EXECUTION VERSION
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT, dated as of
March 10, 2008 (the “Amendment”), to the Agreement
and Plan of Merger (the “Merger Agreement”) dated as of
January 23, 2008 by and among Cogdell Spencer Inc., a Delaware
corporation (“CSI”), Cogdell Spencer LP, a Delaware
limited partnership (the “Parent”), Goldenboy
Acquisition Corp., a Wisconsin corporation and a wholly-owned
subsidiary of the Parent (“Merger Sub”), MEA Holdings,
Inc., a Wisconsin corporation (the “Holding Company”),
Marshall Erdman & Associates, Inc., a Wisconsin corporation
(“MEA”) and Marshall Erdman Development, LLC, a
Wisconsin limited liability company (“MED,” and
together with the Holding Company and MEA, the “Merging
Companies,” and each individually a “Merging
Company”) and David Pelisek, David Lubar and Scott Ransom, in
their capacity as the Seller Representative, is entered into by and
among CSI, Parent, Merger Sub, the Merging Companies and the Seller
Representative. Capitalized terms used but not otherwise defined in
this Amendment have the meanings ascribed to such terms in the
Merger Agreement.
RECITALS
WHEREAS, the parties hereto have
entered into the Merger Agreement with respect to the proposed
merger of Merger Sub with and into the Holding Company (the
“Merger”) in accordance with the Merger Agreement and
the Wisconsin Business Corporation Law (the
“WBCL”);
WHEREAS, the parties had anticipated
that the transaction contemplated by the Merger Agreement would
close and the Merger would become effective on February 29,
2008, but the parties now wish to amend the Merger Agreement to
provide that the Closing shall occur not later than March 10,
2008;
WHEREAS, the parties also wish to
amend the Merger Agreement to provide that (i) certain of the
adjustments to the Total Equity Price provided for in the Merger
Agreement shall be made as if the Closing had occurred on
February 29, 2008; (ii) no dividends or distributions may
be paid or made by the Merging Companies after the second business
day preceding the Closing and (iii) the amount of any such
dividend or distribution may not exceed an amount that if paid on
February 27, 2008 would have caused Working Capital as of the
close of business on February 28, 2008 to be less than zero;
and
WHEREAS, the parties hereto desire to
further amend the Agreement to clarify the understanding of the
parties with respect to the indemnification to be provided by the
Sellers pursuant to Section 10.1 of the Merger
Agreement.
NOW, THEREFORE, in consideration of
the mutual promises herein made and the representations,
warranties, covenants and agreements set forth in this Amendment,
the parties hereto agree as follows:
