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Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN
OF MERGER
This
AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “
Amendment ”) is dated as of June 7, 2006 (the “
Amendment Date ”), by and among MSG WC Holdings Corp.,
a Delaware corporation (the “ Parent ”), and MSG
WC Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Parent (the “ Merger Sub ”),
on the one hand, and Mobile Services Group, Inc., a Delaware
corporation (the “ Target ”), and Windward
Capital Management, LLC as the Target Stockholder Representative,
on the other hand.
RECITALS
A.
The Parent, the Merger Sub, the Target and the Target Stockholder
Representative are parties to that certain Agreement and Plan of
Merger dated as of May 24, 2006 (the “ Merger
Agreement ”) whereby, among other things, the Merger Sub
shall merge with and into the Target.
B.
The Parent, the Merger Sub, the Target and the Target Stockholder
Representative wish to amend the Merger Agreement as provided
herein.
NOW
THEREFORE, in consideration of the premises and mutual agreements
and covenants set forth herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
Section 1. Defined Terms . Capitalized terms used and
not otherwise defined herein shall have the meanings given to such
terms in the Merger Agreement.
Section 2. Amendments to Merger Agreement
.
2.1
Recital B of the Merger Agreement is hereby amended by deleting the
phrase “Target Preferred Stockholder Merger
Consideration” and replacing it with the phrase
“Preferred Redemption Amount”.
2.2
The definition of the term “Certificate” set forth in
Section 1.1 of the Merger Agreement is hereby amended by deleting
the reference to “capital stock” and replacing it with
“Capital Stock”.
2.3
The definition of the term “Merger Notice” set forth in
Section 1.1 of the Merger Agreement is hereby amended and restated
as follows:
“
“ Merger Notice ” means a letter from the Target
to the Target Common Stockholders providing notice of the Merger
and the Effective Date as well as instructions concerning the
procedure for the exchange of the Target Common Stock owned by the
Target Common Stockholders for the Total Common Stock Merger
Consideration, in form and substance mutually satisfactory to
Parent and the Target, and which Merger Notice shall contain the
appropriate notice required under Section 262 of the
DGCL.”
1.
2.4
Section 1.1 of the Merger Agreement is hereby amended by inserting
the following after the definition of “Mobile Storage
Group”:
“
“ Notice of Redemption ” means the written
notice delivered by the Target to the holders of Target Preferred
Stock of the Target’s election to redeem the Target Preferred
Stock in accordance with the Certificate of
Incorporation.”
2.5
Section 2.3(a) of the Merger Agreement is hereby amended and
restated as follows:
“(a)
At the Closing, based upon the calculation of the Estimated Total
Common Stock Merger Consideration (including the components
thereof), the Parent shall pay, or cause to be paid, the following
amounts by wire transfer of immediately available funds: (i) an
amount equal to the Target Debt Amount to the holders of the Target
Debt for payment of all amounts outstanding pursuant to the Target
Debt; (ii) $250,000 (the “ Target Stockholder
Representative Expense Amount ”) to the Target
Stockholder Representative in accordance with Section 3.7(c)
of this Agreement; (iii) the Target Transaction Expenses to the
Persons to whom such Target Transaction Expenses are owed; (iv) an
amount equal to the Preferred Redemption Amount to the Target (or
its designees) for payment of the Preferred Redemption Amount to
the holders of the Target Preferred Stock in accordance with
Section 3.8 ; and (v) the Estimated Total Common Stock
Merger Consideration, less the Escrow Amount, to the Target Common
Stockholders in accordance with their respective ownership of
Target Common Stock set forth on Target Disclosure Schedule
2.3(c) , and to the holders of Target Options in accordance
with Section 3.1 below. Target Disclosure Schedule
2.3(c) shall be subject to amendment prior to the Closing in
accordance with Section 6.5 .
2.6
Section 2.4(b)(iv) of the Merger Agreement is hereby amended and
restated as follows:
“(iv)
to the Target (or its designees), the Preferred Redemption Amount
for payment of the Preferred Redemption Amount to the holders of
the Target Preferred Stock in accordance with
Sect
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