Exhibit 2.1
PLAN OF CONVERSION
OF
BETAWAVE CORPORATION, a Nevada
corporation
TO
BETAWAVE CORPORATION, a Delaware
corporation
THIS PLAN OF CONVERSION, dated as of September 18, 2009 (including all of
the Exhibits attached hereto, this “ Plan ”), is
hereby adopted by Betawave Corporation, a Nevada corporation (the
“ Company ”), in order to set forth the terms,
conditions and procedures governing the conversion of the Company
from a Nevada corporation to a Delaware corporation pursuant to
Section 265 of the General Corporation Law of the State of
Delaware, as amended (the “ DGCL ”), and Section
92A.120 of the Nevada Revised Statutes, as amended (the “
NRS ”).
RECITALS
WHEREAS, the Company is a corporation established and
existing under the laws of the State of Nevada;
WHEREAS, the Board of Directors of the Company has
determined that it would be advisable and in the best interests of
the Company and its stockholders for the Company to convert from a
Nevada corporation to a Delaware corporation pursuant to Section
265 of the DGCL and Section 92A.120 of the NRS; and
WHEREAS, the form, terms and provisions of this Plan has
been authorized, approved and adopted by the Board of Directors of
the Company.
NOW, THEREFORE, the Company hereby adopts this Plan as
follows:
1. Conversion;
Effect of Conversion .
(a) Upon the Effective
Time (as defined in Section 3 below), the Company shall be
converted from a Nevada corporation to a Delaware corporation
pursuant to Section 265 of the DGCL and Section 92A.120 of the NRS
(the “ Conversion ”) and the Company, as
converted to a Delaware corporation (the “ Resulting
Company ”), shall thereafter be subject to all of the
provisions of the DGCL, except that notwithstanding Section 106 of
the DGCL, the existence of the Resulting Company shall be deemed to
have commenced on the date the Company commenced its existence in
the State of Nevada.
(b) Upon the Effective
Time, by virtue of the Conversion and without any further action on
the part of the Company or its stockholders, the Resulting Company
shall, for all purposes of the laws of the State of Delaware, be
deemed to be the same entity as the Company existing immediately
prior to the Effective Time. Upon the Effective Time, by
virtue of the Conversion and without any further action on the part
of the Company or its stockholders, for all purposes of the laws of
the State of Delaware, all of the rights, privileges and powers of
the Company existing immediately prior to the Effective Time, and
all property, real, personal and mixed, and all debts due to the
Company existing immediately prior to the Effective Time, as well
as all other things and causes of action belonging to the Company
existing immediately prior to the Effective Time, shall remain
vested in the Resulting Company and shall be the property of the
Resulting Company and the title to any real property vested by deed
or otherwise in the Company existing immediately prior to the
Effective Time shall not revert or be in any way impaired by reason
of the Conversion; but all rights of creditors and all liens upon
any property of the Company existing immediately prior to the
Effective Time shall be preserved unimpaired, and all debts,
liabilities and duties of the Company existing immediately prior to
the Effective Time shall remain attached to the Resulting Company
upon the Effective Time, and may be enforced against the Resulting
Company to the same extent as if said debts, liabilities and duties
had originally been incurred or contracted by the Resulting Company
in its capacity as a corporation of the State of
Delaware. The rights, privileges, powers and interests
in property of the Company existing immediately prior to the
Effective Time, as well as the debts, liabilities and duties of the
Company existing immediately prior to the Effective Time, shall not
be deemed, as a consequence of the Conversion, to have been
transferred to the Resulting Company upon the Effective Time for
any purpose of the laws of the State of Delaware.
(c) The Conversion
shall not be deemed to affect any obligations or liabilities of the
Company incurred prior to the Conversion or the personal liability
of any person incurred prior to the Conversion.
(d) Upon the Effective
Time, the name of the Resulting Company shall remain unchanged and
continue to be “Betawave Corporation”.
(e) The Company
intends for the Conversion to constitute a tax-free reorganization
qualifying under Section 368(a)(1)(F) of the Internal Revenue Code
of 1986, as amended. Accordingly, neither the Company
nor any of its stockholders should recognize gain or loss for
federal income tax purposes as a result of the
Conversion.
2. Filings
. As promptly as practicable following the adoption of
this Plan, the Company shall cause the Conversion to be effective
by:
(a) executing and
filing (or causing the execution and filing of) Articles of
Conversion pursuant to Section 92A.205 of the NRS in form
reasonably acceptable to any officer of the Company (the “
Nevada Articles of Conversion ”) with the Secretary of
State of the State of Nevada;
(b) executing and
filing (or causing the execution and filing of) a Certificate of
Conversion pursuant to Sections 103 and 265 of the DGCL in form
reasonably acceptable to any officer of the Company (the “
Delaware Certificate of Conversion ”) with the
Secretary of State of the State of Delaware;
(c) executing,
acknowledging and filing (or c
