EXHIBIT 2.1
TERMINATION AGREEMENT AND RELEASE
THIS TERMINATION AGREEMENT AND RELEASE (this "Termination Agreement") is
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made and entered into as of January 7, 2003 by and among P-Com, Inc., a Delaware
corporation ("Parent"), XT Corporation, a Massachusetts corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Telaxis Communications
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Corporation, a Massachusetts corporation (the "Company").
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NOW, THEREFORE, in consideration of the agreements set forth herein, the
parties agree as follows:
1. Termination of Merger Agreement. The Agreement and Plan of Merger,
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dated as of September 9, 2002 (the "Merger Agreement"), among Parent, Merger
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Sub, and the Company is hereby terminated pursuant to Section 7.1(a) thereof,
and such termination shall have the effect set forth in Section 7.2 thereof.
2. Mutual Release.
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(a) Each of the parties hereto on its behalf and on behalf of
its affiliates, subsidiaries, successors and assigns, present and former
shareholders, officers, directors, employees, agents, representatives, attorneys
and any persons acting by, through, under, or in concert with each of them or
any of them hereby completely releases and forever discharges the other parties
hereto, their affiliates, subsidiaries, successors and assigns, present and
former shareholders, officers, directors, employees, agents, representatives and
attorneys from any and all claims, rights, demands, actions, obligations,
liabilities, and causes of action of any and every kind, nature, and character
whatsoever, known or unknown, which such party may now have or may in the future
have, arising from or relating to the Merger Agreement, including, without
limitation, the termination thereof, and whether based on tort, contract
(express or implied), or any federal, state or local law, statute or regulation
(hereinafter the "Released Matters"); provided, that this Termination Agreement
does not release or discharge the parties hereto from their respective
obligations under this Termination Agreement or Section 5.3(b), Section 5.5, or
Section 5.19 of the Merger Agreement.
(b) It is understood and agreed that, except as set forth
therein, the preceding paragraph is a full and final release covering all known
as well as unknown or unanticipated debts, claims, or damages of the parties
hereto arising from the Merger Agreement, including, without limitation, the
termination thereof. Therefore, each of the parties hereto waives any and all
rights or benefits which it may now have, or in the future may have, under the
terms of Section 1542 of the California Civil Code which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
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Each of the parties expressly waives and relinquishes any rights it may
have under Civil Code 1542 or any other statute or common law principle with a
similar effect. In connection with such waiver and relinquishment, the parties
hereto acknowledge that they or their attorneys or agents may hereafter discover
claims or facts in addition to or different from those which they now know or
believe to exist with respect to the Released Matters, but that it is their
intention hereby fully, finally, and forever to settle and release all of the
Released Matters, except as set forth in the proviso in Section 2(a) above. In
furtherance of this intention, the releases herein given shall be and remain in
effect as full and complete mutual releases with regard to the Released Matters
notwithstanding the discovery or existence of any such additional or different
claim or fact.
3. Miscellaneous.
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(a) This Termination Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts (irrespective of its choice of law principles).
(b) If any provision of this Termination Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void, or unenforceable, the remainder of this Termination
Agreement and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Termination Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business and
other purposes of such void or unenforceable provision; and, if they do not act
to replace the provision, the Termination Agreement will be interpreted as if
they had replaced it with such a provision.
(c) This Termination Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(d) Should suit be brought to enforce or interpret any part of
this Termination Agreement, the prevailing party will be entitled to recover, as
an element of the costs of suit and not as damages, reasonable attorneys' fees
to be fixed by the court (including, without limitation, costs, expenses and
fees on any appeal).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, Merger Sub, and the Company have caused this
Termination Agreement to be signed by their respective duly authorized officers,
all as of the date first written above.
[Seal] P-COM, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President and General Counsel
[Seal] TELAXIS COMMUNICATIONS
CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
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President
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Treasurer
[Seal] XT CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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President
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Treasurer
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