Exhibit 2.1
VIASPACE INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement is
entered into this 15th day of June 2005, by and among ViaSpace
Technologies LLC, a Delaware limited liability company
(“ViaSpace”), Global-Wide Publication Ltd.
(“GW”) and SNK Capital Trust
(“Optionee”).
WHEREAS, by an agreement dated
February 25, 2005 (the “Previous Option”) ViaSpace
granted to the Optionee an option to purchase up to 5,000,000
Membership membership Units of ViaSpace (“Membership
Units”) for an aggregate purchase price of
$7,500,000;
WHEREAS, in or about May, 2005
ViaSpace agreed to increase the Previous Option to allow the
Optionee an option to purchase up to 6,666,666 Membership Units at
a price of $1.50 per Membership Unit, for an aggregate purchase
price of $10,000,000;
WHEREAS, ViaSpace intends to
enter into a business combination with GW (the
“Merger”) with the surviving entity being renamed
“ViaSpace Inc.” (the “Surviving
Corporation”); and
WHEREAS, the parties desire for
this Agreement to supersede and replace the Previous
Option.
NOW, THEREFORE, it is hereby
agreed as follows:
1.
Grant
of Option. ViaSpace and GW hereby grant to the Optionee, an option
(the “Option”) to purchase up to 36,000,000 shares (the
“Option Shares”) of common stock (“Common
Stock”) of the Surviving Corporation. The Option Shares shall
be purchasable from time to time during the option term specified
in Paragraph 2 at an exercise Price (the “Exercise
Price”) of $0.28 per share.
2.
Option
Term. Subject to Paragraph 4, the Option shall expire on (i) July
15, 2005, if less than $500,000 of the Option has been exercised
prior to such time; (ii) August 31, 2005, if less than an aggregate
of $1,000,000 of the Option has been exercised prior to such time;
(iii) February 15, 2006, if less than an aggregate of $2,000,000 of
the Option has been exercised prior to such time or (iv) the close
of business on February 15, 2007 if the Option has not previously
expired. For the avoidance of doubt, the exercise of this Option
may be accelerated at the election of the Optionee.
3.
Limited
Transferability. The Option shall be exercisable only by Optionee
and shall not be assignable or transferable without the written
consent of Surviving Corporation.
4.
Dates
of Exercise. The Option shall be exercisable from and after the
closing of the Merger.
5.
Adjustment
in Option Shares. Should any change be made to the Common Stock by
reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting
the outstanding Common Stock as a class , appropriate adjustments
shall be made to (i) the total number and/or class of securities
subject to this Option and (ii) the Exercise Price in order to
reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
6.
Stockholder
Rights. The holder of the Option shall not have any stockholder
rights with respect to the Option Shares until such person shall
have exercised the Option, paid the Exercise Price and become the
record holder of the particular Option Shares.
7.
Manner
of Exercising Option.
1
(a)
In
order to exercise the Option, the Optionee (or any other person or
persons exercising the Option shall with respect to all or any part
of the Option Shares for which this Option is at the time
exercisable, Optionee (or any other person or persons exercising
the Option) must take the following actions:
(i)
execute and deliver to the Surviving Corporation a Purchase
Agreement for the Option Shares, for which the Option is exercised,
in the form attached hereto as Exhibit A;
(ii)
pay the aggregate Exercise Price in cash or check to the Surviving
Corporation;
(iii)
furnish to the Surviving Corporation appropriate documentation that
the entity exercising the Option (if other than Optionee) has the
right to exercise this Option;
(iv)
execute and deliver
to the Surviving Corporation such written representations as may be
requested by the Surviving Corporation in order for it to comply
with the applicable requirements of Federal and state securities
laws; and
(v)
make appropriate arrangements with the Surviving Corporation (or
parent or subsidiary employing or retaining Optionee) for the
satisfaction of all Federal, state and local income and employment
tax withholding requirements applicable to the Option
exercise.
(b)
As soon as
practical after the date of exercise (“Exercise Date”),
the Surviving Corporation shall issue to or on behalf of Optionee
(or any other person or persons exercising this Option) a
certificate for the purchased Option Shares, with the appropriate
legends affixed thereto.
(c)
In no event may the Option be exercised for any fractional
shares.
8.
Compliance
with Laws and Regulations.
(a)
The exercise of the
Option and the issuance of Option Shares upon such exercise shall
be subject to compliance by the Surviving Corporation and Optionee
with all applicable requirements of law relating thereto and with
all applicable regulations of any stock exchange (or the Nasdaq
National Market, if applicable) on which the Common Stock may be
listed for trading at the time of such exercise and
issuance.
(b)
The inability of
the Surviving Corporation to obtain approval from any regulatory
body having authority deemed by the Surviving Corporation to be
necessary to the lawful
