AGREEMENT AND PLAN
OF MERGER AND REINCORPORATION
This Agreement and Plan of Merger and Reincorporation (this "Agreement"),
dated as of June 23, 2003, is by and between Telaxis Communications Corporation,
a corporation organized under the laws of the Commonwealth of Massachusetts
("Telaxis"), and YDI Wireless, Inc., a wholly-owned subsidiary of Telaxis
organized under the laws of the State of Delaware ("YDI Wireless"). The two
corporations are hereinafter sometimes called the "Constituent Corporations."
Telaxis is hereinafter also sometimes referred to as the "Merged Corporation,"
and YDI Wireless is hereinafter also sometimes referred to as the "Surviving
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Massachusetts Business Corporation Law (the "MBCL") and the
Delaware General Corporation Law (the "DGCL"), Telaxis and YDI Wireless will
enter into a business combination transaction pursuant to which Telaxis will
merge with and into YDI Wireless (the "Merger").
B. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants and agreements 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. Merger. At the Effective Time (as defined in Section 8 below) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the MBCL and DGCL, Telaxis shall be merged with and
into YDI Wireless, the separate corporate existence of Telaxis shall cease, and
YDI Wireless shall continue as the surviving corporation.
2. Effect of Merger.
(a) At the Effective Time, the effect of the Merger shall be as provided
in this Agreement and the applicable provisions of the MBCL and the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the assets, property, rights, privileges, powers, and
franchises of Telaxis and YDI Wireless shall vest in the Surviving Corporation,
and all debts, liabilities, and duties of Telaxis and YDI Wireless shall become
the debts, liabilities, and duties of the Surviving Corporation. The Surviving
Corporation shall indemnify the directors and officers of each of the
Constituent Corporations against all such debts, liabilities, and duties and
against all claims and demands arising out of or relating to the Merger.
(b) All corporate acts, plans, policies, approvals, and authorizations
of Telaxis, its stockholders, board of directors, committees elected or
appointed by the board of directors, officers, and agents, which were valid and
effective immediately prior to the Effective Time, shall be taken for all
purposes as the acts, plans, policies, approvals, and authorizations of the
Surviving Corporation and shall be effective and binding thereon as they were on
Telaxis. The employees of Telaxis shall become the employees of the Surviving
Corporation and continue to be entitled to the same rights and benefits they
enjoyed as employees of Telaxis.
3. Charter and By-laws.
(a) The Certificate of Incorporation of YDI Wireless shall be amended
and restated to read in substantially the same form as attached hereto as
Exhibit A and shall be the Certificate of Incorporation of the Surviving
Corporation until the same shall be altered, amended, or repealed as provided
therein or in accordance with applicable law.
(b) The By-laws of YDI Wireless, as they exist immediately prior to the
Effective Time, shall be and remain the By-laws of the Surviving Corporation
until the same shall be altered, amended, or repealed as provided therein or in
accordance with applicable law.
4. Directors and Officers. The directors and officers of YDI Wireless shall
continue in office as the directors and officers, respectively, of the Surviving
Corporation until their respective successors are duly elected or appointed and
5. Effect on Capital Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of Telaxis, YDI Wireless, the holders of any
of the following securities, or any other person or entity: