EXHIBIT 2.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Termination Agreement") is made and
entered into as of November 18, 2004 by and among YDI Wireless, Inc., a Delaware
corporation ("Parent"), Stun Acquisition Corporation, a Delaware corporation and
a wholly-owned subsidiary of Parent ("Merger Sub"), and Phazar Corp, a Delaware
corporation (the "Company").
NOW, THEREFORE, in consideration of the covenants, promises, and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Termination of Merger Agreement. The Agreement and Plan of
Merger, dated as of October 30, 2003, as amended to date (as amended, the
"Merger Agreement"), among Parent, Merger Sub, and the Company is hereby
terminated by mutual consent pursuant to Section 7.1(a) thereof.
2. Payment and Transfer of Equipment.
(a) Parent shall pay the Company the sum of One Hundred
Thousand Dollars ($100,000.00) within five (5) business days of the date of this
Termination Agreement.
(b) Parent does hereby sell, transfer, convey, assign, and
deliver to the Company the personal property (the "Equipment") described on
Exhibit A attached hereto. The Equipment is transferred AS IS, WHERE IS, and
WITH ALL FAULTS without any covenant or warranty, express or implied, of any
nature whatsoever, including, without limitation, any implied warranty of
merchantability or fitness for a particular purpose.
3. Mutual Release. 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, whether based on tort, contract (express or
implied), or any federal, state or local law, statute or regulation; 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 5.16 of the Merger Agreement.
4. Miscellaneous.
(a) This Termination Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
(irrespective of its choice of law principles).
(b) 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. A facsimile or copy of a signature
is valid as an original.
(c) 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.
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] PHAZAR CORP
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
President
[Seal] YDI WIRELESS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Chief Executive Officer
STUN ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
[Seal] Chief Executive Officer
EXHIBIT A
Transferred Equipment
Item Model Serial Number
---- ----- -------------
CNC Machine ERH 7029-A00-94-0931
Jet Milling Machine Jet Turret 804192
Birmingham Milling Machine AC3KV 8740300
Saw King Bandsaw LTN-14000A B361635
Pexto Brake 137-1 7/71
Tennsmith Sheet Metal Brake N/A
Tennsmith Angle Brake N/A
Jet Geared Head Engine Lathe GH-1340A 809W514
