AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated and made effective as of this
6th day of September, 1999, by and between VIS VIVA CORPORATION, a publicly
held Nevada corporation ("VISV") and WIDEBAND CORPORATION, a Missouri
corporation ("WIDEBAND").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of VISV and WIDEBAND deem the merger of
WIDEBAND with and into VISV on the terms herein set forth to be desirable and
in the best interests of their respective stockholders and, subject to
approval by their respective shareholders, desire to adopt this Agreement and
Plan of Merger to result in a tax-free reorganization within the meaning of
Section 368(a)(1)(A) of the Internal Revenue Code of 1954, as amended, and
WHEREAS, the Boards of Directors of VISV and WIDEBAND have approved this
Agreement and Plan of Merger (the "Agreement") and have directed that the
Agreement and the merger contemplated hereby be submitted to their respective
stockholders for adoption.
NOW THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements contained herein, VISV
and WIDEBAND hereby agree that WIDEBAND shall be merged with and into VISV,
which shall be the surviving corporation, and that the plan, terms and
conditions of such merger shall be as follows:
ARTICLE I
Plan of Merger of WIDEBAND with and into VISV
1.01. The Merger. On the Effective Date of the Merger (as defined in
Article 1.05), WIDEBAND shall be merged with and into VISV, the separate
existence of WIDEBAND (except as it may be continued by operation of law)
shall cease, and VISV as the surviving corporation shall continue its
corporate existence under the laws of the State of Nevada and VISV shall
possess all of the rights, privileges, immunities, powers, franchises and
authority, of a public as well as of a private nature, and be subject to all
the restrictions, disabilities and duties of WIDEBAND; and all and singular,
the rights, privileges, immunities, powers, franchises and authority of
WIDEBAND, and all assets and property of every description, real, personal and
mixed, and every interest therein, wherever located, and all debts or other
obligations belonging to or due to WIDEBAND on whatever account, as well for
stock subscriptions as all other things in action or belonging to WIDEBAND on
whatever account, as well as for stock subscriptions as all other things in
action or belonging to WIDEBAND, shall be vested in VISV; and all assets,
property, rights, privileges, immunities, powers, franchises and authority,
and all and every other interest, shall be thereafter as effectually the
property of VISV as they were of WIDEBAND, but all rights of creditors and all
liens upon any property of WIDEBAND shall be preserved unimpaired, and all
debts, liabilities and duties of WIDEBAND shall thenceforth be attached to
VISV and may be enforced against VISV to the same extent as if said debts,
liabilities and duties had been incurred or contracted by VISV prior to this
transaction.
1.02. Adoption of Plan; Requirement of Shareholder Approval of Both
WIDEBAND and VISV; Dissenters' Rights; Notification. The Merger transaction
contemplated hereby will require shareholder approval of the transaction under
both Nevada and Missouri corporate law. See Sections 78.451 through 78.466,
Nevada Revised Statutes (NRS), as amended, titled MERGER; EXCHANGE OF SHARES.
VISV intends to accomplish such approval by means of a consent of a majority
of its shareholders as authorized by Section 78.320, NRS, titled Stockholders'
meetings: Quorum; Consent for actions taken without meeting. If Nevada law
requires that VISV give dissenters' rights of appraisal as contemplated in NRS
Sections 78.471 through 78.502, titled RIGHTS OF DISSENTING SHAREHOLDERS, VISV
will do so. Accordingly, VISV shall not solicit proxies even though, as a
Section 12(g) "reporting company," it is subject to the Proxy Rules
promulgated under Section 14(a) of the Securities Exchange Act of 1934 ("the
'34 Act"). VISV will instead provide its shareholders with an Information
Statement as required under Section 14(c) of the '34 Act and the 14C series of
rules promulgated thereunder by the Securities and Exchange Commission
("Commission"). VISV will also notice-up a shareholders' meeting in Salt Lake
City at an appropriate time immediately in advance of the anticipated Closing
at which it will welcome shareholders to attend and vote their shares if they
so desire. In an effort to establish an exemption from registration for this
transaction, VISV will also be providing such Information Statement, among
other materials such as purchaser suitability questionnaires and the like to
the Shareholders of WIDEBAND. WIDEBAND shall conduct its own shareholders'
meeting, after its shareholders have received appropriate disclosure materials
on VISV and the transaction contemplated hereby, and they have had the
opportunity to have any questions they or a purchaser representative, as
applicable, may have, answered. See Exhibit 10.02 hereto (containing a form
of investment and acknowledgment letter each WIDEBAND Shareholder is to sign
and furnish VISV prior to Closing). In seeking approval of the transaction by
a majority of WIDEBAND's shareholders, WIDEBAND shall also be obligated, as
and if required by Missouri corporate law, to give its Shareholders
dissenter's rights of appraisal.
1.03. Proposals To Be Approved By the Shareholders of Both WIDEBAND
and VISV. The Shareholders of both WIDEBAND and VISV shall approve the
following proposals: (i) approval of this Plan and Agreement of Merger
("Agreement"), including the issuance of the finder's, agent's or consultant's
post-split shares to be issued in connection therewith (see Article 5.14
below); (2) approval of the recapitalization or 1 for 7 reverse-split of
VISV's shares as necessary to effectuate the transaction; (3) approval of the
name change for VISV to "WideBand Corporation"; (4) approval of the slate of
directors to assume positions on the Board of VISV upon the Closing, persons
to be designated by WIDEBAND (seeArticle 2.02 below); and (5) approval of any
other amendments to the Articles of Incorporation of VISV if necessary, such
as to broaden the scope of its corporate purpose to include the business
operations presently carried on by WIDEBAND.
1.04. Establishment of Record Date. The Record Date for those VISV
shareholders entitled to vote on this Agreement shall be August 9, 1999 or a
later date not more than thirty (30) days prior to the date VISV's Information
Statement is disseminated to VISV's shareholders. WIDEBAND shall establish
its own record date, if necessary, for its shareholders to vote on and approve
the transaction in accordance with Missouri corporate law.
1.05. Effective Date of the Merger. The merger shall become
effective as of the close of business on the date of filing as provided in
Article 4.02 (the "Effective Date of the Merger").
1.06. Instruments and Further Assurances. From time to time, as and
when requested by VISV, or by its successors or assigns, the officers and
directors of WIDEBAND last in office shall execute and deliver such deeds and
other instruments for transfer and shall take or cause to be taken such
further or such other actions as shall be reasonably necessary in order to
vest or perfect in VISV, or to confirm of record or otherwise to VISV, to the
extent such officers and directors have the power so to do, title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of WIDEBAND.
ARTICLE 2
Articles of Incorporation, Directors and Officers and By-Laws
2.01. Articles of Incorporation. Except as provided below, the
Articles of Incorporation of VISV, as in effect on the Effective Date of the
Merger, shall be the Articles of Incorporation of VISV, as the surviving
corporation, until they are amended as provided therein or by law. Upon the
Effective Date of the Merger, the Articles of Incorporation of VISV shall be
amended to change the name of VISV to "WideBand Corporation," among other
amendments as may be necessary to effectuate and carry out the terms and
provisions of this Agreement. A copy of the form of Amended Articles of
Incorporation of VISV and the form of Articles of Merger to be filed in both
the States of Missouri and Nevada, thereby establishing the Effective Date of
the Merger, are attached hereto as Exhibit 2.01.
2.02. Directors and Officers. Upon the Effective Date of the Merger,
the Board of Directors and Officers of VISV, the surviving corporation, shall
consist of the persons identified in Exhibit 2.02 hereto. Said directors
shall hold office as provided in the By-Laws of the surviving corporation. At
the VISV shareholders' meeting to be held pursuant to Article 8.01 below, the
shareholders of VISV will vote on the election of the persons listed in
Exhibit 2.02 to be directors of VISV until its next annual meeting or until
they or any one of them resign and their respective resignations are accepted.
