-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JkqrXhARJ5YMYQ8FLEzfFyV+tGSunr4dhDOIS85V75X4ROHHSJFRyP/Skth0ZCx0 4xDpAUonmvdGP0rk8YFN4g== 0000950136-03-002860.txt : 20031119 0000950136-03-002860.hdr.sgml : 20031119 20031119164220 ACCESSION NUMBER: 0000950136-03-002860 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031119 GROUP MEMBERS: JOSHUA LANDES GROUP MEMBERS: NELSON OBUS GROUP MEMBERS: STEEL PARTNERS II, L.P. GROUP MEMBERS: WARREN G. LICHTENSTEIN GROUP MEMBERS: WYNNEFIELD CAPITAL MANAGEMENT, LLC GROUP MEMBERS: WYNNEFIELD CAPITAL, INC. GROUP MEMBERS: WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. GROUP MEMBERS: WYNNEFIELD SMALL CAP OFFSHORE FUND, LTD. GROUP MEMBERS: WYNNEFIELD SMALL CAP VALUE L.P. I SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SYLVAN INC CENTRAL INDEX KEY: 0000861291 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 251603408 STATE OF INCORPORATION: NV FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41138 FILM NUMBER: 031013322 BUSINESS ADDRESS: STREET 1: 333 MAIN STREET STREET 2: P.O. BOX 249 CITY: SAXONBURG STATE: PA ZIP: 16056-0249 BUSINESS PHONE: 724-352-75 MAIL ADDRESS: STREET 1: 333 MAIN STREET STREET 2: P.O. BOX 249 CITY: SAXONBURG STATE: PA ZIP: 16056-0249 FORMER COMPANY: FORMER CONFORMED NAME: SYLVAN FOODS HOLDINGS INC DATE OF NAME CHANGE: 19930328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WYNNEFIELD PARTNERS SMALL CAP VALUE LP CENTRAL INDEX KEY: 0000899083 IRS NUMBER: 133688497 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4720 CITY: NEW YORK STATE: NY ZIP: 10119 BUSINESS PHONE: 2127600814 MAIL ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4720 CITY: NEW YORK STATE: NY ZIP: 10119 SC 13D/A 1 file001.txt SCHEDULE 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (AMENDMENT NO. 7) Under the Securities Exchange Act of 1934 SYLVAN INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.001 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 871371100 - -------------------------------------------------------------------------------- (CUSIP Number) Wynnefield Partners Small Cap Value, L.P. 450 Seventh Avenue New York, New York 10123 Attention: Mr. Nelson Obus (212) 760-0134 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Jeffrey S. Tullman, Esq. Kane Kessler PC 1350 6th Avenue New York, New York 10019 (212) 541-6222 Steven Wolosky, Esq. Olshan Grundman Frome Rosenzweig & Wolosky LLP 505 Park Avenue New York, New York 10022 (212) 753-7200 November 16, 2003 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of (sections) 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. SCHEDULE 13D CUSIP No. 871371100 Page 2 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------- ----------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 382,897 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 382,897 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 382,897 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.4% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 3 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WYNNEFIELD SMALL CAP VALUE OFFSHORE FUND, LTD. - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS - ----------------------- ------ ------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 179,686 OWNED BY ------ ------------------------------------------------- EACH 8 SHARED VOTING POWER REPORTING PERSON 0 WITH ------ ------------------------------------------------- 9 SOLE DISPOSITIVE POWER 179,686 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 179,686 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.5% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 4 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WYNNEFIELD PARTNERS SMALL CAP VALUE L.P. I - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 507,303 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 507,303 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 507,303 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.8% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 5 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WYNNEFIELD CAPITAL MANAGEMENT, LLC - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [x] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 890,200 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 890,200 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 890,200 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.3% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 6 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WYNNEFIELD CAPITAL, INC. - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 179,686 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 179,686 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 179,686 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.5% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 7 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NELSON OBUS - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 12,000 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,069,886 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 12,000 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,069,886 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,081,886 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.9% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 8 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON JOSHUA LANDES - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,069,886 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 0 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,069,886 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,069,886 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.8% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 9 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STEEL PARTNERS II, L.P. - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 1 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 1 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 10 of 14 Pages - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON WARREN G. LICHTENSTEIN - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - ----------------------- ------ ------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 1 SHARES ------ ------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 REPORTING ------ ------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 1 ------ ------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1 - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------- ----------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 871371100 Page 11 of 14 Pages The following constitutes Amendment No. 7 ("Amendment No. 7") to the Schedule 13D filed by Wynnefield Partners Small Cap Value, L.P. and its affiliates with the Securities and Exchange Commission on May 7, 1999. Item 4. Purpose of Transaction. Item 4 is hereby amended to add the following: On November 17, 2003, the Issuer announced that it entered into a definitive agreement (the "Merger Agreement") which will result in a merger (the "Merger") between the Issuer and Snyder Associated Companies, Inc. or its affiliate ("Snyder"). Under the terms of the Merger Agreement, each shareholder of the Issuer is to receive $12.25 per share in cash. On November 15, 2003, Steel Partners II, L.P., conditionally agreed to sell all but one of the Shares owned by it to Snyder. On November 16, 2003, contemporaneously with the execution of the Merger Agreement, the Wynnefield Group entered into a voting agreement (the "Voting Agreement") with Snyder. As a result of the sale of its Shares, Steel Partners II, L.P. and Warren G. Lichtenstein are no longer members of a group with the Wynnefield Group for the purpose of acquiring, holding, voting or disposing of securities of the Issuer and no longer beneficially own 5% or more of any class of equity securities of the Issuer. The Voting Agreement provides, among other things, that: 1. The Wynnefield Group will vote the Shares owned by them in favor of the Merger. 2. Until the voting obligations described above terminate, the Wynnefield Group will not transfer, sell, exchange or otherwise dispose of any Shares. 3. Under certain circumstances, if the Merger Agreement is terminated and the Issuer is acquired by a third party within twelve months following such termination, the Wynnefield Group will pay to Snyder an amount equal to 50% of the difference (net of taxes) between the price received by the Wynnefield Group in connection with such third party acquisition and $12.25 per share. 4. Under certain circumstances, if the Merger Agreement is terminated, the Wynnefield Group has the right for a period of thirty days following the termination date to sell to Snyder all of the Shares owned by the Wynnefield Group for a purchase price of $12.25 per share. SCHEDULE 13D CUSIP No. 871371100 Page 12 of 14 Pages Item 5. Interest in Securities of the Issuer. On November 17, 2003, Steel Partners II, L.P. consummated the sale of all but one of the Shares owned by it to Snyder for $12.25 per share plus reimbursement of certain expenses incurred by the Reporting Persons. Accordingly, Steel Partners II, L.P. and Warren G. Lichtenstein are no longer members of a group with the Wynnefield Group for the purpose of acquiring, holding, voting or disposing of securities of the Issuer and no longer beneficially own 5% or more of any class of equity securities of the Issuer. Pursuant to the Voting Agreement the Wynnefield Group has agreed to vote their Shares in favor of the Merger. Additionally, under certain circumstances, if the Merger Agreement is terminated and the Issuer is acquired by a third party within twelve months following such termination, the Wynnefield Group will pay to Snyder an amount equal to 50% of the difference (net of taxes) between the price received by the Wynnefield Group in connection with such third party acquisition and $12.25 per share. The following table sets forth certain information with respect to the Shares beneficially owned directly by the Reporting Persons. - -------------------------------------------------------------------------------- Name Number of Shares Approximate Percentage of Outstanding Shares - -------------------------------------------------------------------------------- Wynnefield Partners(1) 382,897 7.4% - -------------------------------------------------------------------------------- Wynnefield Offshore(2) 179,686 3.5% - -------------------------------------------------------------------------------- Wynnefield Partners I(3) 507,303 9.8% - -------------------------------------------------------------------------------- Nelson Obus 12,000(4) (less than one percent) - -------------------------------------------------------------------------------- Total 1,081,886 20.9% - -------------------------------------------------------------------------------- (1) WCM, Mr. Obus and Mr. Landes have an indirect beneficial interest in these Shares. (2) WCI, Mr. Obus and Mr. Landes have an indirect beneficial interest in these Shares. (3) WCM, Mr. Obus and Mr. Landes have an indirect beneficial interest in these Shares. (4) Consists of Shares that are subject to options exercisable within 60 days of the date hereof. The percentage of Shares owned as reported herein is based upon 5,155,131 Shares outstanding on November 4, 2003, as set forth in the Issuer's most recent report on Form 10-Q for the period ended September 28, 2003. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer See Item 4 for a description of the Voting Agreement. See Items 4 and 5 for a description of the sale by Steel Partners II, L.P. SCHEDULE 13D CUSIP No. 871371100 Page 13 of 14 Pages Item 7. Material to be Filed as Exhibits. Exhibit 1 Voting Agreement dated as of November 16, 2003 by and among the Wynnefield Group and Snyder Associated Companies, Inc. Exhibit 2 Stock Purchase Agreement dated as of November 15, 2003 among Steel Partners II, L.P., SAC Holding Co. and Snyder Associated Companies, Inc. SCHEDULE 13D CUSIP No. 871371100 Page 14 of 14 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: November 18, 2003.
