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AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
KOMODO TECHNOLOGY, INC.
This Agreement of Merger is dated as of the 25th day of September, 2000
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and Komodo Technology, Inc., a California corporation ("Target").
RECITALS
A. Target was incorporated in the State of California and on the date
hereof has outstanding 16,372,000 shares of Common Stock ("Target Common
Stock"), 6,000,000 shares of Series A Preferred Stock (the "Target Series A
Preferred Stock") and 2,648,170 shares of Series B Preferred Stock (the "Target
Series B Preferred Stock"). The Target Series A Preferred Stock and the Target
Series B Preferred Stock is hereinafter collectively referred to as the "Target
Preferred Stock".
B. Acquiror and Target have entered into an Agreement and Plan of Merger
and 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 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.
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3. Immediately prior to the Effective Time of the Merger, each share
of Target Preferred Stock shall convert into 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 or any other 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 (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 ("California Law"), referred to hereinafter as "Dissenting Shares")
shall be converted automatically into and exchanged for 0.10473129 of a share of
Acquiror Common Stock; provided, however, that no more than 2,635,790 shares of
Common Stock of Acquiror shall be issued in such exchange (including Acquiror
Common Stock reserved for issuance upon exercise of Target options and Target
warrants 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
California Law. 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 $66.39375) 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(a) of the Internal Revenue Code of 1986, as
amended.
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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/ Xxxx X. Xxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxx, President
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Xxxxx Xxxxx, Assistant Secretary
KOMODO TECHNOLOGY, INC.
By: /s/ Jan Fandrianto
----------------------------------------------
Jan Fandrianto, President and Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
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OFFICERS' CERTIFICATE
OF
TARGET
Jan Fandrianto, President and Secretary of Komodo Technology, Inc., a
corporation duly organized and existing under the laws of the State of
California (the "Corporation"), does hereby certify:
1. He is the duly elected, acting and qualified President and Secretary
of the Corporation.
2. There are two authorized classes of shares, consisting of 29,000,000
shares of Common Stock, no par value, and 8,648,170 shares of Preferred Stock,
no par value. On the record date for the vote on the Agreement of Merger, there
were 16,372,000 shares of Common Stock, 6,000,000 shares of Series A Preferred
Stock and 2,648,170 shares of Series B Preferred Stock outstanding and entitled
to vote on the Agreement of Merger in the form attached.
3. The Agreement of Merger in the form attached was duly approved by the
Board of Directors of the Corporation in accordance with the Corporations Code
of the State of California.
4. Approval of the Agreement of Merger by the holders of at least 66-2/3%
of the outstanding shares of Series A Preferred Stock, more than 50% of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock, and
more than 50% of the outstanding shares of Common Stock was required. The
percentage of the outstanding shares of each class of
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the Corporation's shares entitled to vote on the Agreement of Merger which voted
to approve the Agreement of Merger equaled or exceeded the vote required.
The undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of his own knowledge. Executed
in Los Gatos, California, on September 25, 2000.
By: /s/ Jan Fandrianto
----------------------------------------------
Jan Fandrianto, President and Secretary
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OFFICERS' CERTIFICATE
OF
ACQUIROR
The undersigned, Xxxx X. Xxxxxxxx and Xxxxx Xxxxx, hereby certify on behalf
of Cisco Systems, Inc., a California corporation ("Acquiror"), that Xx. Xxxxxxxx
is the duly elected President and Chief Executive Officer and Xx. Xxxxx is the
duly elected Assistant Secretary of Acquiror and they further certify on behalf
of Acquiror that:
1. They are the duly elected, acting and qualified President and
Assistant Secretary, respectively, of Acquiror.
2. There are two authorized classes of shares, consisting of
20,000,000,000 shares of Common Stock, of which 7,165,914,196 shares are issued
and outstanding, and 5,000,000 shares of Preferred Stock, none of which are
issued and outstanding.
3. The Agreement of Merger in the form attached was approved by the Board
of Directors of Acquiror in accordance with the California Corporations Code.
4. No vote of the shareholders of Acquiror was required pursuant to
Section 1201(b) of the California Corporations Code.
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Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge. Executed in San Jose, California on September 25, 2000.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Xxxxx Xxxxx
Assistant Secretary
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