Memorandum of Intent
Re: Proposed Class A or IRC Section 368(a)(1)(A) merger by and between
Via Viva Corporation and WideBand Corporation
On the basis of discussions held with you and other principles of WideBand
Corporation in both Blue Springs and Gallatin, Missouri, and on the basis of
preliminary information provided, Vis Viva Corporation, a Nevada corporation
("Vis Viva"), hereby expresses its intent to exchange shares of its common
stock for all of the issued and outstanding shares of WideBand on the basis of
the following terms and conditions, and WideBand similarly expresses its
intent to agree to such transaction (the "Transaction").
1. Parties to the Transaction. Vis Viva is a publicly held "development
stage" Nevada corporation originally in the State of Utah in 1980. In 1981, it
undertook a public offering of its securities in reliance on the intrastate
exemption from registration, including Rule 147 promulgated thereunder by the
Securities and Exchange Commission ("SEC"). Effective June 30, 1995, it
changed its domicile to the State of Nevada and thereafter, it filed a Form
10-SB with the SEC upon which it became a "reporting company under the
Securities Exchange Act of 1934 ("the '34 Act"). Vis Viva currently has
1,270,000 common shares issued and outstanding, 15 million shares authorized,
with open-ended, outstanding stock options to acquire an additional 105,000
shares at a price of $0.25 per share. It has approximately 180 shareholders of
record and its transfer agent is Atlas Stock Transfer located in Murray, Utah.
Its audited financial statements for its 1998 fiscal year ended June 30, 1999,
are anticipated to reflect in excess of $300,000 in net worth or shareholders'
equity, an amount which would exclude the $26,250 which Vis Viva will receive
in consideration for the exercise of the above-mentioned stock options.
WideBand Corporation ("WideBand") is a Missouri corporation engaged in the
development, manufacture and marketing of high performance computer networking
products. WideBand was incorporated in the State of Missouri in 1994. It
currently has 76 shareholders. Of this number, 25 are foreign investors, 16
sophisticated, and 3 are officers and directors. Additionally. 31 investors
obtained their shares from the original investors in private sales. As of
August 6. 1999, WideBand has received $2,598,000 in paid-in capital. It has no
debt As of the date of this letter, it has a total of 12,801,819 common
capital shares issued and outstanding and outstanding stock options to acquire
100,000 shares at $5 per share. WideBand has an exclusive licencing agreement
with Roger E. Billings dba Billings Intellectual Property relative to various
patents and patent applications. The agreement also authorizes the
Corporation to use the "WideBand" trademark. The agreement gives Dr. Billings
a one and one-half percent (1 1/2%) royalty with respect to the licensing,
marketing and sale of such products and inventions. Currently them are five
(5) U.S. patents which have issued. An additional two (2) U.S. patents are
pending and expected to issue in the near future. Numerous international
patents on the WideBand technology are also pending. While the balance sheet
of WideBand as of 6/30/99 reflects a value of $344,140 In
"patent/trademark/copyright," such value may substantially diminish in an
audit and may even be reflected as a nominal amount. This is mentioned
because this Transaction is not predicated on the value given for the item
"patent/trademark/copyright" in any certified audit of WideBand under GAAP
and/or GAAS.
2. Terms of the Transaction. For and in consideration of the exchange of all
shares of WideBand for shares of Vis Viva:
(a) Vis Viva shall issue to holders of WideBand a like amount of shares
of Vis Viva Common Stock, or 12,801,819 shares so that the WideBand
holders shall, after the issuance of all finder's or agent's fee
shares and after Closing of the Transaction, own slightly more then
98% of the issued and outstanding shares of Vis Viva Common Stock.
Such shares shall be acquired by the holders of WideBand for
Investment purposes only and without a view to the further
distribution thereof and each such holder shall sign an investment
letter to such effect. The certificates representing such Vis Viva
shares to be acquired by the holders of WideBand shall also be
imprinted with a standard restrictive legend to such effect;
(b) Vis Viva shall re-capitalize its issued and outstanding shares by a
reverse split of 1 share for every seven (7) shares. All fractional
shares, if any, shall be rounded up to the next highest share.
Thereafter and upon the consummation of such reverse split, Vis Viva
will issue a total of 12,801,819 reverse split shares to the
Stockholders of WideBand. The outstanding stock options to acquire
105,000 pre-split or 15,000 post-split shares of Via Viva shall have
been exercised prior to Closing. When exercised these options shall
provide an additional $26,250 in capital to Vis Viva.
