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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ACQUIROR
AND
TARGET
This Agreement and Plan of Merger, dated as of the 10th day of
February, 1998 ("Merger Agreement"), between Cisco Systems, Inc., a California
corporation ("Acquiror"), and LightSpeed International, Inc., a Virginia
corporation ("Target").
RECITALS
A. Target has outstanding shares of Common Stock ("Target Common
Stock"), shares of Series A Preferred Stock (the "Target Series A Preferred
Stock") and shares of Series B Preferred Stock (the "Target Series B Preferred
Stock"). The Target Series A Preferred Stock and Series B Preferred Stock are
hereinafter referred to as the "Target Preferred Stock," and together with the
Target Common Stock as the "Target Shares." Acquiror has outstanding shares of
Common Stock ("Acquiror Common Stock"). The Target Shares and the Target Options
(as defined below) are referred to herein as the "Target Capital 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.
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.
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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" of the Merger) that is the later of: (i) the time that 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 and (ii) the time that a Certificate of Merger
is issued by the State Corporation Commission of the Commonwealth of Virginia.
3. The maximum number of shares of Acquiror Common Stock to be
issued in connection with the Merger and pursuant to options to purchase shares
of Target Common Stock ("Target Options") assumed in the Merger shall be equal
to (i) 3,000,000 shares if the average of the closing bid price for a share of
Acquiror Common Stock as quoted on the Nasdaq National Market for the ten (10)
trading days immediately preceding and ending on the trading day that is five
(5) calendar days prior to the closing date as set forth in the Agreement and
Plan of Reorganization (the "Closing Date") (the "Aquiror Stock Price") is at
least $50 per share but not more than $66.67 per share; or (ii) if the Acquiror
Stock price is less than $50 per share or more than $66.67 per share, then that
number of shares of Acquiror Common Stock obtained by dividing $200,000,000 by
the Acquiror Stock Price but in no event more than 3,300,000 shares or less than
2,700,000 shares (the number of shares determined pursuant to (i) or (ii) above
being referred to herein as the "Total Acquiror Shares"), reduced as a result of
any Dissenting Shares (as defined below). No other adjustment shall be made in
the number of shares of Acquiror Common Stock issued in the Merger as a result
of (x) any increase or decrease in the market price of Acquiror Common Stock
prior to the Effective Time not otherwise required by the immediately preceding
sentence, or (y) any cash proceeds received by Target from the date hereof to
the Closing Date pursuant to the exercise of currently outstanding options to
acquire Target Capital Stock. As of the Effective Time, by virtue of the Merger
and without any action on the part of the holder of any shares of Target Capital
Stock:
(i) At the Effective Time each share of Target Preferred
Stock issued and outstanding at the Effective Time (other than shares owned by
Target, Acquiror or any direct or indirect wholly-owned subsidiary of Acquiror
and 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 laws of the state of Virginia
("Dissenting Shares")) shall be converted and exchanged for such number of
shares of Acquiror Common Stock as shall be determined in accordance with the
liquidation preferences set forth in Target's Articles of Incorporation. The
total number of shares of Acquiror Common Stock to be exchanged for Target
Preferred Stock is referred to herein as
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the "Preferred Component", and the exchange ratio so determined is referred to
as the "Preferred Exchange Ratio."
(ii) At the Effective Time each share of Target Common
Stock issued and outstanding immediately prior to the Effective Time (other than
shares owned by Target, Acquiror or any direct or indirect wholly-owned
subsidiary of Acquiror and Dissenting Shares) shall be converted and exchanged
for such number of shares of Acquiror Common Stock as shall be determined by
subtracting the Preferred Component from the Total Acquiror Shares and dividing
the result by the sum of (i) the number of shares of outstanding Target Common
Stock and (ii) the number of shares of Target Common Stock underlying all
outstanding Target Options. The total number of shares of Acquiror Common Stock
to be exchanged for Target Common Stock is referred to herein as the "Common
Component", and the exchange ratio so determined is referred to herein as the
"Common Exchange Ratio". The Common Exchange Ratio and any Preferred Exchange
Ratios are collectively referred to herein as the "Exchange Ratios".
(iii) At the Effective Time, each Target Option
outstanding immediately prior to the Effective Time shall be converted and
exchanged for options to purchase such number of shares of Acquiror Common Stock
("Acquiror Options") as shall be equal to the product of (a) the number of
shares of Target Common Stock that were subject to such Target Option and (b)
the Common Exchange Ratio, such product to be rounded down to the nearest whole
number of shares of Acquiror Common Stock. The exercise price of each Acquiror
Option shall equal the quotient obtained by dividing (a) the per share exercise
price of the Target Option by (b) the Common Exchange Ratio.
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 Commonwealth of Virginia. 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. 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 (rounded to
the nearest whole cent) equal to the product of (i) such fraction, multiplied by
(ii) the average closing bid of a share of Acquiror Common Stock for the ten
most recent days that Acquiror Common Stock has traded ending on the trading day
immediately prior to the Effective Time, as reported on the Nasdaq National
Market. 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.
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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 Section 3. Such shareholder shall receive
certificates that represent that number of shares of Acquiror Common Stock in
accordance with the following procedures:
(a) As soon as practicable after the Effective Time of the
Merger, Acquiror shall make available for exchange in accordance with Section 3,
through such reasonable procedures as Acquiror may adopt, the shares of Acquiror
Common Stock issuable pursuant to Section 3 in exchange for outstanding shares
of Target Common Stock.
(b) No dividends on the Acquiror Shares shall be paid to
the holder of any unsurrendered certificate of Target Capital Stock until the
holder of record of such certificate shall surrender such certificate. Subject
to the effect, if any, of applicable escheat and other laws, following surrender
of any certificate, there shall be delivered to the person entitled thereto,
without interest, the amount of dividends theretofore paid with respect to the
Acquiror Shares so withheld as of any date subsequent to the Effective Time of
the Merger and prior to such date of delivery.
(c) All Acquiror Shares delivered upon the surrender for
exchange of Target Shares in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such Target
Shares. There shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the Target Shares that were
outstanding immediately prior to the Effective Time of the Merger. If, after the
Effective Time of the Merger, certificates are presented to Acquiror for any
reason, they shall be cancelled and exchanged as provided in this Section 6.
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.
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.
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(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.
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IN WITNESS WHEREOF, the parties have executed this Merger
Agreement as of the date first written above.
ACQUIROR
By: /S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
By: /S/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Secretary
TARGET
By: /S/ XXX XXXXXXXX
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Xxx Xxxxxxxx, President
By: /S/ XXX XXXXX
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Xxx Xxxxx, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