2.03. By-Laws. The By-Laws of VISV, as in effect on the Effective
Date of the Merger, shall be the By-Laws of the surviving corporation, until
they are amended as provided therein or otherwise by law.
ARTICLE 3
Conversion and Exchange of Shares
3.01 Conversion of Shares. The manner of converting or exchanging
the shares of VISV and WIDEBAND shall be as follows:
(a) Each share of the Common Capital Stock, $.001 par value per share, of
VISV ("VISV Common Stock") that is issued and outstanding on the Effective
Date of the Merger shall be reverse-split into one (1) share for every seven
(7) shares of stock after the merger. For example, there are currently
1,270,000 shares of VISV issued and outstanding with open-ended options to
acquire an additional 105,000 shares @ $0.25 per share. It is anticipated
that these options shall be exercised prior to Closing, in which case there
will be 1,375,000 shares of VISV then-issued and outstanding. Immediately
prior to the Effective Date of the Merger and of the 1 for 7 reverse split,
there shall be 196,429 shares of VISV issued and outstanding. Fractional
shares of VISV Common Stock which result from such reverse-split will be
rounded up to the nearest whole number of shares.
(b) Each share of Common Capital Stock, $0.001 par value per share, of
WIDEBAND ("WIDEBAND Common Stock") that is issued and outstanding on the
Effective Date of the Merger shall, by virtue of the merger, be converted,
one-for-one, into a total of twelve million eight hundred and one thousand
eight hundred and nineteen (12,801,819) fully paid and non-assessable shares
of VISV Common Stock. (This figure is larger than the figure of 12,713,601
used in the August 9, 1999, Memorandum of Intent. This is because the
Memorandum of Intent neglected or failed to recognize the 88,218 "restricted"
shares issued to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇ on or about August 5, 1999, in
consideration for his conveyance, to WIDEBAND, of various hard assets in which
▇▇. ▇▇▇▇ had a cost basis of as much as $441,090, assets which, at the same
time, may have a fair market value in excess thereof. See also Article
6.04(a) below. Two individuals also have outstanding options to acquire one
hundred thousand (100,000) shares of WIDEBAND at $5.00 per share, options that
expire in the years 2000, 2003 and 2004. See Article 6.02 below. If any part
or portion of such currently outstanding options to acquire an additional
100,000 shares of WIDEBAND stock are exercised prior to Closing, additional
VISV Common Stock shall be issued upon Closing to such persons so exercising
his or her option(s) or any part thereof. No fractional shares of VISV Common
Stock will be issued to WIDEBAND Shareholders upon conversion of the WIDEBAND
Common Stock to VISV Common Stock. Finally, while WIDEBAND's shareholders
voted at a September 25, 1996, shareholders' meeting to authorize the issuance
of certain convertible preferred stock, its Articles of Incorporation have
never been amended to reflect such nor have any of such shares been issued.
Accordingly, such non-existent shares will not be affected by this transaction
nor, as a result thereof, will any such non-existent but authorized shares
otherwise be convertible into VISV Common Stock.
(c) As described in Article 5.14 below, there will also be fifty five
thousand (55,000) post-split VISV shares issued upon Closing to certain
persons as a finder's, agent's or consultant's fee, action which is also
intended to be approved by the shareholders. Taking into consideration the
196,429 reverse-split shares of VISV remaining after the Closing, adding in
the 12,801,819 shares to be issued to the Shareholders of WIDEBAND in the
exchange, plus the 55,000 shares post-split shares referred to herein, there
will be no less than 13,053,248 shares of VISV then-issued and outstanding
upon the Effective Date. (This figure ignores taking into consideration the
issuance of any shares issuable to the WIDEBAND optionees prior to Closing by
WIDEBAND, an event that could occur. Such options, contrary to the Memorandum
of Intent, must legally survive Closing.)
3.02 Exchange of Certificates or Delivery of Shares. On and after
the Effective Date of the Merger, each holder of a certificate or certificates
representing WIDEBAND Common Stock, upon presentation and surrender of such
certificate or certificates to VISV or its transfer agent, Atlas Stock
Transfer Corp., shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of full shares of VISV
Common Stock to which he is entitled, as provided in Article 3.01. Until so
presented and surrendered in exchange for a certificate representing VISV
Common Stock, each certificate which represented issued and outstanding shares
of WIDEBAND Common Stock on the Effective Date of the Merger shall, except as
provided in the following sentence, be deemed for all purposes to evidence
ownership of the number of full shares of VISV Common Stock into which such
shares of WIDEBAND Common Stock have been converted pursuant to the merger.
Until surrender of such certificates in exchange for certificates representing
VISV Common Stock, the holder thereof shall not be entitled to vote at any
shareholders meeting of VISV.
ARTICLE 4
Closing; Effective Date of Merger
4.01 Closing. The closing of the transaction contemplated by this
Agreement shall take place at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇, at such date and time, within five (5) business days after the
satisfaction or waiver of the last of the conditions set forth in Articles 9,
10 and 11 hereof to be satisfied or waived, as the parties may fix. The
closing of such transactions is herein called the "Closing" and the date of
that Closing is referred to herein as the "Closing Date."
4.02 Effective Date. Subject to the conditions in this agreement
and to the execution and filing of certificates or articles of merger and
other documents as may be required by Nevada and Missouri corporate law, the
merger shall become effective at the close of business on such date as such
filings are made or at such other date as stated in the certificate or
articles of merger (the "Effective Date of the Merger"). Unless this
Agreement shall have been terminated pursuant to the provision of Article 12
hereof, such filings shall be made on or as soon as practicable after the
Closing.
ARTICLE 5
Representations and Warranties of VISV
5.01. Organization, Standing, Qualification, etc. VISV is a publicly
held "development stage" Nevada corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada. Its registered
agent is State Agent & Transfer Syndicate, Inc., located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, phone no. (▇▇▇) ▇▇▇-▇▇▇▇, Website:
▇▇▇.▇▇▇▇▇▇▇.▇▇▇. VISV has all requisite corporate power and is duly
authorized, qualified, franchised and licensed under all applicable laws,
regulations, ordinances and orders of public authorities to own its properties
and assets and to carry on its business as it is presently being conducted.
To the best knowledge, information and belief of management, the nature of
VISV's business and the ownership of its properties do not require it to
become qualified in any state as a foreign corporation and therefore, it has
not done so. VISV was originally incorporated in the State of Utah in 1980.
In May 1981, it commenced a public offering of its securities to Utah
residents in reliance on the Section 3(a)(11) or intrastate exemption from
registration, including Rule 147 promulgated thereunder by the Securities and
Exchange Commission ("SEC" or "Commission"). In 1982, VISV obtained a "come
to rest" opinion of counsel by which VISV Common Stock was thereafter eligible
for trading in interstate commerce. Effective June 30, 1995, VISV changed its
domicile from the State of Utah to the State of Nevada. In March 1996, it
filed a Form 10-SB with the Commission by which it became a Section 12(g)
"reporting company" under the Securities Exchange Act of 1934 ("the '34 Act").
All of VISV filings with the Commission since March 1996 are available on
▇▇▇▇▇, the Commission's publicly available Database. As of August 9, 1999,
VISV had approximately 168 stockholders of record. Its transfer agent is and
always has been Atlas Stock Transfer located in Murray, Utah.
5.02. Capitalization. The authorized capital stock of VISV consists
of 50,000,000 shares of common stock, with $.001 par value, of which 1,270,000
shares are currently issued and outstanding. As stated above, there are
outstanding options to acquire 105,000 additional shares at $0.25 per share.
