As filed with the Securities and Exchange Commission on September 17, 1999
Registration No. 333-80421
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CAVION TECHNOLOGIES, INC.
(Name of Small Business Issuer in its Charter)
Colorado 514191 84-1472763
(State or other (Primary North American (I.R.S. Employer
jurisdiction Industry Classification Identification No.)
of incorporation) System Number)
7475 Dakin Street, Suite 607
Denver, Colorado 80221
(303) 657-8212
(Address and Telephone Number of Principal Executive Offices
and Principal Place of Business)
DAVID J. SELINA
President and Chief Executive Officer
Cavion Technologies, Inc.
7475 Dakin Street, Suite 607
Denver, Colorado 80221
(303) 657-8212
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
----------------
Copies to:
S. LEE TERRY, JR., ESQ. JOHN G. HERBERT, ESQ.
CYNTHIA R. CAIN, ESQ. John G. Herbert P.C.
Gorsuch Kirgis LLP 1675 Larimer Street, Suite 310
Tower I, Suite 1000 Denver, Colorado 80202
1515 Arapahoe Street (303) 534-0522
Denver, Colorado 80202
(303)376-5000
----------------
Approximate date of commencement of proposed sale to the public: as
soon as practicable after this registration statement becomes effective.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount
Title of Each Class Amount to Offering Aggregate of
of Securities to be be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
---------- --------- ----------- ------------
<S> <C> <C> <C> <C>
Class A common stock,
$.0001 par value
per share (2) 1,380,000 $6.75 $9,315,000 $2,589.57
Representative's
Warrants(3) 120,000 $0.0008 $100 $0.03
Common stock issuable
upon exercise of
Representative's
Warrant(4) 120,000 $8.10 $972,000 $270.22
Total -- -- $10,287,000 $2,859.82
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee.
(2) Includes 180,000 shares of common stock which the underwriters have
the option to purchase to cover over- allotments, if any.
(3) Representative's warrants to be sold to the representative.
(4) Underlying shares of common stock issuable upon exercise of
representative's warrants. This registration statement also covers
the number of additional warrants which may become issuable upon
exercise of the representative's option by reason of anti-dilution
provisions according to Rule 416.
Subject to completion, dated September 17, 1999
PROSPECTUS
1,200,000 Shares
[Logo - cavion.com secure connectivity
from a single-minded
company]
Common Stock
- -------------------------------------------------------------------------
We are offering 1,200,000 shares. No public market currently exists for
our common stock.
Anticipated Price Range is $6.00 to $7.50 per share.
INVESTING IN SHARES OF OUR STOCK INVOLVES RISKS.
RISK FACTORS BEGIN ON PAGE 5.
<TABLE>
<CAPTION>
Per Share Total
----------- --------
<S> <C> <C>
Public Offering Price $ $
Underwriting Discount $ $
Proceeds to cavion.com $ $
</TABLE>
We have granted the underwriters a 45-day option to purchase up to 180,000
additional shares of common stock on the same terms and conditions to
cover over-allotments, if any.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
CALIFORNIA RESIDENTS. INVESTORS IN THIS OFFERING RESIDING IN THE STATE OF
CALIFORNIA MUST HAVE A MINIMUM ANNUAL GROSS INCOME OF $65,000 AND A
MINIMUM NET WORTH OF $250,000, EXCLUSIVE OF AUTOMOBILES, HOME AND HOME
FURNISHINGS; OR A MINIMUM NET WORTH OF $500,000, EXCLUSIVE OF AUTOMOBILES,
HOME AND HOME FURNISHINGS.
These securities are being offered on a "firm commitment" basis by
Neidiger, Tucker, Bruner, Inc., as representative of the underwriters.
Neidiger, Tucker, Bruner, Inc. expects to deliver the shares against
payment on or about , 1999.
- -------------------------------------------------------------------------
Neidiger, Tucker, Bruner, Inc.
, 1999
The information in this prospectus is not complete and may change. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
[INSIDE COVER OF PROSPECTUS]
Picture of Public Service Credit Union Website page
PUBLIC SERVICE CREDIT UNION HOMEPAGE
[Back] [Forward] [Home] [Stop]
Location: http://www.pscu.org/
Welcome to your Credit Union.
Options to select:
o Credit Union Information with picture
o Kids Safari Club with picture
o Home Banking with picture
o Lifetime Rewards with picture
Providing Directions for your Financial Future.
Instant Loan Approval Logo for Public Service Credit Union
PUBLIC SERVICE [running down the left side of the page]
Prospectus Summary
cavion.com
CAVION.COM offers products and services for business to business
communications, secure Internet financial products, such as on-line
banking and bill paying services, and secure Internet access and services
for our customers. We are also building and managing a secure private
communications network exclusively for the credit union industry. Our
network acts as communications platform for the delivery of services and
information to and from credit unions and related businesses.
Our principal executive offices are located at 7475 Dakin Street,
Suite 607, Denver, Colorado 80221. Our telephone number is 303-657-8212.
The offering
------------
Common stock offered by cavion.com 1,200,000 shares
Common stock outstanding
after this offering 4,606,326 shares
Use of proceeds of approximately
$6.6 million or $7.7 million,
expected to be used as follows: o to purchase equipment
and infrastructure
o to establish new points
of presence
o for sales and marketing
activities
o for general working
capital
o to pay debts and
accounts payable
o to repay the August 1999
promissory notes
o possibly to purchase our
outstanding shares of Class B
common stock
Proposed Nasdaq Small Cap Market Symbol CAVN
The calculation of common stock to be outstanding after this offering
is based on shares outstanding as of the date of this prospectus and
includes the automatic conversion of 700,000 shares of our Series A
preferred stock upon the closing of this offering. It excludes
approximately 1.11 million shares of Class A common stock that may be
issued as a result of stock option grants and exercises, conversion of the
Class B common stock, exercise of warrants in our August 1999 private
placement of notes and warrants, exercise of the underwriter's over-
allotment option and exercise of the representative's warrant.
Summary financial information
-----------------------------
The following tables contain our summary financial data. In addition
to this summary financial data, you should refer to the more complete
financial information included elsewhere in this prospectus.
<TABLE>
<CAPTION>
cavion.com
Period from Combined
LanXtra August 18,1998 Year Ended
Year Ended (Inception) to Pro Forma December 31,
December 31, December 31, Adjustments 1998
1998 1998 (unaudited) (unaudited)
------------ -------------- ----------- ------------
<S> <C> <C> <C> <C>
STATEMENT OF
- ------------
OPERATIONS DATA:
- ---------------
Revenue $ 215,022 $ -- $ -- $ 215,022
Cost of Revenue 222,419 -- -- 222,419
Operating Expenses 1,117,892 6,877 914,146 2,038,915
----------- -------- --------- -----------
Operating Loss (1,125,289) (6,877) (914,146) (2,046,312)
Interest expense,
and other 845,213 29,067 (584,480) 289,800
----------- -------- --------- -----------
Loss from
continuing
operations $(1,970,502) $(35,944) $(329,666) $(2,336,112)
=========== ======== ========= ===========
Basic and diluted
net loss from
continuing
operations per
share $ (.77)
==========
Weighted average
common shares
outstanding -
basic and
diluted 3,029,218
===========
</TABLE>
<TABLE>
<CAPTION>
Pro Forma
cavion.com Combined
Six Six
LanXtra Months Months
One Month Ended Ended
Ended June 30, Pro Forma June 30,
January 31, 1999 Adjustments 1999
1999 (unaudited) (unaudited) (unaudited)
------------ -------------- ----------- ------------
<S> <C> <C> <C> <C>
STATEMENT OF
- ------------
OPERATIONS DATA
- ---------------:
Revenue $ 37,850 $ 205,333 $ -- $ 243,183
Cost of Revenue 31,898 133,617 -- 165,515
Operating Expenses 213,311 1,619,677 79,388 1,912,376
--------- ---------- -------- ----------
Operating Loss (207,359) (1,547,961) (79,388) (1,834,708)
Interest expense,
and other 64,069 252,586 (52,932) 263,723
--------- ---------- -------- ----------
Net Loss $(271,428) $(1,800,547) $(26,456) $(2,098,431)
======== ========== ======= ==========
Basic and diluted
net loss per
share $ (.75)
==========
Weighted average
common shares
outstanding -
basic and
diluted 2,788,574
==========
</TABLE>
The following table is a summary of our balance sheet data. The pro forma
column reflects our receipt of the estimated net proceeds of the shares of
common stock we are selling in this offering at an assumed initial public
offering price of $6.75 per share, after deducting underwriting discounts
and commissions and estimated expenses of the offering. The pro forma as
adjusted column reflects the required repayment upon the successful
completion of this offering of our line of credit, notes payable to former
LanXtra shareholders, back pay to former employees and equipment
purchases.
<TABLE>
<CAPTION>
Pro Forma
cavion.com Pro Forma As Adjusted
June 30, Pro Forma June 30, June 30,
1999 Adjustments 1999 1999
(unaudited)(unaudited) (unaudited) (unaudited)
---------------------- ----------- -----------
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
- -------------------
Current Assets $ 926,262 $6,630,000 $ 7,556,262 $ 6,416,262
Total Assets $5,793,826 $6,630,000 $12,423,826 $11,283,826
========== ========== =========== ===========
Current Liabilities $1,952,344 $ -- $ 1,952,344 $ 812,344
Long-term
Borrowings 456,240 -- 456,240 456,240
Putable Stock 184,697 -- 184,697 184,697
Stockholders'
Equity 3,200,545 6,630,000 9,830,545 9,830,545
---------- ---------- ----------- -----------
Total Liabilities
and Stockholders'
Equity $5,793,826 $6,630,000 $12,423,826 $11,283,826
========== ========== =========== ===========
</TABLE>
Risk Factors
Because we have a short operating history, you will have limited
historical information about us on which to base your investment decision
- -------------------------------------------------------------------------
Our business plan was developed in January 1998 and we began
acquiring credit union customers, other than our original pilot customers,
in April 1998. Accordingly, we have a limited operating history upon
which you may evaluate us. We face the risks and uncertainties faced by
early-stage companies. Our short operating history makes it difficult to
predict our future financial results.
We have incurred losses
- -----------------------
As of the date of this prospectus, we have not been a profitable
business. We may never achieve profitable operations. Even if we do
become profitable, we may not be able to continue to be profitable.
Combined with LanXtra, we reported a total loss of $2,006,446 for the year
ended December 31, 1998, comprised of a $35,944 net loss for cavion.com
and a net loss of $1,970,502 for LanXtra. We reported additional combined
losses of $2,071,975 for the six months ended June 30, 1999. We expect to
continue to report losses through most of the year 2000. Today, we
receive our revenue from the license and sale of products and services to
our credit union customers. Our revenue has grown since the start of our
business but it may not continue to grow or even continue at its current
level. Because some of our expenses are fixed, including equipment and
real estate leases, if our revenue does not increase, we may not be able
to compensate by reducing our expenses as much or as quickly as we need to
do. It is possible that our operating losses will continue at present
levels or even increase in the future. Our business, our financial
condition and the results of our operations will be materially and
adversely affected if we can't quickly adjust our operating expense levels
to at least match our revenue levels.
The opinion of our independent public accountants with respect to our
audited financial statements expresses substantial doubt regarding our
ability to continue as a going concern and the effects, if any, on the
financial statements of the outcome of such uncertainty. We plan to seek
additional financing before the closing of this offering and additional
bank financing after the closing of this offering. If we are successful
in obtaining such financing, we hope that the proceeds of the offering,
along with improved cash flow and results of operations, will permit our
independent accounting firm to delete the going concern qualification from
its report on our 1999 year end audited financial statements. Because
there are a number of factors that go into an auditor's decision whether
to include a going concern paragraph, many of which are outside our
control, we are not sure that it will be deleted from the report on our
1999 financial statements.
We are counting on continued market acceptance of our products and
services
- ------------------------------------------------------------------
The market for Internet-based network financial services is new and
uncertain. As of the date of this prospectus, our products and services
have been sold to credit unions located in Colorado and twelve other
states. While we are now marketing our products and services across the
country, no one can be certain that they will sell as well in the new
markets as they have in Colorado. The market for Internet-based financial
services has only recently begun to develop, so market demand for our
products and services is uncertain. Important questions remain about the
use of the Internet for financial services, such as security, reliability,
ease of access, cost of access, quality of service and costs of service.
The answers to those questions may affect the growth of Internet use in
ways we can't predict today. As a result, we also can't accurately
predict the size of the market for Internet-based financial services or
the rate at which that market will grow. If it fails to grow or grows
more slowly than we expect, or if it becomes saturated with competitors,
our business, financial condition and operating results will be materially
and adversely affected. Our future success depends on our ability to
design, develop, test, sell and support improved versions of our current
products and new software products in time to respond to changing customer
needs. We will also need to respond to actions taken by our competitors,
to technological developments and to emerging industry standards.
The market for Internet-based financial services is competitive
- ---------------------------------------------------------------
The market for Internet-based financial services is very competitive
and can be affected by rapid technological changes. New competitors can
be expected to enter our market, the credit union network and Internet
service market, and increase competition. We already face competition
from a number of companies which offer software and networking products
and services to the credit union market. We think that, as the Internet
transaction and network services we sell are purchased by more of our
targeted customers, other competitors will enter the market to compete
aggressively with us, including some larger, established companies.
Competition may also increase if there is consolidation in the software
and networking industries, particularly if one or more of our competitors
is acquired by a larger provider of products and services to the banking
industry as a means for the larger company to penetrate the credit union
market. We expect the credit union software and network services market
to continue to attract new technologies and new competitors. It is
possible that some of these new competitors will be able to respond more
quickly to new technologies or changes in customer demands than we can.
They might also be able to invest more money, time or effort into the
development, promotion and sale of their products and services than we
can. You cannot be sure that we will be able to compete successfully
against present or future competitors.
We must expand our business to include more credit union customers
- ------------------------------------------------------------------
As of the date of this prospectus, substantially all our revenue has
been derived from network access and connectivity fees and installation
service fees from our credit union customers. We expect that reliance to
continue for at least the next 18 months, after which we expect our
affinity program to generate increasing revenue. Our revenue depends on
information-technology spending by credit unions and we can't be sure that
this type of spending will increase as we expect or even continue at
today's levels. We do expect the credit union industry to grow over the
next several years, partially because credit unions have recently been
allowed to expand their membership beyond a single employee group. We
think that, as the credit union industry grows, its demand for information
technology products will also grow. Still, the demand for our products
and services is unpredictable. Our network currently hosts 48 credit
unions, two credit union leagues, one of which provides check clearing
services to credit unions, and one corporate credit union, which provides
liquidity services to credit unions. Our future growth depends on our
ability to provide more services and different kinds of services to our
existing and new customers. We cannot be certain that we will be able to
do that. There are approximately 12,600 credit unions in the United
States with combined assets of more than $375 billion and approximately 73
million members. Our success in the near term will depend on our ability
to capture a significant percentage of the credit union services market
and to expand the services we provide to our existing credit union
customers. We cannot assure you we will be able to do so.
We are dependent on telecommunications service providers
- --------------------------------------------------------
In order to provide our Internet-based network products and services
to our customers, we must purchase a large quantity of telecommunications
services from providers of those services. Because of that, our financial
results depend greatly on the amount we pay for those services and our
efficiency in using them. In order to obtain the volume we need at a good
price, we may enter into exclusive or semi-exclusive contracts with one or
more telecommunications providers, which would then make us even more
dependent on that provider. Although the amounts we pay for
telecommunications services are passed through to our customers, if one or
more of our telecommunications providers are unable to provide the volume
or level of service required, our ability to carry out our business plan
will be impaired and our business, our financial condition and our results
of operations will be materially and adversely affected. In addition, we
get most of our revenue from recurring sales of our products and services.
This revenue cannot be earned until the telecommunications provider
installs a dedicated telecommunications circuit for our new credit union
customer. This installation can take from one to three months, or longer
in some cases, after we sign up a new customer.
As we grow, the risk of failure of our system increases until a backup
system is in place
- -----------------------------------------------------------------------
Our business depends on the efficient and uninterrupted operation of
our computer and communications hardware systems. Any system
interruptions that cause our services to be unavailable to our credit
union customers would greatly reduce the attractiveness of our services
and would materially damage our business, financial condition, and
operating results. Substantially all of our computer and communications
hardware is located at a single leased facility in Denver, Colorado, which
has finite backup protection. Our systems and operations are vulnerable
to damage or interruption from fire, flood, power loss, telecommunications
failure, break-ins, earthquake and similar events. We presently do not
have redundant, or backup, systems in separate geographic locations for
our network, nor do we have a formal disaster recovery plan. We do store
copies of critical data from our internal systems and customers' systems,
including the source code of our proprietary software, at a second
location. We carry business interruption insurance which will compensate
us for up to twelve months of actual losses of business income due to
physical loss of or damage to property at our principal facility in
Denver. This insurance is limited and may not compensate us for all of
our losses. The design of our network architecture includes some
redundancy and disaster recovery capabilities, but these capabilities will
not be available until we have installed and connected at least one other
network server farm with capacity similar to our Denver facility. We
can't predict today when that second installation will be completed.
The capacity limits of our network are difficult to predict
- -----------------------------------------------------------
As user traffic on our network increases, we will have to expand and
upgrade our technology, our systems and our network infrastructure. We
may not always accurately predict the rate or the timing of the traffic
increases or the customer demands. If we don't upgrade our network
hardware and software when it is necessary to do so, our business, our
financial condition and our operating results will be materially and
adversely affected.
Our success may be dependent on our ability to retain David Selina, Jeff
Marshall and other key personnel
- ---------------------------------------------------------------------
We believe that the credit union and related management experience of
David J. Selina, our president, chief executive officer and chief
operating officer, is important to our success. We also believe that the
software development ability of Jeff Marshall, vice president of Software
Development, is important to our success. While we recently lost the
services of our former chief executive officer, Craig Lassen, who resigned
in March of 1999 to pursue other interests, we believe that the current
management team is highly qualified to carry out our business expansion
plans. We recently entered into an agreement with Mr. Lassen under which
he will provide up to 360 hours of consulting services relating to our
business generally, including telecommunications matters. As of the date
of this prospectus, we have not utilized a significant amount of the hours
available to us. We have employment contracts with David Selina, Jeff
Marshall and another key executive, Marshall Aster, our chief financial
officer. We have purchased $1,000,000 of key man insurance on each of
David Selina and Jeff Marshall. We have relied on our direct sales force
for sales of our products and services. We will need to hire more people
in sales, customer service and other areas in 1999 and beyond if we grow
as we expect to do. Competition for qualified people in the Internet
services and software industry, particularly in the network services
field, is intense. We compete with bigger and better financed software
and Internet services companies for these employees. Our future success
may depend on whether we can attract, retain and motivate highly
qualified personnel. We can't assure you that we will be able to do so.
We may not be able to protect our intellectual property rights
- --------------------------------------------------------------
We believe that our proprietary secure communications network, which
we brought to market before most of our competitors, gives us a
significant competitive advantage in providing Internet-based network
products and services to the credit union market. We rely on copyrights,
trademarks, service marks, non-disclosure agreements, confidentiality
provisions, trade secret laws, and general technical and practical
security measures to protect our rights in our intellectual property. We
can't assure you that these protections will prevent other persons from
using, copying, damaging, or reverse-engineering our products without our
authorization. It is also possible that our competitors will
independently develop their own technologies that are similar to or even
better than ours. We don't have any patents or any patent applications
pending. We expect that trade secret laws will provide some protection
to our intellectual property, but these laws are much less effective in
preventing our competitors from developing their own "copy-cat" versions
of our products.
We could be liable if our electronic security measures should fail
- --------------------------------------------------------------
We represent to our credit union customers that our Internet-based
network and transactional banking software are secured and protected by
multiple network "firewalls", seven days a week, 24 hours a day, with
electronic monitoring and activity tracking, and industry-standard
software encryption. We believe that these features are an important
factor in convincing credit unions to buy our products and services, and
encouraging their members to use our Internet network systems for their
personal and sometimes sensitive financial transactions. Although we
believe our systems will prevent unauthorized access to credit union and
personal information, it is impossible to eliminate all risk of
unauthorized access. Despite all the measures we have taken, our products
may be vulnerable to physical or electronic break-ins, viruses, unknown
software defects and similar problems. If someone does circumvent our
security measures, that person could copy or review our trade secrets
and/or the private information of our credit union customers and their
members. Intruders, or "hackers", could also disrupt our systems and
cause interruptions to our operations. Breaches of our network could
cause us to lose customers, and could make us liable for substantial
damages to our credit union customers or their members.
Additional government regulation of the Internet could increase our cost
of doing business
- ------------------------------------------------------------------------
Any regulation of the Internet, under new legislation or under new
interpretations of existing laws, could materially and adversely affect
our business, our operating results and our financial condition. There
are an increasing number of laws and regulations pertaining to the
Internet. Legislation in these areas could impair the growth of the
Internet and decrease the acceptance of the Internet as a communications
and commercial medium. This could decrease the demand for our services or
increase our cost of doing business.
We face risks from potential telecommunications regulations. Several
telecommunications carriers are advocating that the Federal Communications
Commission regulate the Internet in the same manner as other
telecommunications services by imposing access fees on Internet service
providers. Any such regulations could substantially increase the costs of
communicating on the Internet. This, in turn, could slow the growth of
Internet use which would decrease the demand for our products and
services. Further, changes in government regulation of credit unions
could adversely affect our business.
We have only recently begun to use bilateral service contracts with our
customers
- ----------------------------------------------------------
Historically, we have not used bilateral service contracts with our
credit union customers, but have relied on our customers' written
acceptance of our written proposal. As a result, many of the terms of our
agreements with early customers are implied from generally accepted
business practices and customs rather than being spelled out in a formal
document. We are currently using a standard service contract with our
customers, including provisions limiting our liability to our customers
and their members. However, we can't be sure that these contractual
limitations of liability would actually protect us from liability for
damages.
The amount of insurance we carry may not sufficiently protect us
- --------------------------------------------------
We carry general liability insurance, errors and omissions insurance
and Internet security insurance policies. This insurance may not cover
all future claims. If a large claim is successfully asserted against us,
we might not be covered by insurance, or it might be covered but cause us
to pay much higher insurance premiums or a large deductible or co-payment.
Furthermore, regardless of the outcome, litigation involving customers,
credit union members, or even insurance companies disputing coverage could
divert management's attention and energies away from operations.
Our business depends on the ability of the Internet to support its growth
- -------------------------------------------------------------------------
As Internet usage grows, the Internet infrastructure may not be able
to support the demands placed on it by this growth, or its performance or
reliability may decline. In addition, websites may from time to time
experience interruptions in their service as a result of outages and other
delays occurring throughout the Internet network infrastructure. If these
outages or delays frequently occur in the future, Internet usage, as well
as usage of our services, could be adversely affected. Also, cavion.com
must obtain Internet protocol addresses from our Internet service
providers. These are the numbers used to uniquely identify each personal
computer and file server and the availability of these numbers may be
limited.
After this offering existing shareholders will hold a majority of our
stock, which will limit the ability of new investors to influence our
corporate affairs
- ---------------------------------------------------------------------
Upon completion of the offering, on a fully-diluted basis, our
directors, executive officers and holders of 5% or more of our outstanding
Class A common stock will beneficially own approximately 54.2% of the
outstanding Class A common stock. If some or all of these shareholders
act together, they might be able to elect our directors or even determine
the outcome of corporate actions requiring shareholder approval, no matter
how other shareholders vote. This concentration of ownership may have the
effect of delaying or preventing a change in control of cavion.com.
Year 2000 issues could adversely affect us
- ------------------------------------------
Many uncertainties exist within the computer hardware and software
and electronic networking industries about the changeover from the 1999 to
2000 calendar years. While we believe that our products and services
comply with Year 2000 requirements, there is still some risk that credit
unions will encounter difficulties with one or more of our products or
services because of Y2K issues. The National Credit Union Administration,
the national regulatory body for credit unions, required member credit
unions to put a plan in place to ensure their compliance with Y2K
requirements by July 1, 1999.
Third parties we deal with may not be Y2K compliant
- ---------------------------------------------------
There is still a risk, however, that Y2K issues will adversely affect
third-party network or application software that is integrated with our
products or even the functioning of the Internet itself. There are also
similar risks of failure from the telecommunications networks, the
electric power grid, and the other systems on which the operation of our
products and the delivery of our services depend. The disruption of these
broader services would have an adverse effect on our ability to provide
our products and services to our credit union customers, and could then
have a material adverse effect on our business, our financial condition
and our results of operations.
