EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
STRATUMONE COMMUNICATIONS, INC.
This Agreement of Merger, dated as of the 20th day of September, 1999
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and StratumOne Communications, Inc., a California corporation
("Target").
RECITALS
(e) Target was incorporated in the State of California on
November 20, 1997 and on the date hereof has outstanding 4,566,548
shares of Common Stock ("Target Common Stock"), and 1,250,000 shares of
Series A Preferred Stock, 6,061,825 shares of Series B Preferred Stock
and 3,724,490 shares of Series C Preferred Stock (collectively the
"Target Preferred Stock," and together with the shares of Target Common
Stock, the "Target Shares").
(f) Acquiror and Target have entered into an Agreement and Plan
of Reorganization (the "Agreement and Plan of Reorganization") providing
for certain representations, warranties, covenants and agreements in
connection with the transactions contemplated hereby. This Merger
Agreement and the Agreement and Plan of Reorganization are intended to
be construed together to effectuate their purpose.
(g) The Boards of Directors of Target and Acquiror deem it
advisable and in their mutual best interests and in the best interests
of the shareholders of Target, that Target be acquired by Acquiror
through a merger ("Merger") of Target with and into Acquiror.
(h) The Boards of Directors of Acquiror and Target and the
shareholders of Target have approved the Merger.
AGREEMENTS
The parties hereto hereby agree as follows:
1. Target shall be merged with and into Acquiror, and Acquiror
shall be the surviving corporation.
2. The Merger shall become effective at such time (the "Effective
Time") as this Merger Agreement and the officers' certificate of Target is filed
with the Secretary of State of the State of California pursuant to Section 1103
of the Corporations Code of the State of California.
3. At the Effective Time of the Merger (i) all shares of Target
Common Stock that are owned directly or indirectly by Acquiror or by any direct
or indirect wholly-owned subsidiary of Target shall be cancelled, and no
securities of Acquiror or other consideration shall be delivered in exchange
therefor, and (ii) each of the issued and outstanding shares of Target
Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock (other than shares, if any, held by persons who have not voted
such shares for approval of the Merger and with respect to which such persons
shall become entitled to exercise dissenters' rights in accordance with the
Corporations Code of the State of California, referred to hereinafter as
"Dissenting Shares") shall be converted automatically into and exchanged for
0.3837454 of a share of Acquiror Common Stock; provided, however, that no more
than 7,016,084 shares of Acquiror Common Stock shall be issued in such exchange
(including Acquiror Common Stock reserved for issuance upon exercise of Target
options assumed by Acquiror). Those shares of Acquiror Common Stock to be issued
as a result of the Merger are referred to herein as the "Acquiror Shares".
4. Any Dissenting Shares shall not be converted into Acquiror
Common Stock but shall be converted into the right to receive such consideration
as may be determined to be due with respect to such Dissenting Shares pursuant
to the law of the State of California. If after the Effective Time any
Dissenting Shares shall lose their status as Dissenting Shares, then as of the
occurrence of the event which causes the loss of such status, such shares shall
be converted into Acquiror Common Stock in accordance with Section 3.
5. Notwithstanding any other term or provision hereof but subject
to the proviso in Section 3, no fractional shares of Acquiror Common Stock shall
be issued, but in lieu thereof each holder of Target Shares who would otherwise,
but for rounding as provided herein, be entitled to receive a fraction of a
share of Acquiror Common Stock shall receive from Acquiror an amount of cash
equal to the per share market value of Acquiror Common Stock (deemed to be
$73.50) multiplied by the fraction of a share of Acquiror Common Stock to which
such holder would otherwise be entitled. The fractional share interests of each
Target shareholder shall be aggregated, so that no Target shareholder shall
receive cash in an amount greater than the value of one full share of Acquiror
Common Stock.
6. The conversion of Target Common Stock and Target Preferred
Stock into Acquiror Common Stock as provided by this Merger Agreement shall
occur automatically at the Effective Time of the Merger without action by the
holders thereof. Each holder of Target Common Stock and Target Preferred Stock
shall thereupon be entitled to receive shares of Acquiror Common Stock in
accordance with the Agreement and Plan of Reorganization. Of the shares of
Acquiror Common Stock issued in the Merger, ten percent (10%) of such shares
shall be subject to escrow pursuant to the Agreement and Plan of Reorganization.
7. At the Effective Time of the Merger, the separate existence of
Target shall cease, and Acquiror shall succeed, without other transfer, to all
of the rights and properties of Target and shall be subject to all the debts and
liabilities thereof in the same manner as if Acquiror had itself incurred them.
All rights of creditors and all liens upon the property of each corporation
shall be preserved unimpaired, provided that such liens upon property of Target
shall be limited to the property affected thereby immediately prior to the
Effective Time of the Merger.
8. This Merger Agreement is intended as a plan of reorganization
within the meaning of Section 368 of the Internal Revenue Code of 1986, as
amended.
9. (a) The Amended and Restated Articles of Incorporation of
Acquiror in effect immediately prior to the Effective Time shall be the Amended
and Restated Articles of Incorporation of the Surviving Corporation unless and
until thereafter amended.
(b) The Bylaws of Acquiror in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation unless and
until amended or repealed as provided by applicable law, the Articles of
Incorporation of the Surviving Corporation and such Bylaws.
(c) The directors and officers of Acquiror immediately
prior to the Effective Time shall be the directors and officers of the Surviving
Corporation.
10. (a) Notwithstanding the approval of this Merger Agreement
by the shareholders of Target, this Merger Agreement shall terminate forthwith
in the event that the Agreement and Plan of Reorganization shall be terminated
as therein provided.
(b) In the event of the termination of this Merger
Agreement as provided above, this Merger Agreement shall forthwith become void
and there shall be no liability on the part of Target or Acquiror or their
respective officers or directors, except as otherwise provided in the Agreement
and Plan of Reorganization.
(c) This Merger Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
This Merger Agreement may be amended by the parties hereto any time before or
after approval hereof by the shareholders of Target, but, after such approval,
no amendments shall be made which by law require the further approval of such
shareholders without obtaining such approval. This Merger Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
IN WITNESS WHEREOF, the parties have executed this Merger Agreement as
of the date first written above.
CISCO SYSTEMS, INC.
By: /s/ John T. Chambers
------------------------------------
John T. Chambers, President
By: /s/ Larry R. Carter
------------------------------------
Larry R. Carter, Secretary
STRATUMONE COMMUNICATIONS, INC.
By: /s/ Vijay Parikh
------------------------------------
Vijay Parikh, President
By: /s/ Raju S. Judge
------------------------------------
Raju S. Judge, Secretary