THIRD AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
THIRD
AMENDMENT TO THE AGREEMENT AND
PLAN
OF MERGER
This
Third Amendment to the Agreement and Plan of Merger (the “Amendment”) is entered
into as of December 21, 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.”
RECITALS
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 and as further
amended
by the Second Amendment to the Agreement and Plan of Merger dated December
1,
2006 (the “Merger Agreement”).
WHEREAS,
the Merger Agreement provides that the “Final Date” (as defined in the Merger
Agreement) can be extended by mutual consent and the parties have extended
the
Final Date to January 5, 2007 by mutual consent on December 21,
2006.
WHEREAS,
SPI, the Company and the Merger Sub desire to amend the Merger Agreement
to
reflect the extension of the Final Date to January 5, 2007.
WHEREAS,
SPI has indicated to the Company that they are in the final stages of resolving
any remaining issues with the auditors in connection with SPI’s audited
financial statements.
WHEREAS,
SPI, the Company and the Merger Sub also desire to clarify their intent that
all
outstanding stock options of SPI shall at the Effective Time (as defined
in the
Merger Agreement) be substituted for stock options issued under the Company’s
2006 Equity Incentive Plan.
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 January 5, 2007 or as otherwise extended by
mutual consent.”
2.
SPI’s
Stock Option Plan and Options.
Section
2.1(b)(v) of the Merger Agreement is hereby amended as follows:
1
“(v)
At
the
Effective Time, each holder of 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 granted awards under the Company's 2006 Equity
Incentive Plan ("Company Option Plan") in substitution for awards issued
under
the SPI Option Plan (the “Substituted Option”). The Company Option Plan is
substantially similar in all material respects to the SPI 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
SPI 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 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
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 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 Substituted Options.”
3. 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.
4. 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.
5. 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.
SIGNATURE
PAGE IMMEDIATELY FOLLOWS
2
IN
WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first
above written.
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 and Treasurer
|
|
WELUND
ACQUISITION CORP.,
a
Nevada corporation
|
|
By:
/s/
Xxxxxxx X.
Xxxxx
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
Title:
President
|
3