AGREEMENT AND PLAN OF MERGER

Exhibit 10.1

BY AND AMONG

FIRST SOLAR, INC.,

FIRST SOLAR ACQUISITION CORP.,

OPTISOLAR INC.

AND

OPTISOLAR HOLDINGS LLC

MARCH 2, 2009

TABLE OF CONTENTS

				Page
ARTICLE 1			THE MERGER	2
	1.1	The Merger		2
	1.2	The Closing		2
	1.3	Effects of the Merger		2
	1.4	Effects on Capital Stock		3
	1.5	[Reserved]		5
	1.6	Project Business Payments		5
	1.7	Changes in Capital Structure		5
	1.8	Exchange of Certificates		6
	1.9	Fractional Shares		6
	1.10	Dissenting Shares		6
ARTICLE 2			REPRESENTATIONS AND WARRANTIES OF THE COMPANY	7
	2.1	Organization, Standing and Power		7
	2.2	Capital Structure		8
	2.3	Authority; Noncontravention; Government Authorization		10
	2.4	Financial Statements.		12
	2.5	Absence of Certain Changes; Undisclosed Liabilities		13
	2.6	Litigation		14
	2.7	Restrictions on Business Activities		14
	2.8	Intellectual Property		15
	2.9	Taxes		16
	2.10	Employee Benefit Plans		20
	2.11	Employee Matters		22
	2.12	Related Party Transactions		23
	2.13	Insurance		23
	2.14	Contracts		23
	2.15	Project Development		26
	2.16	Assets		26
	2.17	Real Property		27
	2.18	Environmental		29
	2.19	Permits		31
	2.20	Compliance with Laws		32
	2.21	Topaz		33
	2.22	Minute Books		33
	2.23	Brokers’ and Finders’ Fees		33

TABLE OF CONTENTS

(continued)

				Page
	2.24	Board Approvals		33
	2.25	Stockholder Vote		34
	2.26	Disclosure		35
	2.27	No Other Representations		35
ARTICLE 3			REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	36
	3.1	Organization, Standing and Power		36
	3.2	Capital Structure		36
	3.3	Authority; Noncontravention		37
	3.4	SEC Documents; Financial Statements		37
	3.5	Board Approval		38
	3.6	Taxes		38
	3.7	Litigation		38
	3.8	Disclosure		39
	3.9	Compliance With Laws		39
	3.10	No Material Adverse Change		39
	3.11	No Other Representations		40
ARTICLE 4			COVENANTS AND OTHER AGREEMENTS	40
	4.1	Conduct of Business of Hold Co, the Company and its Subsidiaries		40
	4.2	Restrictions on Conduct of Business of the Company and its Subsidiaries		41
	4.3	Further Assurances, Regulatory Matters		44
	4.4	No Solicitation		47
	4.5	Securities Laws Matters		48
	4.6	Access to Information		50
	4.7	Confidentiality		51
	4.8	Public Disclosure		51
	4.9	Legal Requirements		51
	4.10	Treatment as Reorganization		51
	4.11	Tax Returns		52
	4.12	Expenses		52
	4.13	Obligations of Merger Sub		52
	4.14	Hold Co Merger		52
	4.15	The Drop Down and the Distribution		53
	4.16	Employment Matters		53
	4.17	Changes after Signing		53
	4.18	Bridge Loan		54

TABLE OF CONTENTS

(continued)

TABLE OF CONTENTS

(continued)

			Page
	8.8	Severability	87
	8.9	Failure or Indulgence Not Waiver; Remedies Cumulative	87
	8.10	GOVERNING LAW	87
	8.11	Binding Arbitration	88
	8.12	WAIVER OF JURY TRIAL	89
	8.13	Specific Performance	89

*   *   *   *   *

Exhibit A	Form of Support and Consent Agreement	A-1-1
Exhibit B	Form of Hold Co Merger Agreement	B-1
Exhibit C	Form of Drop Down Agreement	C-1
Exhibit D	Escrow Agreement	D-1
Exhibit E-1	Representation Agreement	E-1-1
Exhibit E-2	Purchaser Representative Agreement	E-2-1
Exhibit F-1	Tax Representations of the Company	F-1-1
Exhibit F-2	Tax Representations of Parent and Merger Sub	F-2-1
Exhibit G	Closing Deliveries	G-1
Exhibit H	Required Consents and Novations	H-1
Exhibit I	Matters to be Covered in Opinion of Counsel to Parent and Merger Sub	I-1
Exhibit J	Matters to be Covered in Farella Braun + Martel LLP Opinion	J-1
Exhibit K	Form of Registration Rights Agreement	K-1

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of March 2, 2009 (this “ Agreement ”), is by and among First Solar, Inc., a Delaware corporation (“ Parent ”), First Solar Acquisition Corp., a Delaware corporation and a direct wholly-owned subsidiary of Parent (“ Merger Sub ”), OptiSolar Inc., a Delaware corporation (the “ Company ”), and OptiSolar Holdings, LLC, a Delaware limited liability company and a direct wholly-owned subsidiary of the Company (“ Hold Co ”). 1

BACKGROUND

A.            The board of directors of each of Hold Co, the Company and Parent has determined that it would be advisable and in the best interests of their respective stockholders for Parent to acquire the Company by means of the merger of Merger Sub with and into the Company (the “ Merger ”), all on the terms and subject to the conditions set forth in this Agreement, and, in furtherance thereof, have approved this Agreement and the transactions contemplated by this Agreement.

B.             In order to induce Parent to enter into this Agreement, concurrently with the execution and delivery of this Agreement, certain Company Stockholders are executing and delivering Support and Consent Agreements in the form attached hereto as Exhibit A (each, a “ Support Agreement ”), and certain Company Stockholders are executing and delivering written consents in the forms attached to the Support Agreement (each, a “ Written Consent ”).

C.             Concurrently with the execution and delivery of this Agreement, Hold Co, the Company and Pincer Merger Subsidiary Inc., a newly formed, wholly-owned subsidiary of Hold Co (“ Newco ”), are entering into an Agreement and Plan of Merger in the form attached hereto as Exhibit B (the “ Hold Co Merger Agreement ”) pursuant to which, prior to the Merger, Newco will be merged with and into the Company, with the Company being the surviving corporation of such merger, and all outstanding shares of Company Capital Stock will be converted, on a share for membership unit basis, into membership units in Hold Co having rights, preferences and privileges substantially identical to those of the Company Capital Stock and all the capital stock of Hold Co held by the Company will be canceled (the “ Hold Co Merger ”).

D.             Concurrently with the execution and delivery of this Agreement, the Company and OptiSolar Technologies Inc., a Delaware corporation and a wholly-owned subsidiary of the Company, (the “ Spin-Off Subsidiary ”) are executing a drop down agreement in the form attached hereto as Exhibit C (the “ Drop Down Agreement ”) pursuant to which, among other things, the Company will transfer all of the assets and Liabilities of the Company and its Subsidiaries which are not Related to the Project Business to the Spin-Off Subsidiary (the “ Drop Down ”).

E.              As a condition precedent to the Merger, prior to the Closing, the Company will distribute all of the issued and outstanding capital stock of the Spin-Off Subsidiary to Hold Co (the “ Distribution ”).

F.              The Company and Parent intend that the Merger will qualify as a “reorganization” under Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”) and Hold Co and the Company intend that the Hold Co Merger will be treated as a transaction described in Section 721(a) of the Code.

AGREEMENT

In consideration of the representations, warranties, covenants and other agreements in this Agreement, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE 1

THE MERGER

1.1           The Merger .  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), Merger Sub shall be merged with and into the Company at the effective time of the Merger (the “ Effective Time ”), which shall be the time at which the Certificate of Merger is filed with the Delaware Secretary unless otherwise agreed by both parties and set forth in the certificate of merger, in a form reasonably acceptable to Parent and the Company (the “ Certificate of Merger ”), to be filed with the Secretary of State of the State of Delaware (the “ Delaware Secretary ”), if, as and when the Closing occurs.  The Company shall be the surviving corporation (sometimes referred to as the “ Surviving Company ”) in the Merger and shall succeed to and assume all the rights and obligations of Merger Sub in accordance with the DGCL.

1.2           The Closing .  The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at 10:00 a.m. Pacific time on the third (3 rd ) Business Day after the satisfaction or waiver of each of the conditions set forth in Article 5 (excluding the Closing Registration Statement Condition and other conditions that, by their terms, are to be satisfied on the Closing Date (which include, for avoidance of doubt, those set forth in Section 5.1(e) (The Hold Co Merger, the Drop Down and the Distribution)), but subject to the satisfaction or waiver of such conditions) or at such other time as the parties agree.  Notwithstanding anything to the contrary in this Agreement, the Closing Registration Statement Condition shall be satisfied after satisfaction or waiver of all other conditions set forth in Article 5 to the Merger.  The Closing shall take place at the offices of Covington & Burling LLP, One Front Street, San Francisco, CA 94111, or at such other location as the parties agree.  The date on which the Closing actually occurs is herein referred to as the “ Closing Date .”

1.3           Effects of the Merger .

(a)            At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL.

(b)            At the Effective Time, the certificate of incorporation of the Surviving Company, as in effect immediately prior to the Effective Time, shall be amended so as to contain only those provisions contained in the certificate of incorporation of Merger Sub until thereafter amended as provided by the DGCL and such certificate of incorporation; provided, however, that the name of the Surviving Company shall be the name of the Merger Sub immediately prior to the Effective Time until otherwise changed as provided by the DGCL and the certificate of incorporation of the Surviving Company.

(c)            At the Effective Time, the by-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the by-laws of the Surviving Company until thereafter amended as provided by the DGCL, the certificate of incorporation of the Surviving Company and such by-laws; provided , however , that the name of the Surviving Company shall be the name of the Merger Sub immediately prior to the Effective Time until otherwise changed as provided by the DGCL, the certificate of the incorporation of the Surviving Company and such by-laws.

(d)            At the Effective Time, the officers and directors of Merger Sub, as constituted immediately prior to the Effective Time, shall be the officers and directors of the Surviving Company, for so long as provided under the DGCL, the certificate of incorporation of the Surviving Company and the by-laws of the Surviving Company.

(e)            At the Effective Time, all property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company and all debts, liabilities and duties of the Company and Merger Sub shall become debts, liabilities and duties of the Surviving Company.

