the Person or Persons whose name or names
appear, as of such date, on the records of and as determined in good faith by
Xxxxxxxxxx. Such Person or Persons, determined in accordance with the foregoing
sentence, shall conclusively be presumed to be the owner or owners of such
Membership Interest for purposes of this Agreement and Transitory shall not be
required to examine or consider any other facts or circumstances.
Section 6.2 Mailing Address. The mailing address of a Member, determined
in accordance with the foregoing Section, as of any date, for purposes of this
Agreement, shall be the Member's last known address as it appears on the records
of Transitory as of such date.
ARTICLE VII
CORRECTIONS, AMENDMENTS AND TERMINATION
Section 7.1 Corrections. The Constituent Corporations may, until the
Effective Date, by an instrument executed by a Chairman, Vice Chairman,
President or any Vice President of
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each Constituent Corporation, make such modifications as are appropriate to
correct errors, clarify existing items or make additions to correct manifest
omissions in this Agreement.
Section 7.2 Amendment of Agreement. At any time prior to the merger of
Existing CME into and with Transitory, the parties hereto may agree to amend
this Agreement. No amendment may, in the sole judgment of the Board of Directors
of Transitory, materially and adversely affect the rights of the Members of
Existing CME.
Section 7.3 Abandonment of Agreement. At any time prior to the merger of
Existing CME into and with Transitory, Transitory may abandon this Agreement by
appropriate resolution of its Board of Directors, notwithstanding prior Member
approval. No Person shall have any rights or claims against either Constituent
Corporation or its respective Board of Directors based on the abandonment of
this Agreement.
ARTICLE VIII
ADDITIONAL PROVISIONS
Section 8.1 Severability. To the extent possible, each provision of this
Agreement shall be interpreted in a manner as to be valid, legal and
enforceable. Any determination that any provision of this Agreement or any
application thereof is invalid, illegal or unenforceable in any respect or in
any instance shall be effective only to the extent of such invalidity,
illegality or unenforceablity and shall not effect the validity, legality or
enforceability of any other provision of this Agreement.
Section 8.2 Headings. Article and Section headings contained in this
Agreement are inserted for convenience and reference only, and shall not be
considered in construing or interpreting any of the provisions hereof.
Section 8.3 Entire Agreement. This Agreement supersedes any and all oral
or written agreements heretofore made relating to the subject matter hereof and
constitutes the entire Agreement of the parties relating to the subject matter
hereof.
Section 8.4 Expenses. CME, as the Surviving Corporation, shall pay all
expenses of carrying the Merger into effect and accomplishing the Merger herein
provided for.
Section 8.5 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
Section 8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to any conflicts or choice of law provisions that would make
applicable the substantive laws of any other jurisdiction.
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IN WITNESS WHEREOF, each of the Constituent Corporations, pursuant to
authority duly given by resolutions adopted by its Board of Directors, has
caused this Agreement to be executed in its name by its duly authorized officer
as of the day and year aforesaid.
CME TRANSITORY CO.
By:
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman of the Board
CHICAGO MERCANTILE EXCHANGE INC.
By:
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman of the Board
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