AGREEMENT OF MERGER
Exhibit
2.8
This
Agreement of Merger dated as of the 29th day of December 2006 (“Merger
Agreement”),
by
and among Solar Power, Inc., a California corporation (“Company”),
Solar
Power, Inc., a Nevada corporation (“SPI-Nevada”)
and
Welund Acquisition Corp., a Nevada corporation and wholly owned subsidiary
of
SPI-Nevada (the “Merger
Sub”).
RECITALS
A. The
Company, SPI-Nevada and the Merger Sub have entered into an Agreement and
Plan
of Merger, dated as of August 23, 2006, as amended by that First Amendment
to
the Agreement and Plan of Merger dated October 4, 2006, the Second Amendment
to
the Agreement and Plan of Merger dated December 1, 2006 and the Third Amendment
to the Agreement and Plan of Merger dated December 21, 2006 (collectively,
the
“Agreement
and Plan of Merger”),
providing for the merger of the Merger Sub with and into the Company in
accordance with Chapter 11 of the California General Corporation Law (the
“Merger”).
B. The
Boards of Directors of the Company, Merger Sub and SPI-Nevada have adopted
resolutions approving this Agreement and the Agreement and Plan of Merger,
and
the shareholders of the Company and Merger Sub have approved the Merger.
AGREEMENT
The
parties hereto agree as follows:
1. Constituent
Corporations.
The
Company and the Merger Sub shall be the constituent corporations with respect
to
the Merger.
2. Effective
Time.
The
Merger shall become effective at such time this Merger Agreement and the
officers’ certificates of the Company, Merger Sub and SPI-Nevada are filed with
the Secretary of State of the State of California (the “Effective
Time”)
pursuant to the California General Corporation Law (the “CGCL”).
3. Effect
of the Merger.
At the
Effective Time, the Merger Sub shall be merged with and into the Company
and the
separate corporate existence of the Merger Sub shall cease and the Company
shall
be the surviving corporation of the Merger (the “Surviving
Corporation”)
and
shall continue its corporate existence under the laws of the State of
California. At the Effective Time, all the property, rights, privileges,
and
powers of the Company and Merger Sub shall vest in the Surviving Corporation,
and all debts, liabilities and duties of the Company and Merger Sub shall
become
the debts, liabilities and duties of the Surviving Corporation.
4. Articles
of Incorporation and Bylaws.
The
Articles of Incorporation of the Company in effect immediately prior to the
Effective Time shall be the Articles of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or in
accordance with applicable law. The Bylaws of the Company in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving Corporation
until thereafter changed or amended as provided therein or in accordance
with
applicable law.
5. Directors
and Officers.
The
directors and officers of the Company immediately prior to the Effective
Time
shall be the directors and officers of the Surviving Corporation until their
successors shall have been duly elected or appointed and qualified in accordance
with applicable law or until their earlier death, resignation or removal
in
accordance with the Surviving Corporation’s Articles of Incorporation and
Bylaws.
6. Effect
on Capital Stock.
By
virtue of the Merger and without any action on the part of parties or their
respective shareholders or board of directors, the following shall occur
at the
Effective Time:
6.1 Defined
Terms.
For
purposes of this Section 6, the following definitions shall apply:
“CGCL”
shall
mean the California General Corporations Law.
“SPI-Nevada
Stock”
shall
mean the common stock of SPI-Nevada.
“Dissenting
Shares”
shall
mean those shares, if any, held by persons who have not voted such shares
for
approval of the Merger and with respect to which such persons shall become
entitled to exercise dissenters’ rights in accordance with the
CGCL.
“Merger
Consideration”
shall
mean the right to receive one share of SPI-Nevada’s common stock in exchange for
one Share of Company’s capital stock.
“Share“
or
“Shares”
shall
mean each issued and outstanding shares of the Company’s capital stock
immediately prior to the Effective Time.
6.2 Capital
Stock of the Merger Sub.
Each
issued and outstanding share of capital stock of the Merger Sub shall by
virtue
of the Merger and without any action on the part of any holder thereof, be
converted into one share of the Company’s common stock. Such newly issued shares
shall thereafter constitute all of the issued and outstanding capital stock
of
the Surviving Corporation.
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6.3
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Capital
Stock of the Company.
