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EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
IPCELL TECHNOLOGIES, INC.
This Agreement of Merger is dated as of the 30th day of October, 2000
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and IPCell Technologies, Inc., a Texas corporation ("Target").
RECITALS
A. Target was incorporated in the State of Texas on September, 1998 and
on the date hereof has outstanding 9,452,983 shares of Common Stock ("Target
Common Stock"), and 3,333,333 shares of Series A Preferred Stock (the "Target
Preferred Stock"). The Target Preferred Stock and the Target Common Stock are
collectively referred to herein as the "Target Shares."
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 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.
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3. At the Effective Time of the Merger (i) all Target Shares that are
owned directly or indirectly by Target or 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
and Target 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 Texas Business Corporation Act, referred to hereinafter as "Dissenting
Shares") shall be converted automatically into and exchanged for 0.286237, of a
share of Acquiror Common Stock; provided, however, that no more than 3,674,993
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 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 Texas. 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 but subject to the
proviso in the second sentence of Section 3, 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 $54.421875) 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 and Target Preferred 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 and Target Preferred 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 is intended as a plan of reorganization within the
meaning of Section 368 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/ DAN SCHEINMAN
-------------------------------------
Dan Scheinman, Senior Vice President
Legal and Government Affairs
By: /s/ DAVID ROGAN
-------------------------------------
David Rogan, Secretary, Assistant
Secretary
IPCELL TECHNOLOGIES, INC.
By: /s/ ALLEN ADAMS
-------------------------------------
Allen Adams, Chief Executive Officer
By: /s/ KULA RAM RAI
-------------------------------------
Kula Ram Rai, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
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OFFICERS' CERTIFICATE
OF
TARGET
Allen Adams, Chief Executive Officer, and Kula Ram Rai, Secretary, of
IPCell Technologies, Inc., a corporation duly organized and existing under the
laws of the State of Texas ("Target"), do hereby certify on behalf of Target:
1. That they are the duly elected, acting and qualified Chief Executive
Officer and the Secretary, respectively, of Target.
2. There are two authorized classes of shares, consisting of 30,000,000
shares of Common Stock and 10,000,000 shares of Preferred Stock. There were
9,452,983 shares of Common Stock and 3,333,333 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 Target in accordance with the Texas Business Corporation
Act.
4. Approval of the Agreement of Merger by (i) the holders of at least a
majority of the outstanding shares of Common Stock and Series A Preferred Stock
voting together as a single class and by (ii) the holders of at least a majority
of the outstanding Series A Preferred Stock voting as a separate class was
required. The percentage of the outstanding shares of each class of Target'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 that the statements contained in the
foregoing certificate are true of their own knowledge. Executed in Dallas,
Texas, on October 30, 2000.
By: /s/ ALLEN ADAMS
-------------------------------------
Allen Adams Chief Executive Officer
By: /s/ KULA RAM RAI
-------------------------------------
Kula Ram Rai, Secretary
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OFFICERS' CERTIFICATE
OF
ACQUIROR
The undersigned, Daniel Scheinman and David Rogan, hereby certify on
behalf of Cisco Systems, Inc., a California corporation ("Acquiror"), that Mr.
Scheinman is the duly elected Senior Vice President, Legal and Government
Affairs and Mr. Rogan is the duly elected Assistant Secretary, of Acquiror and
they further certify on behalf of Acquiror that:
1. That they are duly elected, acting and qualified Senior Vice
President, Legal and Government Affairs, 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 7,185,408,456 shares are issued
and outstanding, and 5,000,000 shares of Preferred Stock, none of which is
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 October 30, 2000.
By: /s/ DANIEL SCHEINMAN
-------------------------------------
Daniel Scheinman
Senior Vice President,
Legal & Government Affairs
By: /s/ DAVID ROGAN
-------------------------------------
David A. Rogan
Assistant Secretary