1.4           Effects on Capital Stock .  By virtue of the Merger and without any action on the part of Merger Sub, Parent, the Company or the holders of shares of capital stock of the Company (the “ Company Capital Stock ”), the following shall occur:

(a)            As of the Effective Time, each share of Company Capital Stock that is issued and outstanding immediately prior to the Effective Time and is owned by the Company, Parent, Merger Sub or any of their respective Subsidiaries shall automatically be canceled and shall cease to exist, and no consideration shall be delivered or deliverable in exchange therefor.

(b)            As of the Effective Time, each share of common stock of Merger Sub (the “ Merger Sub Common Stock ”) issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Company.  Each certificate formerly representing any such shares of Merger Sub Common Stock shall represent ownership of shares of common stock of the Surviving Company.

(c)            All shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than shares to be canceled in accordance with Section 1.4(a)) shall be converted into the right to receive, at the Effective Time, the Closing Shares as and to the extent contemplated by Section 1.4(c)(ii) hereof.  As of the Effective Time, all such shares of Company Capital Stock shall no longer be outstanding and shall automatically be canceled and cease to exist, and each holder of a certificate formerly representing any such shares of Company Capital Stock (“ Certificate ”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration in respect of such shares as allocated in this Section 1.4 upon surrender of such Certificate in accordance with Section 1.8.  “ Merger Consideration ” means the Closing Shares.

(i)                 The maximum aggregate number of shares of the Common Stock, par value $0.001 per share, of Parent (the “ Parent Common Stock ”) issuable at the Effective Time (the “ Closing Shares ”), on account of all shares of Company Capital Stock outstanding immediately prior to the Closing (other than shares to be cancelled in accordance with Section 1.4(a)) and all rights (including options and warrants) to acquire shares of Company Capital Stock outstanding immediately prior to the Closing shall equal (a) (x) $400,000,000, plus (y) the aggregate amount of the Closing Project Business Payments plus (z) the French Amount, the Canadian Amount and the Italian Amount, divided by (b) the Parent Trading Price.  Twenty five percent (25%) of the Closing Shares to be issued under clause (i)(a)(x) above (the “ Escrow Amount ”) shall be withheld from the Merger Consideration payable pursuant to this Section 1.4 and shall be deposited at the Closing with an escrow agent reasonably acceptable to the Company and Parent (the “ Escrow Agent ”), in accordance with the Escrow Agreement, dated as of the Closing Date, substantially in the form attached hereto as Exhibit D (the “ Escrow Agreement ”), by and among Parent, the Escrow Agent and Hold Co.  The fund in which the Escrow Amount is held (the “ Escrow Fund ”) will be held and distributed in accordance with the terms of the Escrow Agreement and Article 7 of this Agreement.  A number of Closing Shares equal to (i) the Closing Payment Amount divided by (ii) the Parent Trading Price (the “ Holdback Shares ”) shall be withheld from the Merger Consideration by Parent until the 45th day following the Closing Date (the “ Holdback Release Date ”). On the Holdback Release Date, Parent shall issue, or cause to be issued, to Hold Co, a number of the Holdback Shares equal to (x) the original number of Holdback Shares minus (y) a number of Holdback Shares equal to (i) the Closing Payment Amount minus the Hold Co Payments divided by (ii) the Parent Trading Price.  Any remaining Holdback Shares shall be retained by Parent and shall not be payable hereunder as Merger Consideration and Parent shall have no right to seek indemnification for the accounts payable as to which such shares were retained as Losses pursuant to Article 7 except to the extent such Losses, with respect to a particular account payable, exceed the product of (i) the number of shares of Parent Common Stock reserved against such account payable and (ii) the Parent Trading Price.  With respect to each Holdback Lease, a number of Closing Shares equal to (i) the applicable Lease Holdback Amount divided by (ii) the Parent Trading Price (the “ Lease Holdback Shares ”) shall be withheld from the Merger Consideration by Parent until such Holdback Lease is terminated, with no remaining liability to the Company, or novated, so as to substitute the Spin-Off Subsidiary or Hold Co for the Company or the applicable Project Company as a party to such Holdback Lease (the date five (5) Business Days following the receipt by Parent of written notice and evidence of such termination or novation from the Spin Off Subsidiary under any such lease, a “ Lease Holdback Release Date ”).  On a Lease Holdback Release Date, Parent shall issue, or cause to be issued, to Hold Co, a number of the Lease Holdback Shares equal to (i) the Lease Holdback Amount attributable to the applicable Holdback Lease divided by (ii) the Parent Trading Price.  In the event that any Holdback Lease with respect to the McClellan properties has not been terminated, with no remaining liability to the Company, or novated, so as to substitute the Spin-Off Subsidiary or Hold Co for the Company or the applicable Project Company as a party to such Holdback Lease, on or prior to the six-month anniversary of the Closing Date, any remaining Lease Holdback Shares allocable to such McClellan lease minus an amount of such Lease Holdback Shares equal to (x) any amounts actually paid by the Spin-Off Subsidiary to the Company between the date of this Agreement and such six-month anniversary under the Master Sublease in respect of such McClellan lease divided by (y) the Parent Trading Price shall be retained by Parent and shall not be payable hereunder as Merger Consideration and Parent shall have no right to seek indemnification for the aggregate rent payable under the remaining term of such Holdback Lease as Losses pursuant to Article 7, and the remainder of the Lease Holdback Shares allocable to such McClellan lease shall be paid to Hold Co.  Upon the expiration of any other Holdback Leases, Parent shall deliver to Hold Co a number of Lease Holdback Shares allocable to such other Holdback Leases minus an amount of such Lease Holdback Shares equal to (x) any amounts required to be paid by the Spin-Off Subsidiary to the Company under the Master Sublease in respect of such other Holdback Leases and not so paid divided by (y) the Parent Trading Price. If any rent payments are made under the Master Sublease or by the Spin-Off Subsidiary or Hold Co under a Holdback Lease, then within 10 business days of receipt of such payment or notice of such payment, as the case may be, a number of Lease Holdback Shares allocable to the applicable Holdback Lease shall be released to Hold Co equal to (x) the amount of such rent payments divided by (y) the Parent Trading Price. In no event shall Parent or the Company have any right of setoff under this Agreement, the Drop Down Agreement or otherwise with respect to Parent Common Stock to be issued to Hold Co under this Section 1.4(c)(i).

(ii)               The Merger Consideration shall be allocated as follows:  All 100 shares of Company Capital Stock outstanding immediately prior to the Effective Time held by the Company’s sole stockholder at that time, Hold Co, shall be converted into the right to receive, and shall become exchangeable for the Closing Shares.

1.5           [Intentionally omitted].

1.6           Project Business Payments .  At least three but not more than five Business Days before the Closing, the Company will deliver to Parent a certificate, signed by the Chief Executive Officer of the Company (the “ Project Business Payments Certificate ”), setting forth the Project Business Payments, including the components thereof and supporting documentation (the “ Closing Project Business Payments “).

1.7           Changes in Capital Structure .

(a)            If there is a stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change (other than the Hold Co Merger, the Drop Down or the Distribution) with respect to shares of Parent Common Stock occurring after the date of this Agreement and before the Effective Time, all references in this Agreement to specified numbers of shares of any class or series affected thereby, and all calculations provided for that are based upon numbers of shares of any class or series (or trading prices therefor) affected thereby, shall be equitably adjusted to the extent necessary to provide to the parties the economic effect contemplated by this Agreement prior to such stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change.

(b)            If there is a stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to shares of Parent Common Stock occurring after the Effective Time, all references in this Agreement to the Holdback Shares and the Lease Holdback Shares shall be equitably adjusted to the extent necessary to provide to the parties the economic effect contemplated by this Agreement prior to such stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change.

1.8           Exchange of Certificates .

(a)            At or prior to the Closing, Parent shall deliver to Hold Co instructions for use in surrendering Certificates in exchange for consideration specified and allocated in Section 1.4.  Concurrently with the Closing, Hold Co shall surrender a Certificate for cancellation and, upon surrender of such Certificate for cancellation to Parent, and such other documents as may reasonably be required by Parent, the holder of such Certificate shall receive concurrently with the Closing in exchange therefor the Merger Consideration for which the shares formerly held by such holder are to be exchanged in accordance with Section 1.4 (less any shares of Parent Common Stock deposited in the Escrow Fund, less the Holdback Shares and the Lease Holdback Shares), and the certificates so surrendered shall be canceled.

(b)            All shares of Parent Common Stock issued in accordance with the terms of this Article 1 (including shares of Parent Common Stock deposited into the Escrow Fund) shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Capital Stock represented by such certificates, and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of the shares of Company Capital Stock which were outstanding immediately prior to the Closing.

1.9           Fractional Shares .  No fraction of a share of Parent Common Stock will be issued in connection with the Merger and in lieu thereof Hold Co shall receive from Parent an amount of cash equal to the product (rounded upwards or downwards to the nearest whole cent) of such fraction of a share Hold Co would otherwise receive at the Parent Trading Price.

1.10         Dissenting Shares .

(a)            Shares of Company Capital Stock that are issued and outstanding immediately prior to the effective time of the Hold Co Merger and that are owned by stockholders who have properly perfected their appraisal rights in accordance with the provisions of applicable Law with respect to the Hold Co Merger are referred to herein as “ Dissenting Shares ”; provided that each such share shall cease to be a Dissenting Share if its holder shall have failed to perfect or shall have effectively withdrawn or lost such appraisal rights.

(b)            The Company shall give Parent (i) prompt notice of any objections to the Hold Co Merger filed in accordance with applicable Law received by the Company, withdrawals of such objections and any other instruments served in connection with such objections in accordance with applicable Law and received by the Company or its representatives, and (ii) the opportunity to participate in, but not direct, all negotiations and proceedings with respect to such objections under applicable Law consistent with the Company’s obligations thereunder.  Following the Closing, Hold Co shall direct all negotiations and proceedings with respect to such objections under applicable Law and the Company shall not, except with the prior written consent of Hold Co (which consent shall not be unreasonably withheld or delayed), (A) voluntarily make any payment or statement against interest with respect to any such objection, (B) offer to settle or settle any such objection, or (C) waive any failure by a former stockholder of the Company to timely deliver a written objection or to perform any other act perfecting appraisal rights in accordance with applicable Law.

