FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
FIRST
AMENDMENT TO THE AGREEMENT AND
PLAN
OF MERGER
This
First Amendment the Agreement and Plan of Merger (the “Amendment”) is entered
into as of October 4, 2006 to be effective as of August 23, 2006, by and
among
Solar Power, Inc., a California corporation (“SPI”) , Welund Fund, Inc., a
Nevada corporation (the “Company”) and Welund Acquisition Corp., a Nevada
corporation and a wholly-owned subsidiary of the Company (the “Merger Sub”).
SPI, Company and Merger Sub also collectively referred to herein as the
“Parties.”
RECITALS
WHEREAS,
SPI, the Company and the Merger Sub are parties to that certain Agreement
and
Plan of Merger dated August 23, 2006 (the “Merger Agreement”).
WHEREAS,
SPI, the Company and the Merger Sub desire to amend the Merger Agreement
to
extend the final date to November 30, 2006, or as otherwise extended by mutual
consent thereafter.
WHEREAS,
the capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual agreements
set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1.
Final
Date.
The
last sentence of Section 10.1 of the Merger Agreement is hereby amended as
follows:
“As
used
herein, the “Final Date” shall be November 30, 2006 or as otherwise extended by
mutual consent.”
2. Effect
of Amendment.
Except
as expressly modified by the provisions hereof, the Merger Agreement is in
all
respects ratified and confirmed, and shall continue in full force and effect
in
accordance with its terms. To the extent that there are any inconsistencies
between this Amendment and the Merger Agreement, the terms and provisions
of
this Amendment shall prevail.
3. Entire
Agreement.
The
Merger Agreement and this Amendment, taken as a whole, shall supersede any
and
all agreements, either oral or written, between the Parties with respect
to its
subject matter.
4. Counterparts.
This
Amendment may be executed in one or more counterparts (including by facsimile)
each of which when so executed will be deemed an original and all of which,
when
taken together, will constitute one and the same agreement.
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IN
WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first
above written.
SOLAR
POWER, INC.,
a
California corporation
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By: /s/ Xxxxxxx
X.
Xxxxxxx
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Name:
Xxxxxxx
X.
Xxxxxxx
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Title:Chairman
and Chief Executive
Officer
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WELUND
FUND, INC.,
a
Nevada corporation
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By:
/s/ Xxxxxxx
X.
Xxxxx
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Name:
Xxxxxxx
X.
Xxxxx
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Title:
Vice
President
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WELUND
ACQUISITION CORP.,
a
Nevada corporation
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By:
/s/ Xxxxxxx
X.
Xxxxx
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Name:
Xxxxxxx
X.
Xxxxx
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Title:
President
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