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AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
TARGET
This Agreement of Merger is dated as of the 8th day of September, 2000
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and NuSpeed, Inc., a Delaware corporation ("Target").
RECITALS
A. Target was incorporated in the State of Delaware and immediately prior
to the Effective Time of the Merger (as defined below) will have
outstanding 4,322,213 shares of Common Stock ("Target Common Stock") and
5,067,017 shares of Preferred Stock ("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
Stockholders 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 (the "Surviving Corporation").
2. The Merger shall become effective at such time (the "Effective Time")
as this Merger Agreement and the officers' certificates of Target and Acquiror
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. At the Effective Time of the Merger (i) all shares of Target Common
Stock and Preferred Stock that are owned directly or indirectly by Target,
Acquiror or any other direct or indirect wholly owned subsidiary of Target or
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 the General Corporations Law of the State of Delaware
("Delaware Law") referred to hereinafter as "Dissenting Shares") shall be
converted automatically into and exchanged for .61747658 of a share of Acquiror
Common Stock; provided, however, that no more than 7,098,673 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
Delaware 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 $66.63750) 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.
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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) (i) 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.
(ii) 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
Amended and Restated Articles of Incorporation of the Surviving
Corporation and such Bylaws.
(iii) The directors and officers of Acquiror immediately prior to
the Effective Time shall be the directors and officers of the
Surviving Corporation.
10. (a) (i) 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.
(ii) 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.
(iii) 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.
(iv) 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/ JOHN T. CHAMBERS
------------------------------------------------
John T. Chambers, President and Chief Executive
Officer
By: /s/ DAVID ROGAN
------------------------------------------------
David Rogan, Assistant Secretary
NUSPEED, INC.
By: /s/ MARK CREE
------------------------------------------------
Mark Cree, President
By: /s/ CLINT JURGENS
------------------------------------------------
Clint Jurgens, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
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OFFICERS' CERTIFICATE
OF
TARGET
Mark Cree, President, and Clint Jurgens, Secretary, of NuSpeed, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), do hereby certify:
1. They are the duly elected, acting and qualified President and the
Secretary, respectively, of the Corporation.
2. There are two authorized classes of shares, consisting of
4,322,213 shares of Common Stock, par value $0.01 per share, and 5,067,017
shares of Preferred Stock, par value $0.01 per share. On the record date for the
vote on the Agreement of Merger, there were 4,000,000 shares of Common Stock and
5,067,017 shares of Series A 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 General
Corporations Law of the State of Delaware.
4. Approval of the Agreement of Merger by the holders of at least a
majority of all the outstanding shares of Common Stock and Preferred Stock
(voting together as one class) and by the holders of a majority of the
outstanding shares of Preferred Stock was required. The percentage of the
outstanding shares of each class of 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.
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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 Maple Grove, Minnesota, on September 8, 2000.
By: /s/ MARK CREE
-------------------------------------
Mark Cree, President
By: /s/ CLINT JURGENS
-------------------------------------
Clint Jurgens, Secretary
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OFFICERS' CERTIFICATE
OF
ACQUIROR
The undersigned, John T. Chambers and David Rogan, hereby certify that Mr.
Chambers is the duly elected President and Chief Executive Officer and Mr. Rogan
is the duly elected Assistant Secretary of Cisco Systems, Inc. ("Acquiror") and
they further certify that:
1. They are the duly elected, acting and qualified President and
Secretary, respectively, of Acquiror.
2. There are two authorized classes of shares, consisting of
20,000,000,000 shares of Common Stock, of which 7,156,100,205 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 Stockholders 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 8, 2000.
By: /s/ JOHN T. CHAMBERS
-------------------------------------
President and Chief Executive Officer
By: /s/ DAVID ROGAN
-------------------------------------
David Rogan, Assistant Secretary
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