(c)            Each holder of Dissenting Shares who, pursuant to the provisions of the DGCL, becomes entitled to payment of the fair value of such shares after the closing of the Hold Co Merger shall receive payment therefor in accordance with Section 262 of the DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to such provisions), and any such payment shall be referred to herein as “ Dissenting Shares Excess Payments ,” and shall constitute “Losses” for purposes of Article 7.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Subject to the exceptions set forth in the disclosure letter of the Company addressed to Parent, dated as of the date hereof and delivered to Parent concurrently with the parties’ execution of this Agreement (the “ Company Disclosure Letter ”) (each of which exceptions, in order to be effective, shall indicate the section and, if applicable, the subsection of this Article 2 to which it relates (unless and to the extent the relevance to other representations and warranties is reasonably apparent from the face of the disclosed exception, in which case such exceptions shall apply to such other representations and warranties as is reasonably apparent)), the Company represents and warrants to Parent and Merger Sub as of the date hereof and as of the Closing Date that as follows:

2.1           Organization, Standing and Power .

(a)            Section 2.1(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, of each Project Company and each other Subsidiary of the Company indicating (i) its jurisdiction of organization, (ii) its officers and directors, and (iii) the record owners of all of its issued and outstanding securities.  All of the outstanding securities of each Project Company are, to the extent applicable, duly authorized, validly issued, fully paid and nonassessable.

(b)            Each of the Company, Hold Co, Newco, the Spin-Off Subsidiary and each Project Company is a corporation, partnership or limited liability company and, where applicable, is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.

(c)            Each of the Company, Hold Co, Newco, the Spin-Off Subsidiary and each Project Company has the corporate power to own, lease and operate its properties and to conduct its business as currently conducted and the Company and each Project Company is duly qualified to do business and is in good standing in each U.S. jurisdiction set forth opposite the name of  such company in Section 2.1(a) of the Company Disclosure Letter.  Each of the Company, Hold Co, Newco, the Spin-Off Subsidiary and each Project Company is duly qualified to do business and is in good standing in each jurisdiction where the failure to be so qualified and in good standing, individually or in the aggregate with any such other failures, would reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

(d)            None of the Company, Hold Co, Newco, the Spin-Off Subsidiary or any Project Company is in violation of any of the provisions of its organizational documents.

(e)            Section 2.1(e) of the Company Disclosure Letter sets forth a list of the Company’s officers and directors.

(f)             Other than the Project Companies listed on Section 2.1(a) of the Company Disclosure Letter, Newco, Hold Co and the Spin-Off Subsidiary, the Company does not (and has not) directly or indirectly own any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any Person.

(g)            There are no Contracts, to which any Project Company is a party or by which it is bound obligating any Project Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of such Project Company or obligating such Project Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such Contract.  There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to any Project Company.

(h)            With respect to each Project Company, since the formation date of such Project Company, such Project Company has engaged solely in the business of developing, financing, constructing and/or operating the Project for which it was formed (such Project Company’s “ Project Company Business ”), and no Project Company has engaged in any other business, incurred any capital expense or acquired any real or personal property other than specifically Related to the Project Business.

2.2           Capital Structure .

(a)            As of the date hereof and until immediately prior to the closing of the Hold Co Merger, the authorized capital stock of the Company shall consist of (i) 325,000,000 shares of Company Common Stock, (ii) 29,075,000 shares of Senior Convertible Preferred Stock, 3,750,000 shares of which have been designated “Senior Preferred A-1 Stock,” 1,125,000 shares of which have been designated “Senior Preferred A-2 Stock” and 24,200,000 shares of which have been designated “Senior Preferred B-1 Stock,” and (iii) 13,810,000 shares of Junior Convertible Preferred Stock, 4,000,000 shares of which have been designated “Junior Preferred A-1 Stock,” 5,325,000 shares of which have been designated “Junior Preferred A-2 Stock,” 525,000 shares of which have been designated “Junior Preferred A-3 Stock,” 350,000 shares of which have been designated “Junior Preferred A-4 Stock,” 450,000 shares of which have been designated “Junior Preferred A-5 Stock,” 760,000 shares of which have been designated “Junior Preferred A-6 Stock” and 2,400,000 shares of which have been designated “Junior Preferred A-7 Stock.”  As of the date hereof and until immediately prior to the closing of the Hold Co Merger, there shall be issued and outstanding 55,898,640 shares of Company Common Stock, 3,750,000 shares of the Company’s Senior Preferred A-1 Stock, 1,125,000 shares of the Company’s Senior Preferred A-2 Stock, 15,785,932 shares of the Company’s Senior Preferred B-1 Stock, 3,966,437 shares of the Company’s Junior Preferred A-1 Stock, 5,322,382 shares of the Company’s Junior Preferred A-2 Stock, 525,000 shares of the Company’s Junior Preferred A-3 Stock, 350,000 shares of the Company’s Junior Preferred A-4 Stock, 450,000 shares of the Company’s Junior Preferred A-5 Stock, 722,665 shares of the Company’s Junior Preferred A-6 Stock and 2,400,000 shares of the Company’s Junior Preferred A-7 Stock.  As of immediately prior to the Closing and following the closing of the Hold Co Merger, (i) the authorized capital stock of the Company will consist of 100 shares of Company Common Stock, all of which will be issued and outstanding and held by Hold Co and (ii) there will exist no (w) options, warrants, calls, subscription rights or other rights, convertible securities, agreements or commitments of any character obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interests in, the Company or securities convertible into or exchangeable for such shares or other equity interests, (x) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of the Company or (y) voting trusts or similar agreements to which the Company or any of its Subsidiaries is a party with respect to the voting of the capital stock of the Company.

(b)            As of immediately prior to Closing, the outstanding membership units of Hold Co will consist of 55,898,640 common membership units, 3,750,000 Senior Preferred A-1 membership units, 1,125,000 Senior Preferred A-2 membership units, 15,785,932 Senior Preferred B-1 membership units, 3,966,437 Junior Preferred A-1 membership units, 5,322,382 Junior Preferred A-2 membership units, 525,000 Junior Preferred A-3 membership units, 350,000 Junior Preferred A-4 membership units, 450,000 Junior Preferred A-5 membership units, 722,665 Junior Preferred A-6 membership interests and 4,000,000  Junior Preferred A-7 membership units.

(c)            There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock or Company Preferred Stock.  Each share of Company Preferred Stock is convertible into Company Common Stock on a one-to-ten basis except for the Senior Preferred B-1 Stock which is convertible into Company Common Stock on a one-to-one basis.  There are not outstanding any adjustments made or required to be made to the conversion rates applicable to Company Preferred Stock set forth in Company’s Eleventh Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”).  Section 2.2(c) of the Company Disclosure Letter sets forth a true, correct and complete list (with names and addresses) of (i) all of the Company’s record holders as of the date hereof, the number of shares, warrants, options or other rights owned of record by each and the total number of shares of Company Common Stock reserved and available for future grant under the Company’s 2006 Incentive Stock Plan (the “ Company Stock Plan ”), and (ii) any Persons with rights to acquire Company securities (including all holders of outstanding Company Options, whether or not granted under the Company Stock Plan), the exercise or vesting schedule, exercise price, and tax status of such options under Section 422 of the Code.

(d)            All issued and outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrances created by statute, the Company’s organizational documents or any Contract to which the Company or any of its Subsidiaries is a party or by which it is bound.  Except for (A) outstanding Company Options to purchase 17,916,770 shares of Company Common Stock under the Company Stock Plan, (B) outstanding Company Options to purchase 11,385,000 shares of Company Common Stock issued outside of the Company Stock Plan, and (C) outstanding shares Company Preferred Stock, there are no Contracts to which the Company or any of its Subsidiaries is a party, or by which it is bound, obligating the Company or any of its Subsidiaries to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Capital Stock and/or Company Options or obligating the Company to grant, extend, accelerate the vesting and/or waive any repurchase rights of, change the price of or otherwise amend or enter into any such Contract.  Except as set forth in Section 2.2(d) of the Company Disclosure Letter and to the knowledge of the Company, there are no Contracts relating to voting, purchase or sale of any Company Capital Stock other than this Agreement and the Support Agreements.  All outstanding Company securities were issued in compliance with all applicable securities Laws.

(e)            Except for the Company Stock Plan and outside the plan options, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any Person.  The Company has reserved as of the date hereof 40,000,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company, upon the exercise of options granted under the Company Stock Plan, of which 3,244,000 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised, vested options.  The Company Stockholders have properly approved the Company Stock Plan and the grants made thereunder.

(f)             As of the date hereof, the authorized capital stock of Hold Co consists of 100 membership units, all of which are issued and outstanding and owned beneficially and of record by the Company.  As of the date hereof, the authorized capital stock of Newco consists of 100 shares of common stock, all of which are issued and outstanding and owned beneficially and of record by Hold Co.  As of the date hereof, the authorized capital stock of the Spin-Off Subsidiary consists of 100 shares of common stock, all of which are issued and outstanding and owned beneficially and of record by the Company.  Hold Co and Newco were formed for the purpose of effecting the Hold Co Merger. Neither Hold Co nor Newco owns any asset or is subject to any Liability other than those necessary to effect the Hold Co Merger.

2.3           Authority; Noncontravention; Government Authorization .

(a)            Except for the Required Hold Co Merger Vote and the Required Vote, the Company has all requisite corporate power and authority to enter into this Agreement, the Hold Co Merger Agreement and the Drop Down Agreement, to perform its obligations hereunder and thereunder, including entering into and performing any additional Contracts contemplated hereby or thereby to which it is a party, to consummate the transactions contemplated hereby and thereby and to consummate the Distribution.  The execution and delivery of this Agreement, the Hold Co Merger Agreement, the Drop Down Agreement, and any additional Contracts contemplated hereby or thereby to which it is a party, the consummation of the transactions contemplated hereby and thereby by the Company and the consummation of the Distribution have been duly authorized by all necessary corporate action on the part of the Company.  This Agreement, the Hold Co Merger Agreement and the Drop Down Agreement, and any additional Contracts being delivered herewith or therewith to which the Company is a party, have been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, each constitute the valid and binding obligation of the Company enforceable against the Company in accordance with their terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to rights of creditors generally, and (ii) rules of Law and equity governing specific performance, injunctive relief and other equitable remedies.

(b)            Except for the Required Hold Co Merger Vote, Hold Co and Newco, with respect to the Hold Co Merger Agreement, have all requisite corporate power and authority to enter into this Agreement and the Hold Co Merger Agreement, to perform their obligations hereunder and thereunder, including entering into and performing any additional Contracts contemplated hereby or thereby to which either is a party and to consummate the transactions contemplated hereby and thereby.  The execution and delivery of this Agreement, the Hold Co Merger Agreement, and any additional Contracts contemplated hereby or thereby to which either is a party and the consummation of the transactions contemplated hereby and thereby by Hold Co and Newco have been duly authorized by all necessary corporate action on the part of Hold Co and Newco.  This Agreement and the Hold Co Merger Agreement, and any additional Contracts being delivered herewith or therewith to which the Company is a party, have been or will be duly executed and delivered by Hold Co and Newco, with respect to the Hold Co Merger Agreement, and, assuming due authorization, execution and delivery by the other parties thereto, each constitute the valid and binding obligation of Hold Co and Newco, with respect to the Hold Co Merger Agreement, enforceable against Hold Co and Newco, with respect to the Hold Co Merger Agreement, in accordance with their terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to rights of creditors generally, and (ii) rules of Law and equity governing specific performance, injunctive relief and other equitable remedies.