- ------------------------------------------------------- ---------------------------------------------------- Wynnefield Partners Small Cap Value, L.P. Wynnefield Partners Small Cap Value, L.P. I By: Wynnefield Capital Management, LLC, its General By: Wynnefield Capital Management, LLC, its Partner General Partner By: /s/ Nelson Obus By: /s/ Nelson Obus --------------- --------------- Co-Managing Member Co-Managing Member - ------------------------------------------------------- ---------------------------------------------------- Wynnefield Small Cap Value Offshore Fund, Ltd. Wynnefield Capital Management, LLC By: Wynnefield Capital, Inc. By: /s/ Nelson Obus By: /s/ Nelson Obus ---------------- --------------- Co-Managing Member President - ------------------------------------------------------- ---------------------------------------------------- Wynnefield Capital, Inc. By: /s/ Nelson Obus /s/ Nelson Obus --------------- --------------- President Nelson Obus - ------------------------------------------------------- ---------------------------------------------------- Steel Partners II, L.P. By: Steel Partners, L.L.C., its General Partner By: /s/ Warren G. Lichtenstein /s/ Joshua Landes --------------------------- - ----------------- Managing Member Joshua Landes - ------------------------------------------------------- ---------------------------------------------------- /s/ Warren G. Lichtenstein Warren G. Lichtenstein - ------------------------------------------------------- ----------------------------------------------------
EX-1 3 file002.txt VOTING AGREEMENT VOTING AGREEMENT THIS VOTING AGREEMENT (this "AGREEMENT"), dated as of November 16, 2003, is made by and among each of the persons listed under the heading "Stockholders" on the signature page hereto (collectively, the "STOCKHOLDERS" and each, individually, a Stockholder"), and Snyder Associated Companies, Inc., a Pennsylvania corporation (the "PURCHASER"). WHEREAS, Sylvan Inc., a Nevada corporation (the "COMPANY"), the Purchaser, and SAC Holding Co., a Pennsylvania corporation and a partially or wholly owned subsidiary of the Purchaser (the "MERGER SUBSIDIARY"), are entering into an Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated the date hereof, pursuant to which the Merger Subsidiary has agreed to merge with and into the Company (the "MERGER"). WHEREAS, the consummation of the transactions contemplated by the Merger Agreement is subject to certain conditions, including the approval of the Merger by the holders of a majority of the outstanding shares of common stock of the Company. WHEREAS, the Stockholders are the collective record and beneficial owners of 1,056,886 shares of common stock of the Company (the "ORIGINAL SHARES"), representing approximately 20.5% of the shares of common stock of the Company outstanding as of the date hereof (such shares, together with any shares of capital stock of the Company acquired by any Stockholder or as to which any Stockholder may acquire direct or indirect voting or investment power after the date hereof and during the term of this Agreement, being collectively referred to herein as the "STOCKHOLDER SHARES"). WHEREAS, as a condition to the willingness of the Purchaser to enter into the Merger Agreement, and as an inducement to the Purchaser to do so, the Stockholders have agreed as set forth in this Agreement. NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties hereby agree as follows: 1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Merger Agreement. 2. CERTAIN COVENANTS OF STOCKHOLDERS. (a) Agreement to Vote. At any meeting of the stockholders of the Company held prior to the Termination Date (as defined in Section 5(d) below), however called, and at every adjournment thereof prior to the Termination Date, or in connection with any written consent of the stockholders of the Company, each Stockholder shall vote the Stockholder Shares (i) in favor of the approval of the Merger and each of the other transactions contemplated by the Merger Agreement to be performed by the Company and any actions required in furtherance thereof; and (ii) against any Acquisition Proposal. Prior to the Termination Date, no Stockholder shall enter into any agreement or understanding with any Person, to vote, grant any proxy or give instructions with respect to the voting of the Stockholder Shares in any manner inconsistent with the preceding sentence, other than proxies for the election of directors at any meeting of stockholders. (b) Proxies. (i) Each Stockholder hereby revokes any and all previous proxies granted with respect to matters set forth in Section 2(a) above for the Stockholder Shares. (ii) Each Stockholder covenants and agrees in favor of the Purchaser, that if the Purchaser so requests (x) not later than five days prior to the date of the Company Stockholder Meeting, it shall deliver or cause to be delivered to the Company duly executed proxies in favor of the Purchaser, in form reasonably acceptable to the Purchaser, voting in favor of the Merger together with a copy of the board resolutions authorizing such proxies and (y) such proxies will not be revoked; provided, however, that if a waiting period under the HSR Act or the pre-merger filing requirements of any other jurisdiction applies to the grant of the proxies so requested, no Stockholder shall deliver or grant such proxies until any applicable waiting periods shall have expired or terminated. (iii) Except as provided herein, prior to the Termination Date, no Stockholder shall grant any proxies or powers of attorney with respect to matters set forth in Section 2(a) above, deposit any of the Stockholder Shares into a voting trust or enter into a voting agreement with respect to any of the Stockholder Shares, in each case with respect to the matters set forth in Section 2(a). (c) Transfer of Stockholder Shares by Stockholder. Prior to the Termination Date, no Stockholder shall (A) pledge or place any Lien on any Stockholder Shares, other than pursuant to this Agreement, or (B) transfer, sell, exchange or otherwise dispose of (including by gift) any Stockholder Shares, other than pursuant to this Agreement or the Merger Agreement. (d) Acquisition Proposal. No Stockholder shall, and no Stockholder shall authorize any Affiliate, director, officer, employee, investment banker, attorney or other advisor or representative of any Stockholder to, (i) directly or indirectly solicit, initiate or knowingly encourage the submission of, any Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, except that nothing herein shall prohibit Nelson Obus from the exercise of his fiduciary duties as a director of the Company in accordance with the Merger Agreement and Section 5(o) hereof. (e) Inquiry. Except as prohibited by any Confidentiality Agreement to which the Company or the Stockholders are a party, each Stockholder shall promptly notify the Purchaser in writing of any contact, inquiry, submission, proposal