Shares that can be sold in the future by our current shareholders could
lower our stock price
- ------------------------------------------------------------------------
If our shareholders sell large amounts of our common stock in the
public market following the offering, then the market price of our common
stock could fall. Restrictions under the securities laws and lock-up
agreements limit the number of shares of common stock which can be sold in
the public market. Affiliates of cavion.com have agreed not to sell their
shares for a period of twelve months after this offering without the prior
written consent of Neidiger, Tucker, Bruner, Inc. In addition, all of the
other shareholders who own shares, including the holders of the 700,000
shares of Series A preferred stock that will automatically convert into
the same number of shares of common stock when this offering closes, have
agreed not to sell their shares for nine months after the effective date
of this offering. NTB may, in its sole discretion, release some or all of
the shares subject to the lock-up agreements before their scheduled
expiration. Such an early release could adversely affect the market price
of our common stock. NTB has no present intention to release any shares
early. We also plan to file a registration statement to register all
shares of common stock under our Equity Incentive Plan. After that
registration statement is effective, shares issued upon exercise of stock
options will be eligible for resale in the public market without
restriction. In addition, we have also agreed to register, as soon as
possible after this offering closes, the 700,000 shares of common stock
into which the preferred stock will have been automatically converted, but
the holders of those shares will still be subject to the nine month lock-
up agreement period.
As an Internet company, our common stock price is likely to be highly
volatile
- ---------------------------------------------------------------------
The market price of our common stock is likely to be highly volatile
since the stock market in general, and the market for Internet-related and
technology companies in particular, has been highly volatile. Investors
may not be able to resell their shares of our common stock following
periods of volatility because of the market's adverse reaction to such
volatility. The trading prices of many technology and Internet-related
companies' stocks have reached historical highs within the last 52 weeks
and have reflected relative valuations substantially above historical
levels. During the same period, such companies' stocks have also been
highly volatile and have recorded lows well below their historical highs.
We cannot assure you that our stock will trade at the same levels as other
Internet stocks or that Internet stocks in general will sustain their
current market prices.
Forward-Looking Statements
This prospectus contains forward-looking statements. We use words
such as "anticipate", "believe", "expect", "future", "may", "will",
"should", "plan", "projected", "intend" and similar expressions to
identify forward-looking statements. These statements are based on our
beliefs and the assumptions we made using information currently available
to us. Because these statements reflect our current views concerning
future events, these statements involve risks, uncertainties and
assumptions. Our actual results could differ materially from the results
discussed in the forward-looking statements. Some, but not all, of the
factors that may cause these differences include those discussed in the
risk factors in this prospectus. You should not place undue reliance on
these forward-looking statements, which apply only as of the date of this
prospectus.
Use of Proceeds
We estimate the net proceeds from the offering to be approximately
$6.6 million, or $7.7 million if the underwriters exercise their over-
allotment option in full, assuming an initial public offering price of
$6.75 per share and after deducting estimated underwriting discounts and
commissions and expenses of the offering.
We expect to use the net proceeds from the offering as follows:
<TABLE>
<CAPTION>
CATEGORY AMOUNT OF PERCENTAGE
NET
PROCEEDS
<C> <C> <C>
Purchase the equipment required for $1,500,000 22.6%
expansion of our telecommunications
and secure network infrastructure and
establish new points of presence,
physical locations housing a switch
that permits access by local credit
unions to our national network
Sales and marketing activities $2,100,000 31.7%
General working capital such as
salaries, rent, utilities, supplies,
office equipment, telecommunications
expenses $1,390,000 21.0%
Payment of liabilities assumed in $1,140,000 17.2%
connection with the purchase of
LanXtra's assets, including our
revolving line of credit, notes
payable to shareholders, back pay to
former employees and equipment
purchases.
Repayment of promissory notes issued $300,000 4.5%
in our August 1999 private offering
Possible purchase of our outstanding
shares of Class B common stock $ 200,000 3.0%
---------- ------
$6,630,000 100.0%
========== ======
</TABLE>
We raised $300,000 through a private offering of notes and warrants
to purchase common stock which ended on August 31, 1999. We plan to seek
additional financing prior to the closing of this offering as well as
additional bank financing after the closing of this offering. If we are
successful in obtaining such financing, we currently expect that our cash
needs will be satisfied for at least the next two years. If these funds
are not sufficient to satisfy our needs we might need to slow our
expansion and reduce our sales and marketing budget.
Except for the payment of the liabilities we assumed in connection
with the purchase of LanXtra's assets, we have complete discretion over
how to use a significant portion of the net proceeds of this offering. We
cannot assure investors that our use of the net proceeds will not
otherwise vary substantially due to unforeseen factors. Also, we cannot
state with certainty the particular uses for the additional net proceeds
should the over-allotment option be exercised.
Net proceeds not immediately required for the purposes described
above will be principally invested in United States government securities,
A-1 rated commercial paper with maturities of 30 days or less, short-term
certificates of deposit, money market funds or other short-term interest-
bearing investments with qualifying banks or institutions.
Dividends
We have never declared or paid any dividends on our common stock. We
do not intend to pay cash dividends on our common stock. Holders of
shares of Series A preferred stock are entitled to receive 5% per year
cumulative preferred dividends payable quarterly in cash or in shares of
Class A common stock at the discretion of our board of directors.
Dividends for the first quarter ended March 31, 1999 of $3,858 and the
second quarter ended June 30, 1999 of $24,597 were paid in cash. We have
not yet determined whether to pay the dividends which will be due for the
third quarter ended September 30, 1999 in cash or stock. All preferred
stock will be converted into common stock upon the closing of this
offering. Holders of the preferred stock will be entitled to receive
their dividends until the date of conversion. Should our board of
directors decide to pay dividends on the preferred stock in shares of
common stock, the number of shares of our common stock to be issued upon
the closing of this offering will increase accordingly. We plan to retain
our future earnings, if any, to finance our operations and the expansion
of our business. The decision whether to pay cash dividends on our common
stock will be made by our board of directors, in their discretion, and
will depend on our financial condition, operating results, capital
requirements and other factors that the board of directors considers
significant.
Capitalization
The following table sets forth our capitalization as of June 30,
1999. You should also refer to the more complete financial information
included elsewhere in this prospectus. Our capitalization is presented:
o on an unaudited actual basis
o on an unaudited pro forma basis to reflect:
o our receipt of the estimated net proceeds from the sale of
1,200,000 shares of common stock offered in the offering at
an assumed initial public offering price of $6.75 per
share, after deducting underwriting discounts and
commissions and estimated offering expenses,
o the automatic conversion of all outstanding shares of
preferred stock into common stock upon the closing of this
offering,
o our receipt of the August 1999 promissory notes payable
private offering proceeds and the estimated value of the
warrants for common stock issued in that offering, and
o the subsequent termination of the warrants for preferred
stock issued to the placement agent
o on an unaudited, pro forma as adjusted basis to reflect the
payment of debt that must be repaid from the proceeds of the
offering
<TABLE>
<CAPTION>
Pro Forma
Actual Pro Forma As Adjusted
(unaudited) (Unaudited) (unaudited)
----------- ----------- -----------
<S> <C> <C> <C>
Notes and capital leases payable $1,388,034 $ 1,654,897 $ 214,897
Putable Class B common stock,
$.0001 par value; 30,000 shares
authorized; 28,648 and 28,648
shares issued and outstanding
actual, pro forma and pro forma
as adjusted, respectively 184,697 184,697 184,697
Stockholders' equity
Series A convertible preferred
stock, $.0001 par value;
10,000,000 shares authorized;
700,000, 0 and 0 shares issued and
outstanding actual, pro forma
and pro forma, as adjusted,
respectively 1,682,800 -- --
Class A common stock, $.0001
par value; 19,970,000 shares
authorized; 2,706,326, 4,606,326
and 4,606,326 shares issued and
outstanding actual, pro forma and
pro forma as adjusted, respectively 271 461 461
Warrants for common stock -- 33,137 33,137
Warrants for preferred stock 165,200 165,200 165,200
Additional paid-in capital 3,188,765 11,501,375 11,501,375
Accumulated (deficit) (1,836,491) (1,836,491) (1,836,491
---------- ---------- ----------
Total stockholders' equity $3,200,545 $ 9,863,682 $ 9,863,682
========== =========== ===========
Total capitalization $4,773,276 $11,703,276 $10,263,276
========== =========== ===========
</TABLE>
We expect there to be 4,606,326 shares of common stock outstanding
after the offering which includes shares issuable upon the conversion of
all outstanding shares of preferred stock. In addition to the shares of
common stock to be outstanding after the offering, we may issue additional
shares of common stock under the following:
o 440,000 shares of common stock issuable upon exercise of options
outstanding under our Equity Incentive Plan
o An additional 310,000 shares available for issuance under our
Equity Incentive Plan.
o 28,648 shares of Class B common stock which are convertible into
the same number of shares of common stock.
o 30,000 shares of Class A common stock issuable on exercise of
warrants issued in our August 1999 private placement of notes
and warrants
o 180,000 shares of Class A common stock issuable upon exercise of
the underwriter's over-allotment option
o 120,000 shares of Class A common stock issuable upon exercise of
the representative's warrant.
Options available for issuance under the 1999 Equity Incentive Plan
may be granted with exercise prices as low as 50% of market value of the
common stock on the grant date. If we grant options below fair market
value it would be dilutive to investors who purchase shares at the initial
public offering price.
Dilution
As of June 30, 1999, our net tangible book value (deficit) on a pro
forma basis based upon an assumed public offering price of $6.75 per share
and giving effect to the assumed conversion of all of the outstanding
shares of preferred stock into shares of common stock upon the closing of
this offering was approximately ($1,170,165) or ($.34) per share of common
stock. "Net tangible book value (deficit)" per share represents the
amount of our total tangible assets reduced by the amount of our total
liabilities, divided by pro forma the number of shares of common stock
outstanding. As of June 30, 1999, our net tangible book value, on a pro
forma basis adjusted for the sale of 1,200,000 shares offered in the
offering and the application of the net proceeds from such sale of
approximately $6.6 million, based on an assumed initial public offering
price of $6.75 per share and after deducting the underwriting discounts
and commissions and other estimated offering expenses, would have been
approximately $1.19 per share. This represents an immediate increase of
$1.53 per share to existing shareholders and an immediate dilution of
$5.56 or 176% per share to you. The following tables do not include the
exercise of warrants or the stock issuable on exercise of the warrants
issued in connection with our August 1999 private placement of notes and
warrants. None of the warrants have been exercised as of the date of this
prospectus. The following table illustrates the per share dilution:
<TABLE>
<CAPTION>
<S> <C> <C>
Assumed initial public offering price per share $6.75
-----
Pro forma net tangible book value per share
as of June 30, 1999 $(0.34)
Increase per share attributable to you $1.53
-----
Net tangible book value per share after the offering $1.19
-----
Dilution per share to you $5.56
=====
</TABLE>
The following table summarizes on a pro forma basis as of the date of
this prospectus by the differences between the total consideration paid
and the average price per share paid by the existing shareholders,
including the shares of preferred stock convertible into common stock upon
the closing of this offering, and the new investors with respect to the
number of shares of common stock purchased from us on an assumed initial
offering price of $6.75 per share:
<TABLE>
<CAPTION>
Total
-----
Shares Purchased Consideration Average
----------------- ----------------- Price
Number Percent Amount Percent Per Share
-------- ------- ------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing Shareholders 3,406,326 74.0% $ 5,289,037 39.5% $1.55
New Investors 1,200,000 26.0% 8,100,000 60.5% $6.75
--------- ----- ---------- ---- -----
TOTAL 4,606,326 100.0% $13,389,037 100.0%
========= ===== ========== =====
</TABLE>
Selected Financial Information
We derived the selected historical and pro forma financial data
represented below from our historical and pro forma financial statements
and related notes included in other parts of this prospectus. The
unaudited balance sheet reflects our June 30, 1999 assets, liabilities and
stockholders' equity.
The statement of operations adjustments reflect:
o our actual expenses for 1998 and the six months ended June 30,
1999
o the pro forma amortization expense for goodwill in connection
with the acquisition
o adjustments to interest expense based on our new capital
structure
You should read the selected financial data along with the other
financial information contained in this prospectus and the section of this
prospectus entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations".
Following are the unaudited historical balance sheet at June 30,
1999, and the pro forma statement of operations for the year ended
December 31, 1998 and the unaudited six months ended June 30, 1999 for
LanXtra and cavion.com. For purposes of the statement of operations, the
transaction was assumed to be consummated on January 1, 1998. Pro forma
earnings per share are calculated as if the Purchase Agreement was
completed on January 1, 1998.
<TABLE>
<CAPTION>
Balance Sheet as of June 30, 1999
=================================
cavion.com
----------
(unaudited)
<S> <C>
Assets:
- -------
Current assets $926,262
Property & equipment, net 436,642
Goodwill and other 4,430,922
----------
Total Assets $5,793,826
==========
Liabilities:
- ------------
Current liabilities $1,952,344
Long-term borrowings 456,240
Putable stock 184,697
Stockholders' equity
Preferred stock 1,682,800
Common stock 271
Warrants 165,200
Additional paid-in capital 3,188,765
Accumulated deficit (1,836,491)
----------
Total liabilities and Stockholders' equity $5,793,826
==========
</TABLE>
<TABLE>
<CAPTION>
Statement of Operations for Year Ended December 31, 1998
========================================================
Pro Forma Pro Forma
Adjustments Company
LanXtra cavion.com (unaudited) (unaudited)
------------ ---------- ----------- -----------
<S> <C> <C> <C> <C>
Revenue $ 215,022 $ - $ - $ 215,022
Cost of revenue 222,419 - - 222,419
---------- --------- -------- ----------
Gross loss (7,397) - - (7,397)
---------- --------- -------- ----------
Total operating
expenses 1,117,892 6,877 914,146 2,038,915
---------- --------- -------- ----------
Loss from
operations (1,125,289) (6,877) (914,146) (2,046,312)
--------- --------- ------- ---------
Interest expense and (612,200)
other, net 845,213 29,067 27,720 289,800
--------- --------- ------- ---------
Loss from continuing
operations $(1,970,502) $ (35,944) $(329,666) $(2,336,112)
=========== ========== ========= ===========
Net loss per share $ (.77)
======+====
Weighted average
common shares
outstanding 3,029,218
=========
</TABLE>
Notes to Unaudited Combined Condensed Pro Forma Financial Statements
- --------------------------------------------------------------------
Pro Forma adjustments to the unaudited condensed pro forma statement of
operations for the year ended December 31, 1998 are as follows:
<TABLE>
<CAPTION>
Income Statement Item Amount Explanation
- --------------------- ------ -----------
<S> <C> <C>
Amortization of $(914,146) To record amortization expense for
goodwill and other the developed technologies, goodwill
intangible assets and other intangible assets.
Accretion of putable $(612,200) To eliminate the accretion expense
common stock for the terminated putable
common stock.
Accretion of putable $27,720 To record accretion of Cavion's
common stock Class B common stock put
options.
</TABLE>
<TABLE>
<CAPTION>
Statement of Operations for Six Months Ended June 30, 1999
=============================================================
Pro Forma
LanXtra cavion.com Combined
One Six Months Six
Month Ended Months
Ended June 30, Pro Forma Ended
January 31, 1999 Adjustments June 30,
1999 (unaudited) (unaudited) (unaudited)
----------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Revenue $ 37,850 $ 205,333 $ -- $ 243,183
Cost of revenue 31,898 133,617 -- 165,515
-------- --------- ------- ----------
Gross profit 5,952 71,716 -- 77,668
-------- --------- ------- ----------
Total operating
expenses 213,311 1,619,677 79,388 1,912,376
-------- --------- ------- ----------
Loss from operations (207,359) (1,547,961) (79,388) (1,834,708)
-------- --------- ------- ----------
Interest expense and
other, net 64,069 252,586 (52,932) 263,723
-------- ---------- ------- ----------
Net Loss $(271,428)$(1,800,547) $(26,456) $(2,098,431)
======== ========== ======= ==========
Net loss per share $ (.75)
==========
Weighted average
common shares
outstanding 2,788,574
=========
</TABLE>
Pro forma adjustments to the unaudited condensed pro forma statement of
operations for the six months ended June 30, 1999 are as follows:
<TABLE>
<CAPTION>
Income Statement Item Amount Explanation
- --------------------- ------ -----------
<S> <C> <C>
Amortization of goodwill $79,388 To record amortization for
goodwill for January, 1999
Interest expense: $(52,932) To eliminate the accretion
expense for the terminated putable
stock
</TABLE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
The following discussion of our financial condition and results of
operations should be read together with the financial statements and
related notes included in another part of this prospectus. Those
financial statements and notes should be considered to be incorporated
into this section. This discussion contains forward looking statements
that involve risk and uncertainties. Our actual results may differ
materially from those anticipated in these forward-looking statements as a
result of factors that include, but are not limited to, the risk factors
listed elsewhere in this prospectus.
We completed our acquisition of the assets of LanXtra on February 1,
1999 as described in the Asset Purchase Agreement. Prior to the
acquisition, we did not conduct any operations except financing activities
and other preparations for the acquisition. The following discussion
relates to LanXtra's historical results of operations since January 1,
1998 (the date on which LanXtra commenced the business we acquired), and
to our plan of operation following this offering.
Since January 1, 1998, we have been engaged in building a suite of
network products and services for the credit union industry that includes:
o a secure network that enables access to our credit union
customers' products and services via the Internet or an intranet
o secure Internet financial products, including Internet banking
software
o secure Internet access services for credit unions
o secure Internet automated loan application and approval
We are in the start-up phase of our operations and generated a net
loss of $2,006,446 for the year ended December 31, 1998, comprised of a
$35,944 net loss for Cavion and a net loss of $1,970,502 for LanXtra. We
expect to incur substantial monthly operating losses through most of the
year 2000.
Since January 1, 1998, our revenue has been derived from recurring
monthly connectivity fees, installation services and monthly recurring
revenue associated with our secure Internet access services and secure
Internet financial products. As of the date of this prospectus, 48 credit
unions, two credit union leagues, one of which provides check clearing
services to credit unions, and one corporate credit union, which provides
liquidity services to credit unions, have subscribed to our products and
services. The majority of these entities are located in Colorado, except
19 which are located in 12 other states.
As of the date of this prospectus, we have financed the development
of our products and services with:
o capital provided by the sale of LanXtra's unrelated business
o a bank loan
o loans from shareholders and employees of LanXtra
o two private placements of promissory notes and related warrants
o a private placement of preferred stock
Results of operations for the year ended December 31, 1998
- ----------------------------------------------------------
The following discussion relates to LanXtra's operations for the
fiscal year ended December 31, 1998. While LanXtra generated nominal
revenue and incurred general and administrative and research and
development costs prior to commencement of the 1998 fiscal year,
management believes that a comparison of the 1998 operations to those
operations conducted in fiscal year 1997 would provide little benefit
since our current business was launched in January 1998, with 1997
activity limited to general and corporate activities and research and
development activities, and LanXtra's prior business was sold.
During the fiscal year ended December 31, 1998, we generated $215,022
in revenue. This revenue was derived from a variety of Internet/intranet
activities, including secure Internet access for credit unions utilizing
dedicated lines, secure credit union network services, secure Internet
financial products such as Internet banking software, sales of related
equipment, and installation fees charged for these services. Cost of
sales during this period were $222,419, or 103% of revenue. These costs
include Internet access fees, telephone company charges for frame relay
lines, equipment purchased for resale, service personnel and occupancy
costs, hardware repair and maintenance expenses. Our margins will
significantly improve in the future as sales discounts for installations
diminish for our customers.
General and administrative expenses for the period were $869,293 or
404% of revenue. Of these expenses, $566,380 was attributable to salaries
and wages, 263% of gross revenue. Additionally, we incurred $248,599 in
research and development costs during this period, which represented a
percentage of programmers' and engineers' salaries applicable to the
amount of time they devoted to development activities. We anticipate that
our general and administrative expenses will increase as we hire
additional employees to handle the expected growth of our business.
In May 1998, LanXtra issued Class B common stock which the holders
can require cavion.com to repurchase at $7.00 per share during a 60-day
exercise period beginning on the date that is 30 days after the 100 Credit
Union Date. For financial accounting purposes, the cost of this "putable"
common stock from its issuance price to its redemption value is treated as
interest expense. During 1998, such interest expense totaled $612,200.
After the closing of this offering, we expect to offer the LanXtra
shareholders the option to redeem their Class B shares at $7.00 per share,
or to convert each Class B share into one share of our Class A common
stock.
Results of operations for the six months ended June 30, 1999 and
comparisons to six months ended June 30, 1998
- ---------------------------------------------------------------
The following discussion relates to our operations for the six months
ended June 30, 1999. In 1998, LanXtra operated the business since
acquired by us, and LanXtra's operations during the six months ended June
30, 1998 were substantially curtailed due to an ongoing liquidity
shortage.
During the period ended June 30, 1999, we recognized $205,333
($243,183 when combined with LanXtra) in revenue, as compared to $92,921
during the six months ended June 30, 1998. Our revenue was derived from a
variety of Internet/intranet activities, including secure Internet access
for credit unions utilizing dedicated lines, secure credit union network
services, secure Internet financial products such as Internet banking
software, sales of related equipment, and installation fees charged for
these services. The increase in revenue was primarily due to additional
credit union customers, and increases in our marketing activity made
possible by the funds provided by recent offerings of equity and issuances
of debt. Cost of sales during the six months ended June 30, 1999 was
$133,617 ($165,511 combined), or 65%, compared to $84,397, or 91%, for the
six months ended June 30, 1998. These costs include Internet access fees,
telephone company charges for frame relay lines, equipment purchased for
resale, service personnel and occupancy costs, hardware repair and
maintenance expenses. The increase is primarily due to the increase in
the number of customers, and the decrease as a percentage of sales is due
to economies of scale in delivering our services to an increasing
installed customer base.
General and administrative expenses for the six months ended June 30,
1999 were $1,063,079 ($1,244,828 combined) or 518% of revenue, compared to
$348,959 or 376% of revenue for the six months ended June 30, 1998. Of
these 1999 expenses, $452,195 was attributable to salaries and wages, 220%
of gross revenue. Additionally, we incurred $162,089 ($193,669 combined)
in research and development costs during the six months ended June 30,
1999, which represented a percentage of programmers' and engineers'
salaries applicable to the amount of time they devoted to development
activities. During the six months ended June 30, 1998, we incurred
$120,177 of research and development costs.
We anticipate that our general and administrative expenses will
continue to increase as we hire additional employees to handle the
expected growth of our business. As we expand our operations nationwide,
our depreciation expense will increase because we will be purchasing
additional equipment and infrastructure. After this offering is funded,
our revolving line of credit, notes payable to former shareholders of
LanXtra, back pay to former employees and equipment purchases will be paid
off and, because of that, interest expense will be reduced. As compared
to the six months ended June 30, 1998, where interest expense was
$433,573, our interest expense was $288,200, combined, for the six months
ended June 30, 1999. We were also required to pay dividends on our Series
A preferred stock, which totaled $28,455 for the six months ended June 30,
1999. These dividends were paid in cash. The board of directors has the
discretion to pay future dividends in either cash or stock.
We expect to invest at least an additional $300,000 in research and
development during 1999. We have just completed developing software for
an Internet-enabled automated loan application and approval system. We
are in the early stages of designing stored value or "smart card"
capabilities for our network. We expect in the near future to begin
development of two or more additional interfaces for credit union host
data processing systems not yet supported by our network as well as an
additional Internet bill pay vendor interface. We are continuously
evaluating possible enhancements to the security and functionality of our
existing products and services. In addition, we expect to incur
development costs in launching our affinity program, through which we plan
to offer products and services to credit union members via our credit
unions' websites. We expect our product development focus to evolve
continuously in the future based on guidance from our customers.
The transaction with LanXtra resulted in approximately $4,763,000 of
intangible assets, primarily technology, customer lists and goodwill.
These intangible assets will be amortized over five years. The purchase
price allocation is subject to adjustment based on the final determination
of the fair value of the assets and liabilities assumed, which could take
as long as one year from February 1, 1999. Because the business now
operated by cavion.com has never been profitable, and due to the other
risks and uncertainties discussed in this prospectus, it is reasonably
possible that an analysis of these long-lived assets in future periods
could result in a conclusion that they are impaired, and the amount of the
impairment could be substantial.
Liquidity and capital resources
- -------------------------------
As of the date of this prospectus, we have funded our cash
requirements primarily through the sale of equity, debt, cash flow from
operations and the proceeds from the sale of LanXtra's prior business. On
June 30, 1999, cavion.com had $458,881 in cash, current assets of
$926,262, and current liabilities of $1,952,344. We raised $300,000 in a
private offering of 14% notes and warrants to purchase common stock which
ended on August 31, 1999. The effective interest rate of the notes is 36%
because of the warrants and the expense of the offering. Each $50,000
note entitles the purchaser to a warrant to purchase 5,000 shares of
common stock. The notes are due on the earlier to occur of the closing of
this offering or one year from the date of note issuance. The warrants
are exercisable for a period of five years beginning on the earlier to
occur of the closing of this offering or one year from the date of their
issuance. The warrants are exercisable at the price per share of the
shares of common stock offered in this offering, or, if this offering does
not close within one year from the date of the issuance of the warrant, at
$6.00 per share.