(c)            The execution and delivery by the Company, Newco and Hold Co of this Agreement, the Drop Down Agreement, the Hold Co Merger Agreement (to the extent each is a party to such agreement) and any additional Contracts contemplated hereby or thereby to which the Company, Newco or Hold Co are or will be party do not, and the consummation of the transactions contemplated hereby and thereby by the Company, Newco or Hold Co will not, (i) result in the creation of an Encumbrance on any properties or assets of Hold Co, the Company or any of their respective Subsidiaries, or (ii) conflict with, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation, renegotiation or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person in accordance with, (A) any provision of the organizational documents of Hold Co, Newco, the Company or any of their respective Subsidiaries, or (B) any Permit or Law applicable to Hold Co, Newco the Company or any of their respective Subsidiaries or any of their respective properties or assets.  No consent, approval, order or authorization of, or registration, declaration or filing with, any government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality, in each case whether domestic or foreign, any stock exchange or similar self-regulatory organization or any quasi-governmental or private body exercising any regulatory, taxing or other governmental or quasi-governmental authority (each a “ Governmental Entity ”) is required by or with respect to the Company, Newco, Hold Co or any of their respective Subsidiaries in connection with the execution and delivery of this Agreement, the Drop Down Agreement, the Hold Co Merger Agreement, any additional Contracts contemplated hereby or thereby or the consummation of the transactions contemplated hereby or thereby, except for (w) the filing of the Certificate of Merger and the certificate of merger effecting the Hold Co Merger, (x) such filings as may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “ HSR Act ”) and any required foreign antitrust filing, and (y) compliance with any applicable requirements of the Securities Act, the Exchange Act, state securities and “blue sky” laws.

(d)            The execution and delivery by the Company, Newco and Hold Co of this Agreement, the Drop Down Agreement, the Hold Co Merger Agreement and any additional Contracts contemplated hereby or thereby to which the Company, Newco or Hold Co are or will be a party do not, and the consummation of the transactions contemplated hereby and thereby by the Company, Newco or Hold Co will not conflict with, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation, renegotiation, payment of additional amounts or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person in accordance with any Contract to which Hold Co, Newco, the Company or any of their respective Subsidiaries is a party.

2.4           Financial Statements .

(a)            The Company has delivered to Parent its consolidated financial statements audited by PriceWaterhouseCoopers as at and for the years ended December 31, 2006 and 2007 and its unaudited consolidated balance sheet and statement of operations as at and for the twelve-month period ended December 31, 2008 (the “ Financial Statements ”).  The Financial Statements (a) have been prepared in accordance with United States generally accepted accounting principles (“ GAAP ”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of the unaudited financial statements, as permitted by GAAP), and (b) present fairly, in all material respects, the consolidated financial condition and results of operations and cash flows of the Company and each of its Subsidiaries as of the dates, and for the periods, indicated therein, except as otherwise noted therein (subject, in the case of unaudited financial statements, to (i) the absence of footnotes and (ii) year-end adjustments, which may be material).  The Company has made no Accounting Change (as defined in Section 8.4(a)) since December 31, 2007, except as described in the Financial Statements or required by GAAP.

(b)            Section 2.4(b) of the Company Disclosure Letter contains a true and complete list, as of the date hereof, of all pre-payments, deposits, payments for land rights, permits, letters of credit in support of PPA’s, and similar payments made by the Company or any of its Subsidiaries Related to the Project Business (collectively, the “ Project Pre-Payments ”).

(c)            Section 2.4(c) of the Company Disclosure Letter sets forth a good faith estimate of any Project Business Payments made between January 1, 2009 and the date hereof.

2.5           Absence of Certain Changes; Undisclosed Liabilities .

(a)            Other than with respect to the Drop Down, the Distribution and the Hold Co Merger, since December 31, 2008 (the “ December 31 Balance Sheet Date ”) the Company and each of its Subsidiaries has conducted its business only in the ordinary course of business, and there has not occurred any change, event or condition (whether or not covered by insurance) that, individually or in the aggregate with any other changes, events and conditions, has resulted in, or would reasonably be expected to result in, a Company Material Adverse Effect or a Project Material Adverse Effect.  In addition, from the December 31 Balance Sheet Date until the date hereof neither the Company nor any of its Subsidiaries has:

(i)                Caused or permitted any amendments to its organizational documents;

(ii)               Declared or paid any dividends on or made any other distributions, other than cash dividends between the Company and its Subsidiaries (whether in cash, stock or property) in respect of any of its capital stock, or split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except in accordance with the ordinary course of business under the Company Stock Plan;

(iii)              Made any loans or advances (including prepayments) to, or any investments in or capital contributions to, or forgiven or discharged in whole or in part any outstanding loans or advances of, any Person;

(iv)              Granted any exclusive rights of any type or scope with respect to the Project Business;

(v)               Sold, leased, licensed or otherwise disposed of or encumbered any of the Project Assets; or

(vi)              Taken or agreed in writing or otherwise to take, any of the actions described in the foregoing clauses of this Section 2.5(a).

(b)            Neither the Company nor any of its Subsidiaries has any material Financial Liabilities of any nature, whether matured or unmatured, fixed or contingent, determined or undetermined, known or unknown (whether or not required to be reflected in accordance with GAAP) other than (i) those set forth or adequately provided for in the balance sheet as of December 31, 2008 included in the Financial Statements, (ii) those incurred in the ordinary course of business since the December 31 Balance Sheet Date and (iii) those pursuant to the terms of Contracts disclosed in the Company Disclosure Letter or incurred pursuant to the terms of Contracts that are not required to be disclosed in the Company Disclosure Letter.

(c)            Immediately following the Closing, neither the Surviving Company nor any Project Company will have any Financial Liabilities of any nature, whether matured or unmatured, fixed or contingent, determined or undetermined, known or unknown (whether or not required to be reflected in accordance with GAAP) other than those (i) permitted to be incurred in compliance with Section 4.2 and Related to the Project Business, (ii) that Parent and the Company together have agreed in writing should be retained by the Surviving Company or its Subsidiaries (those described in subsection (ii) the “ Permitted Retained Liabilities ”) and (iii)  those pursuant to the terms of Project Contracts disclosed in the Company Disclosure Letter or incurred pursuant to the terms of Projects Contracts that are not required to be disclosed in the Company Disclosure Letter; provided that, in each case specified in clause (iii), neither the Company nor any of its Subsidiaries is in breach of, or default under, any such Contracts.  For the avoidance of doubt, nothing in this Section 2.5(c) shall limit, adjust or impair the inclusion of Project Business Payments in the calculation of the Merger Consideration as set forth in Section 1.4(c).

(d)            Section 2.5(b) and Section 2.5(c) do not relate to litigation or environmental matters, which are the subjects of Section 2.6 and Section 2.18, respectively.

2.6           Litigation .  There is no private or governmental action, suit, proceeding, claim, arbitration or, to the knowledge of the Company, investigation pending before any Governmental Entity or arbitrator, or, to the knowledge of the Company, threatened against the Company, any of its Subsidiaries or any of the Project Assets or other assets of the Company or any of its Subsidiaries, or, to the knowledge of the Company, any of their respective officers or directors (in their capacities as such).  There is no judgment, decree or order against the Company or any of its Subsidiaries, any of the Project Assets, or, to the knowledge of the Company, any of the directors or officers of the Company or any of its Subsidiaries (in their capacities as such), that would reasonably be expected to prevent, enjoin, or alter or delay any of the transactions contemplated by this Agreement, the Drop Down Agreement, the Distribution or the Hold Co Merger, or that, individually or in the aggregate with any such other judgments, decrees and orders, would reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.  This section does not relate to matters with respect to Taxes, which are the subject of Section 2.9, or to employee matters, which are the subject of Section 2.10 and 2.11.

2.7           Restrictions on Business Activities .  There is no Project Contract (including covenants not to compete), judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries that has or would reasonably be expected to have, whether before or after consummation of the Merger, the effect of prohibiting or expressly restricting (i) any current or currently proposed future business practice of the Company or any Project Company, any acquisition of property (tangible or intangible) by the Company or any Project Company or the conduct of business of the Company or any Project Company, in each case, as currently conducted or as currently proposed to be conducted by the Company or any Project Company, or (ii) the conduct by the Company or any of the Project Companies after the Closing of their respective businesses as conducted as of the date immediately prior to the date hereof, or (iii) the conduct of Parent or any of its Subsidiaries after the Closing of their respective businesses as currently conducted.  Without limiting the generality of the foregoing, neither the Company nor any Project Company has entered into any Contract that includes a “most favored pricing” or similar clause restricting the right of the Company or any Project Company to operate their respective business or that in any manner restricts Company or any Project Company from selling, licensing or otherwise distributing any of their respective technology or products to, or from providing services to, customers or currently proposed customers or any class of customers, in any geographic area, during any period of time or in any segment of the market.

2.8           Intellectual Property .

(a)            The Company or one of its Subsidiaries, other than the Spin-Off Subsidiary and its Subsidiaries, owns, licenses or otherwise has sufficient rights to use all Intellectual Property used in or necessary for the conduct of the Project Business and each Project Company Business, both as currently conducted (the “ Project IP Rights ”).  Except as set forth in Section 2.8(b) of the Company Disclosure Letter or provided for under Section 4.8 of the Drop Down Agreement, all Project IP Rights that are owned by the Company or any of its Subsidiaries are owned solely and exclusively and free and clear of any and all Encumbrances.

(b)            Section 2.8(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereof, of (1) all Intellectual Property that is registered with or issued by a Governmental Entity (or a registrar of domain names) or that is subject to an application for registration with or issuance by a Governmental Entity and included among the Project IP Rights (the “ Project Registered Intellectual Property ”) and (2) all material unregistered Trademarks included among the Project IP Rights.  For each listed item, Section 2.8(b) of the Company Disclosure Letter indicates, as applicable, the owner of such Intellectual Property, the countries in which such Intellectual Property is registered or application for registration has been filed, registration or application number, and the filing and expiration dates thereof.