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(a) Each
issued and outstanding share of the Company’s capital stock immediately prior to
the Effective Time (individually a “Share”
and
collectively the “Shares”),
other
than (i) Shares held by SPI-Nevada, and (ii) Dissenting Shares, shall,
by virtue of the Merger, automatically be canceled and retired and shall
cease
to exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive,
upon
surrender of any such certificates, the Merger Consideration to be issued
or
exchanged in consideration therefor upon the surrender of such
certificate.
(b) Each
Share issued and outstanding immediately prior to the Effective Time that
is
restricted or not fully vested shall upon such conversion have the same
restrictions or vesting arrangements as were applicable to such shares prior
to
the conversion. The capitalization of the Company immediately prior to the
Effective Time shall be set forth on a Merger Consideration Certificate to
be
delivered by the Company to SPI-Nevada at Closing (the “Merger
Consideration Certificate”).
SPI-Nevada shall be entitled to rely on the Merger Consideration Certificate
in
connection with issuance of the Merger Consideration.
(c) At
the
Effective Time, each Share held by the Company as treasury stock or held
by
SPI-Nevada immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the Company, SPI-Nevada or the
holder thereof, be canceled, retired and cease to exist, and no consideration
shall be delivered with respect thereto.
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(d) At
the
Effective Time, each holder of then outstanding options to purchase or otherwise
acquire shares of the Company (“Company’s
Option”),
whether or not such Company’s Option is then exercisable, issued pursuant to the
Company’s 2006 Equity Incentive Plan (“Company’s
Option Plan”)
or
otherwise, will be granted awards under the SPI-Nevada’s 2006 Equity Incentive
Plan ("SPI-Nevada
Option Plan")
in
substitution for awards issued under the Company’s Option Plan (the
“Substituted
Option”).
SPI-Nevada Option Plan is substantially similar in all material respects
to the
Company’s Option Plan and each Substituted Option shall continue to have, and be
subject to, substantially similar terms and conditions set forth in such
option
and, if applicable, in the Company’s Option Plan, immediately before the
Effective Time, including provisions with respect to vesting (except as amended
to terminate vesting provisions), except that each Substituted Option will
be
exercisable for that number of shares of common stock of SPI-Nevada, $.0001
par
value, equal to the number of shares of the Company’s common stock that were
issuable upon the exercise of such option immediately before the Effective
Time.
The duration and others terms of each Substituted Option shall be the same
as
the original option, including the exercise price for such shares, which
shall
also remain the same, provided however, all references to the Company shall
be
deemed to be references to SPI-Nevada.
7. Dissenters’
Rights.
Any
Dissenting Shares shall not be converted into the right to receive any portion
of the Merger Consideration, unless and until the holder of any such Dissenting
Shares fails to perfect or withdraws or otherwise loses his right to an
appraisal of the fair market value of his Dissenting Shares. If, after the
Effective Time, any such holder fails to perfect or withdraws or loses his
right
to an appraisal of the fair market value of his Dissenting Shares under the
CGCL, such Dissenting Shares shall thereupon be treated as if they had been
converted as of the Effective Time into the right to receive the Merger
Consideration to which such holder is entitled, without interest
thereon.
Company
shall give SPI-Nevada prompt notice of any demands received by the Company
for
the payment of fair market value for Shares, and SPI-Nevada shall have the
right
to direct all negotiations and proceedings with respect to such demands.
Company
shall not make any such payment without SPI-Nevada’s prior written
consent.
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8.
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General
Provisions.
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8.1 Amendment.
Prior
to the Effective Time, the Merger Agreement may be amended by the parties
hereto
any time before or after approval hereof by the shareholders of the Company,
but, after such approval, no amendment shall be made which by law requires
the
further approval of such shareholders without obtaining such approval. This
Merger Agreement may not be amended except by an instrument in writing signed
on
behalf of each of the parties hereto.
8.2 Severability.
If one
or more provisions of this Merger Agreement are held to be unenforceable
under
applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close
as
possible to that under the provision rendered unenforceable. In the event
that
the parties cannot reach a mutually agreeable and enforceable replacement
for
such provision, then (i) such provisions shall be excluded from this Merger
Agreement, (ii) the balance of the Merger Agreement shall be interpreted
as if
such provision was so excluded and (iii) the balance of the Merger Agreement
shall be enforceable in accordance with its terms.
8.3 Counterparts.
This
Merger Agreement may be signed in one or more counterparts, each of which
shall
be deemed an original and all of which shall constitute one
agreement.
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8.4 Gender.