All issued and outstanding shares are duly authorized, fully paid, validly
issued and non-assessable in accordance with applicable law. No dividends or
other distribution of the assets of VISV have been declared or paid in the
capital stock of VISV. Except for the transactions contemplated by this
Agreement, there are no outstanding warrants, options, preemptive rights or
rights to subscribe for or purchase any shares of VISV's capital stock or any
outstanding securities that are convertible into VISV's capital stock. The
VISV Shares to be issued pursuant to this Agreement have been duly authorized
and, when issued to the shareholders of WIDEBAND in exchange for their
WIDEBAND Common Stock will be validly issued, fully paid and non-assessable.
5.03 Articles of Incorporation, By-Laws and Minutes. The complete
Articles of Incorporation and the By-Laws of VISV, as will be in effect on the
Effective Date of the Merger, are attached hereto as Exhibit 5.03.
5.04. Financial Statements and Assets.
(a) VISV's 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 excludes accrued interest receivable
as of such date from corporate bond investments.
Attached hereto as Exhibit 5.04 are the complete audited financial
statements of VISV as of June 30, 1999 (hereinafter referred to as the "VISV
Financial Statements").
All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. As of the date of any of such balance sheets, except as and
to the extent reflected or reserved against therein, VISV did not have any
liabilities or obligations (absolute or contingent) which should be reflected
in a balance sheet or the notes thereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are, to the
best knowledge, information and belief of management, properly reported and
present fairly the value of the assets of VISV in accordance with generally
accepted accounting principles. To the best knowledge, information and belief
of management, such statements of operations present fairly the results of
operations of VISV for the periods indicated. To the best knowledge,
information and belief of management, such statements of changes in financial
position present fairly the information that should be presented therein in
accordance with generally accepted accounting principles.
The books and records, financial and others, of VISV are in all material
respects complete and correct and have been maintained in accordance with good
business and accounting practice.
5.05. Authorization. The Board of Directors of VISV has approved the
Agreement and the transaction contemplated hereby, has authorized the
execution and delivery of this Agreement of VISV and has authorized the
execution and delivery of this Agreement of VISV and has authorized the
submission of this Agreement and the transactions contemplated hereby to the
VISV shareholders for their consideration with the recommendation that it be
approved or that it believes a majority of the shareholders will in fact
consent to the transaction without the need to solicit such approval. VISV
has full power, authority and legal right to enter into this Agreement and
this Agreement constitutes a legal, valid and binding obligation of VISV
enforceable in accordance with its terms.
5.06. Litigation. There is no action, suit, proceeding or
investigation pending, at law or in equity, or to the knowledge of VISV's
management, threatened, against or affecting VISV before or in any court,
either state or federal, public board, or body which calls into question the
creation, organization or existence of VISV, the validity of this Agreement or
the authority of VISV to execute, deliver and carry out the terms of the
Agreement or which judgment, order or finding can reasonably be expected to
have a material adverse effect on the condition (financial or otherwise) of
VISV. VISV has no knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality.
5.07. Subsidiaries. Other than its investments in its ▇▇▇▇▇▇, ▇▇▇▇▇
& Geduld brokerage account located in New York, VISV does not own, directly or
indirectly, any interest or investment, whether in equity or debt, in any
corporation, business, trust or other entity.
5.08. Compliance with Law and Other Instruments. VISV is not in
violation or default of any term of its Articles of Incorporation or By-Laws,
or of any agreement, contract, commitment, instrument, indenture, judgment,
decree or order, applicable to it and, to the best of management's knowledge,
it has timely filed all reports and any other documents required by it to be
filed with any governmental agency, including the Commission. The execution,
delivery and performance of this Agreement and the taking of action
contemplated hereby will not result in any violation of or be in action
contemplated hereby will not result in any violation of or be in conflict with
or constitute a default under (a) the Article of Incorporation or By-Laws of
VISV, or (b) any material agreement or instrument to which VISV or any
consolidated subsidiary is a party or by which it is bound, or (c) any
material judgment, decree or order to which VISV is subject, or result in the
creation of any material lien, charge or encumbrance on any of the properties
or other assets of VISV.
5.09. Contracts and Commitments.
There are no material contracts, agreements, franchises, license
agreements or other commitments to which VISV is a party or by which it or any
of its properties are bound;
VISV is not a party to any contract, agreement, other commitment or
instrument or subject to any charter or other corporate restriction or any
judgment, order, wit, injunction, decree or award which materially and
adversely affects, or in the future may (as far as VISV can now foresee),
materially and adversely affect, the business, operations, properties, assets
or condition of VISV; and
VISV is not a party to any material oral or written (i) contract for the
employment of any officer or employee which is not terminable on 30 days' (or
less) notice, (ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension or retirement plan, agreement or arrangement, (iii)
agreement, contract or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which VISV is a primary obligor,
for the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations, which, in the aggregate do not
exceed $1,000, (v) consulting or other similar contract with an unexpired term
of more than one year or providing for payments in excess of $1,000 in the
aggregate, (vi) collective bargaining agreement, (vii) agreement with any
present or former officer or director of VISV, or (viii) consent, agreement or
other commitment involving payments by it of more than $1,000 in the
aggregate.
5.10. Liabilities. Except as disclosed or provided for in the VISV
Financial Statements, VISV, to the best of its knowledge after due inquiry,
has no debt, obligation or liability of any nature, whether accrued, absolute,
contingent or otherwise, whether due or to become due to any person or entity,
including any of its officers, directors, or shareholders, in excess of
$1,000.
5.11. Title to Properties and Related Matters. VISV has good and
marketable title to all of its properties, interests in properties and assets,
real and personal, which are reflected in the latest balance sheet included in
the VISV Financial Statements or acquired after that date (except properties,
interests in properties and assets sold or otherwise disposed of since such
date in the ordinary course of business), free and clear of all mortgages,
liens, pledges, charges, or encumbrances except: (i) statutory liens or claims
not yet delinquent, (ii) such imperfections of title and easements as do not
and will not materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby, or otherwise
materially impair present business operations of such properties, and (iii) as
described in the VISV Financial Statements.
5.12. Directors and Officers. The Board of Directors and principal
officers of VISV, as of the date hereof, are those persons identified in
Exhibit 5.12 hereto.
5.13. Tax Returns. Within the times and in the manner prescribed by
law, VISV has filed all federal, state and local tax returns required by law
and has paid all taxes, assessments and penalties due and payable. All taxes
and governmental charges levied or assessed against the property or the
business of VISV have been paid, other than taxes or charges the payment of
which is not yet due or which, if due, is not yet delinquent or is being
contested in good faith or has not been finally determined.
5.14. Brokers/Agents/Finders/Consultants. Other than a finder's fee,
agent's fee or consultant's fee payable to ▇▇▇▇▇▇ & Company and ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, neither VISV nor any officer or director of VISV has employed any
broker, finder, consultant or agent or has agreed to pay or has otherwise
incurred any brokerage fee, finder's fee, consulting fee or commission with
respect to the transactions contemplated by this Agreement. In this regard
and upon Closing, ▇▇▇▇▇▇ & Company, a partnership, shall be entitled to
receive a fee of forty thousand (40,000) post-split "restricted" shares and
▇.▇. ▇▇▇▇▇▇ shall be entitled to receive fifteen thousand (15,000) post-split
"restricted" shares. Both ▇▇▇▇▇▇ & Company and ▇.▇. ▇▇▇▇▇▇ shall execute
investment letters to the effect that the consultant's shares they shall be so
acquiring as a fee are acquired for investment purposes only and not with a
view to the further distribution thereof. In the event that VISV, after
Closing, registers any shares with the Commission, WIDEBAND and
its principals hereby agree that it shall register the 55,000 post-split
shares subject of this paragraph and, if necessary or otherwise advisable, it
will register such shares with the Commission on a Form S-8. In addition, if
necessary to take ▇▇▇▇▇▇ & Company and ▇.▇. ▇▇▇▇▇▇ out of the parameters of
Section 16(b), the "short-swing profit" statute under the '34 Act, VISV and
WIDEBAND shall submit the approval such 55,000 post-split share finder's,
agent's or consultant's fee to their respective shareholders as part of their
mutual adoption of this Plan and Agreement. With the exception of, or subject
to, the foregoing, VISV and its officers jointly and severally agree to
indemnify and hold WIDEBAND and its officers and directors harmless from and
against any fee, loss or expense arising out of claims by brokers, finders or
consultants employed or alleged to have been employed by them in connection
with this transaction.