(c)            Neither the execution, delivery or performance of this Agreement nor the consummation of the Merger, the Drop Down, the Distribution, the Hold Co Merger or the other transactions contemplated by this Agreement, the Hold Co Merger Agreement or the Drop Down Agreement will impair the rights of the Company or any of its Subsidiaries in any Project IP Right or portion thereof.  Neither the Company nor any of its Subsidiaries is paying any royalties, honoraria, fees or other payments to any third person (other than salaries payable to employees and independent contractors not contingent on or related to use of their work product) as a result of the ownership, use, possession, license-in, sale, marketing, advertising or disposition of any Project IP Rights, and none shall become payable as a result of the consummation of the transactions contemplated by this Agreement or the Drop Down Agreement.

(d)            The operation of the Project Business and each Project Company Business as currently conducted does not (i) violate any Contract between the Company or any of its Subsidiaries and any third party, (ii) infringe or misappropriate any Intellectual Property right of any third party or (iii) constitute unfair competition or trade practices under applicable Law, nor does there exist any Basis therefor.  Neither the Company nor any of its Subsidiaries has received any written notice (or, to the knowledge of the Company, any oral notice) asserting that any of the Project IP Rights or the conduct of the Project Business or any Project Company Business conflicts with or infringes, or would conflict with or infringe, the Intellectual Property of any third party, and neither the Company nor any of its Subsidiaries has received any written notice (or, to the knowledge of the Company, any oral notice) from any third party offering a license under any such third party Intellectual Property or other right to avoid litigation or other claims.  To the knowledge of the Company, there is no unauthorized use, disclosure, infringement or misappropriation of any Project IP Rights owned by the Company or any of its Subsidiaries by any third party, including any employee or former employee of the Company or any of its Subsidiaries.

(e)            The Company and its Subsidiaries have taken all commercially reasonable steps consistent with industry standard practices to (i) protect, preserve and maintain the secrecy and confidentiality of Trade Secrets in the Project IP Rights, and (ii) preserve and maintain all of the Company’s and its Subsidiaries’ proprietary rights included among Project IP Rights.

(f)             All current employees of the Company and each of its Subsidiaries who contributed to the creation or the development of any Project IP Rights or have access to the same have executed confidentiality agreements for the benefit of the Company or any of its Subsidiaries, as applicable, substantially in the form of the Company’s standard form(s) for the relevant jurisdiction, which forms are attached to Section 2.8(f) of the Company Disclosure Letter (an “ IP Agreement ”), and all former employees of the Company and each of its Subsidiaries who contributed to, the creation or the development of any Project IP Rights have executed such an agreement in substantially such standard form(s).  No current or former employee, officer, director, consultant or advisor of the Company or any of its Subsidiaries (i) has any right, license, claim or interest whatsoever in or with respect to any Project IP Rights, or (ii) to the knowledge of the Company, is in material violation of any material term of any IP Agreement entered into with the Company or any of its Subsidiaries.  To the knowledge of the Company, no employee, officer, director, consultant or advisor of the Company or any of its Subsidiaries is in material violation of any term of any employment Contract or any other Contract, or any restrictive covenant, relating to the right to use Trade Secrets or proprietary information of others, and the employment of any such Person by the Company or any of its Subsidiaries does not subject any of the Company or any of its Subsidiaries to any Liability to any third party.

(g)            No Governmental Entity, university, college or other education institution or research center has any right to, ownership of or right to royalties for any Project IP Rights.

(h)            No Project IP Rights have been acquired by the Company or any of the Project Companies from any third party.

(i)             To the knowledge of the Company, the Project Registered Intellectual Property (other than applications for Patents or Trademarks) are valid and enforceable, and, to the knowledge of the Company, none of the Project IP Rights has been adjudicated invalid or unenforceable, in whole or in part.  None of the Project IP Rights are subject to any outstanding injunction, judgment, order, decree, ruling, charge, settlement or other disposition of any dispute where the Company or any of its Subsidiaries is a party.  There are no actions that must be taken by the Company or any of its Subsidiaries with any Governmental Entity with respect to any of the Project Registered Intellectual Property within 60 days of the date hereof, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or articles, for the purposes of maintaining, preserving or renewing any Project Registered Intellectual Property.

2.9           Taxes .

(a)            “ Tax ” means (i) any net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, withholding, estimated, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit tax, custom duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount imposed by any Governmental Entity responsible for the imposition of any such tax (domestic or foreign) (each, a “ Tax Authority ”), (ii) any Liability for the payment of any amounts of the type described in clause (i) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any taxable period, and (iii) any Liability for the payment of any amounts of the type described in clause (i) or (ii) of this sentence as a result of being a transferee of or successor to any Person or as a result of any obligation to indemnify any other Person.  “ Tax Return ” means any return, statement, report or form (including estimated Tax Returns and reports, withholding Tax Returns and reports and information returns and reports) required to be filed with respect to Taxes.

(b)            The Company and each of its Subsidiaries, and any consolidated, combined, unitary, aggregate or affiliated group for Tax purposes of which the Company or any of its Subsidiaries is or has been a member, have properly completed and timely filed all income, franchise and other Tax Returns required to be filed by them.  All such Tax Returns are true and correct in all respects and have been completed in accordance with applicable Law and the Company and each of its Subsidiaries have paid or withheld and paid to the appropriate Tax Authority all Taxes due (whether or not shown to be due on such Tax Returns).  The Company has never filed, and is not obligated to file, any consolidated, combined, unitary, aggregate or affiliated Tax return for U.S. federal income Tax or any other Tax purpose.

(c)            The balance sheet as of December 31, 2008 included in the Financial Statements reflects all unpaid Taxes of the Company and/or any of its Subsidiaries for periods (or portions of periods) through the December 31 Balance Sheet Date.  Neither the Company nor any of its Subsidiaries has any Liability for unpaid Taxes accruing after the December 31 Balance Sheet Date except for Taxes arising in the ordinary course of business subsequent to the December 31 Balance Sheet Date.

(d)            There is (i) no claim for Taxes being asserted against the Company or any of its Subsidiaries that has resulted in an Encumbrance against the property of the Company or any of its Subsidiaries, and there is no such Encumbrance for Taxes outstanding, other than Encumbrances for Taxes not yet due and payable, (ii) no audit of any Tax Return of the Company or any of its Subsidiaries being conducted by a Tax Authority and no written notice (and, to the knowledge of the Company, no oral notice) of any such audit being commenced that has been received by the Company or any of its Subsidiaries, and (iii) no extension of any statute of limitations on the assessment of any Taxes granted by the Company or any of its Subsidiaries currently in effect.  Neither the Company nor any of its Subsidiaries has been informed by any jurisdiction that the jurisdiction believes that such entity was required to file any Tax Return that was not filed.

(e)            Neither the Company nor any of its Subsidiaries has (i) been or will be required to include any adjustment in Taxable income for any Tax period (or portion thereof) in accordance with Section 481 or Section 108(i) of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events or accounting methods employed prior to the Merger, (ii) filed, or was required to file, any disclosures under Section 6662 of the Code or comparable provisions of state, local or foreign Law to prevent the imposition of penalties with respect to any Tax reporting position taken on any Tax Return, (iii) engaged in a “reportable transaction,” as set forth in Treasury Regulation Section 1.6011-4(b), (iv) ever been a member of a consolidated, combined, unitary aggregate or affiliated group of which the Company was not the ultimate parent company, (v) been the “distributing corporation” or the “controlled corporation” (in each case, within the meaning of Section 355(a)(1) of the Code) with respect to a transaction described in Section 355 of the Code (A) within the two-year period ending as of the date of this Agreement, or (B) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) that includes the transactions contemplated by this Agreement, (vi) ever been a “United States real property holding corporation” within the meaning of Section 897 of the Code, (vii) any actual or potential Liability under Treasury Regulations Section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign Law) or otherwise, as a transferee or successor, in accordance with any contractual obligation, or otherwise for any Taxes of any person other than the Company or any of its Subsidiaries, or (viii) taken or agreed to take any action not provided for in this Agreement (nor does the Company or any of its Subsidiaries have knowledge of any fact or circumstance whether or not specified or provided for in this Agreement) that is reasonably likely to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

(f)             Neither the Company nor any of its Subsidiaries is a party to or bound by any Tax sharing or Tax allocation agreement with any party, nor does the Company or any of its Subsidiaries have any Liability or potential Liability to another party under any such agreement.

(g)            Each of the Company and each of its Subsidiaries has withheld or collected and timely paid over to the appropriate Tax Authorities (or are properly holding for such timely payment) all Taxes required by Law to be withheld or collected.

(h)            Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of any: (i) installment sale or other open transaction disposition made on or prior to the Closing Date, (ii) prepaid amount received on or prior to the Closing Date, (iii) closing agreement described in Section 7121 of the Code or any corresponding provision of state or foreign Law executed on or prior to the Closing Date, or (iv) change in method of accounting to a taxable period ending on or prior to the Closing Date.

(i)             Section 2.9(i) of the Company Disclosure Letter lists all income, franchise and similar Tax Returns (federal, state, local and foreign) filed with respect to each of the Company and its Subsidiaries for taxable periods ended on or after January 1, 2005, indicates the most recent income, franchise or similar Tax Return for each relevant jurisdiction for which an audit has been completed or the statute of limitations has lapsed and indicates all Tax Returns that currently are the subject of audit.

(j)             None of the assets of the Company or any of its Subsidiaries is “tax-exempt use property” within the meaning of Section 168(h) of the Code.

(k)            None of the Real Property as to which the Company or any of its Subsidiaries is obligated, contractually or by Law, to pay ad valorem taxes, (i) is subject to rollback Taxes, Tax penalties, or Tax assessment increases, or (ii) has been or is entitled to a preferential or special real estate Tax assessment or Tax treatment.

(l)             Neither the Company nor any of its Subsidiaries will realize any gain for U.S. federal income Tax purposes or any other Tax purposes, nor will any other Taxes arise, as a result of the Distribution, the Hold Co Merger, any of the transactions contemplated by the Drop Down Agreement or any transfer of assets that is undertaken in order to separate the assets that will be held, directly or indirectly, by the Company or any Project Company following the Distribution from the assets that will not be so held.

(m)           There are no circumstances existing which could result in the application of section 78, section 79, or sections 80 to 80.04 of the Canadian Tax Act, or any equivalent provision under applicable provincial Law, to the Company or any Project Company.  The Company and its Subsidiaries have not claimed nor will they claim any reserve under any provision of the Canadian Tax Act or any equivalent provincial provision, if any amount could be included in the income of the Company or any of its Subsidiaries for any period ending after the Closing Date.

(n)            For all transactions between the Company or any of its Subsidiaries, on the one hand, and any non-resident Person with whom the Company or any of its Subsidiaries were not dealing at arm’s length, for the purposes of the Canadian Tax Act, on the other hand, during a taxation year commencing after 1998 and ending on or before the Closing Date, the Company or any of its Subsidiaries have made or obtained records or documents that satisfy the requirements of paragraphs 247(4)(a) to (c) of the Canadian Tax Act.

(o)            Neither the Company nor any of its Subsidiaries are subject to any joint venture, partnership or other arrangement or contract that is treated as a partnership for Tax purposes in any jurisdiction.

(p)            To the knowledge of the Company and its Subsidiaries, no inquiry or claim has ever been made by a Government Entity in respect of Taxes in a jurisdiction where the Company or its Subsidiaries does not file Tax Returns that the Company or its Subsidiaries are or may be subject to Tax in that jurisdiction.

(q)            The Company and the Project Companies have not, and have not been deemed to have for purposes of the Canadian Tax Act, acquired or had the use of property for proceeds greater than the fair market value thereof from, or disposed of property for proceeds less than the fair market value thereof to, or received or performed services for other than the fair market value from or to, or paid or received interest or any other amount other than at a fair market value rate to or from, any Person, firm or company with whom it does not deal at arm’s length within the meaning of the Canadian Tax Act.

(r)             No stock in the Company is owned by any Subsidiary of the Company.

(s)            Section 351(a) of the Code shall apply to the Drop Down.

(t)             All U.S. domestic Subsidiaries of the Company are, and have always been disregarded entities for U.S. federal income tax purposes, and no election has been made to change the default classification for U.S. federal income tax purposes of any non-U.S. Subsidiary of the Company.

2.10         Employee Benefit Plans .

(a)            Section 2.10(a) of the Company Disclosure Letter sets forth a complete list, as of the date hereof, of (i) all “employee benefit plans,” as defined in Section 3(3) of ERISA (as defined in Section 8.4), (ii) all other currently effective severance pay, salary continuation, bonus, incentive, stock option, retirement, pension, profit sharing or deferred compensation plans, Contracts, programs, funds or arrangements of any kind, and (iii) all other employee benefit plans, Contracts, programs, funds or arrangements (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic) and any trust, escrow or similar Contract related thereto, whether or not funded, in respect of any present or former employees, directors, officers, stockholders, consultants or independent contractors of the Company or any of its Subsidiaries that are sponsored or maintained by the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has made or is required to make payments, transfers or contributions (all of the above being hereinafter individually or collectively referred to as “ Employee Plan ” or “ Employee Plans ,” respectively).  The Company has no Liability with respect to any plan, arrangement or practice of the type described in the preceding sentence other than the Employee Plans.  All Employee Plans will be terminated in accordance with their terms or transferred to the Spin-Off Subsidiary at or prior to the Closing, without any Liability to the Company or any of its Subsidiaries (other than the Spin-Off Subsidiary and its Subsidiaries).

(b)            Neither the Company nor any of its Subsidiaries currently has, and at no time in the past has had, an obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code,  a “multiemployer plan” as defined in Section 3(37) of ERISA or Section 414(f) of the Code or a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code.

(c)            No Employee Plan is or at any time was funded through a “welfare benefit fund” as defined in Section 419(e) of the Code, and no benefits under any Employee Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of subsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).

(d)            Except for the Company’s Subsidiaries, no other entity or trade or business is, or at any time within the past six years has been, treated, together with the Company, as a single employer under Section 414 of the Code or as a controlled group under Section 4001 of ERISA.

(e)            Copies of the following materials have been delivered to Parent:  (i) all current plan documents for each Employee Plan or, in the case of an unwritten Employee Plan, a written description thereof, (ii) the most recent determination letter or opinion letter from the IRS with respect to any of the Employee Plans that have received a determination letter or opinion letter, (iii) all current summary plan descriptions, summaries of material modifications, annual reports, and summary annual reports, and (iv) all current trust agreements, insurance contracts, and other documents relating to the funding or payment of benefits under any Employee Plan.

(f)             Each Employee Plan has been maintained, operated, and administered in material compliance with its terms and any related documents or agreements and in material compliance with all applicable Laws.

(g)            Each Employee Plan intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust created thereunder has been determined by the IRS to be exempt from tax under the provisions of Section 501(a) of the Code, and nothing has occurred since the date of any such determination that would reasonably be expected to give the IRS grounds to revoke such determination.

(h)            With respect to each group health plan benefiting any current or former employee of the Company or its Subsidiaries that is subject to Section 4980B of the Code, the Company and each Subsidiary has complied in all material respects with the continuation coverage requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA.

(i)             There is no pending or, to the Company’s knowledge, threatened assessment, complaint, proceeding, or, to the knowledge of the Company, investigation of any kind in any court or government agency with respect to any Employee Plan (other than routine claims for benefits).

(j)             Neither the execution and delivery of this Agreement or the Drop Down Agreement nor the consummation of the transactions contemplated hereby or thereby or the consummation of the Distribution or the Hold Co Merger will, alone or in connection with any other event, (i) result in any payment (including severance, unemployment compensation or golden parachute) becoming due under any Employee Plan, (ii) increase any compensation or benefits (including severance, deferred compensation and equity benefits) otherwise payable under any Employee Plan, (iii) result in the acceleration of the time of payment or vesting of any benefits to any extent under any Employee Plan, or (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any of its Subsidiaries to any Person.  No benefit or payment under any Employee Plan or other severance or compensation arrangement that is “contingent” (within the meaning of Section 280G(b)(2)(i) of the Code) on this Agreement, the Drop Down Agreement or the transactions contemplated by this Agreement, the Drop Down Agreement, the Distribution or the Hold Co Merger will, either independently or when aggregated with all other amounts payable to any individual, constitute an “excess parachute payment” (as defined under Section 280G(b)(1) of the Code).

(k)            The term “Foreign Plan” shall mean any Employee Plan that is maintained outside of the United States.  Each Foreign Plan complies with all applicable Law (including, without limitation, applicable Law regarding the form, funding and operation of the Foreign Plan) in all material respects.  All contributions required to have been made to all Foreign Plans as of the Closing will have been made as of the Closing.  There are no actions, suits or claims pending or threatened with respect to the Foreign Plans (other than routine claims for benefits).

2.11         Employee Matters .

(a)            Neither the Company nor any of its Subsidiaries is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistently with past practice).  The Company has not received written notice (or, to the knowledge of the Company, any oral notice) of any pending claims against the Company and/or any of its Subsidiaries under any workers compensation plan or policy or for long term disability.

(b)            Neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement, neutrality agreement, card-check agreement or other labor union Contract, no collective bargaining agreement, neutrality agreement, card-check agreement or other labor union Contract is being negotiated by the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has any duty to bargain with any labor organization.  Neither the Company nor any of its Subsidiaries is aware of any activities or proceedings of any labor union or to organize their respective employees.  To the knowledge of the Company, there is no labor dispute, threatened strike or work stoppage against the Company or any of its Subsidiaries pending or threatened which may interfere with the respective business activities of the Company or any of its Subsidiaries.

(c)            The Company has provided Parent a true, correct and complete list of the names, positions and rates of compensation of each of the employees of the Company or its Subsidiaries whose responsibilities are primarily Related to the Project Business (the “ Project Employees ”), showing each such person’s name, position, employer, location of employment, status as exempt/non-exempt, bonuses and fringe benefits for the current fiscal year and the most recently completed fiscal year and whether that person has an employment contract with the Company or any of its Subsidiaries.  Copies of all employment contracts entered into by the Company or any of its Subsidiaries have been delivered to Parent.  Except as contemplated by this Agreement or the Drop Down Agreement, no employee of the Company or any of its Subsidiaries has given written notice (or, to the knowledge of the Company, any oral notice) to the Company or any of its Subsidiaries, nor is the Company otherwise aware, that any such employee intends to terminate his or her employment with the Company, any of its Subsidiaries or the Surviving Corporation.  The employment of each of the employees of the Company or any of its Subsidiaries is “at will” and neither the Company nor any of its Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any of their respective employees.

(d)            All individuals employed by the Company and its Subsidiaries as of the Closing in the United States will be, and all former employees of the Company and its Subsidiaries in the United States whose employment terminated, voluntarily or involuntarily, within three years prior to the date of this Agreement, were, legally authorized to work in the United States.  The Company has completed and retained the necessary employment verification paperwork under the Immigration Reform and Control Act of 1986 (“ IRCA ”) for the employees hired prior to the date of this Agreement, and the Company has complied with anti-discrimination provisions of the IRCA.  Further, except to the extent that the statute of limitations under IRCA has lapsed, at all times prior to the date of this Agreement, the Company was in compliance with both the employment verification provisions (including without limitation the paperwork and documentation requirements) and the anti-discrimination provisions of IRCA.

2.12         Related Party Transactions .  No officer or director or, to the knowledge of the Company, any Company Stockholder (nor, to the knowledge of the Company, any immediate family member of any of such Persons; any trust, partnership or company in which any of such Persons has or has had an interest; or any Affiliated investment fund of any director), has since January 1, 2006, directly or indirectly, any financial interest in (a) any Person that furnished or sold, or furnishes or sells, services, products, land or technology to the Company or any Project Company for use in the Project Business or any Project Company Business, (b) any Person that purchases from or sells or furnishes to the Company or any of its Subsidiaries any goods or services used in the Project Business or any Project Company Business, or (c) any Project Contract, provided , however , that ownership of no more than one percent (1%) of the outstanding voting stock of a publicly traded company shall not be deemed to be an “financial interest in any Person” for purposes of this Section 2.12.  No member, officer or director of the Company or any of the Project Companies is an officer or employee of any Governmental Entity.

2.13         Insurance .  Section 2.13 of the Company Disclosure Letter is a true, correct and complete listing as of the date hereof of all policies of insurance and bonds Related to the Project Business currently in effect and issued at the request or for the benefit of the Company or any of the Project Companies.  As of the date hereof, there is no material claim pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds.  The Company and each of its Subsidiaries is in compliance with the terms of such policies and bonds.  The Company has no knowledge of any threatened termination of, or premium increase in an amount greater than 20% of the current annual premium paid with respect to, any of such policies.