We will receive payments under an agreement with MoneyLine America,
LLC to provide on-line mortgage lending services for our credit unions and
their members through our network. This agreement calls for minimum
annual payments to us of $300,000 in the first year, beginning in
September 1999, escalating to $1,000,000 in years six through ten,
provided we have at least 1,500 credit unions, or 12% of the U.S. credit
unions on our network by the end of year three. Fifty percent of MoneyLine
America is owned by Boutine Capital, LLC, a principal shareholder of
cavion.com.
We expect to incur substantial costs in connection with expanding our
telecommunications infrastructure, establishing a sales presence in key
strategic markets, and developing new products. We also expect to incur
increased marketing, costs and general and administrative expenses in
connection with the growth of our secure network for the credit union
industry. We plan to seek additional financing before the closing of this
offering as well as additional bank financing after the closing of this
offering. If we are successful in obtaining such financing, we expect our
cash needs will be satisfied for at least the next two years. We hope
that the proceeds of this offering, along with improved cash flow and
results from operations, will permit our independent accounting firm to
delete the going concern paragraph, which expresses substantial doubt
regarding our ability to continue as a going concern, from its report on
our 1999 year end audited financial statements. Because there are a
number of factors that go into an auditor's decision whether to include a
going concern paragraph, many of which are outside our control, we are not
sure that it will be deleted from the report of our 1999 financial
statements.
Our June 30, 1999 balance sheet shows approximately $2.6 million in
liabilities and approximately $3.2 million of stockholders' equity.
Approximately $1.2 million of our liabilities represent obligations to
shareholders, as described in the following section. As described in Use
of Proceeds, $1.1 million of our debt must be repaid upon the completion
of this offering.
SHAREHOLDER OBLIGATIONS. Prior to our acquisition of LanXtra's
assets, we agreed to provide bridge funding to LanXtra for its business
operations pending the raising of equity financing. In order to provide
the bridge funding, we raised $370,000 in 1998 through the issuance of 15%
secured notes due on October 19, 2000, along with warrants to purchase
2,400 shares of our Class A common stock for every $20,000 in
subscriptions at an exercise price of $.01 per share. The notes are
secured by substantially all of our assets, now owned or acquired after
October 19, 1998, including, cash, equipment, fixtures, general
intangibles, and all products and proceeds of the foregoing collateral,
accounts receivable, inventory, work in process and service contracts
receivables. The October 20, 1998 security agreement contains a covenant
which prevents us from incurring any other liens on our assets. We raised
an additional $100,000 through this offering in 1999. The warrants were
originally exercisable only after payment of the notes. However, we
subsequently agreed to permit early exercise, and all of the warrants had
been exercised for 56,400 shares, as of February 1999.
In connection with our acquisition of LanXtra's assets, we assumed
approximately $1.8 million in existing liabilities of LanXtra, not
including the bridge funding described in the preceding paragraph.
Approximately $1.1 million of these amounts will become payable 15 days
after the closing of this offering. These obligations are described
below. We expect to use a portion of the proceeds of this offering to pay
these obligations.
In August 1996, LanXtra had obtained a $600,000 line of credit from
US Bank, Denver, Colorado in connection with its previous business.
LanXtra shareholders British Far East Holdings, Ltd., William M.B. Berger
Living Trust, Martin Cooper, and Fairway Realty Associates, provided cash
collateral for the loan. In May 1998, this line of credit was extended to
January 31, 1999. At the February 1, 1999 closing of the Asset Purchase
Agreement between us and LanXtra, we effectively assumed the loan by
entering into a loan agreement with US Bank on the same terms as the loan
from US Bank to LanXtra, with a maturity date of December 31, 1999, using
the proceeds of our loan to pay off the US Bank loan to LanXtra. The
LanXtra shareholders who provided cash collateral for the US Bank loan
agreed, however, to keep their collateral in place until the completion of
this offering. All amounts available under this line of credit have been
utilized. Interest accrues on all outstanding balances at the rate of
1.5% over the reference rate, as established by US Bank, from time to
time. The reference rate closely tracks the prevailing prime rate.
On May 28, 1998, LanXtra borrowed $260,000 from three of its
shareholders and three of our employees - David J. Selina, Jeff Marshall
and Randal Burtis - for working capital purposes. This transaction is
more fully described in the section of this prospectus entitled "Certain
Relationships and Related Transactions." In the aggregate, we owe these
shareholders, directors and managers $260,000 in principal and $59,480 in
interest. However, an agreement has been reached to defer payment of
these amounts, without the accrual of further interest, until the
completion of this offering. We agreed to assume LanXtra's obligations
with respect to the put agreements by issuing to LanXtra at the closing of
the Asset Purchase Agreement 28,648 shares of our Class B common stock,
which are subject to economically equivalent put provisions. By its
terms, the put feature of our Class B common stock becomes exercisable 30
days after the date when we have 100 credit union industry customers on
our network, the 100 Credit Union Date. We had agreed with the former
LanXtra shareholders who have rights to the Class B stock that their put
rights will mature upon completion of this offering. To implement that
agreement, after completion of this offering we expect to offer these
shareholders the option to redeem their Class B shares at $7.00 per share,
or to convert each Class B share into one share of our Class A common
stock.
Between September 8 and October 15, 1997, Herman Axelrod, a former
president and director of LanXtra, and Mr. Lassen, also a former president
and director of LanXtra, made various factoring loans to LanXtra in the
amounts of $50,190 and $25,000, respectively. Such loans were secured by
an account receivable for computer network integration work LanXtra
performed for Questar Infocomm and bear interest at the rate of 3% of the
factoring loan amount for the first 30 days and 1% for each additional 10
days until the factoring loan is paid in full. Questar disputed LanXtra's
invoice and the dispute was settled in September of 1998 for a payment of
$61,780. This amount was paid against the factoring loans on September
21, 1998 as follows: $41,238 to Mr. Axelrod and $20,542 to Mr. Lassen.
Accordingly, as of February 1, 1999, LanXtra owed Mr. Axelrod $28,331 and
Mr. Lassen $13,441, and we assumed such obligations. Mr. Axelrod and Mr.
Lassen have agreed that the remaining balance of these loans will be
deferred until the completion of this offering and will not accrue
additional interest.
On July 1 and August 1, 1992, LanXtra executed promissory notes for
$25,000 in favor of Mr. Axelrod and Mr. Lassen, respectively, each bearing
interest at the rate of 2% over prime. The principal amounts of these
notes reflect $20,000 in cash loaned by each and $5,000 each of co-signer
liability on a $10,000 credit line at the Bank of Boulder that LanXtra
took out at its inception. The credit line was paid off in August 1996,
leaving an aggregate principal balance of $40,000 on the notes. We
assumed the obligation to pay Mr. Axelrod and Mr. Lassen the principal
balance of the notes together with interest as stated above. Mr. Axelrod
and Mr. Lassen have agreed that the remaining balance of these loans will
be deferred until the completion of this offering. Interest will continue
to be paid on a quarterly basis until the notes are paid in full.
We owe Convergent Communications $78,673 for equipment purchased in
connection with a customer network upgrade performed by LanXtra in
December 1997, while Convergent was completing the purchase of LanXtra's
network integration business. Convergent has agreed that payment of this
amount will be deferred until the completion of this offering.
As to all of the obligations described above that will be deferred
until the completion of this offering, there is no current understanding
between the parties as to any repayment obligations in the event we do not
complete the offering.
In addition to the obligations described above, upon the closing of
the Asset Purchase Agreement, we assumed any potential liability under a
lawsuit threatened against LanXtra by a dissenting shareholder. Although
we believe the claim in this lawsuit does not have a substantial basis in
fact, we cannot assure you that we will not be required to make a payment
to the dissenter. We have not reserved any funds to cover payment of this
liability or of the potential tax liability if such a payment is
necessary.
INFLATION. Although our operations are influenced by general
economic conditions, we do not believe that inflation had a material
effect on the results of our operations during the fiscal year ended
December 31, 1998, nor do we expect that inflation will have a material
effect on the results of our operations.
In April 1999 we completed a private placement of our Series A
preferred stock in which we raised net proceeds of approximately $1.8
million. These funds are being used primarily to fund expansion of our
credit union industry network to key markets across the United States. We
estimate the net proceeds from this offering to be approximately $6.6
million, or $7.7 million if the underwriters exercise their over allotment
option in full, and we expect to use these proceeds primarily for the same
purpose.
Trends
- ------
Management expects that we will continue to operate at a loss as
additional credit unions are solicited and enter into contracts with us.
We are optimistic about our ability to add to the number of credit unions
under contract. We cannot give you any assurance, however, that actual
operating results will be as we predict today.
We plan to continue to expand our network of credit union clients.
These expansion efforts are likely to cause us to incur significant
increases in expenses, both in absolute terms and as a percentage of
revenue, as we prepare for the future growth in our credit union customer
base we anticipate today. Expenses will increase because of the need to
increase staffing in all categories, acquire additional equipment, and
provide for additional telephone connections. We believe our operating
results may fluctuate significantly as a result of a variety of factors,
some of which are outside our control. Because of that, we cannot assure
you that we will achieve profitable operations even with a significant
increase in our credit union customer base.
Year 2000 disclosure
- --------------------
Many uncertainties exist within the computer hardware and software
and electronic networking industries about the changeover from the 1999 to
2000 calendar years. In 1998, we initiated a comprehensive program to
assess, plan and manage our Y2K compliance effort.
The risks posed to us by possible Y2K related problems could be
significant. Our operations rely on continuous Internet connectivity,
availability of power and communications systems, computer systems in use
by our credit union customers and their members and, in some cases,
computer systems in use by vendors to credit unions, as well as on our own
internal computer systems. Any extended damage to any of the foregoing
could have a material adverse effect on our business and operations. We
are confident in the operability of our products, services, and our own
internal systems after the year 2000 date change. However, we cannot
accurately predict the effect of the Y2K problem on our business due to
our interdependence with numerous other systems.
In assessing the Y2K compliance of our products, services and
systems, we have identified the following seven distinct areas of focus:
o Products and services: We completed testing of all products and
services by May 1, 1999 and to our knowledge, these systems are
Y2K compliant.
o Business computer systems: This category includes computer
systems and applications relating to operations such as
financial reporting, human resources, marketing and sales,
product engineering and design, phone systems, and purchasing.
We have completed testing of these systems and believe them to
be Y2K compliant.
o Suppliers: We rely on approximately 12 critical suppliers,
including computer hardware and software vendors and
telecommunications providers. We have contacted our critical
suppliers to determine whether plans are in place to achieve
timely Y2K compliance. As of the date of this prospectus, none
of our suppliers have informed us of any Y2K related problems
which are expected to have an adverse effect on our operations.
o Business affiliates: M&I Data Services, formerly Travelers
Express, provides our customers' members with bill payment data.
We have received documentation from M&I stating that they are
Y2K compliant.
o Product development test equipment: This category includes
equipment and systems for testing software and hardware. All of
our product development equipment has been tested and, to our
knowledge, is Y2K compliant.
o End-user computing: We use desktop and laptop computers
throughout our operations. These computers have been tested
and, to our knowledge, are Y2K compliant.
o Physical properties and infrastructure: We have assessed the
impact of Y2K on all building systems. Included in our
assessment were fire and security systems in our facilities. To
our knowledge, these systems are Y2K compliant.
We have completed our compliance efforts for existing systems. Newly
acquired facilities and equipment will require evaluation and possibly
remediation through the end of the year, and we anticipate a need to
support credit union testing and remediation efforts through the first
quarter of 2000 or beyond. We estimate these future expenditures to be
less than $50,000.
Our most likely worst case scenario with respect to the Y2K problem
is the failure of a supplier, including an energy supplier, to be Y2K
compliant so that its supply of needed products or services to one of our
facilities is interrupted. As a result, we could be unable to service our
customers for a period of time, which could then cause us to lose
customers, revenue and profits. While we are monitoring the preparedness
plans of our utility suppliers and other critical vendors, in many cases
we have little leverage or bargaining power to ensure their Y2K readiness.
We are establishing a Y2K contingency plan to evaluate business
disruption scenarios, coordinate responses to such scenarios, and identify
and implement preemptive strategies. We have established detailed
contingency plans for critical business processes. cavion.com's critical
business processes rely on Sun Microsystems, Cisco Systems and Motorola to
provide both Internet banking and ISP. Should any of these hardware
manufacturers experience an inability to supply product, this may have an
adverse effect on our business. Under normal situations cavion.com would
order hardware from Cisco Systems, Sun Microsystems and Motorola 30 days
or more after the credit union customer places their order for ISP or
Internet banking. As the turn of the century approaches, cavion.com will
order immediately on receipt of a customer order. This will ensure at
least 30 days of critical hardware and software in the supply line.
In addition, we have evaluated the impact of Y2K issues on our
customers. Based on our evaluations, we do not expect our current or
potential customers to reduce their capital expenditures budgets or to
defer the purchase of cavion.com products and services because of concern
about potential Y2K issues. The National Credit Union Association, which
insures the deposits of most credit unions in the United States, has
established detailed requirements with regard to Y2K compliance of its
member credit unions. NCUA requires its members to roll forward the
clocks on their critical systems past the year 2000 and to conduct real-
time dynamic testing prior to January 1, 2000. We are prepared to
participate in our clients' Y2K testing upon request.
We have tested all critical third party elements used in delivering
our products and services and are satisfied they are Y2K compliant. We
are, of course, reliant on infrastructure-level suppliers such as utility
companies and telecommunications carriers. We have not been able to test
the Y2K readiness of these entities nor do we have a contingency plan in
the event of a catastrophic failure of the power and/or telecommunication
infrastructure.
Our Business
cavion.com offers products and services for business to business
communications, secure Internet financial products such as on-line banking
and bill paying services, and secure Internet access and services for our
customers. We are also building and managing a secure private
communications network exclusively for the credit union industry. Our
network acts as a communication platform for the delivery of services and
information to and from credit unions and related businesses. Our products
and services utilize our proprietary software. As of the date of this
prospectus, 48 credit unions, two credit union leagues, one of which
provides check clearing services to credit unions, and one corporate
credit union, which provides liquidity services to credit unions, have
subscribed to our products and services. Through our affinity program, we
plan to offer additional services to credit union members via our credit
unions' websites, including long distance telephone services, new vehicle
transactions, retail ISP services, consumer products and insurance
products, among others. We market our products and services to credit
unions and related entities, such as credit union leagues, that are
located in key geographic areas across the United States which have been
selected due to their high concentration of credit unions. We intend to
focus our marketing efforts on credit unions with $5 million or more in
assets, and geographic markets with an average concentration of more than
300 credit unions.
Products and services
---------------------
We provide numerous products and services to the credit union
industry, such as:
o A secure private network that enables individual credit unions
to offer their services to their members via the Internet or an
intranet. This network also facilitates business to business
communication.
o Secure Internet financial products, such as transactional
banking services, that enable credit union members to view their
account and loan balances and to make transfers between
accounts, as well as bill paying services which allow credit
union members to pay their bills on line.
o Secure Internet access for credit unions, with multiple layers
of security features and dedicated connections designed to
satisfy credit unions' need for confidential communications and
secure transactional processing with one connection.
o Secure consumer loan application and approval product.
Our products are priced in a way that permits our credit union
customers to offer Internet banking services to their members at a flat
monthly rate.
Overview
--------
The credit union industry. A credit union is a non-profit,
cooperative financial institution, owned and controlled by the members who
use its services. Credit unions are either state or federally chartered.
The Credit Union Membership Access Act of 1998 allows credit unions to
solicit new members outside the once restricted field of membership, and
allows credit unions to offer generally the same products and services as
other financial institutions such as banks and savings and loan
institutions.
In the United States:
o there are approximately 12,600 credit unions with combined
assets of over $375 billion
o these 12,600 credit unions service approximately 73 million
members
o approximately 6,100 of these credit unions have assets of over
$5 million
o these larger credit unions service approximately 70 million
members and have combined assets of approximately $366 billion
The Internet phenomenon. The widespread adoption in recent years of
public and private electronic communications networks, including the
Internet, intranets and extranets, has impacted the manner in which
organizations communicate and conduct business. These advanced networks
provide an attractive medium for communications and commerce because of
their widespread reach, accessibility, use of open standards and ability
to permit interactions on a real-time basis. At the same time, they offer
businesses a user-friendly, low-cost way to conduct a wide variety of
commercial functions electronically. In March, 1999 Nielsen/NetRatings
estimated that the number of online computer users in the United States by
the end of March 1999 to have exceeded 95 million or nearly 40% of the
U.S. population.
In recent years, the development of the Internet, intranets and
extranets has enabled users of personal computers to access and interact
with a broad range of information sources. Financial institutions rapidly
are adopting network communications to conduct electronic banking and
provide customers with access to their account information. According to
International Data Corporation estimates of February, 1999, U.S. banks
will spend $326 million on Internet banking technology in 1999 alone, more
than double the amount spent in 1998, to accommodate the expected sharp
increases in online banking.
The Internet and credit unions. We believe financial institution
customers increasingly will demand more convenient and more interactive
access to financial information and services. Competitive pressures are
driving banks and credit unions to increase the quality and cost-
effectiveness of such services. New opportunities exist to employ
available and emerging technologies to automate and enhance a credit
union's interactions with its members.
Traditionally, credit unions have used trained service
representatives to serve as the link between their customers and the
information systems that stored and processed the customers' account
information. Reliance on people alone to perform service functions is
expensive and limits growth. Labor costs tend to grow proportionately
with increased demands for service. In addition, the time required to
hire and train service personnel limits the speed with which credit unions
can respond to customer demand or new competitive service offerings. Our
solution is to provide credit unions with network-based technologies that
enable their members to serve themselves through automated, interactive
access to financial information and services.
As technologies continue to advance for network-based solutions,
financial institutions will be able to deploy increasingly sophisticated
network applications. Given its relatively late arrival, online banking
is just now beginning to build momentum. A study conducted by Gomez
Advisors found that as of the first quarter of 1999, nearly 40% of the top
100 banks in the United States are offering online services. Online
Banking Report of January, 1998 estimates that by the end of 2000, 17.5
million households will be using online banking and/or a bill payment
application.
Our strategy
------------
Our goal is to become the largest Internet/intranet provider to
credit unions. We plan to achieve that goal by implementing the following
strategies:
Focus on providing a secure industry network. As the use of the
Internet grows for the delivery of timely and confidential financial
information, security issues become critical. With technological
advances, there is an increased opportunity for electronic intruders, or
"hackers", to conduct successful attacks. The increased interconnectivity
of information networks has given hackers more opportunities to invade
many companies' information systems. We believe the trend of breaches in
security will continue.
Credit unions require a secure network environment for systems that
handle their members' financial data. We believe credit unions prefer the
reliability and security a private network can offer. Our network uses
dedicated phone lines to our credit union customers, limiting access to
the network and maintaining constant control of the information being
transmitted.
When the credit union provides its members with Internet access to
account information and financial services, the concern with security
becomes more acute. The Internet side of our network uses multiple
security safeguards - firewalls, data encryption, digital certificates and
the JAVA(R) programming language.
Firewalls act as the gate keeper between the Internet and the private
network. They are designed to allow external access to networks only from
authorized sources, and can also block data packets from specified
addresses from entering or exiting the network. Our network uses industry
standard firewall products.
Our network also uses public key encryption whenever data is
exchanged with the Internet for Internet banking and bill pay services or
for our share draft repository system. In public key encryption,
cryptographic software is used to generate an electronic "private key" and
a mathematically related "public key". The software encrypts the data
using the public key, in a way that allows the data to be recovered only
by someone with the proper private key. This technique provides a "session
key" for each user session, assuring that the information came from a
specific source and was not altered in transit. In this way, personal
information can be sent across public networks without compromising its
confidentiality.
We use digital certificates provided by an independent certificate
authority on all of our secured web servers - internet banking, secure
forms server, and share draft repository server. Digital certificates
verify the identity of the web server being used and that the owner of
that server is authorized to allow encryption. Digital certificates are
also used to create a unique session key for each connection.
As an added layer of security for the user, we use the JAVA(R)
programming language to control Internet banking and bill pay sessions.
The JAVA(R) programs, called "applets", used in these sessions run within
the user's Internet browser, and are not allowed to access the user's hard
drive without specific authorization. Because the programmer of the applet
can't read or write to memory locations in the user's computer, this
technology minimizes the opportunity to introduce destructive coding, such
as a virus, to the user's computer.
Continued development of feature-rich applications. Our products
have been designed using "thin client architecture" which includes
complete Internet capability as well as our proprietary messaging features
and industry standard security features. With thin client architecture,
the applications being run are not permanently stored on the user's
computer. Instead, the applications reside on our server. The user logs
on to our server, and can then access and run the applications remotely to
process data. After the on-line connection is terminated, the
applications are erased from the user's computer memory. This enables us
to maintain control over our proprietary software since we do not provide
permanent copies to our users, and enables us to make upgrades of our
software immediately and efficiently available without having to
physically distribute individual copies. Thin client architecture also
minimizes our credit union customers' need to constantly upgrade their
hardware in order to keep up with the technology required to store and
maintain our application software. This results in cost savings to our
credit unions and minimizes the burdens associated with administering
hardware and software upgrades. Because our network uses the JAVA(R)
programming language, which is platform independent, it allows many kinds
of systems to talk to each other and share applications. Our
transactional banking products also provide scalability, distributive and
centralized implementation, and access using Web-enabled cellular devices.
Development of new products and services. Concurrently with
expanding our Internet/intranet network, we plan to expand our product
offerings for credit unions. We recently began offering our bill paying
and automated virtual loan applications services.
We believe credit unions connected to the Internet will want to
provide their membership access to a variety of products and services to
increase membership retention and build customer loyalty. To meet this
need, we are establishing a co-branded affinity program through which we
will be a reseller of various products and services provided by third
party vendors to credit union members. Our network model allows the
addition of these products as they become available.
Our first affinity agreement was executed on August 18, 1999 with
MoneyLine America, LLC to provide on-line mortgage lending services for
our credit unions and their members through our network. MoneyLine is
the exclusive cavion.com-approved on-line mortgage lender. The agreement
calls for minimum annual payments to us of $300,000 in the first year,
beginning in September 1999, and escalating to $1,000,000 in years six
through ten, provided that we have at least 1,500 credit unions, or 12% of
U.S. credit unions, on our network by the end of the third year. In
addition, we entered into a non-binding letter of intent with Cardinal
Services Corporation, a credit union owned website design firm. Upon
execution of a final agreement, Cardinal Services will be able to purchase
and license for resale our Internet transactional banking, bill pay, and
kiosk enabling software at a discount which they will then offer to their
credit union customers. We will refer our credit union clients and
prospects to Cardinal Services for website design and Cardinal Services
will refer its credit union clients and future prospects to us for
connectivity and secure Internet products and services.
Other products and services we plan to offer through our affinity
program include, for example, the following:
o long-distance telephone service
o new vehicle transactions
o retail ISP
o consumer products
o insurance products
o real estate transactions
o travel/rent-a-car services
o local services, such as concert and movie tickets
Each of our credit union customers will decide which products and
services to make available to their respective members. Our credit union
customers will be provided opportunities to co-brand and endorse these
offerings to their members. We can customize a variety of options for
each credit union and interactively link the credit union's website to
cavion.com's affinity sponsors and affinity websites.
Plan of operations
------------------
We target expansion of our network to do business with over 2,400
credit unions across the United States. Through this expansion our goal
is to:
o provide access to Internet/intranet services to credit unions
serving 28 million members, with combined assets of over $146
billion
o offer affinity products to our credit union customers to
generate increased revenue
o develop new products based on proprietary intellectual property
To manage new customers connected to our credit union network, we
plan to establish a number of points of presence in key strategic
locations in the United States. A POP is a physical location housing a
switch that permits access by local credit unions to the industry network.
We expect to establish both manned and unmanned POPs. Each manned POP
will be located in a key strategic market with an average concentration of
more than 300 credit unions. Manned POPs will be opened upon the hiring
of sales agents to service the territory.
When our network of POPs is completed, we expect to have excess
server capacity available at multiple POPs so that network traffic can be
rerouted between POPs when circumstances require. We plan for all POPs to
be connected with all other POPs, either by point-to-point connection, by
private frame relay circuit, or by "virtual private network" technology
now available from third party vendors. This architecture is designed for
redundancy and disaster recovery, allowing us, with the cooperation of our
telecommunications provider, to pick up traffic temporarily from a
nonfunctional POP.
