This excerpt taken from the ESIO 8-K filed Jul 25, 2007.
ARTICLE 6 TERMINATION
6.1 Termination by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time by the mutual consent of New Wave and ESI.
6.2 Termination by Either New Wave or ESI. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time:
(a) by ESI or New Wave if the Merger shall not have become effective on or before the date six (6) months after the date hereof; provided, however, that the right to terminate this Agreement pursuant to this Section 6.2(a) shall not be available to any party whose breach of this Agreement has been the cause of, or resulted in, the failure of the Merger to occur on or before such date; or
(b) by ESI or New Wave if the requisite approval of the Merger by the shareholders of New Wave shall not have been obtained by the date three (3) months after the date hereof; provided, however, that the right of New Wave to terminate this Agreement pursuant to this Section 6.2(b) shall not be available to New Wave if the failure to obtain shareholder approval has been caused by, or is the result of, the failure of New Wave to perform its covenants set forth in Section 4.2.4 of this Agreement; or
(c) by ESI or New Wave if any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the Merger and such order, judgment or decree shall have become final and nonappealable; or
(d) by ESI if the Board of Directors of New Wave shall have withdrawn, amended or modified, in a manner adverse to ESI, its approval of the Merger, this Agreement or the transactions contemplated hereby or its recommendation of the Merger; or
(e) by ESI if New Wave or its Representatives shall have taken any of the actions that would be proscribed by Section 4.2.2, other than actions taken in the exercise of the fiduciary duties of New Waves Board of Directors and satisfying all the conditions of Section 4.2.2 of this Agreement; or
(f) by New Wave if at any time before the Effective Time all of the following conditions are met:
(i) New Wave is not in breach of any of its covenants contained in Sections 4.2.2 of this Agreement,
(ii) the New Wave Board of Directors authorizes New Wave, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and New Wave notifies ESI in writing that it intends to enter into such an agreement, attaching a summary of the material terms thereof,
(iii) ESI does not make, within five (5) business days after receipt of New Waves written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer that the New Wave Board of Directors determines, in good faith consistent with its fiduciary obligations under applicable law after consultation with its legal counsel and financial advisors, is at least as favorable, taking into account, among other things, the long-term prospects and interests of New Wave and its shareholders, as the Superior Proposal, and
(iv) New Wave promptly, but in no event later than two business days after the date of such termination, pays to ESI in immediately available funds the fees required to be paid pursuant to Section 6.4. New Wave agrees (i) it will not enter into a binding agreement referred to in clause 6.2(f)(ii) above until at least the sixth business day after it has provided the notice to ESI required thereby and (ii) to notify ESI promptly of any change of its intention to enter into a written agreement referred to in its notification; or
(g) by ESI if New Wave fails to include in the information statement or proxy statement, as applicable, relating to the shareholder approval of the Merger the recommendation of the Board of Directors of New Wave in favor of the Merger; or
(h) by ESI if a tender offer or exchange offer relating to New Wave Common Stock shall have been commenced by a third party and New Wave shall not have promptly thereafter upon request by ESI sent its shareholders a statement that the Board of Directors has recommended rejection of such tender offer or exchange offer; or
(i) by ESI if there has been a breach by New Wave of any representation, warranty, covenant or agreement contained in this Agreement that is not cured within 30 days after written notice of such breach is given by New Wave to ESI, and such breach causes or is reasonably expected to cause a Material Adverse Effect on the Business of New Wave; or
(j) by New Wave if there has been a breach by ESI of any representation, warranty, covenant or agreement contained in this Agreement that is not cured within 30 days after written notice of such breach is given by ESI to New Wave and such breach causes or is reasonably expected to prevent ESI from consummating the Merger and the other transactions contemplated by this Agreement and the Related Documents.
6.3 Effect of Termination and Abandonment. In the event of termination of this Agreement and abandonment of the Merger pursuant to this Article VI, (i) this Agreement
immediately will become void and of no effect, except that Sections 4.1.4, 6.4, 8.1 and 8.11 will survive the event of termination; and (ii) no party hereto (or any of its directors of officers) shall have any liability or further obligation to any other party to this Agreement, except for breach of this Agreement.
6.4 Termination Fees and Expenses. New Wave agrees to pay ESI within two business days upon the termination of this Agreement (or, in the case of (b) below, no later than the execution of such an agreement relating to an Acquisition Transaction) by wire transfer, the sum of $1.44 million in immediately available funds in the event that any of the following shall have occurred:
(a) this Agreement shall have been terminated pursuant to Section 6.2(f) or terminated because of a material breach of Section 4.2.2 by New Wave;
(b) this Agreement shall have been terminated and either (a) an Acquisition Transaction is completed within 9 months after the date of termination, or (b) New Wave shall have entered into or executed within 9 months after the date of termination any agreement relating to an Acquisition Transaction.