5.15. Prior Sales. VISV has not privately offered and sold any of
its securities within the last two (2) years and therefore, it need not attach
hereto as Exhibit 5.15 a list setting forth the names and addresses of the
purchasers of any securities of VISV so offered and sold and whether any such
purchaser is a 5% or more shareholder.
5.16. Shareholder List. Attached hereto as Exhibit 5.16 is an
alphabetical list, as of a date within thirty (30) days for the date hereof,
of all of the shareholders of VISV and the number of shares of VISV Common
Stock owned by each. Such list also identifies which stock certificates have
stop transfer orders and which have restrictive legends placed upon them.
5.17. Transfer Agent and Market Maker(s). VISV's transfer agent,
since its public offering in 1981, is and has been Atlas Stock Transfer
Corporation located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, phone no.
▇▇▇-▇▇▇-▇▇▇▇. Its only market maker has been ▇▇▇▇▇▇-▇▇▇▇▇ & Company whose
address is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇, phone no. ▇▇▇-▇▇▇-▇▇▇▇. There is no affiliation, direct or
indirect, by and among Atlas Stock Transfer Corp., ▇▇▇▇▇▇-▇▇▇▇▇ & Co., and any
current or former officer and director of VISV, including principal
shareholder of VISV, ▇▇▇▇ ▇. ▇▇▇▇▇▇.
5.18. Compliance with Laws and Regulations. VISV has complied with
all applicable statues and regulations of any federal, state or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of VISV or except to the extent
that noncompliance would not result in the incurrence of any material
liability.
5.19. Material Contract Defaults. Neither VISV nor any other party
is in default in any material respect under the terms of any outstanding
contract, agreement, lease or other commitment which is material to the
business, operations, properties or assets or the condition of VISV, and there
is no event of default or event which, with notice of lapse of time or both,
would constitute a default in any material respect under any such contract,
agreement, lease or other commitment in respect of which it has not taken
adequate steps to prevent such a default from occurring.
5.20. Absence of Certain Changes or Events. Since June 30, 1999 and
except as set forth in or permitted by this Agreement and the Exhibits hereto,
there has not been, with respect to VISV:
(a) Any change in the business, operations, method of management or
accounting, or financial condition or the manner of conducting the business of
VISV other than changes in the ordinary course of business, none of which has
had a material adverse effect on such business, operations or financial
condition, taken as a whole, or changes resulting from compliance with this
Agreement;
(b) Any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the assets, business, operations
or condition of VISV;
(c) Any declaration, setting aside or payment of any dividend or
other distribution in respect of the shares of VISV of any class, or any
direct or indirect redemption, purchase or other acquisition of any shares of
any class of VISV;
(d) Any material increase in the direct or indirect compensation or
other benefits payable or to become payable by VISV to any of its officers,
directors, employees or agents over the respective rates and amounts set forth
the in the VISV Financial Statements;
(e) Any sale, lease, abandonment or other disposition by VISV of any
real property otherwise than in the ordinary course of business, or any sale,
assignment, transfer, license or other disposition by VISV of any tangible or
intangible asset;
(f) Any grant of any option, warrant or right to purchase, or other
right to acquire shares of any class of VISV granted to any person;
(g) Any employment, bonus or deferred compensation agreement entered
into between VISV and any of its directors, officers or other employees or
consultants;
(h) Any issuance of shares of VISV beyond the shares then issued and
outstanding, with the exception of the exercise of the options to acquire an
additional 105,000 shares at $0.25 per share;
(i) Any indebtedness incurred by VISV for borrowed money not now
repaid, or any commitment to borrow money entered into by VISV;
(j) Any amendment of the Article of Incorporation or By-Laws of VISV;
(k) Any material obligation or liability, absolute or contingent, paid
except current liabilities reflected in or shown on the most recent balance
sheet included in the VISV Financial Statements and current liabilities
incurred since that date in the ordinary course of business or in connection
with this transaction;
(l) Any sale or transfer, or any agreement, arrangement or option for
the sale or transfer, of any of its assets, property or rights having an
aggregate value of $10,000 or more (other than in the ordinary course of
business); or
(m) Any other material transaction.
Notwithstanding the foregoing, any or all of the foregoing changes or events
shall be permitted upon the written consent of WIDEBAND by action or its Board
of Directors, evidenced by the delivery by WIDEBAND to VISV of a certified
copy of resolutions of such Board specifying the change or event consented to
by WIDEBAND.
5.21. Books and Records. From the date of this Plan to the Closing,
VISV will (1) give to WIDEBAND and its Shareholders, or their respective
representatives, full access during normal business hours to all of its
offices, books, records, contracts and other corporate documents and
properties so that WIDEBAND and its Shareholders, or their respective
representatives, may inspect and audit them; and (2) furnish such information
concerning the properties and affairs of VISV as WIDEBAND and its
Shareholders, or their respective representatives may reasonably request.
ARTICLE 6
Representations and Warranties of WIDEBAND
WIDEBAND hereby warrants and represents to VISV as follows:
6.01. Organization, Standing, Qualification, etc. WIDEBAND is a
Missouri corporation engaged in the development, manufacture and marketing of
high performance computer networking products. It was duly organized in
September 1994 as Jacomo Corporation and, on September 1, 1995, Articles of
Amendment were filed with the State of Missouri changing its name to "Wideband
Corporation." WIDEBAND is validly existing and in good standing under the
laws of the State of Missouri and has all requisite corporate power necessary
to engage in the business it is currently engaged in. It is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own its properties and assets
and to carry on its business as it is presently being conducted. WIDEBAND is
qualified to do business in all states where the nature of WIDEBAND's business
and the ownership of its properties require it to become qualified as a
foreign corporation.
6.02. Capitalization. The authorized capital stock of WIDEBAND
consists of 50,000,000 shares of common stock, having a par value of $0.001,
of which no more than 12,801,819 shares will be issued and outstanding as of
the Effective Date of the Merger. (This figure does not account for, or
include, the potential exercise of certain outstanding options to acquire
100,000 additional WIDEBAND shares at $5.00 per share. See also Article
3.01(b) above.) All outstanding shares of WIDEBAND are duly authorized, fully
paid, validly issued and non-assessable in accordance with applicable law. No
dividends or other distribution of the assets of WIDEBAND have been declared
or paid in the capital stock of WIDEBAND. Except as set forth in Exhibit 6.02
attached hereto, there are no outstanding warrants, options, preemptive rights
or rights to subscribe for or purchase any shares of WIDEBAND's capital stock
or any outstanding securities that are convertible into WIDEBAND's capital
stock.
6.03. Articles of Incorporation and By-Laws. The complete Articles
of Incorporation and the By-Laws of WIDEBAND as will be in effect on the
Closing Date, are attached hereto as Exhibit 6.03.
