<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 23, 1998
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CISCO SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 77-0059951
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
170 WEST TASMAN DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 526-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN T. CHAMBERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CISCO SYSTEMS, INC.
255 WEST TASMAN DRIVE
SAN JOSE, CALIFORNIA 95134
(408) 526-4000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
THERESE A. MROZEK, ESQ.
CURTIS L. MO, ESQ.
BROBECK, PHLEGER & HARRISON LLP
TWO EMBARCADERO PLACE
2200 GENG ROAD
PALO ALTO, CALIFORNIA 94303
(650) 424-0160
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Title of Each Amount Proposed Maximum Proposed Maximum Amount
Class of Securities to Be Aggregate Offering Aggregate of Registration
to be Registered Registered Price Per Share(1) Offering Price(1) Fee
=============================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 2,083,039 $66.938 $139,438,631 $38,763.00
=============================================================================================================
</TABLE>
(1) The price of $66.938, the average of the high and low prices of Cisco's
common stock on the Nasdaq Stock Market's National Market on November 16, 1998,
is set forth solely for the purpose of computing the registration fee pursuant
to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
2,083,039 SHARES
CISCO SYSTEMS, INC.
COMMON STOCK
This Prospectus relates to the public offering, which is not being
underwritten, of 2,083,039 shares of our Common Stock which is held by some of
our current shareholders and optionholders.
The prices at which such shareholders and optionholders may sell the
shares will be determined by the prevailing market price for the shares or in
negotiated transactions. We will not receive any of the proceeds from the sale
of the shares.
Our Common Stock is quoted on the Nasdaq National Market under the
symbol "CSCO." On November 20, 1998, the average of the high and low price for
the Common Stock was $74.63.
-------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-------------------------------
================================================
The date of this Prospectus is November 23, 1998
2
<PAGE> 3
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by Cisco
Systems, Inc. (referred to in this Prospectus as "Cisco" or the "Registrant"),
any selling shareholder or by any other person. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that information herein is correct as of any time subsequent to
the date hereof. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the securities covered
by this Prospectus, nor does it constitute an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation may not lawfully
be made.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from our web site at http://cisco.com or at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13a, 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(a) Annual Report on Form 10-K for the year ended July 25, 1998,
filed September 25, 1998, including certain information in Cisco's
Definitive Proxy Statement in connection with Cisco's 1998 Annual
Meeting of Shareholders and certain information in Cisco's Annual Report
to Shareholders for the fiscal year ended July 25, 1998;
(b) Cisco's Current Reports on Form 8-K filed October 13, 1998
and November 20, 1998, respectively;
(c) The description of Cisco common stock contained in its
registration statement on Form 8-A filed January 8, 1990, including any
amendments or reports filed for the purpose of updating such
descriptions; and
(d) The description of Cisco's Preferred Stock Purchase Rights,
contained in its registration statement on Form 8-A filed on June 11,
1998, including any amendments or reports filed for the purpose of
updating such description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Larry R. Carter
Senior Vice President, Chief Financial Officer and Secretary
Cisco Systems, Inc.
255 West Tasman Drive
San Jose, CA 95134
408-526-4000
You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
3
<PAGE> 4
THE COMPANY
Cisco's principal executive offices are located at 255 West Tasman
Drive, San Jose, California 95134. Cisco's telephone number is (408) 526-4000.
PLAN OF DISTRIBUTION
Cisco is registering all 2,083,039 shares (the "Shares") on behalf of
certain selling shareholders. All of the shares either originally were issued by
us or will be issued upon exercise of options to acquire shares of our common
stock in connection with our acquisition of Clarity Wireless Incorporated. We
merged with Clarity Wireless Incorporated and we were the surviving corporation.
Cisco will receive no proceeds from this offering. The Selling Shareholders
named in the table below or pledgees, donees, transferees or other
successors-in-interest selling shares received from a named selling shareholder
as a gift, partnership distribution or other non-sale-related transfer after the
date of this prospectus (collectively, the "Selling Shareholders") may sell the
shares from time to time. The Selling Shareholders will act independently of
Cisco in making decisions with respect to the timing, manner and size of each
sale. The sales may be made on one or more exchanges or in the over-the-counter
market or otherwise, at prices and at terms then prevailing or at prices related
to the then current market price, or in negotiated transactions. The Selling
Shareholders may effect such transactions by selling the shares to or through
broker-dealers. The shares may be sold by one or more of, or a combination of,
the following:
- a block trade in which the broker-dealer so engaged will attempt
to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction,
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus,
- an exchange distribution in accordance with the rules of such
exchange,
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers, and
- in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In effecting
sales, broker-dealers engaged by the Selling Shareholders may arrange for other
broker-dealers to participate in the resales.
