THIRD AMENDMENT TO THE AGREEMENT AND
PLAN OF MERGER
This Third
Amendment to the Agreement and Plan of Merger (the
“Amendment”) is entered into as of December 21, 2006 to
be effective as of August 23, 2006, by and among Solar Power, Inc.,
a California corporation (“SPI”), Solar Power, Inc., a
Nevada corporation formerly known as Welund Fund, Inc. (the
“Company”) and Welund Acquisition Corp., a Nevada
corporation and a wholly-owned subsidiary of the Company (the
“Merger Sub”). SPI, Company and Merger Sub also
collectively referred to herein as the “Parties.”
RECITALS
WHEREAS, SPI, the
Company and the Merger Sub are parties to that certain Agreement
and Plan of Merger dated August 23, 2006, as amended by that
certain First Amendment to the Agreement and Plan of Merger dated
October 4, 2006 and as further amended by the Second Amendment to
the Agreement and Plan of Merger dated December 1, 2006 (the
“Merger Agreement”).
WHEREAS, the Merger
Agreement provides that the “Final Date” (as defined in
the Merger Agreement) can be extended by mutual consent and the
parties have extended the Final Date to January 5, 2007 by
mutual consent on December 21, 2006.
WHEREAS, SPI, the
Company and the Merger Sub desire to amend the Merger Agreement to
reflect the extension of the Final Date to January 5, 2007.
WHEREAS, SPI has
indicated to the Company that they are in the final stages of
resolving any remaining issues with the auditors in connection with
SPI’s audited financial statements.
WHEREAS, SPI, the
Company and the Merger Sub also desire to clarify their intent that
all outstanding stock options of SPI shall at the Effective Time
(as defined in the Merger Agreement) be substituted for stock
options issued under the Company’s 2006 Equity Incentive
Plan.
WHEREAS, the
capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing premises, the mutual agreements set forth below, and
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree
