EXHIBIT 2.1
AGREEMENT OF MERGER
OF
ACQUIROR
AND
TARGET
This Agreement of Merger, dated as of the 12th day of March, 1998
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and WheelGroup Corporation, a Texas corporation ("Target").
RECITALS
________
A. Target was incorporated in the State of Texas on October 24, 1995 and
on the date hereof has outstanding 2,456,582 shares of Common Stock, no par
value ("Target Common Stock").
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. Immediately prior the Effective Time of the Merger, the
convertible note of Target will be converted into shares of Target Common
Stock. 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 (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 Articles 5.11 through 5.13 of
the Texas Business Corporation Act, referred to hereinafter as "Dissenting
Shares") shall be converted automatically into and exchanged for .5161945 of a
share of Acquiror Common Stock; provided, however, that no more than 1,900,000
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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 Texas. 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 provisio in the second sentence of 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 $64.63) 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 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 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 the 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 may be terminated at any
time prior to the Effective Time of the Merger by mutual agreement of the
Boards of Directors of Acquiror and Target.
b. 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.
c. 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.
d. 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.
e. 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.
ACQUIROR
By: /S/ JOHN T. CHAMBERS, PRESIDENT
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John T. Chambers, President
By: /S/ LARRY R. CARTER, SECRETARY
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Larry R. Carter, Secretary
TARGET
By: /S/ TONEY JENNINGS, PRESIDENT
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Toney Jennings, President
By: /S/ R. LEE SUTTERFIELD, SECRETARY
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R. Lee Sutterfield, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]