or offer of which any Stockholder becomes aware for an Acquisition Proposal and of any request in connection with such a proposal for non-public information relating to the Company or any of its Subsidiaries or -2- any of the relevant details relating to such a proposal (including the identity of the prospective party and the proposed terms and conditions) known at such time. 2A. PROFIT SHARING. (a) If the Merger Agreement is terminated pursuant to Section 10.01(c)(i), Section 10.01(c)(iv) or Section 10.01(d)(ii) thereof (in any such case, a "TRIGGERING TERMINATION"), and within twelve (12) months following such Triggering Termination, the Company merges with or into, or is acquired, directly or indirectly, by merger or otherwise, by a Third Party in a transaction in which all holders of shares of Company common stock (other than Company management and their Affiliates) are entitled to receive consideration for all of their shares of Company common stock (such event, an "ALTERNATIVE TRANSACTION"), then, upon consummation of such Alternative Transaction, each Stockholder shall pay to Purchaser an amount equal to fifty percent (50%) of the "profit" (determined in accordance with Section 2A(b) below), if any, in respect of (x) the Original Shares held by such Stockholder as of the date of this Agreement, and (y) any additional shares of Company common stock owned of record or beneficially by such Stockholder as of the date of consummation of such Alternative Transaction (collectively, the "APPLICABLE SHARES"). (b) The "profit" associated with the consummation of such Alternative Transaction shall be an amount (if positive) equal to (x) the aggregate consideration paid in respect of the Applicable Shares as a result of the consummation of such Alternative Transaction, valuing any noncash consideration at its fair market value as set forth in subsection (c) below, less (y) the product obtained by multiplying $12.25 by the number of Applicable Shares (the amount by which "(x)" exceeds "(y)" being referred to herein as the "OVERAGE"), less (z) the total amount of Taxes payable by such Stockholder on the Overage. (c) For purposes of this Section 2A, the fair market value of any noncash consideration consisting of: (i) securities listed on a national securities exchange or traded on the NASDAQ shall be equal to the average closing price per share of such security as reported on such exchange or NASDAQ for the 5 trading days prior to the date of determination; and (ii) consideration which is other than securities of the form specified in foregoing clause "(i)" shall be determined, as of the date of consummation of the Alternative Transaction, by a nationally recognized independent investment banking firm (which may be the investment banking firm retained by the Special Committee of the Board of Directors of the Company, or by the Board of Directors of the Company, to evaluate the consideration payable in the Alternative Transaction) mutually selected, within three business days after the event requiring selection of such investment banking firm , by Purchaser, on the one hand, and the Stockholders, on the other hand, which determination shall be made by such investment banking firm within 15 business days after the date of such event; provided, however, that if Purchaser and the Stockholders do not agree within three business days after the date of such event as to the selection of an investment banking firm, then, by the end of the fifth business day after the date of such event, each of Purchaser, on the one hand, and the Stockholders, on the other hand, shall select an investment banking firm, which two investment banking firms shall jointly make such -3- determination within 20 business days after the date of such event, or, if such two investment banking firms are unable to agree on such determination, the two investment banking firms shall, by the end of the 20th business day after the date of such event, select a third investment banking firm and notify such third investment banking firm in writing (with a copy to Purchaser and the Stockholders) of their respective determinations of the fair market value of such noncash consideration, following which such third investment banking firm shall, within 15 business days after the date of its selection, notify Purchaser and the Stockholders in writing of its selection of one or the other of the two original determinations of the fair market value of such noncash consideration; provided further, that the reasonable and customary fees and expenses of all such investment banking firms shall be borne equally by Purchaser, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties. (d) Any payment to be made by any Stockholder pursuant to this Section 2A shall be made as follows following consummation of the Alternative Transaction: (x) if the consideration paid in the Alternative Transaction is all cash, such payment shall be made in cash within three business days following receipt by such Stockholder of such consideration by wire transfer of same day funds to an account designated by Purchaser, (y) if such consideration is all noncash consideration, such payment shall be made through a transfer of such noncash consideration to Purchaser, suitably endorsed for transfer (with the method and timing of such transfer to be reasonably determined by Purchaser), or (z) if such consideration is part cash and part noncash consideration, such payment shall be made in cash (in the manner set forth in clause "(x)" above) and in such noncash consideration (in the manner set forth in clause "(y)" above) in the same proportion as such consideration is payable to such Stockholder in accordance with the terms of the Alternative Transaction. 