AGREEMENT OF MERGER OF SOLAR POWER, INC. AND DALE RENEWABLES CONSULTING, INC.
Exhibit
2.7
AGREEMENT
OF MERGER
OF
AND
▇▇▇▇
RENEWABLES CONSULTING, INC.
This
Agreement of Merger, dated as of the15th
day of
November, 2006 (this “Merger
Agreement”),
is
entered into by and among Solar Power, Inc., a California corporation
(“SPI”),
▇▇▇▇
Renewables Consulting, Inc., a California corporation (the “Company”),
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the “Selling
Shareholders”).
RECITALS
A. SPI,
the
Selling Shareholders and the Company have entered into an Agreement and Plan
of
Merger, dated as of August 20, 2006, as amended by the First Amendment to
the
Agreement and Plan of Merger dated as of October 31, 2006, and as further
amended by the Second Amendment to the Agreement and Plan of Merger dated
as of
November 15, 2006 (collectively, the “Agreement
and Plan of Merger”),
providing for the merger of the Company with and into SPI (the “Merger”).
B. The
Board
of Directors of the Company and SPI and the shareholders of SPI and the Company
have approved the Merger.
AGREEMENT
The
parties hereto agree as follows:
1. Effective
Time.
The
Merger shall become effective at such time (the “Effective
Time”)
as
this Merger Agreement and the officers’ certificates of the Company and SPI are
filed with the Secretary of State of the State of California pursuant to
Section
1103 of the California General Corporation Law (the “CGCL”).
2. Effect
of the Merger.
At the
Effective Time, the Company shall be merged with and into SPI, the separate
existence of the Company shall cease and SPI shall continue as the surviving
corporation of the Merger (the “Surviving
Corporation”).
At
the Effective Time, all the property, rights, privileges, and powers of the
Company and SPI shall vest in the Surviving Corporation, and all debts,
liabilities and duties of the Company and SPI shall become the debts,
liabilities and duties of the Surviving Corporation.
3. Articles
of Incorporation.
The
Articles of Incorporation of SPI, as amended and in effect immediately prior
to
the Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation.
1
4. Directors
and Officers.
The
directors and officers of SPI immediately prior to the Effective Time shall
be
the directors and officers of the Surviving Corporation.
5. Effect
on Capital Stock.
For
purposes of this Section 5, the following definitions shall apply:
“Company
Stock”
shall
mean the Common Stock of the Company.
“Dissenting
Shares”
shall
mean those shares, if any, held by persons who have not voted such shares
for
approval of the Merger and with respect to which such persons shall become
entitled to exercise dissenters’ rights in accordance with the
CGCL.
“DSCI”
means
▇▇▇▇ ▇▇▇▇▇▇▇▇ Construction, Inc., a California corporation which is an affiliate
of the Company and whose stockholders are Ray ▇▇▇▇▇▇▇ ▇▇▇▇▇ and two of the
Selling Shareholders, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
“Total
Consideration”
means
$1,446,565, of which $420,000 shall be paid in pro rata to the Selling
Shareholders ($140,000 each) as set forth in Schedule
I,
and the
balance of $1,026,565 shall be paid to DSCI to pay for any outstanding
indebtedness owed to DSCI by the Company, and assignment and transfer of
any
existing PV contracts.
By
virtue
of the Merger and without any action on the part of SPI, the Company or their
respective shareholders, the following shall occur at the Effective
Time:
5.1 Conversion
of Common Stock.
Shares
of Company Stock issued and outstanding immediately prior to the Effective
Time
(other than Dissenting Shares and any shares to be cancelled pursuant to
Section
5.2 below) shall, by virtue of the Merger, be converted automatically into
the
right to receive a cash payment in the amount of $0.84 per share of Company
Stock such that the shareholders of the Company shall receive the Total
Consideration set forth in Schedule
I.
5.2 Cancellation
of the Company Stock Owned by the Company.
All
shares of Company Stock that are owned by the Company as treasury stock
immediately prior to the Effective Time shall be cancelled and extinguished
without any consideration thereof and no consideration shall be delivered
or
deliverable in exchange therefore hereunder or otherwise.
6. Capital
Stock of SPI.
At the
Effective Time, each share of capital stock of SPI (“SPI
Common Stock”)
issued
and outstanding immediately prior to the Effective Time shall be converted
into
and exchanged for one validly issued, fully paid and nonassessable share
of
Common Stock of the Surviving Corporation.
7. Dissenters’
Rights.
Any
Dissenting Shares shall not be converted into the right to receive any portion
of the Total Consideration, unless and until the holder of any such Dissenting
Shares fails to perfect or withdraws or otherwise loses his right to an
appraisal of the fair market value of his Dissenting Shares. If, after the
Effective Time, any such holder fails to perfect or withdraws or loses his
right
to an appraisal of the fair market value of his Dissenting Shares under the
CGCL, such Dissenting Shares shall thereupon be treated as if they had been
converted as of the Effective Time into the right to receive the Total
Consideration to which such holder is entitled, without interest
thereon.
2
The
Company shall give SPI prompt notice of any demands received by the Company
for
the payment of fair market value for Dissenting Shares, and SPI shall have
the
right to direct all negotiations and proceedings with respect to such demands.