The Selling Shareholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with Selling Shareholders. The
Selling Shareholders also may sell shares short and redeliver the shares to
close out such short positions. The Selling Shareholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this prospectus. The Selling Shareholders also
may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
shares so loaned, or upon a default the broker-dealer may sell the pledged
shares pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from Selling Shareholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular broker-dealer might be in excess of customary
commissions and will be in amounts to be negotiated in connection with the sale.
Broker-dealers or agents and any other participating broker-dealers or the
Selling Shareholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because Selling
Shareholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the Selling Shareholders will be subject to the
prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. The Selling Shareholders have advised Cisco that
they have not entered into any agreements, understandings or
4
<PAGE> 5
arrangements with any underwriters or broker-dealers regarding the sale of their
securities. There is no underwriter or coordinating broker acting in connection
with the proposed sale of shares by Selling Shareholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, each
Selling Shareholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the Selling Shareholders. Cisco will make copies
of this prospectus available to the Selling Shareholders and has informed them
of the need for delivery of copies of this prospectus to purchasers at or prior
to the time of any sale of the shares.
Cisco will file a supplement to this prospectus, if required, pursuant
to Rule 424(b) under the Securities Act upon being notified by a Selling
Shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
- the name of each such Selling Shareholder and of the
participating broker-dealer(s),
- the number of shares involved,
- the price at which such shares were sold,
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
- that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, and
- other facts material to the transaction.
In addition, upon being notified by a Selling Shareholder that a donee
or pledgee intends to sell more than 500 shares, Cisco will file a supplement to
this prospectus.
Cisco will bear all costs, expenses and fees in connection with the
registration of the shares. The Selling Shareholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The Selling
Shareholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. The Selling Shareholders
have agreed to indemnify certain persons, including broker-dealers and agents,
against certain liabilities in connection with the offering of the shares,
including liabilities arising under the Securities Act.
5
<PAGE> 6
SELLING SHAREHOLDERS
The following table sets forth the number of shares owned by each of the
Selling Shareholders. None of the Selling Shareholders has had a material
relationship with Cisco within the past three years other than as a result of
the ownership of the shares or other securities of Cisco. No estimate can be
given as to the amount of shares that will be held by the Selling Shareholders
after completion of this offering because the Selling Shareholders may offer all
or some of the shares and because there currently are no agreements,
arrangements or understandings with respect to the sale of any of the shares.
The shares offered by this prospectus may be offered from time to time by the
Selling Shareholders named below.
<TABLE>
<CAPTION>
Number of
Number of Shares Percent of Shares
Beneficially Outstanding Registered for
Name of Selling Shareholder Owned Shares Sale Hereby(1)
- --------------------------- ---------------- ----------- --------------
<S> <C> <C>
Stritter, Edward P........................... 327,100 * 327,100
Raleigh, Greg G.............................. 325,466 * 325,466
Pollack, Mike A.............................. 211,940 * 211,940
Jones, Vincent K IV.......................... 211,294 * 211,294
Robert T. Wall............................... 168,895 * 168,895
David R. Johnson............................. 83,949 * 83,949
82 additional Selling Shareholders,
each of whom beneficially owns
less than one-tenth of one percent
of the total outstanding Common
Stock of Cisco as of September 23, 1998... 754,395 * 754,395
========= ===== =========
Total 2,083,039 * 2,083,039
</TABLE>
- --------------
* Represents beneficial ownership of less than 1%.
(1) This registration statement also shall cover any additional shares of common
stock which become issuable in connection with the shares registered for sale
hereby by reason of any stock divided, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which results
in an increase in the number of Cisco's outstanding shares of common stock.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
Cisco by Brobeck, Phleger & Harrison LLP, Palo Alto, California.
EXPERTS
The consolidated balance sheets as of July 25, 1998 and July 26, 1997
and the consolidated statements of operations, shareholders' equity and cash
flows for each of the three years in the period ended July 25, 1998 incorporated
by reference in this prospectus, have been incorporated herein in reliance on
the report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of that firm as experts in accounting and auditing.
