Exhibit 10.1


 


EXECUTION COPY


 


MUTUAL TERMINATION AGREEMENT


 


This MUTUAL TERMINATION AGREEMENT is entered into as of October 28,
2008 (this “Agreement”), by and among Granahan McCourt Acquisition Corporation,
a Delaware corporation (“GMAC”), Satellite Merger Corp., a Georgia corporation
(“Merger Sub”), Pro Brand International, Inc. (“PBI”), and certain equity
holders of PBI who are parties to the Merger Agreement (“Sellers”).


 


RECITALS


 


WHEREAS, GMAC, Merger Sub, PBI and Sellers are parties to that certain
Agreement and Plan of Merger, dated as of April 24, 2008, as amended by
Amendment No. 1 to the Merger Agreement, dated September 3, 2008,
(the “Merger Agreement”) (capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement);


 


WHEREAS, the stockholders of GMAC did not approve the Merger Agreement,
and holders of more than 20% of GMAC’s IPO Shares exercised their conversion
rights at GMAC’s special meeting of stockholders on October 21, 2008; and


 


WHEREAS, Section 8.1 of the Merger Agreement provides that the
Merger Agreement may be terminated (a) by written agreement of GMAC and
Sellers or (b) by either GMAC or Sellers if GMAC’s stockholder do not
approve the Merger Agreement or if holders of more than 20% of GMAC’s IPO
Shares exercised their conversion rights.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the premises and the agreements set
forth herein, and intending to be legally bound hereby,  the parties agree as follows:


 


1.                                       Termination
of Merger Agreement.  GMAC, Merger
Sub, PBI and Sellers hereby terminate the Merger Agreement pursuant to Section 8.1
of the Merger Agreement, effective immediately upon the execution of this
Agreement.


 


2.                                       Effect
of Termination; Mutual Discharge and Release.  Each party hereto, on behalf of itself and,
to the extent permitted by law, its affiliates, subsidiaries, directors,
officers, stockholders, employees, agents, financial and legal advisors and
other representatives, and the successors and assigns of each of them (each, a “Releasing
Party”), hereby fully, finally and forever releases each other party hereto
and each of their respective affiliates, subsidiaries, directors, officers,
stockholders, employees, agents, financial and legal advisors and other
representatives, and the successors and assigns of each of them, from any and
all liabilities and obligations, claims, causes of action and suits, at law or
in equity, whether arising under any United States federal, state or local or
any foreign law or otherwise, that any Releasing Party has or has had arising
out of, relating to, or in connection with the Merger Agreement and the
transactions contemplated thereby, including, without limitation, any liability
or obligation arising out of any breach of any representation, warranty,
covenant or agreement contained in the 


 

















 


Merger Agreement, provided that nothing in this Section 2
shall impair the parties’ respective obligations under the Revised
Confidentiality Agreement.


 


3.                                       Confidentiality.


 


(a)                                  GMAC,
Merger Sub, PBI and Sellers hereby terminate the Confidentiality Agreement in
its entirety and replace it with subsections (b) and (c) of this Section 3
(such subsections, the “Revised Confidentiality Agreement”).


 


(b)                                 Each
of PBI and GMAC shall hold, and shall use their reasonable best efforts to
cause their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents (collectively, “Representatives”) to hold, in
confidence, unless compelled to disclose by judicial or administrative process
or by other requirements of Law, all confidential documents and proprietary or
confidential information concerning GMAC and PBI, respectively, including such
company’s intellectual property, for a period of two years from the date hereof,
except (i) that PBI and GMAC shall be permitted, notwithstanding anything
in this Agreement to the contrary, to disclose such confidential documents and
proprietary or confidential information with the other party’s consent or
approval, and (ii) to the extent that such information can be shown to
have been (x) previously known on a non-confidential basis by the
disclosing party, (y) in the public domain through no fault of the
disclosing party, or (z) later lawfully acquired by the disclosing party
from sources other than those related to its prior dealings with the
non-disclosing party; provided that trade secrets shall be afforded such
greater protection provided by law.  The obligation of PBI and GMAC to
hold any such information in confidence shall be satisfied if they exercise the
same care with respect to such information as they would take to preserve the
confidentiality of their own similar information.