Our manned POP in Denver and our unmanned POP in Colorado Springs,
Colorado are completed and fully operational. We have hired sales
personnel for 12 of our sales territories and recruiting efforts are
underway to the rest of our planned additional sales territories.
Market
------
We believe that the increased usage of the Internet and the
increasing demand for networking products and services will provide an
excellent opportunity for us to grow our business. Credit unions that
move rapidly to implement a full-featured, well-conceived network have an
opportunity to enhance the value of their individual client relationships.
Nationally, approximately 12,600 credit unions serve approximately 73
million customers. We have targeted the approximately 6,100 credit unions
with more than $5 million in assets each for our marketing efforts.
Marketing strategy
------------------
Our sales team uses a face-to-face sales strategy that emphasizes:
o the features and functions of the network, such as online bill
paying, connectivity to credit union vendors, Internet access
and transactional banking
o the fact that the network is host independent
o a bandwidth pricing model not directly driven by transaction
volume
We charge the credit unions connected to our network a fixed monthly
rate based on the amount of bandwidth they anticipate using. As
transactions over the network increase and as the number of members
accessing a credit union's website increases, the credit union will need
to increase the amount of bandwidth it uses. Each incremental increase in
bandwidth involves a price increase. As of the date of this prospectus,
only one of our credit union customers has increased its bandwidth
requirement, but we anticipate other customers will do so in the future.
We intend to place a direct sales force in each of our 19 planned
sales territories and to hire individuals who are familiar with the credit
union industry, are known by the credit unions in the sales territory and
have established relationships within the industry. Sales agents will
initially contact the primary decision makers, usually the president, at
the credit unions in their territories. The sales agent's job will be to
sell the idea of a secure, private network with Internet access,
emphasizing the features offered by our network, including the security
features as well as, the ability of the credit union to reduce personnel
and administrative costs even while providing 24 hour service to its
membership.
We have implemented an automated system to measure each credit
union's usage of the network. By monitoring each credit union's connect
usage, sales agents can advise existing customers of their need to
increase bandwidth. We also have established an informal
marketing/endorsement arrangement with a credit union league in Colorado
which has provided significant marketing advantages. We plan to target
credit union associations and leagues in other markets, such as North
Carolina, where serving a league is likely to enhance our profile with
credit unions in the region. The North Carolina Credit Union League
signed with us in March 1999 to provide secure ISP services to their
management and employees.
Competition
-----------
We operate in a highly competitive environment against a number of
network application developers and providers of online banking services.
Additionally, there is continuous market pressure among market
participants to offer new and innovative products and services. Moreover,
in this field, technological and new product development proceeds rapidly
and market share can be gained and lost in very short time periods.
A number of public and private companies compete with one or more of
the individual products and services offered by cavion.com. These
competitors include Digital Insight, Symitar Systems, Inc., Database
Management Services, Virtual Financial Services, Inc., CFI and Fiserv,
Inc. Any of these companies, as well as other potential competitors,
could in the future offer a combination of products and services to credit
unions similar to the combination offered by us. Presently, we believe
all these companies have greater financial, personnel and operational
resources than we have.
Customers/rate of growth
------------------------
We launched our credit union strategy in January 1998. In our first
three months of operations, we connected seven credit unions to the
network. We believe that we were the first Internet service provider in
the country to provide credit unions with secure transactional banking and
Internet service. By the end of August 1998, we were delivering secure
Internet access to 13 credit unions, including our first credit union
outside of Colorado, and one credit union league. As of the date of this
prospectus, our network includes 48 credit unions, two credit union
leagues and one corporate credit union. Nineteen of these customers are
located in states other than Colorado.
Intellectual property and proprietary rights
--------------------------------------------
We have applied for federal registration of the trademark and service
mark "Cavion" and have registered the service mark "CUiNET". We also
claim a service mark in the name "cavion.com," although we have not yet
applied for a federal registration of that name.
We hold no United States or foreign patents covering our technology
and we have no pending patent applications. We have copyrights in
software and marketing materials used or related to our business, although
we have not registered any of our copyrights. While we expect to evaluate
the feasibility of making patent filings, registering our copyrights and
registering additional trademarks and service marks in the future, no
assurance can be given that any of our intellectual property will be
entitled to patent, copyright or trademark protection. We treat much of
our technology as trade secrets and take what we consider to be
appropriate measures to maintain the secrecy of our technology. Our
strategy in protecting our trade secrets includes limiting access only to
key employees who have a need to know our trade secrets in order to
perform their services, and who have signed confidentiality and
nondisclosure agreements. We further prevent unauthorized access to or
disclosure of our trade secrets by way of technical blocks built into our
technology. Despite our efforts to protect our proprietary software, in
which we claim both copyrights and trade secret protection, third parties
may still attempt to copy or use it, and others may attempt to develop
similar technology independently. There can be no assurance that the
measures we take to protect our intellectual property rights, or the
formal applications and registrations we may undertake in the future, will
completely deter unauthorized use, copying, or destruction of our
proprietary technology, or that we will have adequate legal redress in
such cases.
We currently use security technology under license from third
parties. We believe that our products and services, including our
trademarks and other intellectual property rights, do not infringe on the
proprietary rights of third parties. It is possible, however, that third
parties will assert infringement claims against us in the future with
respect to products or services we currently offer or may offer in the
future, or with respect to technology we utilize under license from
others. Any litigation resulting from assertions of infringement, even if
the claims are false, could be time consuming and expensive to defend.
Given the limited number of our key employees, any litigation could
materially disrupt our on going efforts to develop and expand our business
and technology.
Property
--------
Our corporate headquarters are located at 7475 Dakin Street, Suite
607, Denver, Colorado 80221 in an office facility where we lease
approximately 4,600 square feet under a lease that expires on December 31,
1999. We have entered into a letter of intent to lease a 14,400 square
foot facility in Denver and plan to relocate our corporate headquarters
there in January 2000. We maintain a point of presence for the network in
an office facility in Colorado Springs, Colorado which we lease on a month-
to-month basis. We plan to establish sales and engineering offices,
manned POPs and unmanned POPs in leased facilities across the United
States. As of the date of this prospectus, we have leased seven such
facilities. We have entered into a lease for office space in Raleigh,
North Carolina consisting of 879 square feet expiring February 28, 2002; a
lease in Bloomington, Minnesota for office space consisting of 1,098
square feet expiring March 14, 2002; a lease in San Diego, California for
1,162 square feet of office space expiring February 28, 2002; a lease in
Sacramento, California for 1,459 square feet expiring 2004, a lease in
Newark, Delaware for 1,047 square feet, expiring May 1, 2004; a lease in
Portland, Oregon for 982 square feet of office space expiring July 31,
2003; and a lease in Livonia, Michigan for office space consisting of
3,387 square feet, expiring July 31, 2004. We are currently considering
leasing facilities in Bradenton, Florida, Chicago, Illinois, St. Louis,
Missouri, Dallas, Texas and Memphis, Tennessee.
We maintain our computer system in our Denver, Colorado
facility. We currently maintain an insurance policy covering this
equipment for full replacement value.
Employees
---------
We currently employ 33 full-time employees, including 6 in
development, 6 in engineering, 16 in sales, and 5 in general and
administrative, three of whom are in accounting. None of our employees
are represented by a labor union, and we have never experienced a work
stoppage. We consider our relationships with our employees to be good.
Government regulations
----------------------
We are not required to obtain a Federal Communications Commission
license as a telecommunications carrier, but may be required to comply
with FCC regulations applicable to non-dominant telecommunications
carriers, including payment of "universal service" fees on end user
revenues not derived from Internet access services.
While we are not subject to the Glass-Steagall Act of 1933, the Bank
Holding Company Act of 1956, the Competitive Equality Banking Act of 1987,
the Federal Credit Union Act of 1934, nor are we regulated by the National
Credit Union Administration or the Federal Reserve Board, we are concerned
with regulations governing financial institutions, especially credit
unions, and how those regulations will affect the market and our ability
to provide services as presently planned.
A credit union is a cooperative financial institution, owned and
controlled by the members who use its services. Credit unions are non-
profit organizations that are state or federally chartered. Credit unions
are regulated closely by the NCUA.
On August 7, 1998, the Credit Union Membership Access Act of 1998 was
signed into law. Title I of the Act permits federally chartered credit
unions to solicit credit union members from more than one occupational
group so long as each group has fewer than 3,000 members. The Act also
allows credit unions to make business loans to its members as long as the
total amount of such loans does not exceed 1.75 times the credit union's
actual net worth. This limitation does not apply to credit unions
chartered primarily to make business loans, to serve low-income members,
or as community development financial institutions. Full implementation
of the Act requires issuance of regulations by the NCUA. The Act will
potentially increase the activity of federal credit unions in the
financial marketplace as it presents new opportunities for the federal
credit unions to expand their customer base.
Legal proceedings
-----------------
At LanXtra's shareholders meeting on January 15, 1999, to consider
the sale of LanXtra's assets to us, Kirk W. Dennis, a LanXtra shareholder
holding 50,000 shares, or 17.45% of its outstanding shares at the time,
voted against the transaction. Under Colorado law, a shareholder voting
against a sale-of-assets transaction has the right to dissent from the
sale and obtain payment of the fair value of the shareholder's shares.
Fair value, in general, means the value of the shares immediately before
the effective date of the corporate action to which the dissenter objects.
We have assumed the liability, if any, of LanXtra to the dissenting
shareholder. On or about March 12, 1999, Mr. Dennis demanded payment for
the value of his 50,000 shares immediately before the effective date of
the asset sale which he asserted to be $250,000. Because we could not
reach an agreement with Mr. Dennis as to the fair value of his shares, we
filed a lawsuit against him, as we were required to do under Colorado law,
on June 1, 1999 to resolve the matter. The case is titled LANXTRA, INC.
V. KIRK W. DENNIS, Case No. 99 CV 3583 in the District Court, City and
County of Denver, Colorado. While we could be required to pay him the
fair value of his shares as determined in that proceeding, we believe that
the value paid on account of these shares under the asset purchase
agreement is greater than the amount which he could recover under Colorado
law and substantially less than the value of the shares upon closing of
this offering. Because of that, we have not reserved any funds to cover
payment of the liability. If Mr. Dennis nevertheless obtains an award of
a substantial amount as fair value, it could have a materially adverse
effect on our financial condition. Further, a payment to this dissenting
shareholder could result in the transaction in which we purchased the
business of LanXtra becoming a taxable transaction, which could expose us
to significant tax liability.
Company history
---------------
We were originally incorporated under the name Network Acquisitions,
Inc. in August 1998 for the purpose of acquiring the assets and business
operations of LanXtra, Inc. LanXtra was incorporated in June 1992 under
the name Sigmacom Corporation and was originally engaged in the business
of integrating computer networks and communications technologies for large
business and government clients. In 1997, LanXtra created a software
development division to develop network-based financial services software
for credit unions. In December 1997, LanXtra sold its network integration
business. Using funds received in the sale, the software development
group continued as a start-up, and began building the business we
eventually acquired in 1999. On January 27, 1998, LanXtra changed its
name from Sigmacom Corporation to Cavion Technologies, Inc., and, on
February 1, 1999, to LanXtra, Inc. The assets of LanXtra were transferred
to a newly-formed company called Zutano, LLC on July 1, 1999 and LanXtra
was dissolved on July 2, 1999.
Prior to our acquisition of substantially all of the assets and
business operations of LanXtra, including the assumption of LanXtra's
liabilities, we did not conduct any business operations except preparation
for the acquisition, including providing bridge funding to LanXtra with
funds raised through a private placement of promissory notes and related
warrants. The definitive purchase agreement between us and LanXtra was
signed on December 31, 1998, and closed on February 1, 1999. On February
1, 1999, we changed our name to Cavion Technologies, Inc. and began to
conduct some of our business under the trade name cavion.com.
Management
<TABLE>
<CAPTION>
Executive officers and directors
- --------------------------------
<S> <C> <C>
Name Age Position
---- --- --------
David J. Selina 49 President,
Chief Operating Officer, Chief
Executive Officer and Director
Marshall E. Aster 45 Chief Financial Officer
Jeffrey W. Marshall 34 Vice
President of Software Development
and Director
Andrew I. Telsey 46 Director
Stephen B. Friedman 58 Director
Key employees
- -------------
Name Age Position
---- --- --------
Daniel W. Dudley 40 Vice
President of Affinity Products
Christopher Knauer 33 Vice
President of Network Services
Marvin C. Umholtz 48 Vice
President of Sales & Marketing
</TABLE>
DAVID J. SELINA. Mr. Selina has served as our president, chief
operating officer and a director since February 1, 1999. He was also
appointed as our chief executive officer and chairman of the board on
March 19, 1999. Mr. Selina was the president and chief operating officer
of LanXtra, Inc. from December 1997, and a director from January 1998,
until that company's dissolution in July, 1999. Mr. Selina is a manager
of Zutano LLC, a company formed in May 1999 to hold the assets of LanXtra,
Inc. From June 1995 to June 1997, Mr. Selina was the president and CEO of
Lasertec, Inc., a mailing and fulfillment operation in Auburn Hills,
Michigan. He was the regional manager of the Credit Union Services
Division for Electronic Data Systems from November 1993 to June 1995. At
EDS, Mr. Selina was responsible for five separate data processing products
serving credit unions. In 1993, Mr. Selina participated in the sale of
World Computer Corporation, a $23 million company, to Electronic Data
Systems. World Computer was a leading provider of data processing systems
and services to credit unions throughout the U.S. and Canada. Mr. Selina
held various management positions, including president and chief executive
officer, at World Computer, from March 1986 to November 1993. Mr. Selina
received his education at Henry Ford Community College and Oakland
University, both located in southeastern Michigan, between 1970 and 1976.
MARSHALL E. ASTER. Mr. Aster became our chief financial officer on
March 8, 1999 and our secretary on March 22, 1999. Mr. Aster was the
chief financial officer at Intertech Plastics, Inc., a plastics
manufacturer in Denver, Colorado from May 1997 to July 1998. Prior to
that time, he served in the positions of vice president of Finance and
Administration and senior vice president of Finance and Administration at
EDI, Inc., a technology based information service located in Los Angeles,
California, from October 1989 until May 1997. Mr. Aster also served in
the positions of director, vice president and senior vice president of
Corporate Financial Planning at Lorimar-Telepictures Corporation, an
entertainment company, from March 1984 to October 1989. He is a member of
AICPA and Colorado Society of CPAs. He is also a director for the
Financial Executive Institute's Rocky Mountain Chapter. He received a
Bachelor of Science in accounting in 1975 from the State University of New
York in Binghamton, New York.
JEFFREY W. MARSHALL. Mr. Marshall has served as our vice president
of Software Development since February 1, 1999. He became one of our
directors on May 27, 1999. He was the vice president of Software
Development at LanXtra, Inc. from December 1997 until he joined us. Prior
to his promotion to vice president at LanXtra, he was a software engineer
since July 1996. At LanXtra, Mr. Marshall was responsible for the design
and development of Internet software interfaces including, transactional
banking, bill paying, smart cards and multimedia kiosks. Mr. Marshall was
a programmer for Chemical Waste Management, a waste treatment concern in
Denver, Colorado from September 1994 to July 1996. At Chemical Waste
Management, he developed lab database software and technical services
billing software. From August 1993 to September 1994, Mr. Marshall
developed relational database software for Williams Thatcher Rand/Milliman
& Robertson, actuarial consultants in Denver, Colorado. He received a
degree in mathematics from Colorado State University in 1991.
ANDREW I. TELSEY. Mr. Telsey has served as one of our directors
since January 1, 1999. He also served as our president, secretary and
treasurer from January 1, 1999 to February 1, 1999. Since 1984, Mr.
Telsey has been employed by Andrew I. Telsey, P.C., a private legal
practice founded by Mr. Telsey that same year. Mr. Telsey's firm
emphasizes business law, including transactions, securities compliance
matters, and mergers and acquisitions. From January 1997 to the present,
Mr. Telsey has been the president, a director and the sole shareholder of
Venture Funding, Ltd., a privately held investment banking firm, whose
primary activities include identifying companies exiting their development
stage, providing funding for such companies and taking companies into the
public market. Venture Funding, Ltd. is our largest shareholder. Mr.
Telsey is an officer and director of one reporting company under the 1934
Act, Mully Corp., a Nevada company which has not commenced operations.
Between 1986 and 1988, Mr. Telsey served as president and director of
International Financial Consultants, Ltd., a privately held corporation
which prepared feasibility studies along international standards and
performed due diligence efforts on behalf of international entities
interested in financing commercial and residential real estate projects
and acquiring businesses in North America. Mr. Telsey received a Bachelor
of Arts degree in politics and a New York teaching certificate from Ithaca
College in 1975 and a Juris Doctorate degree from Syracuse University in
1979.
STEPHEN B. FRIEDMAN. Mr. Friedman became one of our directors on
April 1, 1999. He has been a business consultant to various companies
from January 1997 to the present. Mr. Friedman was the president of the
Asia/Pacific division of American Express Company, a travel related
service company located in Tokyo and Hong Kong from July 1993 to December
1996. Prior to that time he served in various executive positions at
American Express from October 1978 to June 1993. Mr. Friedman was the
vice president and general counsel at Carte Blanche Corporation, a credit
card company located in Los Angeles, California, from 1969 to 1978 and
corporate counsel for the Securities Division of the California Department
of Corporations from 1967 to 1969. He received A.B. in political science
from the University of California at Los Angeles in 1963 and L.L.B. degree
from the same University in 1966.
DANIEL W. DUDLEY. Mr. Dudley became our vice president of Affinity
Products on June 1, 1999. From April 1997 to May, 1999, Mr. Dudley was
the senior vice president and general manager at SkyTeller, L.L.C. in
Denver, Colorado, where he was responsible for the development and
implementation of that company's Global Distribution System and Internet
foreign currency businesses. From December 1991, he was director of
Performance Consulting at The Polk Company in Denver, providing advanced
technologies consulting to direct marketing companies. In January 1995,
The Polk Company promoted him to vice president of List and Data Products,
with strategic responsibility for leading database products, and he served
in that capacity until April 1997. Mr. Dudley received his B.B.A. in
finance in 1982 and his M.S. in operations research in 1990, both from The
George Washington University in Washington, D.C.
CHRISTOPHER KNAUER. Mr. Knauer became our vice president of Network
Services on August 2, 1999. From January 1999 to July 1999, Mr. Knauer
was a senior manager of Internet Customer Implementation Management at
Level 3 Communications in Broomfield, Colorado, where he helped streamline
processes for faster flow-through provisioning and project management of
implementing Internet provider products. From November 1997 to December
1998, Mr. Knauer worked for Qwest Communications in Denver, Colorado,
where he served as a senior manager of Technical Services until he was
promoted to director of Data Center Engineering in May 1998. At Qwest he
was involved with the design of LAN and infrastructure requirements for
nationwide Internet provider center rollout. Prior to that time, from
April 1996 to November 1997, Mr. Knauer was the systems administrator at
SuperNet which was acquired by Qwest. His earlier career was involved
with broadcasting companies, the last of which was Secret Communications
in Denver, Colorado, where he was the manager of Information Services from
March 1994 until April 1996. At Secret he worked with the design and
rollout of internal network systems, implementation of one of the first
media websites in the country and managed the NT/Linux/Novell network.
Mr. Knauer received his education in communications at DePauw University
in Greencastle, Indiana.
MARVIN C. UMHOLTZ. Mr. Umholtz became our vice president of Sales &
Marketing on September 1, 1999. From April 1999 until his promotion to
vice president he served as our eastern region sales manager. From
October 1997 to April 1999, Mr. Umholtz was an independent consultant and
strategic planner serving credit unions, credit union service
organizations and credit union vendors. From April 1990 to September
1997, he worked for the Michigan Credit Union League and its subsidiary,
CUcorp, in Lansing and Plymouth, Michigan. While there he served as
senior vice president of the Government and Public Affairs Group until he
was promoted to executive vice president and chief operating officer of
Association Services in June 1992. Mr. Umholtz also served in the same
positions at CUcorp between November 1994 until September 1997. In these
positions he administered a correspondent credit and debit card program,
marketed insurance and financial products to credit unions to serve their
members and customers, launched the Michigan credit union electronic funds
transfer think tank, and represented the association and its member credit
unions with state and federal regulators, lawmakers and the media. Mr.
Umholtz received his education in communications and political science
from the University of Kansas in Lawrence, Kansas.
Committees of board of directors
- --------------------------------
The board of directors is currently acting as our compensation
committee. The members of the compensation committee, when appointed by
the board, will be persons who qualify to serve on the committee under the
provisions of Rule 16b-3 of the Securities Exchange Act of 1934 and
Treasury Regulation Section 1.162-27(e)(3). The compensation committee
evaluates our compensation policies and administers our Equity Incentive
Plan. The audit committee will review the scope of our audit, the
engagement of our independent auditors and their audit reports. The audit
committee will also meet with the financial staff to review accounting
procedures and reports. The audit committee currently consists of Messrs.
Telsey and Friedman. We intend to appoint another board member to the
audit committee.
Director compensation
- ---------------------
While we do not pay directors cash compensation, they are reimbursed
for the expenses they incur in attending meetings of the board or board
committees. Directors may receive options to purchase common stock
awarded under our Equity Incentive Plan at the discretion of the
compensation committee. Mr. Telsey was granted a ten year option to
purchase 27,500 shares on March 19, 1999, subject to vesting of 6,875
shares at the end of each calendar quarter beginning June 30, 1999. Mr.
Friedman was granted a ten year option to purchase 27,500 shares on April
1, 1999 subject to the same vesting schedule as Mr. Telsey. All of the
director options were granted at the private placement price of $3.00 per
share.
Executive Compensation
The following table sets forth information for the last three fiscal
years ended December 31, concerning compensation we paid to the chief
executive officer and the other two most highly compensated executive
officers we employed during such fiscal years.
Summary compensation table
--------------------------
<TABLE>
<CAPTION>
Annual Compensation
------------------------------------
Fiscal Other Annual
Name and Principal Position Year Salary Bonus Compensation
- --------------------------- ------ -------- ----- ------------
<S> <C> <C> <C> <C>
David J. Selina 1998 $105,402 -0- -0-
President, Chief Executive 1997 $ 8,333 -0- -0-
Officer and Chief 1996 $ 0 -0- -0-
Operating Officer
Jeffrey W. Marshall 1998 $ 76,333 -0- -0-
Vice President of 1997 $ 56,426 -0- -0-
Software Development 1996 $ 20,484 -0- -0-
Craig E. Lassen 1998 $ 75,481 -0- -0-
Former Chairman of the Board 1997 $ 68,747 -0- -0-
and Chief Executive Officer 1996 $ 48,000 -0- -0-
</TABLE>
o The compensation paid to Mr. Selina in 1997 and 1998 was paid by
LanXtra, Inc. He became employed by LanXtra in December 1997
and payment of the amount reported for 1997 was deferred until
January 1998. Mr. Selina did not become an officer of
cavion.com until February 1, 1999.
o The compensation paid to Mr. Marshall in 1996, 1997 and 1998 was
paid by LanXtra. Mr. Marshall did not become an officer of
cavion.com until February 1, 1999.
o The compensation paid to Mr. Lassen in 1996, 1997 and 1998 was
paid by LanXtra. Mr. Lassen did not become an officer of
cavion.com until February 1, 1999. His resignation as an
officer and as a director of cavion.com was effective March 18,
1999.
The named executive officers did not receive perquisites or other
personal benefits the aggregate annual amount of which was the lesser of
either $50,000 or 10% of the total of annual salary and bonus reported for
such executive officer.
None of our executive officers received options to purchase our
common stock in 1998. After we adopted the Equity Incentive Plan in March
of 1999, Mr. Selina was granted 150,000 options, Mr. Aster was granted
40,000 options, and Mr. Marshall was granted 50,000 options, all of which
they may exercise for a period of ten years at $3.00 per share. Mr.
Aster's options vest over a fifteen month period from his start date of
March 8, 1999, one quarter after 6 months, and another quarter every three
months until they are fully vested. Mr. Selina's and Mr. Marshall's
options vest over an eighteen month period, with one third vesting every
six months.
In August 1998, Mr. Selina was granted a five-year option to purchase
42,970 shares of LanXtra common stock at $2.75 per share, and a five year
option to purchase 74,761 shares of LanXtra common stock at $7.50 per
share. At the same time, Mr. Marshall was granted a five-year option to
purchase 28,646 shares of LanXtra common stock at $2.75 per share, and a
five year option to purchase 49,840 shares of LanXtra common stock at
$7.50 per share. In November 1997, Mr. Lassen was granted a five-year
option to purchase 270,000 shares of LanXtra common stock at $7.50 per
share. All of the LanXtra options were cancelled as of December 31, 1998
as provided in an agreement between LanXtra and each of the optionees.