6
<PAGE> 7
================================================================================
We have not authorized any person to make a statement that differs from what is
in this prospectus. If any person does make a statement that differs from what
is in this prospectus, you should not rely on it. This prospectus is not an
offer to sell, nor is it seeking an offer to buy, these securities in any state
in which the offer or sale is not permitted. The information in this prospectus
is complete and accurate as of its date, but the information may change after
that date.
-----------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information...............3
The Company.......................................4
Plan of Distribution..............................4
Selling Shareholders..............................6
Legal Matters.....................................6
Experts...........................................6
</TABLE>
================================================================================
================================================================================
CISCO SYSTEMS, INC.
2,083,039 SHARES
OF COMMON STOCK
----------
PROSPECTUS
----------
November 23, 1998
================================================================================
<PAGE> 8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Cisco in connection with the
sale of common stock being registered. All amounts are estimates except the SEC
registration fee.
<TABLE>
<S> <C>
SEC Registration fee $38,763
Legal fees and expenses 15,000
Accounting fees and expenses 5,000
Printing Fees 5,000
Transfer Agent Fees 5,000
Miscellaneous 11,000
--------
Total $79,763
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit indemnification, including
reimbursement of expenses incurred, under certain circumstances for liabilities
arising under the Securities Act. Cisco's Restated Articles of Incorporation, as
amended, and Amended Bylaws provide for indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the
California Corporations Code. In addition, Cisco has entered into
indemnification agreements with each of its directors and officers.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
2.1 Agreement of Merger between Cisco Systems, Inc. and Clarity Wireless
Incorporated
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the Opinion of
Brobeck, Phleger & Harrison LLP filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on page II-3 of this registration statement)
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
registration statement, or the most recent post-effective amendment thereof,
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-1
<PAGE> 9
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and therefore is unenforceable.
In the event that a claim for indemnification against such liabilities, other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act, and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act, that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Santa Clara, State of California, on this 23rd day of
November, 1998.
CISCO SYSTEMS, INC.
By /s/ JOHN T. CHAMBERS
----------------------------------
John T. Chambers,
President, Chief Executive Officer
and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John T. Chambers and Larry R. Carter, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of Cisco and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/ John T. Chambers President, Chief Executive November 23, 1998
- ------------------------------- Officer and Director
John T. Chambers (Principal Executive Officer)
/s/ Larry R. Carter Senior Vice President, Finance November 23, 1998
- ------------------------------- and Administration, Chief
Larry R. Carter Financial Officer and Secretary
(Principal Financial and
Accounting Officer)
/s/ John P. Morgridge Chairman of the Board and Director November 23, 1998
- -------------------------------
John P. Morgridge
/s/ Donald T. Valentine Vice Chairman and Director November 23, 1998
- -------------------------------
Donald T. Valentine
</TABLE>
II-3
<PAGE> 11
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/ James F. Gibbons Director November 23, 1998
- -------------------------------
James F. Gibbons
/s/ Robert L. Puette Director November 23, 1998
- -------------------------------
Robert L. Puette
/s/ Masayoshi Son Director November 23, 1998
- -------------------------------
Masayoshi Son
/s/ Steven M. West Director November 23, 1998
- -------------------------------
Steven M. West
/s/ Edward R. Kozel Director November 23, 1998
- -------------------------------
Edward R. Kozel
/s/ Carol A. Bartz Director November 23, 1998
- -------------------------------
Carol A. Bartz
/s/ James C. Morgan Director November 23, 1998
- -------------------------------
James C. Morgan
/s/ Mary Cirillo Director November 23, 1998
- -------------------------------
Mary Cirillo
/s/ Arun Sarin Director November 23, 1998
- -------------------------------
Arun Sarin
</TABLE>
II-4
<PAGE> 12
INDEX TO EXHIBITS
Exhibit Title
<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
2.1 Agreement of Merger between Cisco Systems, Inc. and Clarity
Wireless Incorporated
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the
Opinion of BPH filed as Exhibit 5.1)
24.1 Power of Attorney (included on page II-3 of this registration
statement)
</TABLE>
<PAGE> 1
EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
CLARITY WIRELESS INCORPORATED
This Agreement of Merger, dated as of the 2nd day of November, 1998
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and Clarity Wireless Incorporated, a California corporation
("Target").
RECITALS
A. Target was incorporated in the State of California on December 20,
1996 and on the date hereof has 19,499,856 outstanding shares of Common Stock
("Target Common Stock" or the "Target Shares"), and no shares of Preferred
Stock.