(c) Upon Closing, the current officers and directors of Vis Viva shall
resign and in their place and stead the individuals designated by
WideBand shall assume positions as directors and thereafter,
officers of Vis Viva. By operation of law, this act shall result in
such persons being authorized signatories on Vis Viva's Herzog,
Heine brokerage account, something which will put them or any one of
them as they designate in a position to liquidate the securities
located therein;
(d) The name "Vis Viva" Corporation," shall be changed, upon Closing,
to: "WideBand Corporation" and Articles of Merger shall be filed
with the States of Nevada and Missouri certifying that WideBand is
merged into and with Vis Viva Corporation, the Survivor, at which
time WideBand Corporation, a Missouri corporation, shall cease to
exist by operation of law,
(e) Outstanding options to acquire additional WideBand or Vis Viva
shares shall not survive Closing;
(f) While Vis Viva, upon Closing, may not be able to immediately qualify
for listing on the NASDAQ Small-Cap Market, Vis Viva shall, after
Closing, use its best efforts to become listed on the NASDAQ Small-
Cap Market as soon as possible thereafter;
(g) It is anticipated at this juncture that Vis Viva can legally
consummate the Transaction by a consent of a majority of its
shareholders and thereafter providing its shareholders with a
Section 14C Information Statement under the '34 Act and
(h) WideBand shall be required to obtain audited financial statements
for Its fiscal year ended March 31, 1999 and the stub period ended
June 30, 1999. It is anticipated that an audited pro forma combined
statement of both Vis Viva and WideBand as of June 30 1999 must also
be filed with the SEC. Also, Vis Viva is not certain whether
WideBand must obtain audited financial statements for 1 year, 2
years or 3 years but whatever is necessary in this regard shall be
known by the time a Plan and Agreement between the parties is signed
and adopted.
3. Brokers/Agents/Finders. In connection with the transaction and as a
finder's, agent's or broker's fee, Vis Viva will, upon Closing, issue forty
thousand (40,000) post reverse split shares to Coombs & Company and fifteen
thousand (15,000) post reverse split shares to John Michael Coombs, or a total
of fifty five thousand (55,000) post reverse split shares. Such shares shall
be acquired by the Coombses for investment purposes and, like the shareholders
of WideBand, they shall execute letters of investment to such effect.
Moreover, the certificates they receive shall be imprinted with the same
restrictive legend as the certificates issued to WideBand shareholders.
There shall be no other finders, agents or brokers fees in connection with
this Transaction other than those to be paid Jack and Michael Coombs (as
indicated above).
In connection with the Finder's or Agent's Fee contemplated herein, WideBand
agrees that at such time as it registers any shares with the SEC, it shall
"piggy-back the Coombses' finder's fee or agent's fee shares in any such
registration.
4. Completion of the Agreement. The parties will enter into a definitive Plan
and Agreement of Merger (the "Plan and Agreement"), a date which it is
anticipated shall occur on or before August 30, 1999 (the "Execution
Date"), subject to necessary extensions as per the written agreement of the
parties. The Plan and Agreement shall contain customary representations and
warranties relating to, among other things, the business, financial
condition, certain legal matters, properties and the securities issued and
to be issued by the parties, the conditions set forth in this Memorandum of
Intent and such other matters as may be deemed appropriate, customary and
usual in transactions of this nature.
Upon and after Closing and assuming all options held by Vis Viva
shareholders will have been exercised, there shall be 13,053,247 shares of
Vis Viva then issued and outstanding (12,801,819 + 196,428 + 55,000). This
figure may change nominally as a result of rounding-up fractional shares
held by Vis Viva shareholders after the 1 for 7 reverse split.
5. Warranties, Representations and Conditions Precedent. The Plan and
Agreement shall include, among other matters such as the Terms of the
Transaction above, the following warranties, representations and conditions
precedent to Closing:
(a) WideBand shall have provided an opinion of counsel upon Closing that
it has not violated any state or federal securities laws in the
issuance of any of its securities,
(b) Vis Viva shall have provided an opinion of counsel upon Closing that
it has not violated any state or federal securities laws in the
issuance of its securities, including the securities subject of this
Transaction;
(c) Each corporation shall have provided the other with a standard and
customary attorney's opinion typical in these kinds of
reorganization transactions which shall include but not be limited
to the following: (1) that each corporation is in good standing with
each one's respective state of incorporation; (2) that each
corporation is appropriately licensed to do business in those states
in which each one's respective business requires it to be so
licensed or otherwise registered as a foreign corporation, etc.;
(3) that to counsel's best knowledge and belief, there are no
outstanding state or federal tax liabilities of any kind or nature
for the period ended June 30, 1999; (4) that each party owns the
properties and other assets it purports to own; and (5) to counsel's
best knowledge and belief, each party is in compliance in all
material respects with all applicable laws, orders, rules and
regulations of federal, state, municipal and/or other governments
and/or any instrumentalities thereof applicable to their assets, to
the business conducted by them and to the Transaction;
(d) Vis Viva shall prepare, among other things, an Information Statement
under Section 14C of the '34 Act or whatever other disclosure
document is necessary or otherwise advisable so that in making its
exchange offer to WideBand, it complies with all of its obligations
under the '33 and '34 Acts. Vis Viva's shareholders will be called
to ratify the merger agreement by consent and a Shareholder's
Meeting shall also be hold in Soft Lake City. Proxy materials shall
set forth the following proposals: (i) approval of the Transaction
as described in the Plan and Agreement (ii) approval of any
recapitalization required to effectuate the Transaction; and, (iii)
approval of a name change for Vis Viva to WideBand Corporation.