For
purposes of this Merger Agreement, references to the masculine gender shall
include feminine and neuter genders and entities.
[Remainder
of Page Intentionally Left Blank; Signature Page to Follow]
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IN
WITNESS WHEREOF, the parties have executed this Merger Agreement as of the
date
first written above.
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SOLAR
POWER, INC.,
a
California corporation
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_____________________________________________
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Xxxxxxx
X. Xxxxxxx, Chairman, President and Secretary
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SOLAR
POWER, INC.,
a
Nevada corporation
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_____________________________________________
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Xxxxxx
Xxxxxxxx, President
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_____________________________________________
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Xxxxxx
X. Xxxxx, Secretary
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WELUND
ACQUISITION CORP.,
a
Nevada corporation
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_____________________________________________
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Xxxxxxx
X. Xxxxx, President and Secretary
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5
OFFICERS’
CERTIFICATE OF APPROVAL
OF
a
California corporation
The
undersigned, Xxxxxxx Xxxxxxx, on behalf of Solar Power, Inc., a California
corporation (the “Corporation”),
does
hereby certify that:
1. He
is the
Chairman of the Board of Directors, President and Secretary of the
Corporation.
2. The
Agreement of Merger dated December 29, 2006 (the “Agreement
of Merger”)
providing for the merger (the “Merger”)
of the
Corporation with Welund Acquisition Corp., a Nevada corporation, in the form
attached was duly approved by the Board of Directors of the Corporation which
equalled or exceeded the vote required.
3. The
principal terms of the Agreement of Merger in the form attached to this
Certificate were duly approved by the shareholders of the Corporation which
equalled or exceeded the vote required.
4. The
shareholder approval was by the holders of 14,000,000 of the outstanding
shares
of common stock of the Corporation, which represents 96.55% of the issued
and
outstanding shares of common stock of the Corporation. The percentage vote
required for such approval was more than 50% of the outstanding shares of
the
Corporation’s common stock.
5. The
Corporation has only one authorized class of stock outstanding, designated
as
common stock. The authorized capital stock of the Corporation issued and
outstanding and entitled to vote upon the Merger consists of 14,500,000 shares
of common stock.
We
further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
DATE:
December 29, 2006
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______________________________________________
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Xxxxxxx
Xxxxxxx, Chairman, President and
Secretary
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OFFICERS’
CERTIFICATE OF APPROVAL
OF
a
Nevada corporation
The
undersigned, Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx, on behalf of Solar Power,
Inc., a Nevada corporation (the “Corporation”),
does
hereby certify that:
1. There
are
the President and Secretary of the Corporation, respectively.
2. The
Agreement of Merger dated December 29, 2006 (the “Agreement
of Merger”)
providing for the merger (the “Merger”)
of
Solar Power, Inc., a California corporation, and Welund Acquisition Corp.,
a
Nevada corporation, in the form attached was duly approved by the Board of
Directors of the Corporation which equalled or exceeded the vote
required.
3. No
vote
of the shareholders of the Corporation was required
5. There
is
only one class of shares authorized of which there are 17,666,667 shares
of
common stock outstanding.
We
further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
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DATE:
December 29, 2006
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_______________________________________
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Xxxxxx
X. Xxxxxxxx, President
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_______________________________________
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Xxxxxx
X. Xxxxx, Secretary
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OFFICERS’
CERTIFICATE OF APPROVAL
OF
WELUND
ACQUISITION CORP.,
a
Nevada corporation
The
undersigned, Xxxxxxx Xxxxx, on behalf of Welund Acquisition Corp., a Nevada
corporation (the “Corporation”),
does
hereby certify that:
1. He
is the
President and Secretary of the Corporation.
2. The
Agreement of Merger dated December 29, 2006 (the “Agreement
of Merger”)
providing for the merger (the “Merger”)
of the
Corporation with Welund Acquisition Corp., a Nevada corporation, in the form
attached was duly approved by the Board of Directors and shareholder of the
Corporation which equalled or exceeded the vote required.
3. The
shareholder approval was by the holder of 100% of the outstanding shares
of the
Corporation.
4. There
is
only one class of shares authorized of which there are 1,000 shares of common
stock outstanding and entitled to vote on the Merger.
5. No
vote
of the shareholders of the Corporation’s parent was required.
We
further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
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DATE:
December 29,
2006
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_______________________________________
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Xxxxxxx
X. Xxxxx, President and Secretary
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