SECOND AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
SECOND
AMENDMENT TO THE AGREEMENT AND
PLAN
OF MERGER
This
Second Amendment the Agreement and Plan of Merger (the “Amendment”) is entered
into as of December 1, 2006 to be effective as of August 23, 2006, by and
among
Solar Power, Inc., a California corporation (“SPI”), Solar Power, Inc., a Nevada
corporation formerly known as Welund Fund, Inc. (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.”
WHEREAS,
SPI, the Company and the Merger Sub are parties to that certain Agreement
and
Plan of Merger dated August 23, 2006, as amended by that certain First Amendment
to the Agreement and Plan of Merger dated October 4, 2006 (the “Merger
Agreement”).
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 December 23, 2006 or as otherwise extended by
mutual consent.”
2. SPI’s
Stock Option Plan and Options.
Article
2 of the Merger Agreement is hereby amended to include a new Section 2.1(b)(v)
as follows:
1
“(v) At
the
Effective Time, each of the then outstanding options to purchase or otherwise
acquire shares of SPI (“SPI Option”), whether or not such SPI Option is then
exercisable, issued pursuant to the SPI 2006 Equity Incentive Plan (“SPI Option
Plan”) or otherwise, will be assumed by the Company (the “Assumed Option”). Each
Assumed Option shall continue to have, and be subject to, the same terms
and
conditions set forth in such option and, if applicable, in the SPI Option
Plan,
immediately before the Effective Time, including provisions with respect
to
vesting (except as amended to terminate vesting provisions), except that
each
Assumed Option will be exercisable for that number of shares of common stock
of
the Company, $.0001 par value, equal to the number of shares of SPI common
stock
that were issuable upon the exercise of such option immediately before the
Effective Time. The duration and others terms of each Assumed Options 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 SPI
shall
be deemed to be references to the Company.
The
Company shall take all corporate action necessary to reserve for issuance
a
sufficient number of shares of Company’s Common Stock for delivery upon the
exercise of Assumed Options.”
3.
|
3.1
|
Exhibit
A.
The definition of Common Stock shall be amended as
follows:
|
“Common
Stock”
shall
mean the issued and outstanding shares of common stock, $.0001, par value,
of
the Company”
3.2 Exhibits
B-1 and B-2.
The
Nevada Articles of Merger and the California Agreement of Merger set forth
as
Exhibits B-1 and B-2 to the Merger Agreement are hereby amended to conform
to
the new Section 2.1(b)(v) set forth above.
4.1 Section
4.3 of SPI Disclosure Schedules is hereby amended to include the disclosures
set
forth in the Addendum to Section 4.3 of SPI Disclosure Schedules, attached
hereto.
4.2
|
Section
4.23 of the Merger Agreement is hereby amended as
follows:
|
“Except
for the 2006 Equity Incentive Plan, SPI has no other employee benefit plans
currently in effect.”
5. 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.
6. Entire
Agreement.
The
Merger Agreement and this Amendment, including the Addendum to Section 4.3
of
SPI Disclosure Schedules, taken as a whole, shall supersede any and all
agreements, either oral or written, between the Parties with respect to its
subject matter.
7. 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.
2
SOLAR
POWER, INC.,
a
California corporation
|
|
By:
/s/ Xxxxxxx X.
Xxxxxxx
|
|
Name:
Xxxxxxx
X. Xxxxxxx
|
|
Title:
Chief
Executive Officer and Chairman of Board
|
|
SOLAR
POWER, INC., formerly
WELUND FUND, INC., a Nevada corporation
|
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
Name:
Xxxxxxx
X. Xxxxx
|
|
Title:
Vice
President
|
|
WELUND
ACQUISITION CORP.,
a
Nevada corporation
|
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
Name:
Xxxxxxx
X. Xxxxx
|
|
Title:
President
|
3
ADDENDUM
TO
SECTION
4.3 TO
SPI
DISCLOSURE SCHEDULES
(a) Options.
SPI has
reserved 2,000,000 shares of its common stock under its 2006 Equity Incentive
Plan. SPI intends to grant options to purchase up to 2,000,000 shares of
its
common stock prior to the Effective Time. SPI will provide a complete list
of
the options granted by SPI prior to the Closing. Such list will contain the
names of the optionee, the number of shares exercisable by the respective
optionees under each option grant, and the exercise price.
(b) Reserved
Stock.
SPI has
reserved an aggregate of 500,000 shares of common stock which were to be
issued
to Xxxx Renewables Consulting, Inc., (“DRCI”) in connection with the merger with
DRCI and SPI. Although, no shares of common stock were issued to DRCI in
connection with the merger, SPI may issue such shares prior to the Effective
Time of Merger. Any and all stock issuances will be reflected in the Merger
Certificate to be delivered at the Closing.
4