Exhibit 99.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("AMENDMENT") dated as of
April 1, 2004 among Sylvan Inc., a Nevada corporation (the "COMPANY"), Xxxxxx
Associated Companies, Inc., a Pennsylvania Corporation ("PARENT"), and SAC
Holding Co., a Pennsylvania corporation and a wholly-owned subsidiary of Parent
("MERGER SUBSIDIARY").
W I T N E S S E T H:
WHEREAS, the Company, Parent and Merger Subsidiary have entered into an
Agreement and Plan of Merger dated as of November 16, 2003 (the "MERGER
AGREEMENT"), and
WHEREAS, the parties hereto desire to amend the Merger Agreement as set
forth below.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Unless other specifically defined herein, each
term used herein that is defined in the Merger Agreement shall have the meaning
assigned to such term in the Merger Agreement.
SECTION 2. Amendment. Section 10.01(b)(i) of the Merger Agreement is
hereby amended to read in full as follows:
(i) the Merger has not been consummated on or before June 15, 2004
(the "END DATE"); provided, however, that the right to terminate this
Agreement pursuant to this clause (i) shall not be available to any party
whose willful or intentional breach of this Agreement has been the primary
cause of, or resulted in, the failure of the Effective Time to occur on or
before such date;
SECTION 3. Effect. Except to the extent otherwise expressly set forth in
this Amendment, all of the terms and conditions set forth in the Merger
Agreement shall remain in full force and effect and all such terms and
conditions are hereby ratified and confirmed in all respects. This Amendment is
limited as specified and shall not constitute a modification, acceptance or
waiver of any other provision of the Merger Agreement.
SECTION 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to its conflict of laws rules.
SECTION 5. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
SYLVAN INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Secretary
XXXXXX ASSOCIATED COMPANIES, INC.
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
Title: President
SAC HOLDING CO.
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
Title: President