Employment agreements
- ---------------------
Under an employment agreement dated February 1, 1999, David J. Selina
agreed to serve as our president and a director. Under the agreement, Mr.
Selina receives a base salary of $125,000 per year, participation in a
cash bonus pool based upon our business goals and profitability as
determined by disinterested members of our board of directors, as well as
other employee benefits.
Marshall E. Aster agreed to serve as our chief financial officer
under an employment agreement effective March 8, 1999. Under the
agreement, Mr. Aster receives a base salary of $105,000, participation in
the bonus pool described above, and other employee benefits.
Under an employment agreement dated February 1, 1999, Jeffrey W.
Marshall agreed to be our vice president of Software Development at a base
salary of $100,000 per year. Mr. Marshall is entitled to participate in
the bonus pool described above, as well as other employee benefits.
Effective May 1, 1999, our board increased Mr. Marshall's salary to
$125,000 per year.
Under all of these employment contracts, if any executive is
terminated other than for dissolution of cavion.com, death, disability or
cause, or the executive is terminated or resigns for good reason within
three months after a change of control of cavion.com, the executive will
be entitled to severance compensation. Severance pay is equal to twelve
months of base salary as in effect at the time of termination, except for
Mr. Aster, whose severance pay is equal to six months of base salary,
increasing to twelve months on the first anniversary of employment if
cavion.com is profitable on an after-tax basis at that time or, if it is
not, on the second anniversary of employment.
Craig E. Lassen agreed to serve as our chairman of the board and
chief executive officer under an employment agreement dated February 1,
1999. Under the agreement, Mr. Lassen was to receive a base salary of
$125,000, participation in the bonus pool described above, and other
employee benefits. Mr. Lassen's resignation as chairman of the board,
chief executive officer and a director was effective March 18, 1999. His
resignation as an employee was effective April 16, 1999. In June 199 we
entered into an agreement with Mr. Lassen under which he will provide up
to 360 hours of consulting services relating to our business generally,
including telecommunications matters, until April 15, 2000. He will
receive a total of $75,000 as payment for his services.
In addition, Mr. Selina, Mr. Aster, Mr. Marshall and Mr. Lassen each
agreed under their employment contracts to protect our confidential
information, to refrain from soliciting our customers or employees for a
competing business, and to assign to us all rights in intellectual
property developed during the term of employment that relates to our
business. These obligations survive termination of employment for periods
of one to three years, and in some cases longer.
Equity Incentive Plan
Our board of directors adopted the Equity Incentive Plan as of March
19, 1999. The Plan provides for grants of incentive stock options,
nonqualified stock options, restricted stock and stock appreciation rights
to our designated employees, officers, directors, advisors and independent
contractors. By encouraging stock ownership, we seek to motivate such
individuals to participate in the increased value of cavion.com which
their effort, initiative, and skill have helped produce.
General. The Plan authorizes up to 750,000 shares of common stock
for issuance under the terms of the Plan. No more than 250,000 shares in
the aggregate may be granted to any individual in any three year period.
If options granted under the Plan expire or are terminated for any reason
without being exercised, or shares of restricted stock are forfeited, the
shares of common stock underlying such grant will again be available for
purposes of the Plan.
Administration of the plan. After we become a public company, the
compensation committee of the board of directors will administer and
interpret the Plan. Currently, the board of directors is acting as our
compensation committee. The compensation committee, when appointed by the
board, will consist of two or more directors, each of whom must be a "non-
employee director" as defined by Rule 16b-3 under the Securities Exchange
Act of 1934, and an "outside director" as defined by Section 162(m) of the
Internal Revenue Code of 1986 and related Treasury regulations. The
compensation committee has the sole authority to:
o determine the individuals to whom grants shall be made under the
Plan
o determine the type, size and terms of the grants to be made to
each such individual
o determine the time when the grants will be made and the duration
of any applicable exercise or restriction period, including the
criteria for vesting and the acceleration of vesting
o determine the total number of shares of common stock available
for grants
o deal with any other matters arising under the Plan
The board of directors, with members of the compensation committee
abstaining, has the authority to make grants under the Plan to members of
the committee and may also establish a formula by which grants will
automatically be made to members of the compensation committee. The
compensation committee has the authority to make grants to members of the
board of directors other than committee members and may also establish a
formula by which grants will automatically be made to board members.
Grants. Grants under the Plan may consist of:
o options intended to qualify as incentive stock options within
the meaning of Section 422 of the Internal Revenue Code
o nonqualified stock options that are not intended to so qualify
o restricted stock
o stock appreciation rights
Eligibility for participation. Grants may be made to employees,
officers, directors, advisors and independent contractors of cavion.com
and its subsidiaries, including any non-employee member of the board of
directors. As of the date of this prospectus, 440,000 options were
outstanding under the Plan.
Options. Incentive stock options may be granted only to officers and
directors who are employees. Nonqualified stock options may be granted to
employees, officers, directors, advisors and independent contractors. The
exercise price of common stock underlying an option will be determined by
the compensation committee and may be equal to, greater than, or less than
the fair market value but in no event less than 50% of fair market value;
provided that:
o the exercise price of an incentive stock option shall be equal
to or greater than the fair market value of a share of common
stock on the date such incentive stock option is granted
o the exercise price of an incentive stock option granted to an
employee who owns more than 10% of the common stock must not be
less than 110% of the fair market value of the underlying shares
of common stock on the date of grant
The participant may pay the exercise price:
o in cash
o by delivering shares of common stock owned by the participant
and having a fair market value on the date of exercise equal to
the exercise price of the grant
o by such other method as the compensation committee shall
approve, including payment through a broker in accordance with
procedures permitted by Regulation T of the Federal Reserve
Board
Options vest according to the terms and conditions determined by the
compensation committee.
The compensation committee will determine the term of each option up
to a maximum of ten years from the date of grant except that the term of
an incentive stock option granted to an employee who owns more than 10% of
the common stock may not exceed five years from the date of grant. The
compensation committee may accelerate the exercisability of any or all
outstanding options at any time for any reason.
Restricted stock. The compensation committee will determine the
number of shares of restricted stock granted to a participant, but may not
exceed the maximum plan limit described above. Grants of restricted stock
will be conditioned on such performance requirements, vesting provisions,
transfer restrictions or other restrictions and conditions as the
compensation committee may determine in its sole discretion. The
restrictions shall remain in force during a restricted period set by the
compensation committee.
Stock appreciation rights. The compensation committee may grant a
participant the right to receive, in cash, the amount of any appreciation
in the value of our stock over the exercise price of the stock
appreciation right, which is set by the committee at the time of grant.
The compensation committee has the same discretion to determine the terms
of stock appreciation rights, including exercise price and vesting
schedule, that it has in the case of nonqualified stock options.
Termination of employment. If a participant leaves our employment,
other than because of retirement, death or disability, the participant
will forfeit any stock options or stock appreciation rights that are not
yet vested, and any restricted stock for which the restrictions are still
applicable, unless the participant remains as a non-employee director,
advisor or independent contractor.
Amendment and termination of the plan. The compensation committee
may amend or terminate the plan at any time, except that it may not make
any amendment that requires shareholder approval as provided in Rule 16b-3
or Section 162(m) without shareholder approval. The Plan will terminate
on the day immediately preceding the tenth anniversary of its effective
date, unless terminated earlier by the compensation committee.
Acceleration of rights and options. If our board of directors or
shareholders agree to dispose of all or substantially all of our assets or
stock, any right or option granted will become immediately and fully
exercisable during the period from the date of the agreement to the date
the agreement is consummated or, if earlier, the date the right or option
is terminated in accordance with the Plan. No option or right will be
accelerated if the shareholders immediately before the contemplated
transaction will own 50% or more of the total combined voting power of all
classes of voting stock of the surviving entity (whether it is us or some
other entity) immediately after the transaction.
Section 162(m). Under Section 162(m), we may be precluded from
claiming a federal income tax deduction for total remuneration in excess
of $1.0 million paid to the chief executive officer or to any of the other
four most highly compensated officers in any one year. Total remuneration
would include the value of stock options, restricted stock and stock
appreciation rights granted under the Plan. An exception does exist,
however, for "performance-based compensation," including amounts received
upon the exercise of stock options as provided in a plan approved by
shareholders that meets the requirements of Section 162(m). We will ask
the shareholders to approve the Plan at the next annual or special meeting
of shareholders so that grants of options under the Plan meet the
requirements of "performance-based compensation." Awards of restricted
stock generally will not qualify as "performance-based compensation."
Principal Shareholders
The following shareholder information about the beneficial ownership
of our common stock, as of the date of this prospectus, assumes:
o the conversion of 700,000 shares of preferred stock into the
same number of shares of common stock; and
o the sale of 1,200,000 shares of common stock in this offering.
The information in the table below provides the information for:
o each person known by cavion.com to beneficially own more than 5%
of the common stock;
o each of our directors;
o each of our executive officers; and
o our current directors and executive officers as a group.
<TABLE>
<CAPTION>
Number of
shares of Percent of ownership
common stock ---------------------
Name of beneficially Before After
beneficial owner owned offering offering
- ---------------- ------------ ----------- --------
<S> <C> <C> <C>
Venture Funding, Ltd. 898,602 33.2% 19.5%
2581 S. Parker Road #720
Aurora, CO 80014
Boutine Capital, LLC 738,370 27.3% 16.0%
5460 S. Quebec St. #220
Englewood, CO 80111
David J. Selina 259,055 9.4% 5.6%
7475 Dakin Street #607
Denver, CO 80221
Marshall E. Aster 10,000 <1% <1%
7475 Dakin Street #607
Denver, CO 80221
Jeffrey W. Marshall 225,722 8.3% 4.9%
7475 Dakin Street #607
Denver, CO 80221
Andrew I. Telsey 926,752 34.1% 20.1%
2851 S. Parker Road, #720
Aurora, CO 80014
Stephen B. Friedman 13,750 <1% <1%
P.O. Box 8279
Beaver Creek, CO 81620
Zutano LLC 376,299 13.9% 8.2%
7475 Dakin Street #607
Denver, Colorado 80221
Craig E. Lassen 209,055 7.7% 4.5%
245 Poplar Street
Denver, CO 80220
All directors and
executive officers as
a group (5 persons) 1,435,279 51.1% 30.5%
</TABLE>
*Less than one percent
In the preceding table:
o The sole shareholder of Venture Funding, Ltd. is Andrew I.
Telsey, one of our directors.
o The sole member of Boutine Capital, LLC is Julie Graham who is
the spouse of Gary Graham, the president of First Capital
Investments, Inc., the agent for our 1998 private placement of
promissory notes and warrants, and an agent for our August 1999
private placement of promissory notes and warrants. Julie
Graham is also the sole shareholder of First Capital
Investments, Inc.
o Mr. Telsey's shares include 898,602 shares owned by Venture
Funding, Ltd. of which Mr. Telsey is the sole shareholder. They
also include 14,400 shares owned by trusts for which Mr. Telsey
is the trustee, but for which he disclaims any beneficial
ownership to the shares owned by each of them.
o Zutano's shares were the shares of common stock distributed to
LanXtra, Inc. for the assets of that company, which were
subsequently transferred to its successor company, Zutano LLC.
These shares will continue to be voted by the management of
Zutano until they are distributed to the members of Zutano after
the completion of this offering. The managers of Zutano are
David J. Selina and Craig E. Lassen, and its principal owners
are Herman D. Axelrod, Craig E. Lassen and Convergent
Communications Services, Inc.
o Mr. Lassen's shares do not include 98,520 shares of common stock
that he will receive when a distribution is made by Zutano of
the shares of common stock LanXtra received for the sale of its
assets to cavion.com.
o The shares owned by the executive officers and directors include
or consist of the following shares acquirable upon exercise of
stock options which are exercisable within 60 days of this
prospectus: Mr. Selina 50,000, Mr. Aster 10,000, Mr. Marshall
16,667, Mr. Telsey 13,750 and Mr. Friedman 13,750.
Unless otherwise noted, we believe all persons named in the table
have sole voting and investment power with respect to all shares
beneficially owned by them.
Change in control
- -----------------
As far as is known to our board of directors or management, there are
no arrangements, including any pledge by any person of securities of
cavion.com, the operation of which might, at a subsequent date, result in
a change in control of cavion.com.
Description of Capital Stock
Our authorized capital stock consists of 19,970,000 shares of Class A
common stock, $.0001 par value per share; 30,000 shares of Class B common
stock, $.0001 par value per share; and 10,000,000 shares of preferred
stock, par value $.0001 per share.
Common stock
The Class A and Class B common stock are identical in all respects
except that the Class B common stock is subject to an option, referred to
as a put, for the holder to sell the shares to us at $7.00 per share, or
in the alternative, a parallel option, referred to as a call, for us to
buy the shares from the holder at $7.00 per share. The put is exercisable
only during a 60-day exercise period beginning on the date that is 30 days
after the 100 Credit Union Date. The call is exercisable at any time
after issuance of the Class B common stock and prior to the end of the
exercise period. If at the end of the puts' exercise period neither the
put nor the call has been exercised for any shares of Class B common
stock, then each share of Class B common stock will automatically convert
into one share of Class A common stock, effective on the day after the
last day of the exercise period. The authorization for issuance of the
Class B common stock will automatically terminate on the earlier of the
date on which the exercise notices for either the put or call have been
issued for the Class B common stock, or the date of automatic conversion
of all outstanding shares of Class B common stock described above. After
the closing of this offering, we expect to offer the Class B shareholders
the option to redeem their Class B shares at $7.00 per share or to convert
each Class B share into one share of our Class A common stock. Holders of
the common stock are entitled to receive, as, when and if declared by the
board of directors from time to time, such dividends and other
distributions in cash, stock or property from our assets or funds legally
available for such purposes, subject to any dividend preferences that may
be attributable to preferred stock that is outstanding. Holders of the
common stock are entitled to one vote for each share held of record on all
matters on which shareholders may vote.
There are no preemptive, conversion, redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of
common stock are fully paid and nonassessable. In the event of our
liquidation, dissolution or winding up, holders of common stock are
entitled to share ratably in the assets available for distribution.
Preferred stock
Our board of directors, without further action by the shareholders,
is authorized to issue an aggregate of 10,000,000 shares of preferred
stock in one or more series. Our board of directors may, without
shareholder approval, determine the dividend rates, redemption prices,
preferences on liquidation or dissolution, conversion rights, voting
rights and any other preferences. No such preferred stock may have voting
rights except as provided by Section 7-110-104 of Colorado law which
permits voting by the holders of any class of shares on amendments to
articles of incorporation that would affect the rights of holders of such
class. The issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control without further action of the
shareholders. The board of directors authorized the issuance of 770,000
shares of nonvoting Series A preferred stock in February 1999 of which
700,000 were issued to accredited investors in March and April 1999 in a
private offering. The other 70,000 shares were subject to preferred stock
purchase warrants issued to NTB as the placement agent for the private
placement. The preferred stock purchase warrants have been terminated at
NTB's request. Each share of preferred stock is convertible at any time
at the holder's option into one share of Class A common stock. Automatic
conversion of the preferred stock will occur upon the earlier to occur of
the closing of the public offering of Class A common stock offered by this
prospectus or the date specified in a notice delivered by us any time
after January 1, 2004. Commencing on the date of issuance of the
preferred stock through the date of conversion, each holder will receive,
when, as and if declared by the board of directors, cumulative
preferential dividends at the rate of 5% per year. Dividends are payable
quarterly either in cash or in shares of Class A common stock at our
option. All accrued and unpaid dividends will be paid upon conversion of
the preferred stock. Upon any liquidation, dissolution or winding up of
cavion.com, whether voluntary or involuntary, the holders of the preferred
stock will be entitled to receive $6.00 per share, plus accrued and unpaid
dividends on the date fixed for distribution of assets prior to and in
preference to any distribution or payment of assets to holders of our
common stock. Since the conversion of the preferred stock into common
stock is expected to occur upon closing of this public offering, it is not
expected that this right will be effected. All of the 700,000 shares of
Class A common stock into which the outstanding shares of preferred stock
are convertible will be registered under a separate registration statement
after this offering closes. Each purchaser of our preferred stock had to
agree that their registered shares of common stock could not be sold for
nine months from the effective date of this prospectus without the written
consent of the representative.
Preferred stock warrant
As of June 30, 1999, we had warrants outstanding for the purchase of
70,000 shares of our preferred stock exercisable at $3,00 per share for a
period of five years. The warrants were issued to NTB in connection with
the February 1999 private placement of preferred stock described in the
preceding paragraph. The preferred stock warrants have been terminated at
NTB's request.
Common stock warrant
We have warrants outstanding for the purchase of 30,000 shares of our
Class A common stock. The warrants are exercisable for a five year period
beginning on the earlier to occur of this closing or one year from the
date of their issuance. The warrants are exercisable at the price per
share of the shares offered in this offering, or, if this offering does
not close within one year from the date of issuance of the warrants, at
$6.00 per share. The warrants were issued in our August 1999 private
placement of notes and warrants.
Shareholder action by written consent
Our bylaws provide that any action that may be taken at a meeting of
the shareholders may be taken without a meeting if such action is
authorized by the unanimous written consent of all shareholders entitled
to vote at a meeting for such purposes. Since cavion.com has numerous
shareholders at this time and will have a much greater number after this
offering, it is not likely that action by unanimous written consent of the
shareholders is feasible.
Special meetings
Our bylaws provide that special meetings of our shareholders may be
called by the board, by our president or by one or more written demands
for the meeting, stating the purposes for which it is to be held, signed
and dated by the holders of shares representing at least 10 percent of all
the votes entitled to be cast on any issue proposed to be considered at
the meeting. This provision may make it difficult for shareholders to
take action opposed by the board.
Amendments to our bylaws
Our bylaws provide that they may be amended or repealed by the
shareholders or, except to the extent limited by Colorado law, by the
board of directors.
Indemnification of directors and officers
The Colorado Business Corporation Act provides the power to indemnify
and pay the litigation expenses of any officer, director or agent who is
made a party to any proceeding. Our articles of incorporation also
provide for indemnification of our officers and directors for liabilities
arising out of their service to us to the maximum extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling
cavion.com as provided in the foregoing provisions, we have been informed
that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and thus cannot be
enforced.
Our bylaws provide that we shall indemnify any person against all
liability and expense incurred by any reason of the person being or having
been a director or officer of cavion.com to the full extent and in any
manner that directors may be indemnified under Colorado law, our bylaws, a
resolution of the board of directors or shareholders, by contract or
otherwise so long as such provision is legally permissible. At the
discretion of the board of directors, we may also indemnify any employee,
fiduciary or agent who is not a director or officer to the same extent as
a director or officer.
Our bylaws authorize us to take steps to ensure that all persons
entitled to the indemnification are properly indemnified, including if the
board of directors so determines, purchasing and maintaining insurance.
We have also entered into indemnification agreements with our
officers and directors to indemnify them and to advance expenses to the
fullest extent permitted by law either in connection with the
investigation, defense, adjudication, settlement or appeal of a proceeding
or in connection with establishing or enforcing a right to indemnification
or advancement of expenses. In addition, the agreement provides that no
claim or cause of action may be asserted by us against such director or
officer after two years from the date of the alleged act or omission,
provided that if in fact the person has fraudulently concealed the facts,
then no claim or cause of action may be asserted after two years from the
earlier of the date we discover the facts or the date we should have
discovered such facts by the exercise of reasonable diligence. The term
of the agreement and our obligations apply while the person is our agent
and continues so long as the person is subject to any claim by reason of
the fact that he or she served as our agent.
Limitation of liability
Our articles of incorporation provide that none of our directors
shall be personally liable to us or our shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty
o for acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law
o for the payment of unlawful dividends and specified other
acts prohibited by Colorado corporate law
o for any transaction resulting in receipt by the director of
an improper personal benefit
We have obtained directors and officers' liability insurance to
provide directors and officers with insurance coverage for losses arising
from claims based on breaches of duty, negligence, error and other
wrongful acts. At present, there is no material pending litigation or
proceeding, and we are not aware of any material threatened litigation or
proceeding, involving any director, officer, employee or agent where
indemnification will be required or permitted under the articles of
incorporation, our bylaws or the indemnification agreements.
Transfer agent
The transfer agent for our common stock is American Securities
Transfer & Trust, Inc. in Lakewood, Colorado.
Shares Eligible for Future Sale
Sales of substantial amounts of common stock in the public market
following the offering could adversely affect the market price of the
common stock and adversely affect our ability to raise capital at a time
and on terms favorable to us.
Upon completion of the offering, there will be 4,606,326 shares of
common stock outstanding, including the automatic conversion of 700,000
shares of Series A preferred stock into Class A common stock, assuming
that the underwriters do not exercise their over-allotment option. The
1,200,000 shares sold in this offering will be freely tradable in the
United States if a market for our stock develops, by persons other than
our officers, directors or other affiliated parties. We have agreed to
register the shares of Class A common stock that will be issued upon the
automatic conversion of the Series A preferred stock upon the closing of
the offering in a separate registration as soon as possible after the
closing of the offering. The holders of the preferred stock have agreed
not to sell their shares of preferred stock, or the shares of common stock
into which the preferred shares will be converted, for a period of nine
months after the date of this prospectus, without the representative's
prior consent. After the nine month period has expired, and assuming the
separate registration statement has become effective, these holders will
be able to freely trade their shares of Class A common stock in the public
market, unless such shares are held by "affiliates," as that term is
defined in Rule 144(a) under the Securities Act of 1933. For purposes of
Rule 144, an "affiliate" of an issuer is a person that, directly or
indirectly through one or more intermediaries, controls, or is controlled
by or is under common control with, such issuer.
The remaining 2,706,326 shares of common stock to be outstanding
after the offering are "restricted securities" under the Securities Act.
After the expiration of the lock-up arrangements that have been agreed to
by the holders of these restricted shares, which are described below, the
restricted shares may be sold in the public market upon the expiration of
specified holding periods under Rule 144, subject to the volume, manner of
sale and other limitations of Rule 144.
In general, under Rule 144, a person holding restricted securities
for at least one year, may, within any three-month period, sell in
ordinary brokerage transactions, a number of shares equal to one percent
of a company's then outstanding common stock, or the average weekly
trading volume during the four calendar weeks prior to the person's sales.
Sales under Rule 144 are also subject to manner of sale provisions,
notice requirements and the availability of current public information
about us. A shareholder who is not an "affiliate" of ours and who has
held the shares for at least two years, may sell the shares without any
quantity limitations, manner of sale provisions or public information
requirements.
As of the date of this prospectus there were options to purchase
440,000 shares of common stock under our Equity Incentive Plan of which
116,502 are exercisable. An additional 310,000 shares are reserved for
issuance under the Plan. We intend to register the shares of common stock
issued, issuable or reserved for issuance under the Plan as soon as
practicable following the date of this prospectus.
Also as of the date of this prospectus there were outstanding
warrants to purchase 30,000 shares of common stock. The warrants were
issued in connection with our August 1999 private placement of notes and
warrants.
Lock-up arrangements
Along with our officers and directors, all of the holders of 5% or
more of the common stock, or securities convertible into common stock,
have agreed not to offer or sell or contract to dispose of any of their
shares of common stock without the prior written consent of NTB for a
period of 12 months from the effective date of this prospectus. In
addition, all of the other shareholders who own shares, or securities
convertible into common stock, prior to this public offering have agreed
not to offer or sell or contract to dispose of any of their shares of
common stock for a period of 9 months from the date of this prospectus
without such written consent. Most of these shareholders have also agreed
that, for a period of 18 months from the date of this prospectus, any
public sale of their shares, either under Rule 144 or otherwise, will be
made only in a transaction through NTB, provided that NTB's compensation
is competitive with other broker-dealers. The representative has no
present intention to waive or shorten the period of these lock-up
arrangements.
Certain Relationships and Related Transactions
Our founding shareholders, Venture Funding, Ltd. and Boutine Capital,
LLC acquired 1,100,000, and 900,000 shares, respectively, of our Class A
common stock on August 18, 1998 for $.0001 per share. On December 21,
1998, David Selina and Jeff Marshall, members of our management, and Craig
Lassen, a former member of our management, purchased 208,452 shares each
of Class A common stock for $.01 per share. Their share ownership
subsequently increased to 209,055 shares each as provided in the Agreement
for Post-Closing Adjustments described below.
