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EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
WEBLINE COMMUNICATIONS CORPORATION
This Agreement of Merger, dated as of the 2nd day of November, 1999
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and WebLine Communications Corporation, a Delaware corporation
("Target").
RECITALS
A. Target was incorporated in the State of Delaware on June 5, 1996 and
immediately prior to the Effective Time of the Merger (as defined below) will
have outstanding 9,246,340 shares of Common Stock ("Target Common Stock") and
8,602,512 shares of Preferred 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 stockholder 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 stockholders
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 are 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 direct or indirect wholly owned subsidiary of Acquiror shall be
cancelled, and no securities of Acquiror or other consideration shall be
delivered in exchange therefor, (ii) each of the issued and outstanding shares
of Target Common Stock, Target Series A Preferred Stock, Target Series B
Preferred Stock, Target Series C Preferred Stock and Target Series D 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 Delaware General
Corporation Law, referred to hereinafter as "Dissenting Shares") shall be
converted automatically into and exchanged for 0.1606, 1.7846, 0.1870, 0.1849
and 0.2096, respectively of a share of Acquiror Common Stock; provided, however,
that no more than 4,779,412 shares of Common Stock of Acquiror shall be issued
in such exchange (including Acquiror
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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 Delaware. 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, no
fractional shares of Acquiror Common Stock shall be issued, but in lieu thereof
each holder of shares of Target Common Stock 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 $68) 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 stockholder
shall be aggregated, so that no Target stockholder 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(a) 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 stockholders 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
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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 stockholders of Target,
but, after such approval, no amendments shall be made which by law require the
further approval of such stockholders 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/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Secretary
WEBLINE COMMUNICATIONS CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, President
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, Secretary
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