This excerpt taken from the GMCR 8-K filed Jun 20, 2006.
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to the Effective Time:
(a) by mutual written consent duly authorized by the respective boards of directors of Parent and the Company;
(b) by either the Company or Parent, by written notice to the other no earlier than three business days after June 30, 2006 (such date being referred to as the Original End Date) if the Original End Date cannot be or has not been validly extended pursuant to this Section 8.1(b), and if the Merger shall not have been consummated by the Original End Date; provided, that the Original End Date may be extended to July 31, 2006 (the Final End Date) by either Parent or the Company, by written notice to the other on or within two business days after the Original End Date, if the Merger shall not have been consummated by the Original End Date as of the result of a failure to satisfy the condition set forth in Section 6.1(c) as of the Original End Date; provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the failure of the Merger to be consummated on or before the Original End Date or the Final End Date, as applicable;
(c) by either the Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order, decree, ruling or other action shall have become final and nonappealable;
(d) (i) by the Company, if Parent or Merger Sub breaches in any material respect or fails to perform in any material respect any of its representations, warranties or covenants contained in this Agreement and such breach or failure to perform is either incurable
or has not been cured on or prior to five days before the Original End Date or, if the Original End Date has been validly extended pursuant to Section 8.1(b), five days before the Final End Date, and such breach or failure to perform would permit the Company, pursuant to Section 6.2(a) or 6.2(b), not to consummate the Merger or (ii) by Parent, if the Company breaches or fails to perform in any material respect any of its representations, warranties or covenants contained in this Agreement and such breach or failure to perform is either incurable or has not been cured on or prior to five days before the Original End Date or, if the Original End Date has been validly extended pursuant to Section 8.1(b), five days before the Final End Date, and such breach or failure to perform would permit Parent and Merger Sub, pursuant to Section 6.3(a) or 6.3(b), not to consummate the Merger;
(e) by Parent, at any time prior to the Required Stockholder Approvals having been obtained, if a Company Triggering Event shall have occurred; and
(f) by the Company, in accordance and subject to compliance with the terms of Section 5.3(d).
For purposes of this Agreement, a Company Triggering Event shall be deemed to have occurred if: (i) the Companys Board of Directors or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Parent its recommendation to the Companys stockholders to vote, or act by written consent, in favor of the Company Proposals or (ii) the Board of Directors of the Company or any committee thereof shall have approved or recommended any Acquisition Proposal or Superior Offer.
8.2 Notice of Termination; Effect of Termination. Any termination of this Agreement under Section 8.1 will be effective immediately upon the delivery by the terminating party of a valid written notice of termination to the other party hereto in accordance with the terms hereof. In the event of the termination of this Agreement as provided in Section 8.1, this Agreement shall be of no further force or effect, except that (i) Section 5.4(a), Section 5.5, this Section 8.2, Section 8.3, Section 8.4 (to the extent applicable in accordance with its terms) and Article IX shall survive the termination of this Agreement and remain in full force and effect (in the case of Article IX, solely to the extent applicable to the other surviving provisions set forth in this clause (i)) and (ii) nothing herein shall relieve any party from liability for any breach of any covenant or agreement contained in this Agreement prior to termination. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms.
8.3 Fees and Expenses. All fees and expenses of Parent or Merger Sub incurred in connection with this Agreement and the transactions contemplated hereby, including fees and expenses of accountants, financial advisors, financial sponsors, lenders, legal counsel and other advisors, shall be paid by Parent whether or not the Merger is consummated. Except as provided in Section 1.10 (if the Closing occurs), all fees and expenses of the Company incurred in connection with this Agreement and the transactions contemplated hereby, including fees and expenses of its financial advisors (including SGAS) and legal counsel (including Skadden, Arps, Slate, Meagher & Flom LLP), shall be paid by the Company. In the event of a termination of this Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a breach of this Agreement by the other.
8.4 Termination Fee. So long as Parent and Merger Sub shall not have materially breached their obligations under this Agreement, in the event that this Agreement is validly terminated pursuant to Section 8.1(e) or 8.1(f) and within nine months of such termination an Alternative Transaction is approved by the Companys Board of Directors and is consummated, then simultaneously with the consummation of such Alternative Transaction, the Company shall pay to Parent, in immediately available funds, a fee of Three Million One Hundred Twenty Nine Thousand United States Dollars (U.S. $3,129,000).
8.5 Amendment. Subject to applicable law, this Agreement may be amended by the parties hereto, by action taken or authorized by their respective Boards of Directors, at any time before or after approval and adoption of this Agreement by the stockholders of the Company; provided, that, after approval and adoption of this Agreement by the stockholders of the Company, no amendment shall be made which under the DGCL requires further approval by the stockholders of the Company without such further stockholder approval. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by execution of an instrument in writing signed on behalf of each of Parent, Merger Sub and the Company.
8.6 Extension; Waiver. At any time prior to the Effective Time any party hereto, by action taken or authorized by its respective Board of Directors, may, to the extent legally allowed: (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto; (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto; and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing executed and delivered by a duly authorized officer on behalf of such party. Delay in exercising any right under this Agreement shall not constitute a waiver of such right.