On September 14, 1998, we entered into a Loan Agreement to loan our
predecessor, LanXtra, Inc., a Colorado corporation, formerly known as
Sigmacom Corporation and Cavion Technologies, Inc., up to $300,000. On
December 29, 1998, cavion.com agreed to lend up to an additional $55,000
under the same terms, and advanced $35,000 of this amount. The loan was
made to fund LanXtra's working capital, promotion and marketing, and
development of proprietary technology and was secured by substantially all
of the assets of LanXtra, including its technology. In connection with
the loan, LanXtra executed a promissory note requiring monthly interest
payments on the unpaid principal balance at an interest rate of 16% per
year, with the entire remaining balance due on March 14, 1999. This loan
was discharged on February 1, 1999, under the terms of the Asset Purchase
Agreement, as described more fully below.
In 1998, we conducted a private placement of securities which raised
$370,000 through the issuance of 15% secured notes due on October 19, 2000
in the aggregate principal amount of $370,000, along with warrants to
purchase 2,400 shares of our Class A common stock for every $20,000 of
note principal at an exercise price of $0.01 per share. As provided in a
security agreement dated October 20, 1998, the notes are secured by
substantially all of our assets, now owned or acquired subsequent to that
date, including cash, equipment, fixtures, general intangibles, and all
products and proceeds of the foregoing collateral, accounts receivable,
inventory, work in process and service contracts receivables. The October
20, 1998 security agreement contains a covenant which prohibits us from
incurring any other liens on our assets. We raised an additional $100,000
through this offering in 1999. The warrants were exercisable for a period
of one year after repayment of the Notes. On December 22, 1998, we
accelerated the warrants' exercise period to begin on December 22, 1998.
All holders exercised their warrants by February 8, 1999 and all of the
shares purchased have been issued.
We engaged First Capital Investments, Inc., a broker/dealer
registered with the Securities and Exchange Commission, as our exclusive
placement agent and financial advisor for the private placement. We
agreed to pay First Capital commissions of 8% of the gross proceeds of the
offering and reimburse expenses, not to exceed 3% of the gross proceeds of
the offering, and we issued First Capital a warrant to purchase 5,640
shares of Class A common stock, which was exercised on February 8, 1999.
We granted First Capital piggyback registration rights for these shares.
First Capital has agreed not to exercise these rights for inclusion of its
shares in this offering. First Capital has waived any commissions with
respect to our 1999 private placement of preferred stock and this
offering. Under the terms of the engagement, for a period of two years
after the closing of our 1998 private placement, First Capital will
provide us with financial advisory services and is entitled to receive 8%
of the gross consideration and/or value attributed to any business
combination between us and a third party that is introduced to us by First
Capital or involves the work product of First Capital. First Capital and
the representative have agreed that we will not be required to pay a
double commission on future corporate financing. Julie Graham, the spouse
of Gary Graham, is the sole member of Boutine Capital, LLC, one of our
principal shareholders. Gary Graham is a principal of First Capital and
Julie Graham is its sole shareholder.
On December 31, 1998, we entered into an Asset Purchase Agreement to
purchase substantially all the assets and assume the liabilities of
LanXtra. The transaction closed on February 1, 1999. In exchange for the
sale of its assets, LanXtra received:
o 375,214 shares of our Class A common stock, subsequently
increased to 376,299 shares
o 28,648 shares of our Class B common stock, which were issued to
replace LanXtra's nonvoting common stock.
o We assumed the following liabilities of LanXtra:
o The obligations reflected on LanXtra's balance sheet and all
accounts payable of LanXtra
o The accrued salaries and benefits of employees that accepted
employment with us
o All obligations and liabilities arising on or after the closing
with respect to LanXtra's assets or business
o The amounts due to us under the loan we made to LanXtra in 1998,
resulting in a discharge of that loan
o Any liability of LanXtra in connection with the threatened
lawsuit described in "Our Business - Legal Proceedings" and
other contingent liabilities described in the Asset Purchase
Agreement
LanXtra was incorporated on June 26, 1992. The founding shareholders
were Craig E. Lassen, Herman Axelrod, and Kirk Dennis. On August 1, 1996,
the founders entered into an Investment Agreement with four investors,
British Far East Holdings, Ltd., William M.B. Berger Living Trust, Martin
Cooper and Fairway Realty Associates, who we call the 1996 Investors, who,
in exchange for LanXtra stock, provided cash collateral in the amount of
$600,000 for LanXtra's commercial loan with US Bank, N.A. made on August
1, 1996. The loan was also secured by an additional $20,000 in cash
collateral provided by LanXtra. As a condition to providing the
collateral for the loan, the 1996 Investors were granted benefits under a
Put Agreement with LanXtra, a Share Escrow Agreement between LanXtra, the
1996 Investors and Norwest Bank Colorado, as escrow agent, a Subordination
Agreement between LanXtra and its founders, and, in the case of one 1996
Investor, an Advisor's Option Agreement, each of which was dated as of
August 1, 1996. Collectively, these agreements were intended to ensure
the reimbursement of the 1996 Investors if LanXtra defaulted on the US
Bank loan and the 1996 Investors' collateral was foreclosed. These
agreements have been terminated as provided in the Termination and
Modification Agreement of September 28, 1998 between LanXtra, its founders
and the 1996 Investors. However, the Termination and Modification
Agreement does include an obligation for LanXtra to reimburse the 1996
Investors in the event of foreclosure on their collateral by US Bank.
We borrowed $600,000 from US Bank as provided in the Loan Agreement
of January 18, 1999, which was later amended on March 24, 1999. The
proceeds of the new loan were used to pay off the 1996 loan to LanXtra.
The new loan bears annual interest at the rate of 1.5% over the reference
rate payable monthly beginning on February 28, 1999. The principal of the
loan must be paid in a single payment on December 31, 1999. The loan is
secured by $620,000 cash collateral consisting of certificates of deposit
and letters of credit, of which $600,000 was provided by the 1996
Investors and $20,000 was provided by us. On January 15, 1999, the
Termination and Modification Agreement was amended to provide that upon
closing of the Asset Purchase Agreement, the shares of Class A common
stock received by LanXtra as consideration will not be distributed to its
shareholders until our loan with US Bank has been paid in full or the 1996
Investors have been reimbursed for their collateral. Upon closing of the
Asset Purchase Agreement with LanXtra, we assumed LanXtra's obligations
under the amended Termination and Modification Agreement with the 1996
Investors.
The LanXtra obligations we assumed also include the transactions
described below. Each of the creditors of these obligations has agreed to
defer repayment until 15 days after the closing of this offering.
o On July 1 and August 1, 1992, LanXtra executed promissory
notes for $25,000 in favor of Mr. Axelrod and Mr. Lassen,
respectively, at an interest rate of 2% over prime. These notes
were originally secured by the assets of LanXtra which are now
owned by cavion.com. The original principal amounts of these
notes reflects $20,000 in cash loaned by each and $5,000 each of
co-signer liability on a $10,000 credit line at the Bank of
Boulder that LanXtra obtained at its inception. The credit line
was paid in full in August 1996, leaving an aggregate principal
balance of $40,000 on the notes. We assumed the obligation to
pay Mr. Axelrod and Mr. Lassen the principal balance of the
notes together with interest stated above which will continue to
be paid on a quarterly basis until the notes are paid in full.
o Between September 8, 1997 and October 15, 1997, Herman
Axelrod, the former president and director of LanXtra, and Mr.
Lassen, also a former president and director of LanXtra, made
factoring loans to LanXtra in the amounts of $50,190 and
$25,000, respectively. These loans were secured by an account
receivable for computer network integration work LanXtra
performed for Questar Infocomm and bear interest at the rate of
3% of the loan amount for the first 30 days, and 1% for each
additional 10 days until the loan is paid in full. Questar
disputed the amount of LanXtra's invoice, and the dispute was
settled in September 1998 under which Questar paid LanXtra the
sum of $61,780. This amount was then paid against the factoring
loans on September 21, 1998 as follows: $41,238 to Mr. Axelrod
and $20,542 to Mr. Lassen leaving $28,331 due to Mr. Axelrod and
$13,441 due to Mr. Lassen. We assumed these obligations, but no
further interest will accrue on them.
o We assumed the obligation to pay Mr. Lassen $12,500 for
unpaid back salary. Between the months of October 1997 and
November 1997, Mr. Lassen agreed to defer payment of salary due
to a shortage of working capital during those months. No
interest will accrue on this obligation.
o We assumed the obligation to pay Mr. Axelrod $19,904 for
unpaid back salary. Between the months of September 1997 and
December 1997, Mr. Axelrod agreed to defer payment of salary due
to a shortage of working capital during those months. No
interest will accrue on this obligation.
o We assumed the obligation to pay Convergent Communications,
Inc. $78,673 for equipment purchased in connection with a
customer network upgrade performed by LanXtra in December 1997,
while Convergent was completing the purchase of LanXtra's
network integration business.
o On May 28, 1998, LanXtra borrowed an aggregate of $150,000
to be used for working capital from three of its shareholders,
British Far East Holdings, Ltd., Martin Cooper and Fairway
Realty Associates in equal amounts as provided in a Bridge Loan
Agreement. On that same date, LanXtra entered into an
Additional Bridge Loan Agreement with David Selina, Jeff
Marshall and Randal Burtis, to borrow an additional $110,000 for
working capital purposes. Of that amount, $30,000 was borrowed
from Mr. Selina, $50,000 from Mr. Marshall and $30,000 from Mr.
Burtis. LanXtra issued each of these shareholders and employees
senior promissory notes bearing interest at 42% per year, the
principal and interest of which was payable in three equal
monthly installments beginning on November 1, 1998. They also
received shares of LanXtra nonvoting common stock and put
options to sell those shares back to LanXtra at $7.00 a share
beginning on January 1, 1999. We assumed LanXtra's obligations
under the senior promissory notes to pay these individuals an
aggregate of $260,000 in principal and $59,480 in interest,
which did not continue to accrue after the closing of the Asset
Purchase Agreement. We assumed LanXtra's obligations under the
Put Agreements by issuing to LanXtra at the closing of the Asset
Purchase Agreement 28,648 shares of our Class B common stock.
The terms of our Class B common stock contain put provisions
which are identical to those in the Put Agreements except that
the exercise period for the put begins 30 days after our 100
Credit Union Date, and we also have an option to purchase all or
part of the Class B common stock at a price of $7.00. After
completion of this offering we expect to offer these
shareholders the option to redeem their Class B shares at $7.00
per share, or to convert each Class B share into one share of
our Class A common stock.
LanXtra has conveyed the shares of our Class A and Class B common
stock it received through the Asset Purchase Agreement and the Agreement
for Post-Closing Adjustments to a newly formed limited liability company
named Zutano LLC. Zutano has the same ownership as LanXtra, and will hold
the shares until they are distributed to its members after the completion
of this offering.
Beginning in February 1999, we conducted a private placement of our
Series A preferred stock in which we sold 700,000 shares at $3.00 per
share and raised gross proceeds of $2,100,000. In accordance with the
terms of our Series A preferred stock, these shares will automatically
convert into 700,000 shares of Class A common stock upon the closing of
this offering. The holders of the converted shares of common stock are
entitled to piggyback registration rights. We engaged Neidiger, Tucker,
Bruner, Inc., as our exclusive placement agent for the offering as
provided in a Placement Agent Agreement dated March 10, 1999. NTB
received a placement fee and non-accountable expense allowance equal to
10% and 2%, respectively, of the gross proceeds in the offering, and
warrants to purchase 70,000 shares of preferred stock exercisable at $3.00
per share for a term of five years. The preferred stock purchase warrants
have been terminated at NTB's request. NTB has a non-contingent right of
first refusal to act as our investment banker with respect to any public
or private offering or sale of any of our securities, or the securities of
any subsidiary, for three years ending December 22, 2001. In addition, in
the event of a closing of any such offering in the first 24 months in
which NTB does not choose to act as our investment banker, we must pay NTB
a fee of $200,000 and issue NTB a warrant in an amount equal to 3% of the
securities sold, exercisable for five years at a purchase price of 120% of
the price of the securities in that offering.
When we closed the Asset Purchase Agreement with LanXtra, our
founding shareholders, Venture Funding, Ltd. and Boutine Capital, LLC,
agreed with LanXtra and our management shareholders, Mr. Selina, Mr.
Marshall and Mr. Lassen, that there would be a post-closing adjustment of
the shares of our Class A common stock held by these parties. Under the
Agreement for Post-Closing Adjustments, Venture Funding and Boutine agreed
to bear the equity cost of bringing us the first $1 million of new equity,
while LanXtra and the management shareholders agreed to share in the
dilution of any additional equity. This agreement was completed as of
April 16, 1999, with the transfer of an aggregate of 2,894 shares of our
Class A common stock from Venture Funding and Boutine to LanXtra and the
management shareholders.
On August 18, 1999, we entered into an agreement with MoneyLine
America, LLC to provide on-line mortgage lending services for our credit
unions and their members via our network. Fifty percent of MoneyLine
America is owned by Boutine Capital, LLC, a principal shareholder of
cavion.com.
On August 31, 1999, we completed a private placement of promissory
notes and warrants to purchase common stock under we raised $300,000. The
14% notes are due on the first to occur of the closing of this offering or
one year from their issuance. Each $50,000 note entitled the purchaser to
warrants to purchase 5,000 shares of common stock. The warrants are
exercisable for a five year period beginning on the earlier to occur of
the closing of this offering or one year from the date of their issuance.
The warrants are exercisable at the price per share of the shares offered
in this offering, or, if this offering does not close within one year from
the date of the issuance of the warrants, at $6.00 per share. First
Capital and NTB acted as our placement agents and received a commission of
9%; totalling $27,000 between them.
We believe that each of the related party transactions described
above were on terms at least as favorable as could be obtained from
nonaffiliated parties. All future transactions between cavion.com and an
officer, director or a principal shareholder will be on terms at least as
favorable to us as could be obtained from nonrelated parties; and, in
addition, any such transactions must be approved by a majority of the
disinterested members of the board of directors with access to counsel.
Underwriting
Subject to the terms and conditions in the underwriting agreement,
the underwriters named below, for which Neidiger, Tucker, Bruner, Inc., is
acting as representative, have agreed to purchase from us the respective
number of shares of common stock shown opposite its name below.
<TABLE>
<CAPTION>
Number of Shares
Underwriter To Be Purchased
----------- ----------------
<S> <C>
Neidiger, Tucker, Bruner, Inc.
---------
TOTAL 1,200,000
=========
</TABLE>
In the underwriting agreement, the underwriters have agreed, to
purchase all shares offered by this prospectus, other than the shares
covered by the underwriters' over-allotment option described below. In
the event of a default by any underwriter, the underwriting agreement
provides that the purchase commitments of the nondefaulting underwriters
may be increased or the underwriting agreement may be terminated.
The representative has advised us that the underwriters propose to
offer the shares to the public at the initial public offering price set
forth on the cover page of this prospectus, and to selected dealers at
such price less a concession not in excess of $ per share and
that the representative and such dealers may reallow a discount of not in
excess of $ per share to other dealers. The offering price and
the concession and discount to dealers may be changed by the
representative after the initial public distribution of the shares is
completed. The representative also has advised us that the underwriters
do not intend to confirm sales to any accounts over which any of them
exercise discretionary authority.
We have granted the underwriters an option, expiring at the close of
business 45 days after the date of this prospectus, to purchase up to
180,000 additional shares at the offering price less the 10% underwriting
discount and a 2% non-accountable expense allowance. The underwriters may
exercise this option only to satisfy over-allotments in the sale of the
shares. We will be obligated to sell these shares to the underwriters to
the extent the option is exercised. If the over-allotment option is
exercised in full, the total public offering price, underwriting discount
and gross proceeds to us will be $---------, $------------ and $----------
- --, respectively.
We have agreed to pay the representative a non-accountable expense
allowance of 2% of the total proceeds of the offering of which we have
already paid $45,000. We have also agreed to pay all expenses in
connection with qualifying the shares for sale in the states selected by
the representative. The representative's expenses in excess of the non-
accountable expense allowance, including its legal expenses, will be borne
by the representative. To the extent that the expenses of the
representative are less than the non-accountable expense allowance, the
excess may be deemed additional underwriting compensation.
Until the distribution of the shares is completed, rules of the
Securities and Exchange Commission may limit the ability of the
underwriters and selling group members to bid for and purchase our common
stock. As exceptions to these rules, the underwriters are permitted to
engage in transactions that stabilize the price of the common stock. Such
transactions may consist of over-allotment, stabilizing transactions,
syndicate covering transactions and penalty bids in accordance with
Regulation M under the Securities Exchange Act of 1934. Over-allotment
involves syndicate sales in excess of the offering size, which create a
syndicate short position. Stabilizing transactions permit bids to
purchase the common stock so long as the stabilizing bids do not exceed a
specified maximum. Syndicate covering transactions involve purchases of
the common stock in the open market after the distribution has been
completed in order to cover syndicate short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a syndicate
member when the securities originally sold by such syndicate member are
purchased in a syndicate covering transaction. Such transactions, or any
of them, may cause the price of the common stock to be higher than it
would otherwise be in the absence of such transactions.
Neither cavion.com nor the underwriters make any representation or
prediction as to the direction or magnitude of any effect that the
transactions described above may have on the price of the common stock.
If these activities are commenced, they may be discontinued by the
underwriters at any time without notice.
Our directors, officers and each holder of 5% or more of our common
stock have agreed not to offer, sell or otherwise dispose of their shares
of cavion.com common stock for a period of 12 months after the date of
this prospectus without the representative's prior written consent. Each
holder who owns less than 5% of our common stock, or securities
convertible into common stock, prior to the public offering has agreed not
to offer or sell or otherwise dispose of any of their shares for a period
of 9 months from the date of this prospectus without the prior written
consent of the representative. Most of these shareholders have also
agreed that, for a period of 18 months from the date of this prospectus,
any public sales of their shares, either under Rule 144 or otherwise, will
be made through the representative on an exclusive basis, provided that
the representative's compensation is competitive with other broker-
dealers.
We have agreed to sell the representative on completion of the
offering, for $100, a warrant entitling the representative or its assigns
to purchase 120,000 shares of our common stock. The representative's
warrant will be exercisable for a period of four years beginning one year
from the date of this prospectus. The representative's warrant will
contain anti-dilution provisions and permit the cashless exercise of the
warrant utilizing the value of the warrants being surrendered. The
exercise price of the representative's warrant is 125% of the public
offering price. The warrant is not redeemable by us. The
representative's warrant and the underlying common shares will be
restricted from sale, transfer, assignment or hypothecation for three
years after the date of this prospectus, except to officers of the
representative, co-underwriters, selling group members and their officers
or partners. After such three year period, the representative's warrant
and the underlying common shares will be transferable provided such
transfer is in accordance with the provisions of the Securities Act of
1933. We have agreed, at the representative's request, to register the
common stock underlying the representative's warrant issuable upon
exercise of the warrants. We may find it more difficult to raise
additional equity capital while the representative's warrant is
outstanding.
The representative has agreed to provide investment banking services
to us upon completion of the offering for a period of two years for a fee
of $48,000, payable at the closing of the offering. We have agreed to pay
the representative a fee based on the consideration paid or received by us
or our shareholders or any subsidiary in any transaction, including
mergers, asset sales and acquisitions, accepted by us within 3 years from
the completion of the offering made by this prospectus, provided the
representative introduced the other party to us. Such fee is based on a
sliding scale decreasing from 5% of the first $3 million of consideration
to 1% of any consideration greater than $10 million.
We have also agreed that for a period of two years from the date of
this offering, the representative shall have the right to designate one
person as an advisor to our board of directors. That person will be
reimbursed for his expenses in attending meetings of the board and will
receive cash compensation equal to that received by outside directors but
will have no power to vote as a director. We will indemnify that person
against any claim arising out of his or her participation in meetings of
the board to the same extent as directors. During such two-year period,
we have agreed with the representative to hold at least four meetings of
our board each year. We maintain a liability insurance policy with
coverage for acts of our officers and directors, and we have agreed that
if possible we will include the advisor designee as an insured under the
policy. Any advisor designated by the representative must be acceptable
to us, which acceptance will not be unreasonably withheld. The
representative has not yet designated an advisor to our board.
The representative received a $210,000 commission, a non-accountable
expense allowance of $42,000, and warrants to purchase up to 70,000 shares
of our preferred stock at $3.00 per share in connection with our private
offering of preferred stock completed in April 1999. The warrants have
been terminated at NTB's request. The representative also received a
$9,000 commission in connection with our August 1999 private offering of
promissory notes and warrants.
In connection with this offering, cavion.com and the underwriters
have agreed to indemnify each other against liabilities under the
Securities Act and if such indemnification is unavailable or insufficient,
cavion.com and the underwriters have agreed to damage contribution
arrangements based upon relative benefits received from this offering and
relative fault resulting from such damage.
Prior to the offering, there has been no public market for our
securities. The initial public offering price of the shares of common
stock has been determined by negotiation between us and the
representative. Among the factors considered in determining the initial
public offering price of the shares of common stock were:
o our earnings and other financial and operating information
in recent periods
o our future prospects and our industry in general
o the general condition of the securities markets at the time
of this offering
o the market prices of securities and the financial and
operating information of companies engaged in activities similar
to ours
There can be no assurance, however, that the prices at which the
common stock will sell in the public market after this offering will not
be lower than the price at which it is sold by the underwriters.
Application has been made to have the common stock approved for quotation
on the NASDAQ SmallCap Market upon completion of this offering.
The foregoing does not purport to be a complete statement of the
terms and conditions of the underwriting agreement, copies of which are on
file at the offices of cavion.com, the representative and the Securities
and Exchange Commission.
Additional Information
We will file annual, quarterly, special reports, proxy statements,
and other information with the Securities and Exchange Commission.
Reports, proxy and other information can be read and copied at the SEC's
Public Reference Room, 450 Fifth Street N.W., Washington, D.C. 20549. You
may obtain information on the operation of Public Reference Room by
calling the Commission at 1-800-SEC-0330. The Commission maintains a
website at (http://www.sec.gov) that contains all information filed
electronically by us.
This prospectus constitutes a part of a registration statement on
Form SB-2, together with amendments and exhibits, filed by us with the
Commission under the Securities Act, for the securities offered in this
prospectus. This prospectus does not contain all the information which is
in the registration statement, as allowed by the rules and regulations of
the Commission. We refer you to the registration statement and to the
exhibits for further information with respect to cavion.com and the
securities offered in this prospectus. Copies of the registration
statement and the exhibits are on file at the offices of the Commission
and may be obtained upon payment of the prescribed fee. They may be
examined without charge at the Commission's Public Reference Room or
through the Commission's website described above . Statements contained
in this prospectus concerning the provisions of documents are necessarily
summaries of the material provisions of such documents, and each statement
is qualified in its entirety by reference to the copy of the applicable
document filed with the Commission.
This prospectus includes statistical data regarding Internet usage
and the credit union industry which were obtained from industry
publications, including reports generated by Callahan, International Data
Corporation, Nielson/NetRatings, Gomez Advisors, and Online Banking
Report. These industry publications generally indicate that they have
obtained information from sources believed to be reliable, but do not
guarantee the accuracy and completeness of such information. While we
believe those industry publications to be reliable, we have not
independently verified such data. We also have not sought the consent of
any of these organizations to refer to their reports in this prospectus.
Reports to Security Holders
We intend to distribute to our shareholders annual reports containing
audited financial statements and will make available copies of quarterly
reports for the first three quarters of each fiscal year containing
unaudited interim financial information.
Experts
The audited financial statements of cavion.com and LanXtra included
in this prospectus and registration statement to the extent and for the
periods indicated in their reports have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of
Arthur Andersen LLP as experts in accounting and auditing in giving said
reports. Reference is made to such reports, which include explanatory
paragraphs with respect to the uncertainty regarding cavion.com's and
LanXtra's ability to continue as going concerns as discussed in Note 1 to
each company's financial statements.
Legal Matters
The validity of the common stock offered by this prospectus will be
passed upon for us by Gorsuch Kirgis LLP, Denver, Colorado. Legal matters
in connection with the offering will be passed upon for the underwriters
by John G. Herbert, P.C., Denver, Colorado.
Index to Financial Statements
Page
----
Audited financial statements:
LanXtra, Inc.
Report of Independent Public Accountants F-3
Balance Sheets at January 31, 1999, December 31,
1998 and 1997 F-4
Statements of Operations for the one month period
ended January 31, 1999, for the years ended
December 31, 1998 and 1997 and for the six month
period ended June 30, 1998 F-6
Statements of Stockholders' Deficit for the one month
ended January 31, 1999 and for the years ended
December 31, 1998 and 1997 F-7
Statements of Cash Flows for the one month period ended
January 31, 1999, for the years ended December 31,
1998 and 1997 and for the six month period ended
June 30, 1998 F-8
Notes to Financial Statements F-9
Cavion Technologies, Inc.
Report of Independent Public Accountants F-26
Balance Sheets at June 30, 1999, March 31, 1999 and
December 31, 1998 F-27
Statements of Operations for the six months ended
June 30, 1999, three months ended March 31, 1999
and for the period from Inception (August 18, 1998)
to December 31, 1998 F-29
Statements of Stockholders' Equity for the three monthsF-30
ended June 30, 1999, three months ended March 31, 1999
and for the period from Inception (August 18, 1998) to
December 31, 1998
Statements of Cash Flows for the six months ended June 30,
1999, three months ended March 31, 1999 and for the
period from Inception (August 18, 1998) to December 31,
1998 F-33
Notes to Financial Statements F-34
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom
Corporation)
FINANCIAL STATEMENTS
AS OF JANUARY 31, 1999, DECEMBER 31, 1998 AND
DECEMBER 31, 1997
TOGETHER WITH REPORT OF INDEPENDENT
PUBLIC ACCOUNTANTS
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To LanXtra, Inc.:
We have audited the accompanying balance sheets of LANXTRA, INC. (a
Colorado corporation; formerly Cavion Technologies, Inc. and Sigmacom
Corporation) as of January 31, 1999, December 31, 1998 and 1997, and the
related statements of operations, stockholders' deficit and cash flows for
the one-month period ended January 31, 1999 and for the years ended
December 31, 1998 and 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of LanXtra, Inc. as of
January 31, 1999, December 31, 1998 and 1997, and the results of its
operations and its cash flows for the one-month period ended January 31,
1999 and for the years ended December 31, 1998 and 1997 all in conformity
with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. Effective February 1, 1999,
substantially all of the Company's assets were transferred to Cavion
Technologies, Inc. in exchange for common stock and the assumption of the
Company's liabilities. Subsequent to this transaction, the Company's
activities will be limited to holding warrants to purchase the common
stock of Convergent Communications Services, Inc. and common stock of
Cavion Technologies, Inc. In April 1999, the Board of Directors resolved
to form a limited liability company and contribute the Company's remaining
assets into such company. The ability of the Company and its successor
limited liability company to continue operations depends upon the ultimate
value, if any, of the financial instruments held and the resolution of the
matters discussed in Note 7. This raises substantial doubt about the
Company and its successor's ability to continue as a going concern. The
financial statements do not include any adjustments relating to the
recoverability and classification of asset carrying amounts or the amount
and classification of liabilities that might result should the Company be
unable to continue as a going concern.
Denver, Colorado,
May 18, 1999
Page 1 of 2
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
BALANCE SHEETS
--------------
<TABLE>
<CAPTION>
December 31,
January 31, -----------------
ASSETS 1999 1998 1997
------ ----------- -------- --------
<S> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ - $ 52,116 $350,443
Accounts receivable 16,458 17,695 114,599
Prepaids 33,120 38,295 -
Inventories 5,832 5,641 -
-------- -------- --------
Total current assets 55,410 113,747 465,042
-------- -------- --------
PROPERTY AND EQUIPMENT, at cost:
Leasehold improvements 7,674 7,674 7,674
Furniture and fixtures 44,330 44,330 44,330
Network equipment and licensed
software 391,880 354,577 233,471
-------- -------- --------
443,884 406,581 285,475
Less - Accumulated depreciation (112,864) (104,712) (38,209)
-------- -------- --------
Property and equipment, net 331,020 301,869 247,266
-------- -------- --------
DEBT ISSUANCE COSTS, net of accumulated
amortization of $67,500, $67,500
and $49,091, respectively - - 18,409
DEPOSIT FOR LETTER OF CREDIT 20,000 20,000 20,000
OTHER ASSETS 21,815 20,179 17,313
-------- --------- --------
TOTAL ASSETS $428,245 $455,795 $768,030
======== ========= ========
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
Page 2 of 2
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
BALANCE SHEETS
--------------
<TABLE>
<CAPTION>
December 31,
January 31, --------------------
LIABILITIES AND STOCKHOLDERS' DEFICIT 1999 1998 1997
- ------------------------------------- ----------- -------- --------
<S> <C> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 256,222 $ 118,942 $ 81,032
Bank overdraft 19,397 - -
Accrued liabilities 186,444 171,908 211,347
Accrued interest 114,322 105,401 9,095
Deferred revenue and deposits 214,712 198,884 8,695
Related party collateralized loans 13,410 13,410 75,190
Current portion of capital
lease obligations 30,279 32,363 17,661
Notes payable to stockholders 300,000 300,000 40,000
Note payable to Cavion 335,000 335,000 -
Revolving line of credit 600,000 600,000 600,000
--------- --------- ---------
Total current liabilities 2,069,786 1,875,908 1,043,020
--------- --------- ---------
LONG-TERM LIABILITIES:
Capital lease obligations 32,832 32,832 20,475
PUTABLE COMMON STOCK; 58,648, 58,648
and 30,000 shares issued and
outstanding, respectively
(stated at accreted value;
total redemption value of
approximately $2.0 million) 1,700,236 1,650,236 837,500
COMMITMENTS AND CONTINGENCIES
(Notes 1 and 7)
STOCKHOLDERS' DEFICIT:
Common stock; $.01 par value,
1,000,000 shares authorized;
315,112, 315,112 and 286,464
shares issued, and outstanding
including 58,648, 58,648 and
30,000 shares, respectively,
of putable common stock 3,151 3,151 2,865
Additional paid-in capital 410,735 410,735 410,735
Accumulated deficit (3,788,495) (3,517,067) (1,546,565)
--------- --------- --------- ---------
Total stockholders' deficit (3,374,609) (3,103,181) (1,132,965)
--------- --------- --------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS'
DEFICIT $ 428,245 $ 455,795 $ 768,030
========= ========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
Page 1 of 2
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
STATEMENTS OF OPERATIONS
------------------------
<TABLE>
<CAPTION>
One-Month
Period Ended Year Ended
January 30, December 31,
1999 1998
------------ ------------
<S> <C> <C>
REVENUE:
Network access and
connectivity fees $ 24,381 $ 147,965
Installation services 12,800 63,031
Software licensing fees 669 4,026
--------- -----------
Total revenue 37,850 215,022
--------- -----------
COST OF REVENUE:
Network access and connectivity 15,645 136,903
Installation services 16,253 85,516
--------- -----------
Total cost of revenue 31,898 222,419
--------- -----------
Gross profit (loss) 5,952 (7,397)
--------- -----------
OPERATING EXPENSES:
General and administrative 181,731 869,293
Research and development 31,580 248,599
--------- -----------
Total operating expenses 213,311 1,117,892
--------- -----------
LOSS FROM OPERATIONS (207,359) (1,125,289)
INTEREST EXPENSE (64,069) (997,503)
OTHER INCOME - 152,290
--------- -----------
LOSS FROM CONTINUING OPERATIONS (271,428) (1,970,502)
DISCONTINUED OPERATION:
Gain from disposal of discontinued
operation - -
Income from operations of
discontinued operation - -
--------- -----------
- -
--------- -----------
NET LOSS $(271,428) $(1,970,502)
========= ===========
BASIC AND DILUTED NET LOSS FROM
CONTINUING OPERATIONS PER SHARE $(1.06) $ (7.66)
====== =========
BASIC AND DILUTED NET LOSS
PER SHARE $(1.06) $ (7.66)
====== =========
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING - BASIC AND DILUTED 256,464 257,319
========= ===========
</TABLE>
<TABLE>
<CAPTION>
Six-Month
Year Ended Period Ended
December 31, June 30,
1997 1999
------------ ------------
(unaudited)
<S> <C> <C>
REVENUE:
Network access and
connectivity fees $ 24,430 $ 72,457
Installation services - 19,227
Software licensing fees - 1,237
---------- -----------
Total revenue 24,430 92,921
COST OF REVENUE:
Network access and connectivity 51,688 66,398
Installation services - 17,999
---------- -----------
Total cost of revenue 51,688 84,397
---------- -----------
Gross profit (loss) (27,258) 8,524
---------- -----------
OPERATING EXPENSES:
General and administrative 673,034 348,959
Research and development 363,741 120,177
---------- -----------
Total operating expenses 1,036,775 469,136
---------- -----------
LOSS FROM OPERATIONS (1,064,033) (460,612)
INTEREST EXPENSE (808,822) (433,573)
OTHER INCOME 37,361 20,986
---------- -----------
LOSS FROM CONTINUING OPERATIONS (1,835,494) (873,199)
DISCONTINUED OPERATION:
Gain from disposal of discontinued
operation 418,848 -
Income from operations of
discontinued operation 653,528 -
---------- -----------
1,072,376 -
---------- -----------
NET LOSS $ (763,118) $(873,199)
========== ===========
BASIC AND DILUTED NET LOSS FROM
CONTINUING OPERATIONS PER SHARE $ (8.86) $ (3.40)
========== =========
BASIC AND DILUTED NET LOSS
PER SHARE $ (3.68) $ (3.40)
========== =========
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING - BASIC AND DILUTED 207,205 256,464
========== ==========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
STATEMENTS OF STOCKHOLDERS' DEFICIT
-----------------------------------
FOR THE ONE MONTH ENDED JANUARY 31, 1999 AND
--------------------------------------------
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1997
----------------------------------------------
<TABLE>
<CAPTION>
Common Stock
Shares
(Including Shares of
Putable Common Stock) Amount
---------------------- ------
<S> <C> <C>
BALANCES, December 31, 1996 230,000 $ 2,300
Exercise of stock options by an
employee at an exercise price
of $.01 in May 1997 5,000 50
Issuance of common stock for cash at $7.77
per share in connection with the sale of
discontinued operation 51,464 515
Net loss - -
-------- --------
BALANCES, December 31, 1997 286,464 2,865
Issuance of putable common stock 28,648 286
Net loss - -
--------- ---------
BALANCES, December 31, 1998 315,112 3,151
Net loss - -
--------- ---------
BALANCES, January 31, 1999 315,112 3,151
========= =========
</TABLE>
<TABLE>
<CAPTION>
Additional
Paid-In Accumulated
Capital Deficit
----------- -----------
<S> <C> <C>
BALANCES, December 31, 1996 $ 11,250 $ (783,447)
Exercise of stock options by an
employee at an exercise price
of $.01 in May 1997 - -
Issuance of common stock for cash at $7.77
per share in connection with the sale of
discontinued operation 399,485 -
Net loss - (763,118)
--------- ----------
BALANCES, December 31, 1997 410,735 (1,546,565)
Issuance of putable common stock - -
Net loss - (1,970,502)
--------- ----------
BALANCES, December 31, 1998 410,735 $(3,517,067)
Net loss - (271,428)
--------- ----------
BALANCES, January 31, 1999 $ 410,735 $(3,788,495)
========= ==========
</TABLE>
<TABLE>
<CAPTION>
Total
Stockholders'
Deficit
-------------
<S> <C>
BALANCES, December 31, 1996 $ (769,897)
Exercise of stock options by an
employee at an exercise price
of $.01 in May 1997 50
Issuance of common stock for cash at
$7.77 per share in connection with
the sale of discontinued operation 400,000
Net loss (763,118)
----------
BALANCES, December 31, 1997 (1,132,965)
Issuance of putable common stock 286
Net loss (1,970,502)
----------
BALANCES, December 31, 1998 $(3,103,181)
Net loss (271,428)
----------
BALANCES, January 31, 1999 $(3,374,609)
==========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
STATEMENTS OF CASH FLOWS
------------------------
<TABLE>
<CAPTION>
One-Month
Period Ended Years Ended
January 31, December 31,
1999 1998
----------- ------------
(unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(271,428) $(1,970,502)
Adjustments to reconcile net loss to net
cash used in operating activities-
Depreciation and amortization 8,152 84,912
Gain from disposal of discontinued
operations - -
Provision for doubtful accounts - -
Accretion of putable stock 50,000 612,200
Accretion of discount on bridge loan - 200,536
Change in operating assets and
liabilities-
Accounts receivable 1,237 96,904
Prepaids and inventories 4,984 (43,936)
Other assets (1,636) (2,866)
Accounts payable 137,280 37,910
Accrued liabilities 23,457 56,867
Deferred revenue 15,828 190,189
Decrease in net assets of
discontinued operations - -
--------- -----------
Net cash used in operating activities (32,126) (737,786)
--------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (37,303) (71,154)
Proceeds from disposal of discontinued
operations - -
--------- -----------
Net cash (used in) provided by
investing activities (37,303) (71,154)
--------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Cash overdraft 19,397 -
Proceeds from issuance of common stock - 286
Repayments of related party loans - (61,780)
Cash received on related party loans - -
Repayments of stockholder notes - -
Cash received from stockholder notes - 260,000
Cash received from Cavion - 335,000
Payment on capital lease obligations (2,084) (22,893)
--------- -----------
Net cash provided by financing
activities 17,313 510,613
--------- -----------
NET (DECREASE) INCREASE IN CASH
AND CASH EQUIVALENTS (52,116) (298,327)
CASH AND CASH EQUIVALENTS,
beginning of period 52,116 350,443
--------- -----------
CASH AND CASH EQUIVALENTS,
end of period - $ 52,116
========= ===========
SUPPLEMENTAL DISCLOSURE OF NON-CASH
INVESTING AND FINANCING ACTIVITIES:
Property acquired with capital leases - $ 49,952
========= ===========
Putable common stock issued in
conjunction With stockholder notes - $ 200,536
========= ===========
Cash paid for interest 5,148 $ 88,461
========= ===========
</TABLE>
<TABLE>
<CAPTION>
Years Ended Six-Month
December 31, Period Ended
1997 June 30, 1999
------------ -------------
(unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(763,118) $(873,199)
Adjustments to reconcile net loss to net
cash used in operating activities-
Depreciation and amortization 58,284 39,662
Gain from disposal of discontinued
operations (418,848) -
Provision for doubtful accounts 20,923 -
Accretion of putable stock 577,500 306,100
Accretion of discount on bridge loan - 28,648
Change in operating assets and
liabilities-
Accounts receivable (135,522) 6,869
Prepaids and inventories - (9,906)
Other assets (7,970) (1,164)
Accounts payable 69,186 (32,860)
Accrued liabilities 184,169 123,225
Deferred revenue 8,695 40,654
Decrease in net assets of
discontinued operations 64,884 -
--------- ---------
Net cash used in operating
activities (341,817) (371,971)
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (181,422) (30,959)
Proceeds from disposal of
discontinued operations 475,000 -
--------- ---------
Net cash (used in) provided by
investing activities 293,578 (30,959)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Cash overdraft - -
Proceeds from issuance of common stock 400,050 286
Repayments of related party loans) (50,000) -
Cash received on related party loans 75,190 -
Repayments of stockholder notes (28,721) -
Cash received from stockholder notes - 260,000
Cash received from Cavion - -
Payment on capital lease obligations (6,625) (10,935)
--------- ---------
Net cash provided by financing
activities 389,894 249,351
--------- ---------
NET (DECREASE) INCREASE IN CASH
AND CASH EQUIVALENTS 341,655 (153,579)
CASH AND CASH EQUIVALENTS,
beginning of period 8,788 350,443
--------- ---------
CASH AND CASH EQUIVALENTS,
end of period $ 350,443 $ 196,864
========= =========
SUPPLEMENTAL DISCLOSURE OF NON-CASH
INVESTING AND FINANCING ACTIVITIES:
Property acquired with capital leases $ 44,761 $ 16,881
========= =========
Putable common stock issued in
conjunction with stockholder
notes $ - $ 200,536
========= =========
Cash paid for interest $ 66,496 $ 39,750
========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
LANXTRA, INC.
(Formerly Cavion Technologies, Inc. and Sigmacom Corporation)
NOTES TO FINANCIAL STATEMENTS
-----------------------------
FOR THE PERIOD ENDED JANUARY 31, 1999 AND
-----------------------------------------
FOR YEARS ENDED DECEMBER 31, 1998 AND 1997
------------------------------------------
(Information as of June 30, 1998 and
for the six months then ended is unaudited)
(1) DESCRIPTION OF BUSINESS
-----------------------
Organization
------------
Sigmacom Corporation ("Sigmacom")was incorporated under the laws of the
state of Colorado on June 26, 1992. In 1998 Sigmacom changed its name to
Cavion Technologies, Inc. Effective January 1999, Cavion Technologies,
Inc. changed its name to LanXtra, Inc. ("LanXtra" or the "Company").
Before 1998, the Company was engaged in integrating computer networks and
communications technologies for financial institutions, Fortune 1000
companies and government agencies. On December 3, 1997, the Company
entered into an asset purchase agreement with Convergent Communications
Services, Inc. ("Convergent") for the sale of certain assets of the
Company, including all assets related to the Company's network integrator
business, including, without limitation, the name, "Sigmacom".
Since January 1, 1998, the Company has been engaged in developing and
marketing a suite of network products and services for the credit union
industry that includes: (1) a secure network that enables access via the
internet or an intranet; (2) secure internet financial products such as
internet banking software; and (3) secure internet access services for
credit unions.
Subsequent to the transaction discussed below, the Company's activities
will be limited to holding warrants for the purchase of Convergent common
stock and common stock of the new Cavion Technologies, Inc. Further, in
April 1999, the Board of Directors resolved to form a limited liability
company and contribute the Company's remaining assets into such company.
The ability of the Company and its successor limited liability company to
continue operations depends upon the ultimate value, if any, of the
financial instruments held and the resolution of the matters discussed in
Note 7. This raises substantial doubt about the Company and its
successor's ability to continue as a going concern. The financial
statements do not include any adjustments relating to the recoverability
and classification of asset carrying amounts or the amount and
classification of liabilities that might result should the Company be
unable to continue as a going concern.
Transfer of the Company's Assets, Liabilities and Operations
------------------------------------------------------------
In August 1998, the Company signed a letter of intent to transfer its
assets and operations to a company to be renamed Cavion Technologies, Inc.
("Cavion"). In December 1998, the Company signed an Asset Purchase
Agreement (the "Purchase Agreement") with Cavion for the transfer of
substantially all the assets of the Company in exchange for 375,214 shares
and 28,648 shares of Cavion's Class A and B common stock, respectively,
and the assumption of liabilities. Also in December 1998, management
shareholders of LanXtra received 625,356 shares of Class A common stock
directly from Cavion. These management shareholders held sufficient
voting shares, directly and indirectly through irrevocable proxies, to
approve the transaction with Cavion.
The Class A common stock and Class B common stock of Cavion are alike in
all respects, except that the Class B common shareholders have the option
to put those shares to Cavion for $7 per share and a parallel call option
is held by Cavion. The Class A common stock issued to the Company
represents approximately 12% of the common equity of Cavion. The Purchase
Agreement was consummated on February 1, 1999 and Cavion has subsequently
assumed the operations of the Company. During the period from August 1998
through February 1, 1999, Cavion provided loans to the Company totaling
$335,000 at January 31, 1999. Such loans were forgiven as part of the
transaction. In management's opinion, the purchase of the Company's
assets and assumption of its liabilities by Cavion will qualify under
Internal Revenue Code regulations as a tax free reorganization.
Upon consummation of the Purchase Agreement, several of the Company's
contractual arrangements were significantly modified. The Company's
Investment Agreement, warrant and option agreements were cancelled and
certain debt maturities were rescheduled by the creditors (see Notes 3 and
5).
Cavion is an entity formed by various third parties to acquire the
business conducted by the Company. Through January 31, 1999, Cavion had
raised $370,000 through debt offerings, $335,000 of which was advanced to
the Company as of January 31, 1999. In February 1999, Cavion conducted a
private placement of its Series A preferred stock, raising approximately
$2 million.
The business now conducted by Cavion has never been profitable, and there
is substantial risk associated with the Company's investment in Cavion
common stock. It is probable that the value of this common stock will be
highly volatile and it is reasonably possible that the ultimate value
realized from the stock could be zero.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
------------------------------------------
Interim Financial Statements (unaudited)
----------------------------------------
The interim financial statements as of and for the six months ended June
30, 1998, are unaudited and have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission. Accordingly, they
do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the
opinion of the Company's management, the unaudited interim financial
statements contain all adjustments, consisting of normal recurring
adjustments, considered necessary for a fair presentation. The results of
operations for the interim period is not necessarily indicative of the
results for the entire year.
Basis of Presentation
---------------------
Accounting for transactions during the one-month period ending January 31,
1999, is on the same basis of accounting as for the years ended December
31, 1998 and 1997. The Company has presented information as of and for
the one-month period ended January 31, 1999, as this represents the final
period in which the business transferred to Cavion was conducted by the
Company.
Use of Estimates
----------------
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions. These estimates and assumptions affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements, and the reported
amounts of revenue and expenses during the reporting period. Actual
results could differ from those estimates.
Cash and Cash Equivalents
-------------------------
The Company considered all highly liquid investments with original
maturities of three months or less to be cash equivalents.
Fair Value of Financial Instruments
-----------------------------------
The fair value of the Company's cash and cash equivalents, trade
receivables and payables approximated their carrying amounts due to their
short-term nature. The fair value of the Company's other financial
instruments are as follows:
<TABLE>
<CAPTION>
January 31, 1999 and
December 31, 1998
-------------------------
Approximate
Carrying Fair
Amount Value
---------- -----------
<S> <C> <C>
Related party collateralized loans $ 13,410 $ 11,000
Notes payable to stockholders 300,000 260,000
Revolving line of credit 600,000 600,000
Putable stock 1,700,236/1,650,236 175,000
</TABLE>
<TABLE>
<CAPTION>
December 31, 1997
-------------------------
Approximate
Carrying Fair
Amount Value
---------- -----------
<S> <C> <C>
Related party collateralized notes $ 75,190 $ 6,000
Notes payable to stockholders 40,000 3,000
Revolving line of credit 600,000 600,000
Putable stock 837,500 15,000
</TABLE>
Fair values at January 31, 1999 and December 31, 1998 have been estimated
using the values placed on them by the buyer in the transaction described
above. Fair values at December 31, 1997, have been estimated based upon
the terms of subsequent financings.
Concentration of Credit Risk
----------------------------
Financial instruments which potentially subjected the Company to
concentrations of credit risk were accounts receivable, which were
concentrated among credit union customers. The Company performed ongoing
credit evaluations of its customers' financial condition and generally
required no collateral. Additionally, the Company managed a portion of
its credit risk by billing certain services in advance. The Company had
no significant financial instruments with off-balance sheet risk of
accounting loss, such as foreign exchange contracts, option contracts or
other hedging arrangements.
Property and Equipment
----------------------
Property and equipment were recorded at cost and depreciated using the
straight-line method over the lesser of the lease term or their estimated
lives as follows:
Furniture and fixtures 7 years
Computer equipment 3 - 5 years
Licensed software 3 years
Leasehold improvements Life of the lease
Impairment of Long-Lived Assets
-------------------------------
The Company reviewed its long-lived assets for impairment whenever events
or changes in circumstances indicated that the carrying amount of an asset
may not be recoverable from future undiscounted cash flows. During 1997
and 1998 and in January 1999, no impairment losses were recorded.
Accrued Liabilities
-------------------
Accrued liabilities consist of the following:
<TABLE>
<CAPTION>
December 31,
January 31, -------------------
1999 1998 1997
----------- -------- --------
<S> <C> <C> <C>
Wages payable and accrued
vacation $48,545 $ 44,661 $ 30,924
Accrued vendor payable 78,673 78,673 78,673
Accrued professional fees 41,257 27,500 9,657
Other liabilities 17,969 21,074 92,093
-------- -------- --------
Total accrued liabilities $186,444 $171,908 $211,347
======== ======== ========
</TABLE>
Income Taxes
------------
A current provision for income taxes was recorded for actual or estimated
amounts payable or refundable on tax returns filed or to be filed for each
year. Deferred income tax assets and liabilities were recorded for the
expected future income tax consequences, based on enacted tax laws, of
temporary differences between the financial reporting and tax bases of
assets and liabilities and carryforwards. The overall change in deferred
tax assets and liabilities for the period measured the deferred tax
expense for the period. Effects of changes in tax laws on deferred tax
assets and liabilities were reflected as adjustments to tax expense in the
period of enactment. Deferred tax assets were recognized for the expected
future tax effects of all deductible temporary differences, loss
carryforwards and tax credit carryforwards. Deferred tax assets were then
reduced, if deemed necessary, by a valuation allowance for the amount of
any tax benefits which, more likely than not based on current
circumstances, were not expected to be realized.
Net Loss Per Share
------------------
The Company reports net loss per share in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share"
which requires the presentation of both basic and diluted earnings (loss)
per share. Basic net loss per common share has been computed based upon
the weighted average number of shares of common stock outstanding during
the period, excluding putable common stock as an assumed cash settlement
is more dilutive than a share settlement. Diluted net loss per share is
computed by dividing the net loss for the period by the weighted average
number of common and potential common shares outstanding during the period
if the effect of the potential common shares is dilutive. The Company has
excluded the weighted average effect of common stock issuable upon
exercise of all warrants and options for common stock from the computation
of diluted earnings per share as the effect of all such securities is anti-
dilutive for all periods presented. The shares excluded (without regard
to the treasury stock method) are as follows:
For the year ended December 31:
1998 531,978
1997 307,113
There are no such shares excluded for the month ended January 31, 1999,
due to the cancellation of options and warrants at December 31, 1998.
