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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Mobile Storage Group Inc

Date:

2007

Size:

Preview shows 60KB of 216KB total

Price:

$71

ID:

#3026862

► Plans ► Agreements ► Agreements & Plans of Merger

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

MSG WC HOLDINGS CORP.,

MSG WC ACQUISITION CORP.,

MOBILE SERVICES GROUP, INC.

AND

TARGET STOCKHOLDER REPRESENTATIVE

May 24, 2006

TABLE OF CONTENTS


			Page

ARTICLE I		DEFINITIONS	1

	1.l	Definitions	1

	1.2	Other Defined Terms	12

	1.3	Construction	14

ARTICLE II		THE MERGER	15

	2.1	The Merger	15

	2.2	Closing; Effective Time	15

	2.3	Payments at Closing	15

	2.4	Deliveries at the Closing	16

	2.5	Effects of the Merger	17

	2.6	Certificate of Incorporation; Bylaws	17

	2.7	Directors and Officers of the Surviving Corporation	17

	2.8	Determination of Estimated Total Common Stock Merger Consideration	17

	2.9	Adjustments to Merger Consideration	18

	2.10	Rollover Shares or Options	20

ARTICLE III		EFFECT OF THE MERGER	20

	3.1	Cancellation and Exercise of Target Options	20

	3.2	Effect on Capital Stock of Merger Sub and the Target	21

	3.3	Surrender of Target Stock	22

	3.4	Lost, Stolen or Destroyed Certificates	23

	3.5	Appraisal Rights; Dissenting Shares	23

	3.6	No Further Ownership Rights in Target Capital Stock	24

	3.7	Target Stockholder Representative	24

ARTICLE IV		REPRESENTATIONS AND WARRANTIES CONCERNING THE TARGET	25

	4.1	Organization, Good Standing, Authority and Enforceability	26

	4.2	Capitalization	26

	4.3	Subsidiaries of the Target	27

	4.4	No Conflicts; Consents	28

	4.5	Financial Statements	28

-i-

TABLE OF CONTENTS
(continued)


			Page

	4.6	Taxes	29

	4.7	Compliance with Law; Authorizations	31

	4.8	Title to Personal Property	32

	4.9	Real Property	32

	4.10	Intellectual Property	33

	4.11	Absence of Certain Changes or Events	35

	4.12	Contracts	36

	4.13	Litigation	37

	4.14	Employee Benefits	37

	4.15	Labor and Employment Matters	38

	4.16	Environmental	39

	4.17	Insurance	39

	4.18	Brokers	40

	4.19	Absence of Undisclosed Liabilities	40

	4.20	Affiliate Transactions	40

	4.21	No Pending Acquisitions	40

	4.22	Exclusivity of Representations	40

ARTICLE V		REPRESENTATIONS AND WARRANTIES CONCERNING PARENT AND MERGER SUB	41

	5.1	Organization and Good Standing	41

	5.2	Authority and Enforceability	41

	5.3	No Conflicts; Consents	42

	5.4	Litigation	42

	5.5	Availability of Funds	42

	5.6	Brokers	43

	5.7	Due Diligence	43

	5.8	No Other Representations	43

-ii-

TABLE OF CONTENTS
(continued)


			Page

ARTICLE VI		COVENANTS OF THE TARGET	44

	6.1	Conduct of Business	44

	6.2	Negative Covenants	44

	6.3	Access to Information	47

	6.4	Resignations	47

	6.5	Notification	47

	6.6	Exclusivity	48

	6.7	Debt Financings; Updated Financial Information	48

	6.8	Termination of Affiliate Contracts	50

	6.9	Capital Expenditures	50

	6.10	Stockholder Approval	50

ARTICLE VII		COVENANTS OF THE PARENT	50

	7.1	Confidentiality	50

	7.2	Director and Officer Indemnification and Insurance	50

	7.3	Employee Matters	51

	7.4	Parent?s Financing	52

ARTICLE VIII		COVENANTS OF THE PARENT AND THE TARGET	52

	8.1	Regulatory and Other Approvals	52

	8.2	HSR Approval	53

	8.3	Consents	54

	8.4	Public Announcements	54

	8.5	Tax Matters	54

	8.6	Allocation of Certain Taxes	56

	8.7	Further Assurances	56

ARTICLE IX		CONDITIONS TO CLOSING	56

	9.1	Conditions to Obligations of the Parent and the Target	56

	9.2	Conditions to Obligation of the Parent	56

	9.3	Conditions to Obligations of the Target	58

-iii-

TABLE OF CONTENTS
(continued)


			Page

ARTICLE X		TERMINATION	59

	10.1	Termination	59

	10.2	Effect of Termination	60

ARTICLE XI		SURVIVAL	60

	11.1	Representations and Warranties	60

	11.2	Covenants	60

	11.3	Indemnification	60

ARTICLE XII		MISCELLANEOUS	65

	12.1	Notices	65

	12.2	Amendments and Waivers	66

	12.3	Expenses	66

	12.4	Successors and Assigns	66

	12.5	Governing Law	67

	12.6	Consent to Jurisdiction	67

	12.7	Counterparts	67

	12.8	No Third Party Beneficiaries	67

	12.9	Entire Agreement	67

	12.10	Captions	68

	12.11	Severability	68

	12.12	Interpretation	68

	12.13	Time of Essence	68

-iv-

AGREEMENT AND PLAN OF MERGER, dated as of May 24, 2006 (this ?Agreement?), 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 the Target Stockholder Representative (as defined below), on the other hand.

RECITALS

A. The respective Boards of Directors of the Parent, Merger Sub and the Target have each determined that the Merger (as defined below) is in the best interests of their respective stockholders and have approved the Merger upon the terms and subject to the conditions set forth in this Agreement;

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