2.14         Contracts .

(a)            Section 2.14(a) of the Company Disclosure Letter (as identified in the applicable subsection thereof) contains a complete and accurate list as of the date hereof of each Project Contract of the following types which have not been fully performed:

(i)                any supply Contract, including all purchaser orders other than those in amounts less than $10,000 individually;

(ii)               any power purchase Contract for the sale of the electricity and Environmental Attributes of a Project;

(iii)              any Real Property Agreements;

(iv)             any Contract for the purchase or sale of assets or securities, goods or services, financing agreements, interconnection agreements, applications for interconnection of any Project evidencing an interconnection queue position, equipment supply agreements, consulting agreements, employment and labor agreements, guarantees and bonds (other than purchase orders);

(v)              any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction;

(vi)             any Contract in accordance with which the Company or any of its Subsidiaries is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property requiring rental payments in excess of $10,000 annually;

(vii)            any license or other Contract providing rights to, or based upon, any Project IP Rights;

(viii)           any Contract not resulting from arm’s length negotiations;

(ix)              any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Liabilities of any other Person;

(x)               any government grants Contract;

(xi)              any Contract with any Governmental Entity;

(xii)             any Contract relating to the disposition or acquisition of assets or any interest in any business enterprise;

(xiii)            any employment Contract (excluding offer letters that have no severance or acceleration provisions triggered by any event) with current employees of the Company or any of the Project Companies as of the date hereof; or

(xiv)           any other Contracts requiring annual payments of more than $10,000 individually or $100,000 in the aggregate.

(b)            Section 2.14(b) of the Company Disclosure Letter (as identified in the applicable subsection thereof) contains a complete and accurate list as of the date hereof of each Transfer Contract of the following types which have not been fully performed:

(i)                any supply Contract, including all purchaser orders other than those in amounts less than $10,000 individually;

(ii)               any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction;

(iii)              any Contract in accordance with which the Company or any of its Subsidiaries is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property requiring rental payments in excess of $50,000 annually;

(iv)              any Contract with any Person with whom the Company or any of its Subsidiaries does not deal at arms length;

(v)               except as otherwise set forth on Section 2.14(b) of the Company Disclosure Letter, any agreement of guarantee, support, indemnification (other than Contracts containing ordinary course indemnification provisions), assumption or endorsement of, or any similar commitment with respect to, the Liabilities of any other Person;

(vi)              any government grants Contract;

(vii)             any Contract relating to the disposition or acquisition of assets of or any interest in any business enterprise;

(viii)           any employment Contract (excluding offer letters that have no severance or acceleration provisions triggered by any event under which neither the Company nor any Project Company has any Liabilities) with current employees of the Company as of the date hereof; or

(ix)              any other Contract requiring annual payments of more than $10,000 individually or aggregate payments of more than $100,000.

(c)            All Project Contracts are in executed written form, and the Company or the applicable Project Company has performed all of the obligations therefor required to be performed by it and, subject to the effect of (a) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to rights of creditors generally, and (b) rules of Law and equity governing specific performance, injunctive relief and other equitable remedies, is entitled to all benefits under, and is not alleged to be in default in respect of, any Project Contract.  Each of the Project Contracts is in full force and effect, and the Company, or the applicable Project Company, and to the knowledge of the Company, any other party to each Project Contract, are not in default of any Project Contract.

(d)            Immediately following the Effective Time, the Surviving Company and each of its Subsidiaries will have no rights or Liabilities under any Contract (other than a Delayed Transferred Asset (as defined in the Drop Down Agreement)) that is not Related to the Project Business.

(e)            Immediately following the Effective Time, the Spin-Off Subsidiary and each of its Subsidiaries will have no rights or Liabilities under any Project Contract.

(f)             Section 2.14(f) of the Company Disclosure Letter contains a true, complete and correct list of all land and power purchase agreements that are under negotiation as of the date hereof, Related to the Project Business (the “ Pending Agreements ”). As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice, nor does the Company otherwise have knowledge that, the potential counterparty under any Pending Agreement has terminated or intends to terminate such negotiations or, if a power purchase agreement, has materially delayed or intends to materially delay such negotiation.

(g)            Without any representation or warranty with respect to the actions or intentions of any counterparty, immediately following the Closing, the Company shall retain the same rights with respect to negotiations regarding the Pending Agreements and the other agreements under negotiation set forth in Section 2.14(f) of the Company Disclosure Letter that it possessed immediately prior to the Closing.

2.15         Project Development .   The interconnection queue positions held by the Company and any Project Company in respect of a Project, and all written agreements, studies and reports entered into or issued by the Cal-ISO or any applicable interconnection provider in connection with such queue positions, are as listed on Section 2.15 of the Company Disclosure Letter.  Other than as disclosed in the documents listed on Section 2.15 of the Company Disclosure Letter, neither the Company nor any Project Company has received written notice (or, to the knowledge of the Company, any oral notice) from the Cal-ISO or any applicable interconnection provider, specific to a Project, that the Cal-ISO or such interconnection provider has taken or has determined to take any action with respect to termination of such queue positions.  The Company or a Project Company, as applicable, has timely made all deposits and other payments, and filed all reports and other information, required in order to maintain such interconnection queue positions.

2.16         Assets.

(a)            Section 2.16(a) of the Company Disclosure Letter contains a true and complete list as of the date hereof of the (i) fixed assets Related to the Project Business with a value greater than $10,000 owned or leased by, in the possession of, or used by the Company or any Project Company and (ii) each other tangible asset Related to the Project Business with a value greater than $20,000 owned or leased by, in the possession of, or used by the Company or any Project Company as of the date hereof (the “ Project Fixed Assets ”).

(b)            Other than the Project Contracts, the Real Property Rights, the Retained Permit Rights, the Project IP Rights, equity interests in the Project Companies, the Project Pre-Payments, the Project Fixed Assets, the Project Business Information and the assets, properties and rights set forth on Section 2.16(b) of the Company Disclosure Letter, the Company and its Subsidiaries do not, as of the date hereof, have any right, title or interest in, to or under any assets, properties or rights, real or personal, tangible or intangible with an individual value greater than $25,000 or an aggregate value greater than $100,000 that is Related to the Project Business (the “ Other Project Assets ”).  The Company’s right title and interest in the Projects, Project Contracts, the Real Property Rights, the Retained Permit Rights, the Project IP Rights, equity interests in the Project Companies, the Project Pre-Payments, the Project Fixed Assets, cash held as collateral against the letters of credit set forth on Section 2.14(a)(v) of the Company Disclosure Letter, the Other Project Assets and the Project Business Information, in the case of each such defined term ignoring any monetary limits set forth therein are referred to collectively herein as the “ Project Assets .”  The Project Assets shall exclude the Cal-ISO Deposit.

(c)            Section 2.16(c) of the Company Disclosure Letter contains an accurate and complete list as of the date hereof of each fixed and tangible assets and property with an individual value greater than $10,000 in which the Company or any of its Subsidiaries have, as of the date hereof, any right, title or interest as of the date hereof (collectively, along with real or personal, tangible or intangible assets with an individual value greater than $10,000, other than the Project Assets, the “ Non-Project Assets ”).

(d)            No Non-Project Asset is Related to the Project Business

(e)            Except as set forth in the reports set forth in Section 2.16(e) of the Company Disclosure Letter, the Company or the applicable Project Company has good title to all Project Fixed Assets, and the Other Project Assets.  All Project Fixed Assets and the Other Project Assets are free and clear of any and all Encumbrances other than Permitted Encumbrances.  The representations set forth in this Section 2.16(e) shall not apply to Real Property Rights, which are separately addressed in Section 2.17 below.

2.17         Real Property.

(a)            Section 2.17(a) of the Company Disclosure Letter lists all Contracts Related to the Project Business (the “ Real Property Agreements ”) providing the Company or any of its Subsidiaries with rights in the nature of leases, easements (including BLM Easements), rights-of-way, restrictive covenants, options to purchase or lease any interests in real property, or other material interests in real property and any Contracts materially limiting the rights of the Company or its Subsidiaries against owners of real property in which the Company and its Subsidiaries have any interest necessary for the development, construction or operation of a Project as of the date hereof (collectively, the “ Real Property Rights ”), and the real property subject to such rights (the “ Real Property ”).  Neither the Company nor any of its Subsidiaries own any real property that is Related to the Project Business.

(b)            Each of the Real Property Agreements constitutes the valid and binding obligation of the Company or its Subsidiary and, to the knowledge of the Company, the other parties thereto, enforceable against the Company or its Subsidiary and, to the knowledge of the Company, the other parties thereto in accordance with their terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to rights of creditors generally, and (ii) rules of Law and equity governing specific performance, injunctive relief and other equitable remedies.

(c)            The Company and the Project Companies are not and, to the knowledge of the Company, no other party to any of the Real Property Agreements is, in breach or default of the Real Property Agreements, and neither the Company nor any of the Project Companies has failed to cure an event, upon receiving notice that such an event has occurred which, with the giving of notice or lapse of time, or both, would constitute a breach or default by the Company or the Project Companies or permit termination, modification or acceleration under such Real Property Agreement.

(d)            True and correct copies as of the date hereof of the Real Property Agreements (including all amendments thereto) have been delivered to Parent;

(e)            All amounts currently due under each Real Property Agreement have been paid.

(f)             No party to any of the Real Property Agreements has provided written notice (or, to the knowledge of the Company, any oral notice) to the Company or any of its Subsidiaries that it has repudiated any provision thereof.

(g)            The Company has not received written notice (or to the Company’s knowledge, any oral notice) of any material disputes, and there are no oral agreements, or forbearance programs, to which the Company is a party in effect, as to any of the Real Property Agreements.

(h)            Except for the Permitted Encumbrances (disregarding subsection (ii) of the definition of Permitted Encumbrances with respect to the Shortlisted Projects), the Company has not received written notice (or, to the knowledge of the Company, any oral notice) that, with respect to any Project, any of the following exist which would materially and adversely affect the use and operation of the Real Property Rights, Real Property, or the proposed Project sites for the use currently proposed to be made thereof in connection with any Project:

(i)                any pending or threatened proceedings in eminent domain, for rezoning, or any pending or threatened proceedings in land use or for existing or required entitlements;

(ii)               any plan, study or effort by any Governmental Entity to widen, modify or realign any street or road providing access to the Real Property or any proposed Project site, or any portion thereof;

(iii)              any encroachments of substations, transmission facilities, other improvements, personal property or fixtures located on the Real Property or any proposed Project site on adjoining lands, any easements, or other interest in favor of third parties, nor any encroachments onto the Real Property or any proposed Project site of any substations, transmission facilities, improvements or other personal property or fixtures located on adjoining lands;

(iv)             any mining, mineral or water extraction or development projects in progress or planned or permitted to commence on or under the Real Property or any proposed Project site, or any portion thereof;

(v)              any pending or threatened native land claims; and

(vi)             any commitments or agreements with any Governmental Entity or public or private utility affecting the Real Property or any proposed Project site, or any portion thereof.

