EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
TRANSMEDIA 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 TransMedia Communications, Inc., a Delaware corporation
("Target").
RECITALS
A. Target was incorporated in the State of Delaware on December 16, 1997
and on the date hereof has outstanding 6,286,262 shares of Common Stock ("Target
Common Stock"), and 7,560,000 shares of Series A Preferred Stock and 5,750,000
shares of Series B Preferred Stock (collectively the "Target Preferred Stock,"
and together with the shares of Target Common Stock, the "Target Shares)."
B. 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.
C. 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.
D. 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 Target, Acquiror or any other
subsidiary of Acquiror 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 and Target 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 0.335817 of a share of
Acquiror Common Stock; provided, however, that no more than 7,000,000 shares of
Common Stock of Acquiror 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.
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.
(d) 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.
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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
TRANSMEDIA COMMUNICATIONS, INC.
By: /s/ GWONG LEE
------------------------------------
Gwong Lee, President
By: /s/ TAE HEA NAHM
------------------------------------
Tae Hea Nahm, Secretary
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