Exhibit 10.1
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF MERGER
(the “ Merger Agreement ”) is entered into as of
October 18, 2006 by and between Diametrics Medical, Inc., a
Minnesota corporation (“ DMED ”), and Biodiesel
Development Corporation, a Delaware corporation (“ BDC
”).
RECITALS
WHEREAS, DMED is a corporation duly
organized and existing under the laws of the State of
Minnesota;
WHEREAS, BDC is a corporation duly
organized and existing under the laws of the State of
Delaware;
WHEREAS, on the date of this Merger
Agreement, DMED has authority to issue 10,000,000 shares of Common
Stock, par value $1.00 per share (the “ DMED Common
Stock ”), of which 3,509,457 shares are issued and
outstanding, and 50,000 shares of Preferred Stock, par value $1.00
per share (the “ DMED Preferred Stock ”), of
which 28,222 shares have been designated as Series H Convertible
Preferred Stock (the “ DMED Series H Preferred Stock
”), of which 27,224 shares are issued and outstanding, 2,850
shares have been designated as Series J Convertible Preferred Stock
(the “ DMED Series J Preferred Stock ”), all of
which are issued and outstanding, and 4,300 shares have been
designated as Series K Convertible Preferred Stock (the “
DMED Series K Preferred Stock ”) all of which are
issued and outstanding;
WHEREAS, on the date of this Merger
Agreement, BDC has authority to issue 200,000,000 shares of Common
Stock, par value $0.01 per share (the “ BDC Common
Stock ”), of which 1 share is issued to DMED and
outstanding, and 50,000,000 shares of Preferred Stock, par value
$0.01 per share (the “ BDC Preferred Stock ”),
of which 28,500,000 shares have been designated as Series A
Convertible Preferred Stock (the “ BDC Series A Preferred
Stock ”), none which shares are issued and outstanding,
and 27,224 shares have been designated as Series B Convertible
Preferred Stock (the “ BDC Series B Preferred Stock
”), none of which shares are issued and
outstanding;
WHEREAS, the respective Boards of
Directors for DMED and BDC have determined that, for the purpose of
effecting the reincorporation of DMED in the State of Delaware, it
is advisable and to the advantage of said two corporations and
their shareholders that DMED merge with and into BDC upon the terms
and conditions herein provided; and
WHEREAS, the respective Boards of
Directors of DMED and BDC have adopted and approved this Merger
Agreement;
NOW, THEREFORE, in consideration of
the mutual agreements and covenants set forth herein, DMED and BDC
hereby agree to merge as follows:
1. Merger . DMED shall be
merged with and into BDC, and BDC shall survive the merger (“
Merger ”), effective upon the date when this Merger
Agreement is made effective in accordance with applicable law (the
“ Effective Date ”).
2. Governing Documents . The
Certificate of Incorporation of BDC shall continue to be the
Certificate of Incorporation of BDC as the surviving Corporation.
Article I of the Certificate of Incorporation of BDC shall be
amended to read as follows:
“The name of the Corporation
is Allegro Biodiesel Corporation.”
The Bylaws of BDC, in effect on the
Effective Date, shall continue to be the Bylaws of BDC as the
surviving corporation without change or amendment until further
amended in accordance with the provisions thereof and applicable
laws.
3. Directors and Officers .
The directors and officers of DMED shall become the directors and
officers of BDC upon the Effective Date and any committee of the
Board of Directors of DMED shall become the members of such
committees for BDC.
4. Succession . On the
Effective Date, BDC shall succeed to DMED in the manner of and as
more fully set forth in Section 252 of the General Corporation
Law of the State of Delaware.
5. Further Assurances . From
time to time, as and when required by BDC or by its successors and
assigns, there shall be executed and delivered on behalf of DMED
such deeds and other instruments, and there s
