Agreement and Plan of Merger (2016)Full Document 

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AMENDMENT NO. 1

TO THE

AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 1 (this “Amendment”), dated as of September 20, 2016, to the Agreement and Plan of Merger, dated as of June 28, 2016 (the “Agreement”), is made by and among SUNGEVITY, INC., a Delaware corporation (the “Company”), EASTERLY ACQUISITION CORP., a Delaware corporation (“Parent”), SOLARIS MERGER SUB INC., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), and Shareholder Representative Services LLC, a Colorado limited liability company (“Sellers Representative”), solely in its capacity as Sellers Representative.

W I T N E S S E T H:

WHEREAS, the parties desire to amend certain provisions of the Agreement pursuant to Section 9.1 thereof, as more particularly set forth in this Amendment.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the Company, Parent, Merger Sub and Sellers Representative agree as follows:

Article I
AMENDMENTS

Section 1.1 Defined Terms; References. Unless otherwise specifically defined in this Amendment, each term used herein that is defined in the Agreement has the meaning assigned to such term in the Agreement, and each reference to a specific Section or Article shall refer to the particular Section or Article in the Agreement. From and after the date of this Amendment, all references to the Agreement shall be deemed to mean the Agreement, as amended by this Amendment.

Section 1.2 Amendment to Section 2.4(b)(i). The second sentence of Section 2.4(b)(i) of the Agreement is hereby amended and restated in its entirety as follows:

“Upon surrender of a Company Certificate, In-the-Money Preferred Warrant and/or In-the-Money Common Warrant for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Parent, together with the Letter of Transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Company Certificate, In-the-Money Preferred Warrant and/or In-the-Money Common Warrant, as applicable, shall be entitled to receive in exchange therefor, and Parent shall cause the Exchange Agent to pay and deliver in exchange therefor as promptly as practicable (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book entry form unless determined otherwise by Parent) representing, in the aggregate, the sum of (x) ninety percent (90%) of the whole number of shares of Parent Common Stock that such holder has the right to receive in exchange therefor pursuant to Section 2.1(b) (rounding such amount of shares of Parent Common Stock down to the nearest whole share) and (y) one hundred percent (100%) of the whole number of shares of Parent Common Stock that such holder has the right to receive in exchange therefor pursuant to Section 2.1(h) (rounding such amount of shares of Parent Common Stock down to the nearest whole share), (2) subject to Section 2.4(c) and Article VII, the number of whole shares of Parent Common Stock (which shall be in non-certificated book entry form unless determined otherwise by Parent) representing, in the aggregate, ten percent (10%) of the whole number of shares of Parent Common Stock that such holder has the right to receive in exchange therefor pursuant to Section 2.1(b) (rounding such amount of shares of Parent Common Stock down to the nearest whole share) (the “Escrow Shares”), which shall not be distributed to such holder but instead shall be deposited in the Escrow Account pursuant to Section 2.4(c),

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