6.04. Financial Statements and Assets.
(a) As of August 6, 1999, WIDEBAND had received $2,598,000 in paid in
capital and an additional $441,090 in the form of hard assets conveyed to the
company in exchange for stock. If and when its outstanding stock options of
100,000 shares exercisable at $5.00 per share are in fact exercised, it shall
receive an additional $500,000 in paid in capital. It has no debt. As of the
date of this Agreement, WIDEBAND has a total of 12,801,819 common capital
shares issued and outstanding and the outstanding stock options to acquire
100,000 additional shares at $5.00 per share. While its shareholders
authorized the issuance of a convertible preferred shares in September 1996,
no such shares have been issued and WIDEBAND's Articles of Incorporation have
never been amended to take account of the same. WIDEBAND has an Exclusive
Licensing Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ dba ▇▇▇▇▇▇▇▇ Intellectual Property
relative to various patents and patent applications, an agreement which
replaces and supercedes, in all particulars, a Master License Agreement dated
October 24, 1994 by and between ▇▇. ▇▇▇▇▇▇▇▇ dba Billings Intellectual
Properties and WIDEBAND's predecessor, Jamoco Corporation. The agreement
also authorizes the corporation to use the "WideBand" trademark. The
agreement gives ▇▇. ▇▇▇▇▇▇▇▇ a one-and one-half percent (1 1/2%) royalty with
respect to the licensing, marketing and sale of such products and inventions.
Currently, there are five (5) U.S. patents that 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.
The parties acknowledge that in a certified audit of WIDEBAND under GAAP and
GAAS, the value of WIDEBAND's patents, trademarks and copyrights (i.e., its
Exclusive Licensing Agreement) may be given nominal value. To preserve the
integrity of WIDEBAND's properties and assets, certain significant employees
have executed non-disclosure and non-compete agreements. See Article 10.06
below.
Attached hereto as Exhibit 6.04 are the unaudited balance sheet and
income statement of WIDEBAND as of its most recent quarter preceding the
Closing, prepared by the accounting firm which will undertake and prepare its
post-Closing, audited financial statements (collectively referred to as the
"WIDEBAND Financial Statements"). If other supplementary accounting
information, in addition to that identified in the previous sentence, is
necessary for Closing, WIDEBAND shall prepare such. WIDEBAND is informed and
believes that within 75 days of Closing the transaction, it must file, as part
of an 8-K Current Report to be filed within 15 days of Closing, an audited
balance sheet for its most recent fiscal year end, audited income statements
for its most recent two fiscal year ends and other standard inclusions such as
a statement of stockholders' equity and statement of cash flows. WIDEBAND is
on track with its auditors in preparing such audited financial statements.
All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. As of the date of any of such balance sheets, except as and
to the extent reflected or reserved against therein, WIDEBAND did not have any
liabilities or obligations (absolute or contingent) which should be reflected
in a balance sheet or the notes hereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of WIDEBAND in accordance
with generally accepted accounting principles. Such statements of operations
present fairly the results of operations of WIDEBAND for the periods
indicated. Such statements of changes in financial position present fairly
the information that should be presented therein in accordance with generally
accepted accounting principles.
6.05. Authorization. The Board of Directors of WIDEBAND has approved
this Agreement and the transactions contemplated hereby, has authorized the
execution and delivery of this Agreement by WIDEBAND, and has authorized the
submission of this Agreement and the transaction contemplated hereby to the
WIDEBAND shareholders for their consideration with the recommendation that it
be approved. WIDEBAND has full power, authority and legal right to enter
into this Agreement and to consummate the transactions contemplated hereby and
this Agreement constitutes a legal, valid and binding obligation of WIDEBAND
enforceable in accordance with its terms.
6.06. Litigation. There is no action, suit, proceeding or
investigation pending, at law or in equity, or to the knowledge of WIDEBAND's
management, threatened, against or affecting WIDEBAND before or in any court,
either state or federal, public board, or body which calls into question the
creation, organization or existence of WIDEBAND, the validity of this
Agreement or the authority of WIDEBAND to execute, deliver and carry out the
terms of the Agreement or which judgment, order or finding can reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise) of WIDEBAND. WIDEBAND has no knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or instrumentality.
6.07. Subsidiaries. WIDEBAND does not own, directly or indirectly,
any interest or investment, whether equity or debt, in any corporation,
business, trust or other entity.
6.08. Compliance with Law and Other Instruments. Except as set forth
in Exhibit 6.08, WIDEBAND is not in violation or default of any term of its
Articles of Incorporation or By-Laws, or of any agreement, contract,
commitment, instrument, indenture, judgment, decree or order, applicable to it
and has timely filed all reports and any other documents required by it to be
filed with any governmental agency. The execution, delivery and performance
of this Agreement and the taking of action contemplated hereby will not result
in any violation of or be in conflict with or constitute a default under (a)
the Articles of Incorporation or By-Laws of WIDEBAND, or (b) any material
agreement or instrument to which WIDEBAND or any consolidated subsidiary is a
party or by which it is bound, or (c) any material judgment, decree or order
to which WIDEBAND is subject, or result in the creation of any material lien,
charge or encumbrance on any of the properties of WIDEBAND.
6.09. Contracts and Commitments. WIDEBAND is not a party to any
contract, agreement, other commitment or instrument or subject to any charter
or other corporate restriction or any judgment, order, writ, injunction,
decree or award which materially and adversely affects, or in the future may
(as far as WIDEBAND can now foresee), materially and adversely affect, the
business, operations, properties, assets or condition of WIDEBAND.
6.10 Liabilities. Except as set forth in the WIDEBAND Financial
Statements or in any exhibit, WIDEBAND, to the best of its knowledge, after
due inquiry, has no debt, obligation or liability of any nature, whether
accrued, absolute, contingent or otherwise, whether due or to become due to
any person or entity, including any of its officers, directors, or
shareholders, in excess of $1,000.
6.11 Title to Properties and Related Matters. WIDEBAND has good and
marketable title to all of its properties, interests in properties and assets,
real and personal, which are reflected in the latest balance sheet included in
the WIDEBAND Financial Statements or acquired after that date (except
properties, interests in properties and assets sold or otherwise disposed of
since such date in the ordinary course of business), free and clear of all
mortgages, liens, pledges, charges or encumbrances except: (i) statutory liens
or claims not yet delinquent, (ii) such imperfections of title and easements
as do not and will not materially detract from or interfere with the present
or proposed use of the properties subject thereto or affected thereby, or
otherwise materially impair present business operations of such properties; or
(iii) as described in the WIDEBAND Financial Statements.
6.12 Directors and Officers. The Board of Directors and principal
officers of WIDEBAND, as of the date hereof, are those persons identified in
Exhibit 6.12 hereto.
6.13. Tax Returns. Within the times and in the manner prescribed by
law, WIDEBAND has filed all federal, state and local tax returns required by
law and has paid all taxes, assessments and penalties due and payable. All
taxes and governmental charges levied or assessed against the property or the
business of WIDEBAND have been paid, other than taxes or charges the payment
of which is not yet due or which, if due, is not yet delinquent or is being
contested in good faith or has not been finally determined.
6.14. Brokers. Neither WIDEBAND nor any officer or director of
WIDEBAND has employed any broker, finder or agent or has agreed to pay or has
otherwise incurred any brokerage fee, finder's fee or commission with respect
to the transactions contemplated by this Agreement. WIDEBAND agrees to
indemnify and hold VISV and its officers and directors harmless from and
against any fee, loss or expense arising out of claims by brokers or finders
employed or alleged to have been employed by it.
6.15 Shareholder List. Attached hereto as Exhibit 6.15 is an
alphabetical list of all of the shareholders of WIDEBAND and the number of
shares of WIDEBAND Common Stock owned by each of them.
6.16 Compliance with Laws and Regulations. WIDEBAND has complied
with all applicable statutes and regulations of any federal, state or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of WIDEBAND or except to the
extent that noncompliance would not result in the incurrence of any material
liability.
6.17 Material Contract Defaults. Neither WIDEBAND nor any other
party is in default in any material respect under the terms of any outstanding
contract, agreement, lease or other commitment which is material to the
business, operations, properties or assets or the condition of WIDEBAND and
there is no event of default or event which, with notice of lapse of time or
both, would constitute a default in any material respect under any such
contract, agreement, lease or other commitment in respect of which it has not
taken adequate steps to prevent such a default from occurring.