2B. PUT RIGHT. (a) Purchaser hereby grants to each Stockholder an irrevocable option (each such option, a "PUT OPTION") to sell to Purchaser at any time during the Exercise Period all that Stockholder's Original Shares, in each case at a total cash option exercise price equal to the product of (1) the total number of that Stockholder's Original Shares multiplied by (2) $12.25 (each such price, a "PURCHASE PRICE"). (b) In this Agreement, "EXERCISE PERIOD" means the period of 30 days beginning on and including the date of a Triggering Termination. If there is no Triggering Termination, then there shall be no Exercise Period. (c) Each Stockholder must exercise its Put Option in whole only and the Stockholders must collectively exercise all Put Options at the same time. To exercise the Put Options, the Stockholders must deliver to Purchaser a written notice of the Stockholders' intention to effect that exercise. The closing of the purchase of the Original Shares subject to the Put Options will take place in the office of Cohen & Grigsby, P.C. in Pittsburgh, Pennsylvania. Stockholders will designate in their written notice the date and time of the closing, which date may be not less than two (2) business days nor more than sixty (60) days after the Stockholders have delivered such notice. At that closing, Purchaser will pay in respect of each Put Option the Purchase Price payable under that Put Option, as applicable, by wire transfer of immediately available funds to an account or accounts designated in writing by the applicable Stockholder at -4- least one business day prior to the closing date, against delivery of the certificates representing the Original Shares subject to that Purchase Price, duly endorsed for transfer to Purchaser and/or such additional or other evidence of transfer as Purchaser may request. 3. REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS OF STOCKHOLDERS. The Stockholders jointly and severally represent, warrant and covenant to Purchaser that: (a) Ownership. Each Stockholder is, as of the date hereof, the beneficial owner of the Stockholder Shares set forth next to such Stockholder's name on the signature page hereto, such Stockholder has the sole right to vote such Stockholder Shares and there are no restrictions on rights of disposition or other Liens pertaining to such Stockholder Shares. Except as created hereby, none of the Stockholder Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Stockholder Shares. (b) Authority and Non-Contravention. Each Stockholder has the right, power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Stockholders and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of the Stockholders. This Agreement has been duly executed and delivered by the Stockholders and constitutes a valid and binding obligation of each Stockholder, enforceable against each Stockholder in accordance with its terms, subject to general principles of equity and as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors' rights generally. Such actions by the Stockholders require no action by or in respect of, or filing with, any Governmental Authority with respect to any Stockholder, other than any required filings under Section 13 of the Exchange Act. (c) Total Shares. The Stockholder Shares are the only shares of capital stock of the Company owned beneficially or of record as of the date hereof by any Stockholder or any of their Affiliates, and (except for options held by Nelson Obus to acquire up to 12,000 shares of Company common stock) such Stockholder does not have any option to purchase or right to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any other securities of the Company. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The Purchaser represents, warrants and covenants to the Stockholders that: (a) Power and Authority. The Purchaser has the right, power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement and the Merger Agreement. The execution and delivery of this Agreement by the Purchaser and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes a valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to general principles of equity and as may be limited by bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally. -5- (b) Limitation on Voting Agreements. For so long as this Agreement remains in effect, the Purchaser shall not obtain binding voting agreements, proxies or other commitments to vote shares of Company common stock from any other stockholder of the Company with respect to matters set forth in Section 2(a) hereof, provided, however, the Purchaser may obtain voting agreements, proxies or commitments from officers, directors and employees of the Company, provided that the total number of shares of common stock of the Company subject to such voting agreements, proxies or commitments, when aggregated with the Stockholder Shares, does not exceed 40% of the issued and outstanding shares of Company common stock eligible to vote at the Company Stockholder Meeting. 5. MISCELLANEOUS. (a) Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. The Purchaser will not object if the Company reimburses the Stockholders' legal fees and expenses in connection with this Agreement and related matters, provided the total amount to be reimbursed, together with the total amount of legal fees and expenses of Steel Partners and its affiliates to be reimbursed, does not exceed $60,000. (b) Further Assurances. From time to time, at the request of the Purchaser, in the case of Stockholders, or at the request of Stockholders, in the case of the Purchaser, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement. (c) Specific Performance. The Stockholders, on the one hand, and Purchaser, on the other, agree that the other party would be irreparably damaged if for any reason either party fails to perform any of its obligations under this Agreement, and that the other party would not have an adequate remedy at law for money damages in such event. Accordingly, each party shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement by the other party. This provision is without prejudice to any other rights that such party may have against the other party for any failure to perform their obligations under this Agreement. (d) Amendments, Termination. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by each party hereto. The representations, warranties, covenants and agreements set forth in Sections 2, 3 and 4 above (but not Section 2A or Section 2B) shall terminate, except with respect to liability for prior breaches thereof, upon the earliest to occur of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the Effective Time, or (iii) April 15, 2004 (the earliest of such dates, the "TERMINATION DATE"). The covenants and agreements set forth in Section 2A above shall terminate, except with respect to liability for prior breaches thereof, upon the earliest to occur of (i) the date that is twelve (12) months and one day following the date of any Triggering Termination, (ii) the Effective Time, or (iii) the date of any termination of the Merger Agreement that does not constitute a Triggering Termination. The covenants and agreements set forth in Section 2B above shall terminate, except with respect to liability for prior breaches thereof, upon -6- the earliest to occur of (i) the expiration of the Exercise Period (if the Put Options have not been validly exercised during such Exercise Period), (ii) the Effective Time, or (iii) the date of any termination of the Merger Agreement that does not constitute a Triggering Termination. (e) Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. (f) Certain Events. Each Stockholder agrees that this Agreement and the obligations hereunder shall attach to the Stockholder Shares and the Applicable Shares and shall be binding upon any Person to which legal or beneficial ownership of such shares shall pass, whether by operation of law or otherwise, including any Stockholder's heirs, guardians, administrators or successors, and each Stockholder further agrees to take such commercially reasonable actions as may be necessary to effectuate the foregoing, provided such actions do not require the expenditure of monies, other than immaterial amounts. In the event of any stock split, stock dividend, reclassification, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the capital stock of the Company, the number of Stockholder Shares and Applicable Shares shall be adjusted appropriately. This Agreement and the representations, warranties, covenants, agreements and obligations hereunder shall attach to any additional shares of capital stock of the Company or other voting securities of the Company issued to or acquired by any Stockholder directly or indirectly (including through the exercise of any warrants, stock options or similar instruments). Each Stockholder shall cause the certificated Stockholder Shares to have a legend placed conspicuously on such certificate to the following effect: "The shares of common stock evidenced by this certificate are subject to a Voting Agreement dated November ___, 2003, entered into by the record owner of such shares and Snyder Associated Companies, Inc.." Each Stockholder shall cause a counterpart of this Agreement to be deposited with the Company at its principal place of business or registered office where it shall be subject to the same right of examination by a stockholder of the Company, in Person or by agent or attorney, as are the books and records of the Company. (g) Entire Agreement. This Agreement (including the documents referred to herein) (i) constitutes the entire agreement, and supersedes all prior agreements and understanding, both oral and written, between the parties with respect to the subject matter of this Agreement and (ii) is not intended to confer upon any Person other than the parties any rights or remedies. -7- (h) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by documented overnight delivery service or, to the extent receipt is confined, appropriate telecopy address or telecopy number set forth below (or at such other address or telecopy number for a party as shall be specified by like notice): If to the Purchaser to: Snyder Associated Companies, Inc. 1 Glade Park East P.O. Box 1022 Kittaning, PA 16201 With a copy to: Cohen & Grigsby, P.C. 11 Stanwix St. Pittsburgh, PA 15222 Attn: Charles C. Cohen, Esq. Fax: (412) 209-0672 If to any Stockholder, to: Wynnefield Capital Inc. 450 Seventh Avenue New York, New York 10123 Attn: Nelson Obus with a copy to: Kane Kessler, P.C. 1350 Avenue of the Americas New York, New York 10019 Attn: Jeffrey S. Tullman, Esq. (i) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. (j) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and, shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. -8- (k) Interpretation. The headings contained in this Agreement are inserted for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (l) Severability. Any provision hereof which is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without affecting in any way the remaining provisions hereof. (m) Consent to Jurisdiction. Each party hereto irrevocably submits to the nonexclusive jurisdiction of (a) the state courts of the State of New York and (b) the United States federal district courts located in the State of New York for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. (n) Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements, in addition to any other relief to which such party may be entitled. (o) No Limitation on Actions of any Stockholder as Director. In the event any Stockholder or any of Stockholder's Affiliates is a director of the Company, notwithstanding anything to the contrary in this Agreement, nothing in this Agreement is intended or shall be construed to require such Stockholder or such affiliate to take or in any way limit any action that such Stockholder or such affiliate may take to discharge such Stockholder's or such Affiliate's fiduciary duties as a director of the Company. * * * * * -9- IN WITNESS WHEREOF, this Voting Agreement has been signed by or on behalf of each of the parties as of the date first above written. PURCHASER: SNYDER ASSOCIATED COMPANIES, INC. By: ------------------------------
STOCKHOLDERS: ORIGINAL SHARES - ------------ --------------- WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. 382,897 By: Wynnefield Capital Management, LLC, its General Partner By: ------------------------------ Nelson Obus, Co-Managing Member WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. I 507,303 By: Wynnefield Capital Management, LLC, its General Partner By: ------------------------------ Nelson Obus, Co-Managing Member WYNNEFIELD SMALL CAP VALUE OFFSHORE FUND, LTD. 178,686 By: Wynnefield Capital, Inc. By: ------------------------------ Nelson Obus, President NELSON OBUS -0- - ----------------------------
