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EXHIBIT 2.1
AGREEMENT OF MERGER
OF
CISCO SYSTEMS, INC.
AND
SIGHTPATH, INC.
This Agreement of Merger is dated as of the 16th day of May, 2000
("Merger Agreement"), between Cisco Systems, Inc., a California corporation
("Acquiror"), and SightPath, 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 4,781,544 shares of Common Stock ("Target Common Stock") and
6,597,222 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
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.
3. At the Effective Time of the Merger (i) each outstanding share
of Target Preferred Stock will convert into one share of Target Common Stock;
(ii) 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
Target or Acquiror shall be cancelled, and no securities of Acquiror or other
consideration shall be delivered in exchange therefor; and (iii) 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 Corporation Law of the State of Delaware
("Delaware Law"), referred to hereinafter as "Dissenting Shares") shall be
converted automatically into and exchanged for 0.7933703 of a share of Acquiror
Common Stock; provided, however, that no more than 11,419,970 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".
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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 $69.84 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 and Target Preferred Stock into Target 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 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
Articles of Incorporation of the Surviving
Corporation and such Bylaws.
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(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 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.
(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 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/ JOHN T. CHAMBERS
-----------------------------------------
John T. Chambers, President
By: /s/ LARRY R. CARTER
-----------------------------------------
Larry R. Carter, Secretary
TARGET
By: /s/ JAMES RICOTTA
-----------------------------------------
James Ricotta, President
By: /s/ MARTIN MEYER
-----------------------------------------
Martin Meyer, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
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