Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER
This Amendment No. 1 (this
“ Amendment ”) to that certain Agreement and
Plan of Merger, dated as of April 24, 2008 (the “
Merger Agreement ”), by and among Granahan McCourt
Acquisition Corporation, Satellite Merger Corp., Pro Brand
International, Inc. and each of the equityholders of Pro Brand
International, Inc. who has executed a signature page to
the Merger Agreement, is dated as of September 3,
2008.
WHEREAS, capitalized terms used but
not otherwise defined in this Amendment shall have the respective
meanings given to them in the Merger Agreement;
WHEREAS, pursuant to
Section 11.3 of the Merger Agreement, Philip Shou was
appointed Sellers’ Representative and given the authority to
irrevocably act in the name, place and stead of the Sellers and
each other Shareholder, including, without limitation, in any
amendment of the Merger Agreement; and
WHEREAS, the parties to the Merger
Agreement (with the Sellers’ Representative acting in the
name, place and stead of the Sellers) desire to amend certain terms
and provisions of the Merger Agreement, all pursuant to and in
accordance with Section 11.2 of the Merger Agreement, such
amendments to become effective immediately upon the execution and
delivery of this Amendment.
NOW THEREFORE, the parties hereto
agree as follows:
1.
Amendments to Merger
Agreement .
(a).
Changes to Merger Consideration
Payable at Closing . The Merger Agreement is hereby amended
by deleting Section 1.2 of the Merger Agreement in its
entirety and replacing it with the following:
“1.2
Merger Consideration
. At the Effective Time, by
virtue of the Merger and without any further action on the part of
the holders of any Company Shares, the Company Shares (other than
Company Shares held as treasury shares) issued and outstanding
immediately prior to the Effective Time shall be converted into the
right to receive, subject to the Escrow provided for in
Section 1.5(b), the following consideration (the “
Total Merger Consideration ”): (i) a number
of shares of Parent common stock (“ Parent Stock
”), par value $.0001 per share (the “ Stock
Consideration ”), equal to the nearest whole number
obtained by dividing $15,000,000 by the Relevant Per Share Price,
(ii) cash in immediately available funds in an amount equal to
$50,000,000 (the “ Cash Consideration” ),
(iii) the right to receive the Escrowed Shares and the
Escrowed Cash in accordance with the terms of this Agreement and
the Escrow Agreement and (iv) the right to receive the Earnout
Payments in accordance with Section 1.7.”
(b).
Changes to Earnout
Payments . The
Merger Agreement is hereby amended by:
(i).
Adding the following proviso
immediately after the words “Parent shall pay to the
Shareholders and Company Option holders an aggregate amount as set
forth below” to each of Section 1.7(b), 1.7(c) and
1.7(d) of the Merger Agreement:
“; provided , that,
notwithstanding anything herein to the contrary, in no event shall
such aggregate amount for any year exceed the Applicable Earnout
Cap for such year.”
(ii).
Replacing (A) the amount
“$4.50” in Section 1.7(c)(ii)(x) of the
Merger Agreement with the amount “$2.25,” (B) the
amount “$5.50” in Section 1.7(c)(ii)(y) of
the Merger Agreement with the amount “$1.50,” and
(C) the amount “$6.50” in
Section 1.7(c)(ii)(z) of the Merger Agreement with the
amount “$0.75.”
(iii).
Replacing (A) the amount
“$2.8125” in Section 1.7(d)(ii)(x) of the
Merger Agreement with the amount “$2.25,” (B) the
amount “$3.4375” in Section 1.7(d)(ii)(y) of
the Merger Agreement with the amount “$1.25,” and
(C) the amount “$4.0625” in
Section 1.7(d)(ii)(z) of the Merger Agreement with the
amount “$0.75.”
(iv).
Adding, at the end of
Section 1.7(d) of the Merger Agreement, the following new
paragraph:
“Notwithstanding anything to
the contrary herein, if the sum computed pursuant to clause
(iii) of the defined term Applicable Earnout Cap exceeds the
aggregate amount of Earnout Payments in respect of Year Three made
pursuant to this Section 1.7(d) (such excess, the “
Shortfall Amount ”), the board of directors of Parent
shall pass a resolution setting forth parameters on which Parent
shall pay to the Shareholders and the Company Option holders,
subsequent to the Earnout Payment in respect of Year Three,
additional earnout payments not to exceed, in the aggregate, such
Shortfall Amount and establishing parameters (including, without
limitation, (i) times at which such additional earnout
payments are to be made, and (ii) performance hurdles for such
additional earnout payments, which shall be no less favorable to
the Shareholders and Company Option holders than the performance
hurdles for Year Three) for such additional earnout payments.
Any additional earnout payments pursuant to the immediately
preceding sentence shall be paid in Parent Stock (with the number
of shares to be calculated as provided in Section 1.7(e)(ii))
and/or cash in such relative proportion as the board of directors
of Parent shall determine, with respect to each Shareholder and
Company Option holder eligible to participate in such additional
earnout payments, in its sole discretion; provided that, in
the event that the cash proceeds received in connection
with