-10- EX-2 4 file003.txt STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT This Agreement is made and entered into as of November 15, 2003, among STEEL PARTNERS II, L.P., a Delaware limited partnership ("SELLER"), SAC HOLDING CO., a Pennsylvania corporation ("BUYER"), and Snyder Associated Companies, Inc., a Pennsylvania corporation ("SNYDER"). PREAMBLE Seller is the owner of 537,771 shares (the "SHARES") of common stock, par value $0.001 per share of Sylvan Inc., a Nevada corporation ("SYLVAN"), which Shares are held in the names and accounts set forth on Annex A hereto. Seller desires to sell the Shares of Common Stock to Buyer, and Buyer is willing to purchase the Shares from Seller, at the price and on the terms and conditions set forth herein. Therefore, with the intent to be legally bound, the parties agree as follows: AGREEMENT 1. Purchase and Sale of Shares. Seller does hereby sell, assign, transfer, and convey to Buyer, and Buyer does hereby purchase from Seller, all of Seller's rights, title and interest in and to the Shares, free and clear of all liens and encumbrances, against payment of the Purchase Price (as defined in Section 2 below). 2. Purchase Price. In consideration of the sale of the Shares to Buyer as contemplated by Section 1 above, Buyer hereby agrees to pay to Seller, by wire transfer of immediately available funds, the aggregate sum of Six Million, Five Hundred Eighty-Seven Thousand, Six Hundred Ninety-Four Dollars and Seventy-Five Cents ($6,587,694.75) (the "PURCHASE PRICE"), representing a purchase price of $12.25 per Share, which Purchase Price shall be paid concurrently with the execution and delivery of this Agreement. 3. Closing. The closing of the transactions contemplated by this Agreement (the "CLOSING") shall be deemed to have taken place simultaneously with the execution and delivery of this Agreement and the payment of the Purchase Price and the Seller Reimbursement (as defined herein), and shall be deemed to have taken place at the offices of Cohen & Grigsby, P.C., 11 Stanwix Street, 15th Floor, Pittsburgh, Pennsylvania 15222; provided, however, that the Closing shall not be deemed to have occurred (and neither party shall have any obligation under this Agreement) unless substantially contemporaneously with the execution and delivery of this Agreement, Buyer and Sylvan enter into an Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant to which one of Buyer's subsidiaries is to be merged with and into Sylvan in a cash-out merger (the "MERGER") in which Sylvan's stockholders would be entitled to receive no less than $12.25 per share of Common Stock. This Agreement shall terminate and be of no further effect if Merger Agreement is not signed by all parties thereto by Tuesday, November 18, 2003 at 9:00 a.m. 4. Delivery of Certificates. Concurrently with the execution of this Agreement, Seller shall deliver to Buyer (or Buyer's agent) (i) a letter of instruction (the "INSTRUCTION LETTER") addressed to Seller's brokerage firm instructing such brokerage firm to cause the electronic delivery of the Shares held in street name and purchased from Seller pursuant hereto through the Depository Trust Company ("DTC") to a DTC account designated in writing by Buyer and (ii) with respect to Shares held of record and beneficially, a certificate or certificates representing such Shares duly endorsed for transfer or accompanied by appropriate stock powers duly executed. Notwithstanding the foregoing, the parties acknowledge and agree that Seller shall, and shall be entitled to, cause its counsel, Olshan Grundman Frome Rosenzweig & Wolosky LLP (the "ESCROW AGENT") to hold the Instruction Letter in escrow until such time as Buyer has received confirmation that the Purchase Price and the Seller Reimbursement have been remitted in full in accordance herewith, whereupon the Seller shall cause the Escrow Agent to promptly release the Instruction Letter to Buyer. 5. Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer as follows: (a) Seller is a limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder. The execution, delivery and performance of this Agreement by Seller and the consummation of the transactions contemplated hereby do not result in a violation of Seller's limited partnership agreement. (b) The execution, delivery and performance of this Agreement by Seller have been duly and effectively authorized by all necessary corporate actions of Seller. This Agreement has been duly executed by Seller and constitutes a valid, legally binding and enforceable obligation of Seller, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies. (c) Seller is the sole legal and beneficial owner of the Shares and has good title to the Shares. There exist no liens, claims, pledges, options, proxies, voting agreements, charges or encumbrances of any kind affecting the Shares. Seller has the sole and absolute right and power to sell, assign and transfer the Shares as provided in this Agreement. Upon the Closing, good and indefeasible title to the Shares will be vested in Buyer, free of any lien, pledge, claim, restriction or other encumbrance. With the exception of one (1) share of Common Stock of Sylvan owned by the Seller, the Shares are the only shares of capital stock of Sylvan owned beneficially or of record as of the date hereof by Seller or any of it affiliates (excluding Sylvan), and neither Seller nor any of its affiliates (excluding Sylvan) has any option to purchase or right to subscribe for or otherwise acquire any securities of Sylvan and has no other interest in or voting rights with respect to any other securities of Sylvan. (d) There are no actions, suits, proceedings or claims pending or, to the knowledge of Seller, threatened with respect to or in any manner affecting the ownership by Seller of the Shares or the sale of the Shares by Seller to Buyer. (e) Seller hereby represents, warrants and acknowledges that it has had access to all material information relating to the business and operations of Sylvan, Seller has consulted with legal counsel and accounting and financial advisors to the extent it has deemed necessary and appropriate in connection with the transactions contemplated by this Agreement, and Seller has had the opportunity to ask questions of, and receive answers from, Sylvan and its officers concerning the business and finances of Sylvan sufficient and necessary to establish its opinion concerning the value of the Shares and otherwise to make an informed decision regarding the transactions contemplated by this Agreement. 