B. Acquiror and Target have entered into an Agreement and Plan of
Reorganization, as amended (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. (a) 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, (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 Chapter 13 of the California
General Corporation Law, referred to hereinafter as "Dissenting Shares") shall
be converted automatically into and exchanged for 0.1291531984 of a share of
Acquiror Common Stock; provided, however, that no more than 2,518,468 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 provided in
this Section 3(a) are referred to herein as the "Acquiror Shares".
<PAGE> 2
(b) Following the Closing, the holders of record of Target
Common Stock issued and outstanding immediately prior to the Effective Time
(other than Dissenting Shares) shall be entitled to receive additional
consideration in connection with the Merger as follows:
(i) If the First Product Milestone (as such term is defined
in the Purchase Option Agreement dated as of July 23, 1998 (the "Purchase Option
Agreement") by and among Target, Acquiror and the securityholders of Target
identified therein) occurs after the Closing Date and on or before July 31,
1999, Acquiror shall issue and deliver (or cause to be issued and delivered) to
each such holder that number of shares of Acquiror Common Stock equal to the
product obtained by multiplying (x) the quotient determined by dividing
$20,000,000 by the average of the closing bid prices 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 date on which the First Product
Milestone occurs (or, if such date is not a trading day, the next preceding
trading day), by (y) a fraction, the numerator of which is the total number of
shares of Acquiror Common Stock into which the shares of Target Common Stock
held by such holder shall have been converted pursuant to Section 3(a) by virtue
of the Merger, and the denominator of which is the total number of Acquiror
Shares.
(ii) If the Second Product Milestone (as such term is
defined in the Purchase Option Agreement) occurs after the Closing Date and on
or before November 30, 1999, Acquiror shall issue and deliver (or cause to be
issued and delivered) to each such holder that number of shares of Acquiror
Common Stock equal to the product obtained by multiplying (x) the quotient
determined by dividing $20,000,000 by the average of the closing bid prices 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 date on which the
Second Product Milestone occurs (or, if such date is not a trading day, the next
preceding trading day), by (y) a fraction, the numerator of which is the total
number of shares of Acquiror Common Stock into which the shares of Target Common
Stock held by such holder shall have been converted pursuant to Section 3(a) by
virtue of the Merger, and the denominator of which is the total number of
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
Chapter 13 of the California General Corporation Law and any other applicable
laws 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, 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 $59.56) 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.
<PAGE> 3
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 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
provided therein.
(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.
<PAGE> 4
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 and
Chief Executive Officer
By: /s/ Larry R. Carter
--------------------------------------
Larry R. Carter, Vice President,
Chief Financial Officer
and Secretary
CLARITY WIRELESS INCORPORATED
By: /s/ Gregory G. Raleigh
--------------------------------------
Gregory G. Raleigh, President
By: /s/ David R. Johnson
--------------------------------------
David R. Johnson, Secretary
<PAGE> 1
EXHIBIT 5.1
OPINION OF BROBECK, PHLEGER & HARRISON LLP
November 23, 1998
Cisco Systems, Inc.
255 W. Tasman Drive
San Jose, California 95134
Re: Cisco Systems, Inc. Registration Statement on Form S-3 for
Resale of 2,083,039 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel to Cisco Systems, Inc., a California
corporation (the "Company"), in connection with the registration for resale of
2,083,039 shares of Common Stock (the "Shares"), as described in the Company's
Registration Statement on Form S-3 ("Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act").
This opinion is being furnished in accordance with the
requirements of Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents, the corporate
proceedings taken by the Company in connection with the original issuance and
sale of the shares and a certificate of a Company officer regarding (among other
things) the Company's receipt of consideration upon the original issuance and
sale of the shares. Based on such review, we are of the opinion that the shares
are duly authorized, validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus which is part of the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act, the rules and
regulations of the Securities and Exchange Commission promulgated thereunder or
Item 509 of Regulation S-K.
This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company or the Shares.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of Cisco Systems, Inc. for the registration of 2,083,039
shares of its common stock, of our reports dated August 4, 1998, on our audits
of the consolidated financial statements and financial statement schedule of
Cisco Systems, Inc. as of July 25, 1998 and July 26, 1997, and for each of the
three years ended July 25, 1998, which reports are included in the Company's
1998 Annual Report on Form 10-K, filed with the Securities and Exchange
Commission. We also consent to the reference to our firm under the caption
"Experts."
PRICEWATERHOUSECOOPERS LLP
San Jose, California
November 16, 1998