6.18 Absence of Certain Changes or Events. Since June 30, 1999, and
except in connection with or as set forth in or permitted by this Agreement
and the Exhibits hereto, there has not been, with respect to WIDEBAND:
Any change in the business, operations, method of management or account, or
financial condition or the manner of conducting the business of WIDEBAND other
than changes in the ordinary course of business, none of which has had a
material adverse effect on such business, operations or financial condition,
taken as a whole;
Any damage, destruction or loss (whether or not covered by insurance)
materially and adversely affecting the assets, business, operations or
condition of WIDEBAND;
Any declaration, setting aside or payment of any dividend or other
distribution in respect of the shares of WIDEBAND of any class, or any direct
or indirect redemption, purchase or other acquisition of any shares of any
class of WIDEBAND by WIDEBAND;
Any material increase in the direct or indirect compensation or other benefits
payable or to become payable by WIDEBAND to any of its officers, directors,
employees or agents over the respective rates and amounts set forth in the
WIDEBAND Financial Statements;
Any sale, lease, abandonment or other disposition by WIDEBAND of any real
property otherwise than in the ordinary course of business, or any sale,
assignment, transfer, license or other disposition of WIDEBAND of any tangible
or intangible asset;
Any material obligation or liability, absolute or contingent, paid or incurred
except current liabilities in the ordinary course of business and costs
incurred in connection with this transaction;
Any material obligation or liability, absolute or contingent, paid except
current liabilities reflected in or shown on the most recent balance sheet
included in the WIDEBAND Financial Statements, and current liabilities
incurred since that date in the ordinary course of business or in connection
with this transaction; or
Any sale or transfer, or any agreement arrangement or option for the sale or
transfer, of any of its assets, property or rights having an aggregate value
of $10,000 or more (other than in the ordinary course of business).
Notwithstanding the foregoing, any or all of the foregoing changes or events
shall be permitted upon the written consent of VISV by Action or its Board of
Directors, evidenced by the delivery by VISV to WIDEBAND of a certified copy
of resolutions of such Board specifying the change or even consented to by
VISV.
6.19. Books and Records. From the date of this Plan to the Closing,
WIDEBAND will (1) give to VISV full access during normal business hours to all
of its offices, books, records, contracts and other corporate documents and
properties so that VISV may inspect and audit them; and (2) furnish such
information concerning the properties and affairs of WIDEBAND as VISV may
reasonably request.
Article 7
Covenants of WIDEBAND Prior to Effective Date of Merger
Between the date hereof and the Effective Date of the Merger:
7.01. Stockholders' Meeting. The Board of Directors of WIDEBAND will
submit this Agreement to its stockholders for their approval, and will
recommend such approval, at a meeting thereof to be duly called and held at
the earliest practicable date as may be agreed upon in writing by VISV and
WIDEBAND.
7.02. Access. WIDEBAND will afford to the officers and other
authorized representatives of VISV, access to the plants, properties, books
and records of WIDEBAND and will furnish VISV with such additional financial
and operating data and other information as to the business and properties of
WIDEBAND, as may be necessary for VISV to evaluate thoroughly, prior to the
Effective Date of the Merger, the business, assets, operations and financial
condition of WIDEBAND, as VISV may from time to time reasonably request. If,
for any reason, the merger contemplated by the agreement is not consummated,
VISV will use its best efforts to cause all confidential information obtained
by it from WIDEBAND to be treated as such, will also use its best efforts not
to use such information in a manner detrimental to WIDEBAND and will promptly
return to WIDEBAND all documents, papers, books, records and other materials
(and all copies thereof) obtained from WIDEBAND in the course of its
investigation and evaluation of WIDEBAND.
7.03. Representations. WIDEBAND will take all action necessary to
render accurate, as of the Effective Date of the Merger, WIDEBAND's
representations and warranties contained herein, and it will refrain from
taking any action that would render any such representation or warranty
inaccurate as of such time. WIDEBAND will use its best efforts to perform or
cause to be satisfied each covenant or condition to be performed or satisfied
by it.
7.04. Preservation of Business. WIDEBAND will carry on its business
in substantially the same manner as it has heretofore and shall perform in all
material respects all of its obligations under material contracts, leases and
documents relating to or affecting its assets, property and business and will
use its best efforts to preserve intact its business organization and its good
will with its suppliers, customers and other having business relations with
it.
7.05. Approvals. WIDEBAND will use its best efforts to obtain all
licenses or other approvals required to be obtained by it from any appropriate
governmental or regulatory body or other person in connection with the
carrying out of the transactions contemplated by this Agreement and the
continued operation of its business after the merger.
7.06. Notice of Breach. WIDEBAND will immediately give notice to
VISV of the occurrence of any event or the failure of any event to occur that
results in a breach of any of WIDEBAND's representations or warranties or a
failure by WIDEBAND to comply with any covenant, condition or agreement
contained herein.
7.07. Negotiations with Third Parties. WIDEBAND will not, without
the prior approval of VISV, initiate or encourage discussions or negotiations
with third parties relating to or otherwise approve (or approve without prior
discussions with VISV any unsolicited offer regarding) any merger, sale, or
other disposition of any substantial part of WIDEBAND's assets or stock.
7.08. Information To Be Supplied. WIDEBAND will furnish VISV with
all information concerning WIDEBAND, its officers, directors and shareholders
that is reasonably required for inclusion in the proxy statement or
information statement materials to be used by VISV to obtain the approval of
WIDEBAND's and VISV's shareholders to this Plan and Agreement (the "Proxy
Materials").
7.09. Proxy or Information Statement. As of the date of mailing of
the Proxy or Information Statement and as of the date of WIDEBAND's
Stockholders Meeting referred to in Article 7.01, the information provided and
to be provided by WIDEBAND to VISV for use in the Proxy Materials and in any
other proxy material to be used by WIDEBAND or VISV in connection with the
merger will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
ARTICLE 8
Covenants of VISV Prior to the Effective Date of Merger
Between the date hereof and the Effective Date of the Merger:
8.01. Stockholders' Meeting. While it is anticipated that a majority
of the Shareholders of VISV will approve this Agreement by consent, the Board
of Directors of VISV will nonetheless submit this Agreement to its
stockholders for their approval and will conduct a Shareholders Meeting in
Salt Lake City, Utah, to be duly called and held at the earliest practicable
date as may be agreed upon in writing by VISV and WIDEBAND. At that meeting,
the Board of Directors of VISV will also nominate the persons listed in
Exhibit 2.02 to be elected to the Board of Directors of VISV and will
recommend their election to the VISV shareholders.
8.02. Access. VISV will afford to the officers and other authorized
representatives of WIDEBAND, access to the plants, properties, books and
records of VISV and will furnish WIDEBAND with such additional financial and
operating data and other information as to the business and properties of
VISV, as may be necessary for WIDEBAND to evaluate thoroughly, prior to the
Effective Date of the Merger, the business, assets, operations and financial
condition of VISV, as WIDEBAND may from time to time reasonably request. If,
for any reason, the merger contemplated by the Agreement is not consummated,
WIDEBAND will use its best efforts to cause all confidential information
obtained by it from VISV to be treated as such, will also use its best efforts
not to use such information in a manner detrimental to VISV and will promptly
return to VISV all documents, papers, books, records and other materials (and
all copies thereof) obtained from VISV in the course of its investigation and
evaluation of VISV.
8.03. Representations. VISV will take all action necessary to render
accurate, as of the Effective Date of the Merger, VISV's representations and
warranties contained herein, and it will refrain from taking any action that
would render any such representation or warranty inaccurate as of such time.
VISV will use its best efforts to perform or cause to be satisfied each
covenant or condition to be performed or satisfied by it.
