EXHIBIT 2.1
AGREEMENT AND PLAN OF
MERGER
This Agreement and Plan of Merger
(“Plan of Merger”), dated as of December 29, 2004,
by and between O2Diesel Corporation (“ O2Diesel
”), a Washington corporation and O2Diesel Delaware
Corporation, a wholly-owned Delaware subsidiary of the O2Diesel
newly-formed solely for the purpose of reincorporating O2Diesel in
the Sate of Delaware (“ O2Diesel Delaware
”).
O2Diesel owns all of the issued and
outstanding shares of capital stock of O2Diesel Delaware. In
consideration of the mutual promises, covenants and agreements
contained herein, O2Diesel and O2Diesel Delaware, intending to be
legally bound, hereby agree as set forth below.
A. The Merger .
1. At the Effective Time (as
defined below), O2Diesel Delaware and O2Diesel shall consummate the
Merger pursuant to which (i) O2Diesel shall be merged with and
into O2Diesel Delaware (the “ Merger ”);
(ii) O2Diesel Delaware shall be the surviving corporation (the
“Surviving Corporation”); and (iii) O2Diesel
Delaware shall continue its corporate existence under the laws of
the State of Delaware, and the separate existence and corporate
organization of O2Diesel with all its rights privileges,
immunities, powers and franchises shall continue unaffected by the
Merger. The Merger shall have the effects set forth in the Delaware
General Corporation Law (“ DGCL ”). Without
limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, powers and
franchises of O2Diesel Delaware and the O2Diesel shall vest in the
Surviving Corporation, and all debts, liabilities and duties of
O2Diesel Delaware and O2Diesel shall become the debts, liabilities
and duties of the Surviving Corporation.
2. The Certificate of
Incorporation of the Surviving Corporation, as in effect
immediately prior to the Effective Time, shall be the Certificate
of Incorporation of the Surviving Corporation, as amended in
paragraph A.4 below and until thereafter amended as provided by law
and such Certificate of Incorporation.
3. The Bylaws of the Surviving
Corporation, as in effect immediately prior to the Effective Time,
shall be the Bylaws of the Surviving Corporation, except as to the
name of the Surviving Corporation, until thereafter amended as
provided by law, the Certificate of Incorporation of the Surviving
Corporation or such Bylaws.
4. The Certificate of
Incorporation of the Surviving Corporation is hereby amended as
follows:
FIRST: The name of the corporation is
“O2Diesel Corporation”
5. Subject to applicable law,
the directors of O2Diesel Corporation immediately prior to the
Effective Time shall, from and after the Effective Time, be the
directors of the Surviving Corporation, and the officers of
O2Diesel Corporation immediately