The Company shall not make any such payment without SPI’s prior written
consent.
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8.
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General
Provisions.
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8.1 Amendment.
Prior
to the Effective Time, this Merger Agreement may be amended by the parties
hereto any time before or after approval hereof by the shareholders of the
Company, but, after such approval, no amendment shall be made which by law
requires the further approval of such shareholders without obtaining such
approval. This Merger Agreement may not be amended except by an instrument
in
writing signed on behalf of each of the parties hereto.
8.2 Severability.
If one
or more provisions of this Merger Agreement are held to be unenforceable
under
applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close
as
possible to that under the provision rendered unenforceable. In the event
that
the parties cannot reach a mutually agreeable and enforceable replacement
for
such provision, then (i) such provision shall be excluded from this Merger
Agreement, (ii) the balance of the Merger Agreement shall be interpreted
as if
such provision was so excluded and (iii) the balance of the Merger Agreement
shall be enforceable in accordance with its terms.
8.3 Counterparts.
This
Merger Agreement may be signed in one or more counterparts, each of which
shall
be deemed an original and all of which shall constitute one
agreement.
8.4 Gender.
For
purposes of this Merger Agreement, references to the masculine gender shall
include feminine and neuter genders and entities.
[Remainder
of Page Intentionally Left Blank; Signature Page to Follow]
3
IN
WITNESS WHEREOF, the parties have executed this Merger Agreement as of the
date
first written above.
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▇▇▇▇
RENEWABLES CONSULTING, INC.
a
California corporation
By:
_________________________________
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Chief
Executive Officer
By:
_________________________________
Name:
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Title:
Secretary
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a
California corporation
By:
_________________________________
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Chief
Executive Officer and Secretary
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SELLING
SHAREHOLDERS
____________________________________
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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4
Schedule
I
Selling
Shareholders
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Shareholder
|
Ownership
%
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Cash
|
|
Consideration
|
||
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
33.33%
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$140,000
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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33.34%
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$140,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
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33.33%
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$140,000
|
|
Total
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$420,000
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5
OFFICERS’
CERTIFICATE
The
undersigned, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on behalf of Solar Power, Inc., a California
corporation (the “Corporation”),
does
hereby certify that:
1. He
is the
Chairman of the Board of Directors and President and Secretary of the
Corporation.
2. This
Certificate is attached to the Agreement of Merger, dated November 15, 2006
(the
“Agreement
of Merger”),
in
the form duly approved by the Board of Directors of the Corporation providing
for the merger (the “Merger”)
of the
Corporation with ▇▇▇▇ Renewables Consulting, Inc., a California
corporation.
3. The
Corporation has one authorized class of stock outstanding, designated as
Common
Stock. As of August 9, 2006 the authorized capital stock of the Corporation
issued and outstanding and entitled to vote upon the Merger, consists of
14,000,000 shares of Common Stock.
4. The
principal terms of the Agreement of Merger in the form attached to this
Certificate were duly approved by the unanimous vote of the outstanding shares
of the Corporation’s Common Stock.
5. The
percentage vote required for such approval was more than 50% of the outstanding
shares of the Corporation’s Common Stock.
The
undersigned declares under penalty of perjury under the laws of the State
of
California that he has read the foregoing Certificate and knows the contents
thereof and that the same is true and correct of his own knowledge. In witness
whereof, the undersigned has signed and verified this Certificate in Granite
Bay, California on November 15, 2006.
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________________________________________
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Chairman, President and Secretary
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▇▇▇▇
RENEWABLES CONSULTING, INC.
OFFICERS’
CERTIFICATE
The
undersigned, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, on behalf of ▇▇▇▇
Renewables Consulting, Inc., a California corporation (the “Corporation”),
do
hereby certify that:
1. They
are
the President and Secretary, respectively, of the Corporation.
2. This
Certificate is attached to the Agreement of Merger, dated November 15, 2006
(the
“Agreement
of Merger”),
in
the form duly approved by the Board of Directors of the Corporation providing
for the merger (the “Merger”)
of the
Corporation with and into Solar Power, Inc., a California
corporation.
3. The
Corporation has authorized two classes of shares, designated as Class A Common
and Class B Common. The Corporation only has one class designated as Class
A
common stock outstanding. As of August 10, 2006, the number of shares of
the
Corporation’s Class A Common Stock issued and outstanding and entitled to vote
upon the Merger was 500,000. No shares of Class B Common stock are
outstanding.
4. The
principal terms of the Agreement of Merger in the form attached to this
Certificate were duly approved by the unanimous vote of the outstanding shares
of the Corporation’s Common Stock.
5. The
percentage vote required for such approval was more than 50% of the outstanding
shares of the Corporation’s Common Stock.
The
undersigned declare under penalty of perjury under the laws of the State
of
California that they have read the foregoing Certificate and know the contents
thereof and that the same is true and correct of their own knowledge. In
witness
whereof, the undersigned have signed and verified this Certificate at Redding,
California on November 15, 2006.
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___________________________________
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
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___________________________________
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Secretary
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