8.04. Preservation of Business. VISV will carry on its business in
substantially the same manner of it has heretofore and shall perform in all
material respects all of its obligations under material contracts, leases and
documents relating to or affecting its assets, property and business and will
use its best efforts to preserve intact its business organization and its good
will with its suppliers, customers and other having business relations with
it. In this regard and while it cannot predict the market fluctuations of its
existing securities, it is anticipated that VISV 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, some of which are "unpriced," meaning that
there is not an active, trading market for such particular securities, and no
unpaid liabilities other than the legal, accounting and travel costs 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 or otherwise dispose of any security in VISV's ▇▇▇▇▇▇, ▇▇▇▇▇ & Geduld
brokerage account, VISV agrees to consult with WIDEBAND and/or ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇ prior to selling or disposing of the same.
8.05. Approvals. VISV will use its best efforts to obtain all
licenses or other approvals required to be obtained by it from any appropriate
governmental or regulatory body or other person in connection with the
carrying out of the transactions contemplated by this Agreement.
8.06. Public Announcements. VISV will not, without the prior consent
of WIDEBAND (or, in the case of an announcement required by applicable
securities law, without prior consultation with WIDEBAND) make any
announcement to the public concerning the transactions contemplated by this
Agreement. In this regard, WIDEBAND has already agreed that VISV may file an
8-K Current Report with the Commission 15 days after August 9, 1999, attaching
copies of the Memorandum of Intent and Press Release of same date.
8.07. Notice of Breach. VISV will immediately give notice to WIDEBAND
of the occurrence of any event or the failure of any event to occur that
results in a breach of any representation or warranty by VISV or a failure by
VISV to comply with any covenant, condition or agreement contained herein.
8.08. Negotiations with Third Parties. VISV will not, without the
prior approval of WIDEBAND, initiate or encourage discussions or negotiations
with third parties relating to or otherwise approve (or approve without prior
discussions with WIDEBAND any unsolicited offer regarding) any merger, sale,
or other disposition of any substantial part of VISV's assets or stock.
8.09. Required Information. VISV will furnish WIDEBAND with all
information concerning VISV that is reasonably required for inclusion in the
proxy or other disclosure materials used by WIDEBAND to obtain approval of
this Plan and Agreement from its Shareholders.
8.10. Proxy or Information Statement. As of the date of the mailing
of the Proxy Materials and as of the date of the VISV stockholders meeting to
be held pursuant to Article 8.01, the information provided and to provided by
VISV to WIDEBAND for use in VISV's Information Statement and in any other
proxy soliciting material to be used by WIDEBAND or VISV in connection with
the merger, will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made
therein in light of the circumstances under which they were made, not
misleading.
ARTICLE 9
Conditions to Obligations of VISV and WIDEBAND
The obligations of VISV and WIDEBAND to effect the merger hereunder are,
at their respective elections, subject to the satisfaction or waiver of the
following condition:
9.01. Stockholder Approval. On or before the Closing, VISV's and
WIDEBAND's stockholders shall have approved this Agreement.
ARTICLE 10
Further Conditions to Obligations of VISV
The obligation of VISV to effect the merger hereunder is, at is option,
subject to the satisfaction or waiver of the following further conditions:
10.01. Representation Letter. All of the representations and
warranties of WIDEBAND contained in this Agreement shall be true as of the
Effective Date of the Merger as though such representations and warranties
were then made in exactly the same language, and WIDEBAND shall have performed
all obligations and complied with all covenants required by this Agreement to
be performed or complied with by it prior to the Effective Date of the Merger.
At the Closing, VISV shall have received a certificate, dated the Closing,
executed by the President and by the Secretary of WIDEBAND, certifying in such
detail as VISV may reasonably request as to the accuracy of such
representations and warranties and the fulfillment of such obligations and
compliance with such covenants as of the Closing.
10.02. Investment and Acknowledgment Letters. Prior to his or her
receipt of the certificate for shares of VISV common stock to be issued to him
or her, each shareholder of WIDEBAND shall have executed and delivered to VISV
an investment letter in the form attached hereto as Exhibit 10.02 wherein each
such shareholder acknowledges that the shares of VISV Common Stock to be
issued to, and received by, him or her after the Effective Date of the Merger
are being issued pursuant to an exemption from registration under the
Securities Act of 1933, as amended, and applicable state securities laws and
may therefore not be subsequently sold or transferred unless and until that
shareholder registers the same or such proposed sale or transfer is exempt
from registration. Each WIDEBAND shareholder shall also represent and
acknowledge in such investment letter that the shares of VISV acquired
pursuant to this Agreement are acquired for investment purposes only and
without a view to the further distribution thereof and that a standard
restrictive legend to such effect shall be imprinted on the VISV stock
certificate he or she receives. As set forth in Exhibit 10.02, each WIDEBAND
shareholder shall further acknowledge and list that which he or she has relied
upon in deciding whether to accept the terms of this proposed Merger and each
shall additionally warrant and represent, inter alia, that he or she has had
the opportunity to consult with counsel about this transaction and otherwise
had the opportunity to ask VISV's accountants and VISV management any
questions about the transaction that he or she might have had. See again
Exhibit 10.02.
10.03. Litigation. No action shall have been instituted by any
governmental agency challenging the legality of the merger or seeking to
prevent or delay consummation of the transactions contemplated by this
Agreement which shall have resulted in preliminary or permanent injunctive
relief prohibiting consummation of the merger.
10.04. Opinion of Counsel to WIDEBAND. VISV shall receive an opinion
dated the Closing Date of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., counsel to WIDEBAND,
satisfactory to VISV, to the effect that:
WIDEBAND is a corporation validly existing and in good standing under the
laws of the State of Missouri and has all the requisite corporate power to
own, lease and operate its assets and carry on its business as now being
conducted in any jurisdiction in which it is now conducting business;
The execution and delivery by WIDEBAND of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in the breach of any provision of WIDEBAND's Articles of Incorporation
or By-Laws or constitute default or give rise to right of termination,
cancellation or acceleration under any of the terms, conditions or provisions
of any known mortgage, indenture, license agreement or obligation or violate
any court order, writ, injunction or decree applicable to WIDEBAND or any of
its properties or assets of which such counsel has knowledge after making
inquiry of the principal executive officers with respect thereto;
Based solely on a review of the Articles of Incorporation, By-Laws,
corporate minutes and stock record books of WIDEBAND, (i) the authorized
capital stock of WIDEBAND is as set forth in Article 6.01, and the shares of
WIDEBAND stock referred to in Article 6.01 constitute all of the issued and
outstanding shares of capital stock of WIDEBAND; (ii) the outstanding shares
of WIDEBAND capital stock are validly issued, fully paid and non-assessable
and are not subject to any pre-emptive rights of any shareholder of WIDEBAND;
and (iii) except as set forth in Exhibit 6.02, there are no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments known to such counsel obligating WIDEBAND to issue
or transfer from treasury any additional shares of its capital stock of any
class;
This Agreement has been duly and validly authorized, executed and
delivered and constitutes the legal and binding obligation of WIDEBAND except
as limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally;
Such counsel does not know of any suit, action, arbitration, or legal,
administrative or other proceeding or governmental investigation pending or
threatened against or affecting WIDEBAND or its business or properties or
financial or other condition; and
WIDEBAND's issuance of its securities to its existing shareholders is not
in violation of any state or federal securities laws and that appropriate
exemptions from registration were available for all offers and sales of
existing WIDEBAND securities.
10.05. Receipt of Release or Waiver from International Academy of
Science (IAS). VISV shall have received a release or waiver, in a form to be
agreed upon by counsel, whereby IAS, an entity which shares office space with
WIDEBAND in Blue Springs, Missouri, shall forever relinquish any claim of any
right, title or interest in or to the technology, patents and other properties
of WIDEBAND, directly or indirectly. Such document shall be attached hereto
as Exhibit 10.05.
