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:
“(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, a