(i)             Except as set forth in the Real Property Agreements, there are no rents, royalties, fees or other amounts greater than $100,000 annually payable or receivable by the Company or any Project Company in connection with any Real Property Agreement.

(j)             This Section 2.17 does not relate to environmental matters, which are the subject of Section 2.18 hereof.

2.18         Environmental .

(a)            With respect to the Project Business:

(i)                The Company and its Subsidiaries have not Released Hazardous Materials at, on, about or under any  proposed Project sites in a manner that has created a condition that has or could require remediation, investigation or other response activity under Environmental Law.  The Company and its Subsidiaries have not generated, transported, treated, stored, or arranged to be disposed of Hazardous Materials on, from, or under any proposed Project site in violation of, or in a manner or to a location that could give rise to Liability under any Environmental Law or Permit.  To the knowledge of the Company, there have been no Hazardous Materials Released on, upon, from, or into any real property in the vicinity of any real property owned, leased or used, currently or in the past, by the Company or any of its Subsidiaries or on a proposed Project site which may be come to be located on such real property owned, leased or used, currently or in the past, by the Company or any of its Subsidiaries or on a proposed Project site.

(ii)              (A) Each of the Company and its Subsidiaries has materially complied with all Environmental Laws, and the Company has not received written notice of any action, suit, proceeding, hearing, charge, complaint, claim, demand, notice or, to the knowledge of the Company, investigation filed or commenced or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries alleging any failure to comply with any applicable Environmental Law, and, to the Company’s knowledge, the real property owned, leased or used, now or in the past, by the Company or any of its Subsidiaries, to the knowledge of the Company, is currently in compliance with all Environmental Laws and (B) the Company and each of its Subsidiaries are in material compliance with all of the terms and conditions of any Permits and other authorizations that have already been obtained under applicable Environmental Laws.

(iii)              To the knowledge of the Company, there is no event that has occurred that would reasonably be expected to result in material noncompliance by the Company or any of its Subsidiaries with any Environmental Laws with respect to the real property owned, leased or used, now or in the past, by the Company or any of its Subsidiaries.

(iv)             Part I of Section 2.18(a)(iv) of the Company Disclosure Letter sets forth a complete list of all reports, studies and assessments commissioned by the Company or any of its Subsidiaries concerning the Environmental Condition of any real property owned, leased or used, currently or in the past, by the Company or any of its Subsidiaries, wildlife habitat, threatened and endangered species, wetlands and cultural resources at the sites, visual impacts of developing solar energy projects at the sites, potential interference of such development with civil and military aviation and radar, archeological resources, historical properties/structures, environmental justice, storm water, traffic impacts, noise impacts, and recreation impacts.  Part II of Section 2.18(a)(iv) of the Company Disclosure Letter sets forth a complete list of all such reports commissioned, but not yet received by the Company or any of its Subsidiaries.  The reports, studies and assessments listed on Parts I and II of Section 2.18(a)(iv) of the Company Disclosure Letter constitute the “ Project   Environmental Reports .”  Neither the Company nor any Project Company has received written notice of any event, circumstance or condition that would render any information or conclusions in the Project Environmental Reports untrue or materially misleading.  For purposes of this Section 2.18(a)(iv), “ Environmental Condition ” shall mean the condition of the real property owned, leased or used, now or in the past, by the Company or any of its Subsidiaries as it relates to the compliance or non-compliance of suchwith Environmental Laws.

2.19         Permits . 

(a)            Part I of Section 2.19 of the Company Disclosure Letter sets forth a true, correct and complete list of all Permits relating to the Project Business that have been obtained by the Company or any of its Subsidiaries as of the date hereof.  Part II of Section 2.19 of the Company Disclosure Letter sets forth a true, correct and complete list of all Permits relating to the Project Business that the Company or any of its Subsidiaries has, as of the date hereof, applied for from a Governmental Entity, including all BLM Permit Applications (the “ Permit Applications ,” and, together with the Permits listed on Part I, the “ Retained Permit Rights ”).

(b)            Each of the Company or its Subsidiaries (1) owns or validly holds all Permits listed in Part I of Section 2.19 of the Company Disclosure Letter, (2) each such Permit is valid, binding, non-appealable and in full force and effect and has not been terminated, revoked or modified; and (3) no written notice (or, to the Company’s knowledge, oral notice) of noncompliance or default has been received by the Company or any of its Subsidiaries, and the holder of such Permit is in compliance with the requirements thereof.

(c)            The Company has delivered to Parent a true and correct copy of (i) each Permit Application, (ii) all material documents, reports and, to the Company’s knowledge, correspondence of the Company and its Subsidiaries with respect to each Permit Application and, to the extent obtained by the Company or any of its Subsidiaries as of the Closing Date, Required Permits, (iii) all material documents and, to the Company’s knowledge, correspondence provided by the Company or any of its Subsidiaries to any Governmental Entity with respect to the Permit Applications and, to the extent obtained by the Company or any of its Subsidiaries as of the date hereof, Required Permits, and (iv) all material documents and, to the Company’s knowledge, correspondence received by the Company or any of its Subsidiaries from any Governmental Entity, with respect to the Permit Applications and the Required Permits.  To the Company’s knowledge, it has timely filed and submitted all required applications and supporting information, and timely responded to all requests for information from applicable Governmental Entities, necessary to process and maintain the priority of the Permit Applications.  In instances where Governmental Entities have imposed specific and material time deadlines for filings or submitting applications and supporting documentation, the Company has timely filed, submitted and responded to the same.

(d)            All fees and other charges relating to the Permits and Permit Applications have been paid currently, and there are no fees, charges or other commitments or other arrangements in effect with respect to such Permits and Permit Applications other than the fees and charges normally charged by the Governmental Entity with responsibility for the issuance thereof.

(e)            The Company has not received written notice (or, to the Company’s knowledge, any oral notice) that the rights of the Company or the applicable Project Company to seek Permits on real property administered by the BLM are not prior in time and right to the rights of any other Person seeking Permits on such real property for the development, construction and operation of solar energy generating facilities, and, the Company has not received written notice (or, to the Company’s knowledge, any oral notice) that, as of the date hereof, such real property is subject to any existing Permit or right of way, providing rights to any other Person to develop, construct or operate solar facilities that will or would reasonably be expected to cause a Project Material Adverse Effect.

(f)             Neither the Company nor any Project Company has received written notice (or, to the knowledge of the Company, oral notice) specific to any Project from any Governmental Entity or Person, indicating that such Governmental Entity or Person has taken or intends to take any action with respect to such Project, that would result in a revocation of any Permit or a rejection, withdrawal, termination or material modification of any Permit Application.

(g)            This Section 2.19 does not relate to matters with respect to environmental matters, which are the subject of Section 2.18 hereof.

2.20         Compliance with Laws .

(a)            Each of the Company and each of its Subsidiaries has complied with in all material respects, is not in material violation of, and has not received any written notices (or to the Company’s knowledge, oral notices) of violation with respect to, any federal, state, local or foreign Law.  Each of the Company and its Subsidiaries has complied with in all material respects, is not in material violation of, and has not received any written (or to the Company’s knowledge, oral) notices of material violation with respect to all Laws relating to the Projects.

(b)            Neither the Company nor any of its Subsidiaries is subject to regulation under PUHCA as a “public utility company” or a “holding company,” or a “subsidiary company” or “affiliate” or “associate company” of a “holding company” within the meaning of PUHCA.  None of the directors, officers, agents or employees of the Company or any of its Subsidiaries has made for the benefit of the Company any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns, or made any bribes or kickback payments.  Neither the Company nor any of its Subsidiaries is a “public utility” under Section 201 of the FPA.  In addition, none of the Projects will be capable of producing power at or before the Effective Time, or will otherwise constitute an “existing generation facility” under Section 203(a) of the FPA.

(c)            This Section 2.20 does not relate to matters with respect to environmental matters and permits, which are the subject of Section 2.18 and 2.19, respectively.

2.21         Topaz.   All amounts required to be deposited by or on behalf of the Topaz Project Company under the Topaz PPA have been deposited.  The Topaz Project Company (or the Company on behalf of the Topaz Project Company) has met and satisfied the requirements of all “Milestone Dates” scheduled to occur under the Topaz PPA as of the date hereof.  Neither the Company, the Topaz Project Company nor any other Subsidiary of the Company has received written notice (or, to the Company’s knowledge, oral notice) from PG&E or the Cal-ISO of the existence of any fact or circumstance specific to the Topaz Project that will result in the Topaz Company’s failure or inability to satisfy or otherwise achieve any Milestone Date scheduled to occur under the Topaz PPA after the date hereof.  Neither the Company nor any of its Subsidiaries has sold or transferred, agreed or committed to sell or transfer, or granted any options or rights to purchase Environmental Attributes related to the electric power to be generated by any Project except as and to the extent provided in the Topaz PPA and any other power purchase agreement included in the Project Contracts and set forth in Section 2.21 of the Company Disclosure Letter.

2.22         Minute Books .  The minute books of the Company and the Project Companies delivered to Parent contain a complete and accurate summary of all meetings of directors, managers, members and stockholders, as applicable, or actions by written consent by the same since the time of incorporation of the Company and the Project Companies.

2.23         Brokers’ and Finders’ Fees .  Except for the fees payable to Morgan Stanley, the Company has not incurred, nor will it incur, directly or indirectly, any Liability for brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or any similar charges in connection with this Agreement or any transaction contemplated hereby.

2.24         Board Approvals .

(a)            The Company’s board of directors, by resolutions duly adopted (and not thereafter modified or rescinded) by unanimous vote (with no abstentions) at a meeting duly called and held, has (a) approved this Agreement, the Hold Co Merger Agreement and the Drop Down Agreement, and, to the extent applicable, the documents to be entered into in connection therewith, the Merger, the Drop Down, the Distribution and the Hold Co Merger, (b) determined that this Agreement, the Drop Down Agreement, the Hold Co Merger Agreement and the terms and conditions of the Merger, the Drop Down, the Distribution and the Hold Co Merger are fair, advisable and in the best interests of the Company and the Company Stockholders, and (c) directed that the adoption of this Agreement and the Hold Co Merger Agreement and the approval of the Merger and the Hold Co Merger be submitted to the Company Stockholders for consideration and recommended that all of the Company Stockholders adopt this Agreement and approve the Merger.

(b)            Hold Co’s board of directors, by resolutions dul