|
SECOND AMENDMENT TO THE AGREEMENT
AND
PLAN OF MERGER
This Second Amendment the Agreement and Plan of Merger (the
"Amendment") is entered into as of December 1, 2006 to be effective
as of August 23, 2006, by and among Solar Power, Inc., a California
corporation ("SPI"), Solar Power, Inc., a Nevada corporation
formerly known as Welund Fund, Inc. (the "Company") and Welund
Acquisition Corp., a Nevada corporation and a wholly-owned
subsidiary of the Company (the "Merger Sub"). SPI, Company and
Merger Sub also collectively referred to herein as the
"Parties."
RECITALS
WHEREAS, SPI, the Company and the Merger Sub are parties to that
certain Agreement and Plan of Merger dated August 23, 2006, as
amended by that certain First Amendment to the Agreement and Plan
of Merger dated October 4, 2006 (the "Merger Agreement").
›
WHEREAS, the Merger Agreement provides that the "Final Date" (as
defined in the Merger Agreement) can be extended by mutual consent
and the parties have extended the Final Date to December 23, 2006
by mutual consent on November 30, 2006.
WHEREAS, SPI, the Company and the Merger Sub desire to amend the
Merger Agreement to reflect the extension of the Final Date to
December 23, 2006.
WHEREAS, SPI, the Company and the Merger Sub also desire to
amend to Merger Agreement to provide for the assumption of
SPI’s outstanding stock options by the Company at the
Effective Time (as defined in the Merger Agreement).
WHEREAS, the capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual agreements set forth below, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Final Date . The last sentence of
Section 10.1 of the Merger Agreement is hereby amended as
follows:
"As used herein, the "Final Date" shall be December 23, 2006 or
as otherwise extended by mutual consent."
2. SPI’s Stock Option Plan and
Options . Article 2 of the Merger Agreement is hereby amended
to include a new Section 2.1(b)(v) as follows:
1
"(v) At the Effective Time, each of the then
outstanding options to purchase or otherwise acquire shares of SPI
("SPI Option"), whether or not such SPI Option is then exercisable,
issued pursuant to the SPI 2006 Equity Incentive Plan ("SPI Option
Plan") or otherwise, will be assumed by the Company (the "Assumed
Option"). Each Assumed Option shall continue to have, and be
subject to, the same terms and conditions set forth in such option
and, if applicable, in
| 