10.06. Receipt of Non-Disclosure, Non-Compete Agreements. VISV shall
have received agreements signed by the principal employees of WIDEBAND,
including all officers and directors other than ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in
which such persons agree not to divulge any trade secrets or technology of
WIDEBAND and in which they further agree, for a reasonable period of time, not
to be employed by or for a WIDEBAND competitor. The purpose of this
requirement is to ensure the integrity, and otherwise safeguard the assets of,
and technology licensed to, WIDEBAND, particularly when, as a result of this
Agreement, WIDEBAND shall be a publicly held entity.
ARTICLE 11
Further Conditions to Obligations of WIDEBAND
The obligation of WIDEBAND to effect the merger hereunder is, at its
option, subject to the satisfaction or waiver of the following further
conditions:
11.01. Representation Letter. All of the representations and
warranties of VISV contained in this Agreement shall be true as of the
Effective Date of the Merger as though such representations and warranties
were then made in exactly the same language, and VISV shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by it prior to the Effective Date of the Merger.
At the Closing, WIDEBAND shall have received a certificate, dated the Closing,
executed by the President and the Secretary or Vice-President of VISV,
certifying as to the accuracy of such representations and warranties and the
fulfillment of such obligations and compliance with such covenants as of the
Closing.
11.02. Litigation. No action shall have been instituted by any
governmental agency challenging the legality of the merger or seeking to
prevent or delay consummation of the transactions contemplated by this
Agreement which shall have resulted in preliminary or permanent injunctive
relief prohibiting consummation of the merger.
11.03. Opinion of Counsel to VISV. WIDEBAND shall receive an opinion
dated the Closing Date of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel to VISV, in form
satisfactory to WIDEBAND, to the effect that:
VISV is a corporation validly existing and in good standing under the
laws of the State of Nevada and has all the requisite corporate power to own,
lease and operate its assets and carry on its business as now being conducted
in any jurisdiction in which it is now conducting business;
The shares of VISV Common Stock to be issued to the shareholders of
WIDEBAND are duly authorized and will be, upon the effectiveness of the
merger, legally issued, fully paid and non-assessable;
The execution and delivery by VISV of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in
the breach of any provision of VISV's Articles of Incorporation or By-Laws or
constitute default or give rise to right of termination, cancellation or
acceleration under any of the terms, conditions or provisions of any known
mortgage, indenture, license agreement or obligation or violate any court
order, writ, injunction or decree applicable to VISV or any of its properties
or assets of which such counsel has knowledge after making inquiry of the
principal executive officers with respect thereto;
Based solely on a review of the Articles of Incorporation, By-Laws,
corporate minutes and stock record books of VISV, (i) the authorized capital
stock of VISV is as set forth in Article 5.02, and the shares of VISV Common
Stock referred to in Article 5.02 constitute all of the issued and outstanding
shares of capital stock of VISV; (ii) the outstanding shares of VISV Common
Stock are validly issued, fully paid and non-assessable and are not subject to
any pre-emptive rights, warrants, convertible securities, or other agreement
or commitments known to such counsel obligating VISV to issue or transfer from
treasury any additional shares of its capital stock of any class;
This Agreement has been duly and validly authorized, executed and
delivered and constitutes the legal and binding obligation of VISV except as
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally;
Such counsel does not know of any suit, action, arbitration, or legal,
administrative or other proceeding or governmental investigation pending or
threatened against or affecting VISV or its business or properties or
financial or other condition; and
The issuance of the VISV shares to be issued to the Shareholders of
WIDEBAND as provided for herein shall be exempt from state and federal
securities registration. In this regard, WIDEBAND agrees to cooperate and
assist counsel in submitting and receiving back the necessary purchaser
suitability questionnaires and other offeree materials necessary to establish
that VISV shall have an exemption from state and federal registration for the
issuance of the shares subject of this Agreement. In the event that Rule
506 of Regulation D of the General Rules and Regulations of the Commission is
not an available exemption for VISV's issuance of its shares to the
Shareholders of WIDEBAND upon Closing, WIDEBAND agrees to further cooperate in
providing counsel with the necessary factual and other information concerning
WIDEBAND's shareholders and their relationship to it, its principals and each
other as necessary to enable counsel to issue a closing opinion that the
issuance of the VISV shares to the Shareholders of WIDEBAND, as provided for
in this Plan and Agreement, is a "transaction not involving any public
offering" under Section 4(2) of the Securities Act of 1933 ("the '33 Act") and
the Blue Sky Laws of the various states in which certain WIDEBAND Shareholders
reside.
ARTICLE 12
Termination: Abandonment of Merger
12.01. Termination. This Agreement may be terminated and the merger
abandoned at any time prior to the Effective Date of the Merger, whether
before or after submission to or approval by the stockholders of VISV: (a) by
mutual agreement of the Boards of Directors of VISV and WIDEBAND; or (b) by
the Board of Directors of either WIDEBAND or VISV if the Closing shall not
have taken place on or prior to October 31, 1999, other than by reason of
default by the terminating party.
12.02. Liability. In the event of termination of this agreement, and
abandonment of the merger by either VISV or WIDEBAND as provided in this
Agreement, this Agreement shall forthwith become wholly void and of no effect
and (except for liability of a party where default by such party has
occasioned the termination of this Agreement and abandonment of the merger by
the non-defaulting party) there shall be no liability on the part of either
VISV or WIDEBAND or their respective officers, directors or stockholders
(except as set forth in the last sentence of Articles 7.02 and 8.02).
ARTICLE 13
Miscellaneous
13.01. Notices. Any notice, request, instruction or other document
to be given under this Agreement after the date hereof by any party hereto to
any other shall be in writing and shall be delivered personally or sent by
registered or certified mail, postage prepaid, if to VISV, addressed to it at:
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., and if to WIDEBAND, addressed to it at ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇,
with a copy or copies to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., 124 South ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
13.02. Waivers. Each party may, by written instrument, extend the
time for the performance of any of the obligations or other acts of any party
hereto, and (a) waive any inaccuracies of such other party in the
representations and warranties contained herein or in any document delivered
pursuant to this Agreement, (b) waive compliance with any of the covenants of
such other party contained in this Agreement, (c) waive such other party's
performance of any of the obligations set out in this Agreement and (d) waive
any condition to its obligation to effect the merger. Any agreement on the
part of any party hereto for any such extension or waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if it is authorized
and executed as to VISV, by its President, and as to WIDEBAND, by its
President.
13.03. Amendments. This Agreement may be amended at any time prior
to the Effective Date of the Merger, whether before or after the meeting of
stockholders of VISV, by a written instrument executed by VISV and WIDEBAND
with the approval of their respective Boards of Directors, provided that no
amendment shall change the exchange ratios set forth in Articles 3.01 without
the approval of the stockholders of both WIDEBAND and VISV.
13.04. Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri and Nevada
and any conflict in such laws shall be resolved according to conflicts of law
principles. Time shall be of the essence of this Agreement.
13.05. Parties. This Agreement shall inure to the benefit of and be
binding upon VISV and WIDEBAND and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties to
this Agreement and their respective successors, and any person who controls
VISV or WIDEBAND within the meaning of Section 15 of the Securities Act of
1933, and the heirs and legal representatives of each of them, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained in this Agreement. This Agreement and all conditions and
provisions of this Agreement are intended to be for the sole and exclusive
benefit of the parties to this Agreement and their respective successors,
heirs and legal representatives and such controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation.
13.06. Complete Agreement Severability. This Agreement contains
the entire understanding between the parties and supersedes any and all prior
agreements between the parties. If any provision of this Agreement is found
to be void by any court of competent jurisdiction, the remaining provisions
shall remain in full force and effect.
13.07. Multiple Copies. This Agreement may be executed in multiple
copies, each of which shall constitute an original, but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, VISV and WIDEBAND have caused this Agreement and
Plan of Merger to be executed as of the date first above written.
VIS VIVA CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
WIDEBAND CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President