6. Representations and Warranties of Buyer. Buyer represents and warrants to Seller that: (a) Buyer is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder. (b) The execution, delivery and performance of this Agreement by Buyer have been duly and effectively authorized by all necessary corporate actions of Buyer. This Agreement has been duly executed by Buyer and constitutes a valid, legally binding and enforceable obligation of Buyer, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies. (c) The execution, delivery and performance of this Agreement by Buyer and the consummation of the transactions contemplated hereby do not result in a violation of Buyer's Articles of Incorporation or bylaws. (d) Buyer acknowledges that Seller may be deemed an "affiliate" of Sylvan under the Securities Act of 1933, as amended (the "Securities Act"), and that the resale of the Shares by Buyer may be subject to the limitations of the Securities Act and the rules and regulations promulgated thereunder. Buyer is acquiring the Shares for its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person or entity has a direct or indirect beneficial interest in the Shares. 7. Indemnification. (a) Seller shall indemnify, defend and hold harmless Buyer from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including, without limitation, reasonable attorneys' fees and expenses and court costs) suffered by Buyer and resulting from or arising in connection with any false or incorrect representation or warranty made by Seller herein, or the breach by Seller of any of its covenants and agreements hereunder. (b) Buyer shall indemnify, defend and hold harmless Seller from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including, without limitation, reasonable attorneys' fees and expenses and court costs) suffered by Seller and resulting from or arising in connection with any false or incorrect representation or warranty made by Buyer herein, or the breach by Buyer of any of its covenants and agreements hereunder. (c) The obligations of Seller and Buyer under this Section 7 shall survive any termination of this Agreement. 8. Survival of Representations and Warranties. All representations, warranties, agreements, covenants and obligations made or undertaken by Seller, Buyer or Snyder, as the case may be, in this Agreement or in any document or instrument executed and delivered pursuant hereto, are material, have been relied upon by the parties hereto, shall survive the Closing hereunder, and shall not merge in the performance of any obligation by either party hereto. 9. Expenses. All expenses incurred by the parties hereto in connection with or related to the authorization, preparation and execution of this Agreement and the Closing of the transactions contemplated hereby, including, without limitation, all fees and expenses of agents, representatives, counsel and accountants employed by such party, shall be borne solely and entirely by the party which has incurred the same; provided, however, that (a) Seller shall be responsible for (and shall hold Buyer harmless against) any documentary or stamp tax associated with the transfer of the Shares (or the certificates representing the Shares) to Buyer, whether or not such taxes are actually incurred by Seller or by Buyer, and (b) Snyder shall reimburse Seller's legal fees and expenses in connection with this Agreement and related matters in the amount of Sixty Thousand Dollars ($60,000) (the "SELLER REIMBURSEMENT") in accordance with the procedures set forth in Section 3 herein. 10. Recoupment Right. In the event that Buyer subsequently agrees to increase the merger consideration payable in connection with the Merger such that Sylvan stockholders are entitled to receive in excess of $12.25 per share of Common Stock (the amount of any such excess per share being referred to herein as the "OVERAGE"), and such Merger is actually consummated, then Buyer shall, within three business days following such consummation, pay to Seller an amount equal to the product obtained by multiplying (i) the Overage, by (ii) 537,771. 11. Miscellaneous. (a) This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, whether oral or written, among the parties hereto with respect to the subject matter hereof. This Agreement may be amended only by an instrument in writing signed by each of the parties to this Agreement. (b) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. (c) Section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. (d) This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. (e) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to any conflict of laws rules. (f) All notices and other communications under this Agreement shall be made by certified mail, return receipt requested, to the party entitled to receive the same at the addresses indicated below or at such other address as shall be specified by written notice in accordance herewith:
If to Buyer or Snyder: With a copy to: SAC Holding Co. Cohen & Grigsby, P.C. c/o Snyder Associated Companies, Inc. 11 Stanwix Street, 15th Floor 1 Glade Park East Pittsburgh, Pennsylvania 15222 P.O. Box 1022 Attn: Charles C. Cohen, Esq. Kittaning, PA 16201 Attn: President If to Seller: With a copy to: Steel Partners II, L.P. Olshan Grundman Frome Rosenzweig & Wolosky LLP 505 Park Avenue 590 Madison Avenue, 32nd Floor New York, New York 10022 New York, NY 10022 Attn: Steven Wolosky, Esq. Attn: Warren G. Lichtenstein
(g) Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach or provision of this Agreement. (h) Each of the parties hereto shall, without further consideration, execute and deliver to any other party hereto such instruments of transfer and shall perform such other actions as such party may reasonably request to carry out the transactions contemplated hereby. [SIGNATURE PAGE FOLLOWS] SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT SELLER STEEL PARTNERS II, L.P. By: Steel Partners, L.L.C., General Partner By: /s/ Warren G. Lichtenstein --------------------------------- Warren G. Lichtenstein Chief Executive Officer BUYER SAC HOLDING CO. By: /s/ Mark A. Snyder --------------------------------- Name: Mark A. Snyder Title: Secretary SNYDER SNYDER ASSOCIATED COMPANIES, INC. By: /s/ Mark A. Snyder --------------------------------- Name: Mark A. Snyder Title: Secretary Annex A o 1,000 of the Shares are represented by certificate or certificates in the name of Steel Partners II, L.P. o The remaining 536,771 of the Shares are held in street name in a DTC account maintained by ABN AMRO for the benefit of Steel Partners II, L.P. -----END PRIVACY-ENHANCED MESSAGE-----