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
