This AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment") is entered into this 16th day of February, 1999, by and among BGI
Acquisition LLC, a Wyoming limited liability company ("Parent"), BGI Acquisition
Corp., a New York corporation ("Purchaser"), and Besicorp Group Inc., a New York
corporation formed under the name Bio-Energy Systems Inc. (the "Company").
RECITALS:
A. Parent, Purchaser and the Company are parties to an Agreement and
Plan of Merger (the "Initial Plan") dated November 23, 1998, as amended by that
certain Amendment No. 1 to the Initial Plan dated January 28, 1999 (the Initial
Plan, as amended, is the "Amended Plan").
B. Capitalized terms used in this Amendment have the meanings ascribed
to them by the Amended Plan.
A G R E E M E N T S
Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Base Amount. Clause (v) of Section 2.2.1(b)(A) of the Amended
Plan is hereby amended to read in its entirety as follows:
"to the extent not already contributed pursuant to the Escrow Agreement
, $6,500,000."
2. Escrow Agreement. Section 2.6 of the Amended Plan is hereby amended
to read in its entirety as follows:
"At Closing, the Company will cause $6,500,000 in cash to be delivered
to the Escrow Agent under the Escrow Agreement."
3. Conditions to Parent's and Purchaser's Obligations. Section 6.3.8 of
the Amended Plan is hereby amended to read in its entirety as follows:
"The Indemnification Agreement and the Escrow Agreement shall have been
executed and delivered by BL and shall each be valid, legal, binding
and enforceable obligations of BL, and the Company shall have deposited
$6,500,000 in cash with the Escrow Agent under the Escrow Agreement."
4. Exhibit B to the Amended Plan. The first sentence of Section 2(b) of
Exhibit B to the Amended Plan is hereby amended to read in its entirety as
follows:
"Simultaneously with the execution of this Agreement, Besicorp shall
deposit with the Escrow Agent the sum of six million five hundred
thousand dollars ($6,500,000) ("the Escrow Fund")."
5. Entire Agreement. This Amendment, the Amended Plan, the
Confidentiality Agreement referred to in Section 5.2 to the Amended Plan and the
instruments to be delivered by the parties pursuant to the provisions of the
Amended Plan constitute the entire Amended Plan between the parties and shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, successors and permitted assigns.
6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
7. Applicable Law. This Amendment shall be governed and controlled as
to validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York applicable to contracts
made in that State.
8. Assignability. This Amendment shall not be assignable by either
party without the prior written consent of the other party.
IN WITNESS WHEREOF the parties have executed this Amendment on the date
first above written.
PARENT:
BGI ACQUISITION LLC
By: /s/ Xxxxx Xxxxx
_____________________________
Xxxxx Xxxxx, President of
the Sole Manager of BGI
Acquisition LLC
PURCHASER:
BGI ACQUISITION CORP.
By: /s/ Xxxxx Xxxxx
_____________________________
Xxxxx Xxxxx
Its: President
THE COMPANY
BESICORP GROUP INC.
By: /s/ Xxxxxxx X. Xxxxx
____________________
Xxxxxxx X. Xxxxx
Its: Executive Vice
President