 


(c)                                  Upon
written request, each of PBI and GMAC shall promptly return to the other or
destroy (provided that any such destruction shall be certified by a duly
authorized representative of the party) all agreements, documents, contracts,
instruments, books, records, materials and other information (in any format) (“Proprietary
Information”) and all copies, reproductions, summaries, analyses or extracts
thereof or based thereon (whether in hard-copy form or on intangible media,
such as electronic mail or computer files) in the party’s possession or in the
possession of any of its representatives, provided that the party in
possession of the Proprietary Information may elect whether to return or
destroy such information, and further provided that each party may
retain one or more copies of the Proprietary Information as may be required in
accordance with their respective legal, compliance and/or automated backup
archiving practices.  Notwithstanding the
return or destruction of any Proprietary Information, or documents or material
containing or reflecting any Proprietary Information, the parties will continue
to be bound by their obligations of confidentiality and other obligations
hereunder for the term of the Revised Confidentiality Agreement (or such other
term as may be applicable to the specific obligation).


 


4.                                       Non-Disparagement.  Except as expressly permitted hereby and
except as required by applicable law or the rules or regulations of any
governmental authority or by the order of any court of competent jurisdiction,
each party hereto agrees that such party shall not, directly or indirectly
(through such party’s Representatives or otherwise), make public or cause to be
made 


 


2

















 


public any statement or remark concerning the Merger Agreement and the
transactions contemplated thereby that could reasonably be understood as
disparaging the business or conduct of the other parties or their respective
Representatives or as intended to harm the business or reputation of the other
parties or their respective Representatives.


 


5.                                       Representations
and Warranties.  Each of PBI and GMAC hereby represents and warrants
to the other party that: (a) it has full power and authority to enter into
this Agreement and to perform its obligations hereunder in accordance with the
provisions of this Agreement, (b) this Agreement has been duly authorized,
executed and delivered by such party, and (c) this Agreement constitutes a
legal, valid and binding obligation of such party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights and remedies generally and to general principles of
equity, whether applied in a court of law or a court of equity.


 


6.                                       Public
Announcement.  GMAC will file with the Securities and Exchange
Commission (the “SEC”) a Current Report on Form 8-K (the “Termination 8-K”)
upon the signing of this Agreement with respect to this Agreement and the
termination of the Merger Agreement. Except as required by law or applicable
listing agreement, no press release shall be issued regarding the termination
of the Merger Agreement by either PBI or GMAC without the prior written consent
of the other. Notwithstanding the foregoing, both PBI and GMAC will be
permitted to make reference to the matters addressed in this Agreement in other
press releases or required filings with the SEC, provided that such
references are consistent in substance with the Termination 8-K or are required
by applicable law or listing requirements.


 


7.                                       Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the conflict of law provisions thereof (except to the
extent that mandatory provisions of federal law are applicable).  This
Agreement shall be binding upon any successor to PBI or GMAC.  Each party
hereto hereby irrevocably submit to the jurisdiction of the courts of the State
of New York and the federal courts of the United States of America located in
the State, City and County of New York solely in respect of the interpretation
and enforcement of the provisions of this Agreement. Each party hereto hereby
waives, and agrees not to assert, to the maximum extent permitted by law, as a
defense in any action, suit or proceeding for the interpretation or enforcement
hereby, that such action, suit or proceeding may not be brought or is not
maintainable in such courts or that the venue thereof may not be appropriate or
that this Agreement may not be enforced in or by such courts.


 


8.                                       Specific
Performance.  Notwithstanding anything to the contrary contained
herein, the parties hereto agree that irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
if any provision of this Agreement were not performed in accordance with the
terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to a decree of specific
performance of the terms and provisions hereof in any court specified in Section 7,
in addition to any other remedy to which they are entitled at law or in equity.


 


[Signature page follows]


 


3

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the date first written above.


 


 


	
   

  	
  GRANAHAN MCCOURT ACQUISITION

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David C. McCourt

  
	
   

  	
   

  	
  David C. McCourt

  
	
   

  	
   

  	
  President, Chief Executive Officer and

  
	
   

  	
   

  	
  Chairman of the Board

  
	
   

  	
   

  	
   

  
	
   

  	
  SATELLITE MERGER CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David C. McCourt

  
	
   

  	
   

  	
  David C. McCourt

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  PRO BRAND INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Crownover

  
	
   

  	
   

  	
  James Crownover

  
	
   

  	
   

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR THE SELLERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip Shou

  
	
   

  	
   

  	
  Philip Shou

  
	
   

  	
   

  	
  Sellers’ Representative