WideBand shall cooperate with Vis Viva in the preparation of the
disclosure materials with regard to information relating to
WideBand. WideBand's Shareholders shall also cooperate in signing
whatever investor suitability questionnaires or other documents are
necessary to ensure that Vis Viva's offer to exchange its shares for
the shares of WideBand is exempt from state and federal
registration;
(e) WideBand Corporation shall call a Special Meeting of Shareholders to
vote on and approve the merger proposal. Appropriate proxy material
disclosing the proposed transaction will be provided to its
Shareholders;
(f) WideBand shall be on track in completing the necessary audited
financial statements required of it financial statements which it
will be ready and able to file within 60 days of the date that a
Form 8-K (material change form) is filed with the SEC, a form which
Vis Viva is informed must be filed within 15 days of Closing.
WideBand shall provide a statement on WideBand's accounting firms
letterhead for the year ending March 31, and through June 30, 1999,
for inclusion in Via Viva information statement;
(g) Via Viva shall have supplied to WideBand audited financial
statements for its 1998 fiscal year ended June 30, 1999, statements
which reflect in excess $300,000 in net worth/stockholders' equity
for such period;
(h) While it cannot predict the market fluctuations of its existing
securities, it is anticipated that Vis Viva will have as much as
$350,000 in cash, liquid assets upon Closing, the large majority of
which is in the nature of marketable securities, and no unpaid
liabilities other than the legal, accounting and travel coats and
expenses incident to Closing the Transaction, an amount which is not
expected to exceed $15,000. In the event that it becomes necessary
or advisable to sell any security in Vis Viva's Herzog, Heine
brokerage account. Vis Viva agrees to consult with WideBand and/or
Mr. Don Fenn prior to selling or disposing of the same;
(i) All material agreements of each party shall be reasonably
satisfactory in form and substance to the other, and
(j) Prior to Closing, each party shall have completed a due diligence
review of all books, records, contracts, all shareholder and
investment records, including investment suitability questionnaires
and subscription agreements and business and financial affairs of
the other reasonably satisfactory to it. In this regard, it is
noteworthy that all material corporate documents of Vis Viva which
would be material to WideBand and this Transaction are currently
available on the SEC's EDGAR Data Base and Archives available and
accessible via the Internet. However, Vis Viva shall nonetheless be
providing hard copies of these and other documents to WdeBand prior
to Closing.
6. Closing. Depending upon the anticipated availability of the necessary
audited financial statements on the part of WideBand, Closing of the
Transaction is expected to occur on or before September 1, 1999, subject to an
extension as agreed upon by the parties in writing.
7. Access to Information and Confidentiality. Each party agrees to furnish
to the other any and all information concerning such party and all information
required for disclosure as a result of the transaction and in any filing with
the SEC required as a result of the completion of the Transaction. It is
understood and agreed that such information is proprietary and confidential in
nature. Each party agrees to hold such information in strict confidence and
not to reveal any such information to any person who is not a party to the
Transaction, or an agent thereof, and not use information for any purpose
other then assisting it in due diligence inquiry prior to the closing of the
transaction.
8. Prior Agreements. This Memorandum of Intent expressly supersedes all
prior agreements between the parties hereto.
9. Fees and Expenses. As set forth in the Terms of Transaction section
above, all legal, accounting and other fees, costs and expenses to be incurred
by each party regarding the Transaction shall be paid by; the party incurring
them.
10. Press Releases/Public Announcements. Pending Closing, all press eleases
and other publicity generated by any party regarding the Transaction shall be
promptly reviewed and approved by each party and its counsel before release to
the public. Such approval shall not be unreasonably withheld.
11. Formal Agreement Required. Except for the provisions of Paragraph 10
hereof, it is understood that this letter is merely a statement of intent and
while each of the parties agrees in principle to the contents hereof and each
of the parties proposes to proceed promptly and in good faith to work out the
definitive arrangements with to the Transaction, this is not a binding
agreement and any legal obligations between the parties shall be only as set
forth in a duty executed Plan and Agreement. The Plan and Agreement shall
contain customary representations and warranties relating to, among other
things, the business, financial condition, certain legal matters and
properties of the Parties, securities issued and to be issued, the conditions
set forth in this Memorandum of Intent and such other matters, as are
appropriate, customary and usual in transactions of this nature.
The foregoing Memorandum of Intent is accepted as of this 9th day of August
1999.
VIS VIVA CORPORATION
By: /s/ Michael Coombs
Michael Coombs, President
WIDEBAND CORPORATION
By: /s/ Dr. Roger E. Billings
Dr. Roger E. Billings, President