Basic and diluted net loss per share is computed using the following
average shares outstanding:
<TABLE>
<CAPTION>
Six
Years Ended Months
Month Ended December 31, Ended
January 31, ---------------- June 30,
1999 1998 1997 1998
----------- ------- ------- --------
<S> <C> <C> <C> <C>
Weighted average shares
outstanding 315,112 304,130 237,205 290,557
Less: Weighted average
shares of putable stock (58,648) (46,811) (30,000) (34,093)
------- ------- ------- -------
Net weighted average
shares outstanding 256,464 257,319 207,205 256,464
======= ======= ======= =======
</TABLE>
Stock Based Compensation
------------------------
The Company accounted for its employee stock option plans and other
employee stock-based compensation arrangements in accordance with the
provisions of Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees" ("APB 25"), and related interpretations. The
Company adopted the disclosure-only provisions of SFAS No. 123 "Accounting
for Stock-Based Compensation" ("SFAS No. 123"), which allows entities to
continue to apply the provisions of APB 25 for transactions with employees
and provide pro forma disclosures for employee stock grants made in 1997
and future years as if the fair-value-based method of accounting in SFAS
No. 123 had been applied to these transactions. The Company accounted for
equity instruments issued to non-employees in accordance with the
provisions of SFAS No. 123.
Revenue Recognition
-------------------
The Company generated revenue from three sources: (1) service revenue for
the installation of internet access equipment at customer sites, (2)
software license fees, and (3) recurring monthly network access and
connectivity fees. Service revenue was recognized as the services were
performed. Software license arrangements typically provided for
enhancements over the term of the arrangement, and software license fees
were generally received in advance, deferred and recognized ratably over
the term of the arrangement. Network access and connectivity fees were
typically billed in advance and recognized in the month that the
access/connectivity was provided.
Software Development Costs
--------------------------
Capitalization of software development costs commenced upon the
establishment of technological feasibility of the software product. The
Company's software products were deemed to be technologically feasible at
the point the Company commenced field testing of the software. The period
from field testing to general customer release of the software was brief
and the costs incurred during this period were insignificant.
Accordingly, the Company did not capitalize any qualifying software
development costs.
Comprehensive Income
--------------------
Effective January 1, 1998, the Company adopted the provisions of SFAS No.
130, "Reporting Comprehensive Income" ("SFAS No. 130"). SFAS No. 130
establishes standards for reporting comprehensive income and its
components in financial statements. Comprehensive income, as defined,
includes all changes in equity (net assets) during a period from non-owner
sources. From its inception through January 31, 1999, there were no
differences between comprehensive loss and net loss.
Segment Information
-------------------
In June 1997, the Financial Accounting Standards Board issued SFAS No.
131, "Disclosures about Segments of an Enterprise and Related Information"
("SFAS No. 131"). SFAS No. 131 establishes standards for the way
companies report information about operating segments in annual financial
statements. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. In
accordance with the provisions of SFAS No. 131, the Company has determined
that it had one reportable operating segment at December 31, 1998 and
January 31, 1999.
Recently Issued Accounting Pronouncement
----------------------------------------
Statement of Financial Accounting Standards No. 133
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("SFAS No. 133"). The Company is
required to adopt SFAS No. 133 in the year ended December 31, 2000. SFAS
No. 133 establishes methods of accounting for derivative financial
instruments and hedging activities related to those instruments as well as
other hedging activities. The Company's derivative financial instruments
include a written put on the Company's common stock and the Convergent
warrants (Note 8).
Reclassifications
-----------------
Certain amounts in the 1997 financial statements have been reclassified to
conform to the current year presentation.
(3) DEBT
----
Revolving Line of Credit
------------------------
In 1996, the Company entered into a two-year revolving line of credit (the
"Revolving Line of Credit") with a bank which allows for borrowings up to
$600,000. Interest accrues at a rate equal to the Bank's reference rate
plus 1.5% (9.25%, 9.25% and 10% at January 31, 1999, December 31, 1998 and
1997, respectively). The Revolving Line of Credit is collateralized by
letters of credit issued by the Company and certain stockholders as well
as by agreements among certain stockholders (see Note 5). In 1998, the
Revolving Line of Credit was extended and all amounts outstanding were due
on January 31, 1999. As part of the Purchase Agreement, the Revolving
Line of Credit was assumed by Cavion and the maturity date of the loan was
extended to December 31, 1999.
As part of the 1997 asset sale agreement with Convergent, it was agreed
that the Company would be reimbursed for interest expense incurred on the
Revolving Line of Credit if certain revenue targets were achieved on the
line of business sold. In 1998, Convergent reimbursed the Company for
interest expense totaling $30,334 until June 30, 1998, when such
reimbursements were discontinued because the revenue targets were not met.
Notes Payable to Stockholders
-----------------------------
The notes payable to stockholders consist of eight notes totaling $300,000
at January 31, 1999, and December 31, 1998. Two of the notes have an
aggregate principal balance of $40,000 and accrue interest at a rate of
prime plus 2% (9.75%, 9.75% and 10.5% as of January 31, 1999, December 31,
1998 and 1997, respectively). During 1999, 1998 and 1997, the Company
continued to accrue interest in accordance with the terms of the notes.
The notes are unsecured.
Effective May 28, 1998, the Company entered into six note payable
agreements (the "Bridge Loans") with certain stockholders and management
(the "Lenders"), whereby the Company borrowed $260,000. Interest on the
Bridge Loans was payable at the rate of 42% per year. Under the original
terms of the Bridge Loans, the principal was payable in monthly
installments and the balance, including accrued interest, was due on
January 1, 1999. In connection with the Purchase Agreement, the maturity
was extended to the date on which Cavion obtains 100 credit union
customers (the "100 Credit Union Date"). In addition, interest terms were
amended such that no interest will accrue after December 31, 1998. The
Bridge Loans are unsecured.
As additional consideration for the Bridge Loans, the Lenders were issued
28,648 shares of the Company's nonvoting common stock for $.01 per share.
The Lenders had the right to sell these shares back to the Company for a
purchase price of $7 per share, during a 60-day period beginning January
1, 1999. As a result of this transaction, $200,536 was recorded as a debt
discount and accreted as interest expense in 1998. The common stock was
accreted to its redemption value at December 31, 1998. The right to sell
shares back to the Company was canceled in conjunction with the Purchase
Agreement, in exchange for the stockholders being granted the same rights
in 28,648 shares of Cavion's Class B common stock.
Note Payable
------------
On September 14, 1998, the Company entered into a loan agreement with
Cavion to borrow up to $300,000, at an interest rate of 16% and a maturity
date of March 14, 1999. The note was secured by substantially all of the
tangible and intangible assets of the Company (including its technology).
On December 29, 1998, Cavion agreed to lend up to an additional $55,000
under the same terms, and advanced $35,000 of this amount. As part of the
Purchase Agreement, this loan was forgiven.
Related Party Collateralized Loans
----------------------------------
The Company entered into factoring agreements (the "Agreements") with
management and a stockholder of the Company. Accrued interest as of
January 31, 1999, December 31, 1998 and 1997, under the Agreements was
$27,952, $27,952 and $6,905, respectively, and is included in accrued
interest in the accompanying financial statements. Under the terms of the
Agreements, interest accrued on the outstanding balances at a rate of 3%
for the first 30 days and 1% for each additional 10 days until the
outstanding balances were paid in full. In connection with the Purchase
Agreement, the maturity of these loans was extended to the 100 Credit
Union Date. In addition, interest terms were amended such that no
interest will accrue after February 1, 1999.
(4) CAPITAL LEASE OBLIGATIONS
-------------------------
The Company entered into various capital lease agreements related to
computers and various office equipment. The capital leases have terms
ranging from 24 to 36 months with interest rates ranging between 11.4% and
20.3%.
As of December 31, 1998, the present value of future minimum lease
payments are as follows:
Year Ending December 31,
1999 $ 39,509
2000 21,513
2001 15,578
--------
76,600
Less: amounts representing interest (11,405)
--------
65,195
Less: current portion (32,363)
--------
Long-term capital lease obligation $ 32,832
========
The net book value of assets under capital lease obligations as of January
31, 1999 was $65,069.
(5) STOCKHOLDERS' DEFICIT
---------------------
Investment Agreement
--------------------
In August 1996, the Company entered into an investment agreement (the
"Investment Agreement") under which the Company sold 30,000 shares of
common stock to an investor group at par value, subject to a put option
agreement (the "Put Options"). The investor group provided letters of
credit for $600,000 to secure the Company's Revolving Line of Credit. The
Put Options were exercisable for a 60-day period beginning August 1, 1999.
The original terms of the Put Options provided that they would be canceled
if the Company completes a public stock offering and repaid the Revolving
Line of Credit. The amounts to be redeemed under the Put Options were
being accreted over the period to their exercise date using the straight
line method, and has been included in interest expense in the accompanying
statements of operations. Contingent upon consummation of the Purchase
Agreement with Cavion, the investor group, under a separate agreement, has
agreed to cancel the Put Options. The letters of credit provided by the
investor group continue to secure the Company's Revolving Line of Credit
until it is repaid by Cavion. However, LanXtra is obligated to reimburse
the investor group in the event of foreclosure on their collateral.
If Cavion defaults on the Revolving Line of Credit, 171,000 shares of the
Company's outstanding common stock held by certain members of the
Company's investor group are to be forfeited and transferred back to the
Company.
Warrants
--------
The Investment Agreement required that if the Company repaid its Revolving
Line of Credit but failed to complete a qualified initial public offering
by January 31, 2000, the investor group would be issued warrants to
purchase 30,000 shares of common stock. The warrants will have an
exercise price equal to the book value per share on December 31, 1999, and
are exercisable anytime within three years from the date of issuance. As
part of the Purchase Agreement, such warrants were canceled.
The Company also issued a stockholder warrants to purchase 7,113 shares of
common stock in consideration for services performed in connection with
the Investment Agreement. The warrants had an exercise price of $ 7.70
and are exercisable upon the expiration or the exercise of the Put Option.
No value was attributed to these warrants as it was unlikely these
warrants would be exercised prior to the exercise date. As part of the
Purchase Agreement, such warrants were canceled.
Stock Options
-------------
In 1997, the Company adopted a stock option plan. Stock options to
employees were granted at various exercise prices and vested between one
and five years.
The following table summarizes stock option activity for the plan:
<TABLE>
<CAPTION>
1998 1997
---------------- -----------------
Weighted Weighted
Average Average
Exercise Exercise
Shares Price Shares Price
------ -------- ------ --------
<S> <C> <C> <C> <C>
Outstanding at beginning of year 270,000 $ 7.50 5,000 $0.01
Granted 196,217 4.60 292,105 $6.94
Cancelled (466,217) (5.93) (22,105) $0.01
Exercised - - (5,000) $0.01
------- ------ ------- ------
Outstanding at end of year - $ - 270,000 $7.50
Weighted average fair value of options
granted during the year $1.79 $1.63
===== =====
</TABLE>
As of December 31, 1998, all outstanding options for common stock were
canceled.
Under the fair value approach of SFAS 123, the total fair value of options
granted under the Plan during 1997 was approximately $478,000. If the
Company had accounted for its stock option plan in accordance with SFAS
123, the Company's net loss and pro forma net loss would have been
reported as follows:
<TABLE>
<CAPTION>
1998 1997
------------ ----------
<S> <C> <C> <C>
Net loss: As reported $(1,970,502) $(763,118)
=========== =========
Pro forma $(2,321,196) $(819,242)
=========== =========
Per share data: As reported $(7.66) $(3.68)
====== ======
Pro forma $(9.02) $(3.95)
====== ======
</TABLE>
The fair value of each option grant was estimated on the date of the grant
using the minimum value method. Assumptions used to calculate the fair
value were risk free interest rates of 6.22% to 6.25%, no dividend yields,
an expected life of three to five years and volatility of .001%.
(6) INCOME TAXES
------------
From inception, the Company has generated losses for both financial
reporting and tax purposes. At January 31, 1999, December 31, 1998 and
1997, the Company had a net operating loss carryforward for income tax
purposes of approximately $1,550,000, $1,328,000 and $530,000,
respectively. These would expire beginning in 2011 through 2018, if not
utilized. The net loss carryforwards resulted in a deferred tax asset of
approximately $613,000, $530,000 and $199,000 at January 31, 1999,
December 31, 1998 and 1997, respectively. Due to the uncertainty relating
to the realization of the benefit of the net operating loss carryforward,
a valuation allowance has been recorded for the full amount.
The Company paid no federal or state income taxes in 1998 or 1997.
The effective tax rate differs from the statutory tax rate applied to the
loss from continuing operations for the following reasons:
<TABLE>
<CAPTION>
January December 31,
1999 1998 1997
--------- ---------- ----------
<S> <C> <C> <C>
Expected federal benefit $(92,285) $(669,971) $(624,067)
Expected state benefit,
net of federal (8,957) (65,027) (60,571)
Non-deductible accretion 18,650 403,998 229,039
Increase in valuation
allowance 82,592 331,000 455,599
-------- -------- --------
Provision/benefit for income
taxes related to loss from
continuing operations $ - $ - $ -
======== ======== ========
</TABLE>
No taxes were provided against the gain and results from discontinued
operations as no incremental taxes were due.
(7) COMMITMENTS AND CONTINGENCIES
-----------------------------
Leases
------
The Company had operating lease agreements relating to office facilities
and equipment which expire through 2000. Future minimum lease payments
under these agreements were as follows:
Year Ended December 31,
1999 $60,049
2000 2,298
--------
$62,347
========
Rent expense for the years ended December 31, 1998 and 1997 was
approximately $60,621 and $73,000, respectively, and approximately $5,000
for January 1999. Obligations for payments under these leases were
assumed by Cavion.
Legal Matters
-------------
In the normal course of business, the Company is subject to, and may
become a party to, litigation arising out of its operations. In
management's opinion, none of the matters currently in actual or
threatened litigation will have a material impact on the Company's
financial position or results of operations.
In connection with the Purchase Agreement transaction, a shareholder of
the Company exercised his rights as a dissenting shareholder. If the
shareholder is permitted to pursue this claim in a legal proceeding, the
Company could be required to pay the shareholder the fair value of his
shares immediately before the closing date of the Purchase Agreement.
Management believes that the value paid on account of these shares
pursuant to the Purchase Agreement is greater than the amount which the
dissenting shareholder could recover under Colorado law. The dissenting
shareholder has asserted, however, that the value of his 50,000 LanXtra
shares immediately before the closing date of the Purchase Agreement is
approximately $250,000. The ultimate resolution of the matter, which is
expected to occur within one year, could result in an obligation to the
shareholder. Further, should the Company, or Cavion as successor, be
required to make a payment to this shareholder, such payment could result
in the Cavion purchase transaction being treated as a taxable transaction
which could subject Cavion or the Company to a significant tax liability.
(8) DISCONTINUED OPERATION
----------------------
On December 3, 1997, the Company sold the network integrator operations
(the "Discontinued Operation") of the Company for cash of $475,000. This
transaction resulted in a gain of $418,848. The Company also received
$30,334 in 1998 from Convergent related to this transaction and has
included this amount in other income for 1998.
In conjunction with the sale, the Company also issued Convergent 51,464
shares of common stock in exchange for $400,000.
The Company also received a warrant to purchase 50,000 shares of
Convergent's common stock at an exercise price of $7.50 per share. The
warrant was exercisable immediately and expires on December 3, 1999. As
of January 31, 1999, the Company had not exercised the warrant. No value
has been attributed to this warrant in the accompanying financial
statements as management believes the value of this warrant is nominal.
Convergent is not a publicly traded company, and based on information
available to the Company, the exercise price is significantly in excess of
the estimated market value of Convergent's common stock.
Summarized results of operations financial position and earnings per share
data of the discontinued operations were as follows:
<TABLE>
<CAPTION>
For the Year Ended
December 31,1997
------------------
<S> <C>
Results of operations:
Revenue $3,723,130
Net income from discontinued operation 653,528
Basic and diluted per share information:
Basic and diluted net income from discontinued
operation $3.15
=====
Basic and diluted gain on sale of
discontinued operation $2.02
=====
</TABLE>
(9) PRO FORMA FINANCIAL STATEMENTS (UNAUDITED)
------------------------------------------
The following presents unaudited balance sheet information of Cavion as of
June 30, 1999 and pro forma statements of operations data for the year
ended December 31, 1998, and the six-month period ended June 30, 1999 for
the Company and Cavion. For purposes of the pro forma statements of
operations, the transfer of the Company's assets and assumption of its
liabilities was assumed to be consummated on January 1, 1998. Pro forma
earnings per share are calculated as if the Purchase Agreement was
completed on January 1, 1998.
<TABLE>
<CAPTION>
Cavion
June 30,1999
--------------
<S> <C>
Current assets $ 926,262
Noncurrent assets 4,867,564
----------
Total assets $5,793,826
==========
Current liabilities $1,952,344
Noncurrent liabilities 640,937
Stockholders' equity 3,200,545
----------
$5,793,826
==========
</TABLE>
The pro forma statement of operations for the year ended December 31, 1998
is as follows:
<TABLE>
<CAPTION>
Pro Forma
LanXtra Cavion Adjustments Pro Forma
--------------------- -------------- ------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenue $ 215,022 $ - $ - $ 215,022
Cost of revenue 222,419 - - 222,419
----------- -------- --------- -----------
Gross profit (loss) (7,397) - - (7,397)
Operating expenses 1,117,892 6,877914,146 (1) 2,038,915
Nonoperating expenses 845,213 29,067(584,480) (2) 289,800
----------- -------- --------- -----------
Loss from continuing
operations $(1,970,502) $(35,944) $(329,666) $(2,336,112)
=========== ======== ========= ===========
Net loss from continuing
operations per basic
share $ (.77)
======
Weighted average shares
outstanding 3,029,218
=========
(1) Amortization of goodwill
(2) Reduction of interest expense to reflect Cavion's capital
structure.
</TABLE>
The pro forma statement of operations for the six-month period ended June
30, 1999 is as follows:
<TABLE>
<CAPTION>
Cavion
(Six
Months
LanXtra Ended
(January June 30, Pro Forma
1999) 1999) Adjustments Pro Forma
---------- ------------ ------------ ------------
(unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenue $ 37,850 $ 205,333 $ - $ 243,183
Cost of revenue 31,898 133,617 - 165,515
--------- `---------- --------- ----------
Gross profit 5,952 71,716 - 77,668
Operating expenses 213,311 1,619,67779,388 (1) 1,912,376
Nonoperating expenses 64,069 252,586(52,932) (2) 263,723
--------- ----------- -------- -----------
Net Loss $(271,428) $(1,800,547) $(26,456) $(2,098,431)
========= =========== ======== ===========
Net loss per basic
share $(.75)
=====
Weighted average
shares outstanding 2,788,574
=========
</TABLE>
Adjustments
-----------
(1) Amortization of goodwill
(2) Reduction of interest expense to reflect Cavion's capital
structure
(10) CONDENSED FINANCIAL STATEMENTS, AFTER CONSUMMATION
--------------------------------------------------
OF PURCHASE AGREEMENT (UNAUDITED)
---------------------------------
The following unaudited balance sheet reflects the Company's balance sheet
following the transfer of the Company's assets to and assumption of its
liabilities by Cavion which was completed February 1, 1999 (see Note 1).
The investment in Cavion stock has been recorded at the net book value of
the assets transferred to and liabilities assumed by Cavion. Because the
liabilities assumed by Cavion exceeded the value of the assets transferred
and the Company was relieved from its obligations for those transferred
liabilities, the investment in Cavion was recorded at zero. As discussed
in Note 8, management believes that the fair value of the Convergent
warrants was zero.
Investment in Cavion common stock $ -
Investment in Convergent warrants -
--------
$ -
========
Stockholders' equity (deficit) $ -
========
CAVION TECHNOLOGIES, INC.
(Formerly Network Acquisitions, Inc.)
FINANCIAL STATEMENTS
AS OF JUNE 30, 1999 (UNAUDITED), MARCH 31, 1999
AND DECEMBER 31, 1998
TOGETHER WITH REPORT OF INDEPENDENT
PUBLIC ACCOUNTANTS
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Cavion Technologies, Inc.:
We have audited the accompanying balance sheets of CAVION TECHNOLOGIES,
INC. (a Colorado corporation doing business as cavion.com; formerly
Network Acquisitions, Inc.; the "Company") as of March 31, 1999 and
December 31, 1998, and the related statements of operations, stockholders'
equity and cash flows for the three months ended March 31, 1999 and for
the period from inception (August 18, 1998) to December 31, 1998. These
financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Cavion Technologies,
Inc. as of March 31, 1999 and December 31, 1998, and the results of its
operations and its cash flows for the three months ended March 31, 1999
and for the period from inception (August 18, 1998) to December 31, 1998,
in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has acquired the business of an entity
that has suffered recurring and substantial operating losses. The Company
also assumed substantial liabilities, and its operating plans call for the
expenditure of significant amounts to support its anticipated growth. A
substantial portion of the equity of the Company has been derived from the
issuance of stock for non-cash consideration and is based upon estimates
of fair value which may or may not be substantiated by subsequent cash
offerings. These issues raise substantial doubt about the Company's
ability to continue as a going concern. Management's plans in regards to
these matters are described in Note 1. The financial statements do not
include any adjustments relating to the recoverability and classification
of asset carrying amounts or the amount and classification of liabilities
that might result should the Company be unable to continue as a going
concern.
Denver, Colorado,
May 18, 1999.
Page 1 of 2
CAVION TECHNOLOGIES, INC.
-------------------------
(Formerly Network Acquisitions, Inc.)
BALANCE SHEETS
--------------
<TABLE>
<CAPTION>
June 30, March 31, December 31,
1999 1999 1998
---------- ----------- -----------
(unaudited)
ASSETS
------
<S> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 458,881 $ 1,055,230 $ 19,735
Accounts receivable 26,202 9,393 -
Prepaid assets 63,049 50,841 -
Inventories 5,832 5,832 -
Deferred offering costs 372,298 119,773 -
--------- ---------- ---------
Total current assets 926,262 1,241,069 19,735
--------- ---------- ---------
PROPERTY AND EQUIPMENT, at cost:
Leasehold improvements 19,256 17,809 -
Furniture and fixtures 42,970 27,157 -
Network equipment and 419,613 385,668 -
licensed software
--------- ---------- ---------
481,839 430,634 -
Less - Accumulated depreciation (45,197) (17,531) -
--------- ---------- ---------
Property and equipment, net 436,642 413,103 -
--------- ---------- ---------
DEBT ISSUANCE COSTS, net of
accumulated amortization of
$33,753 (unaudited), $12,103
and $4,232, respectively 28,865 50,515 49,412
DEPOSIT FOR LETTER OF CREDIT 20,000 20,000 -
DEFERRED LANXTRA ACQUISITION COSTS - - 2,204,814
GOODWILL AND OTHER INTANGIBLE
ASSETS, net of accumulated
amortization of $392,509
(unaudited), $158,776 as of
June 30, 1999 and as of
March 31, 1999, respectively 4,370,759 4,604,492 -
OTHER ASSETS 11,298 24,482 -
--------- ---------- ---------
TOTAL ASSETS $ 5,793,826 $ 6,353,661 $ 2,273,961
========= ========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
Page 2 of 2
CAVION TECHNOLOGIES, INC.
-------------------------
(Formerly Network Acquisitions, Inc.)
BALANCE SHEETS
--------------
<TABLE>
<CAPTION>
June 30, March 31, December 31,
1999 1999 1998
----------- ----------- -----------
(unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
<S> <C> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 385,729 $ 201,928 $ -
Accrued liabilities 274,408 286,657 31,185
Accrued interest 117,448 146,613 2,116
Deferred revenue and deposits 242,965 235,863 -
Related party collateralized
loans 12,369 11,586 -
Current portion of capital
lease obligations 42,948 52,378 -
Notes payable to stockholders 276,477 253,393 -
Revolving line of credit 600,000 600,000 -
--------- --------- ---------
Total current liabilities 1,952,344 1,788,418 33,301
--------- --------- ---------
LONG-TERM LIABILITIES:
Capital lease obligations 61,580 62,438 -
Notes payable 394,660 338,155 252,833
--------- ---------- ---------
Total long-term liabilities 456,240 400,593 252,833
--------- ---------- ---------
PUTABLE CLASS B COMMON STOCK;
30,000 shares authorized;
28,648, 28,648 and 0 shares issued
and outstanding, respectively
(stated at accreted value; total
redemption value of $200,536) 184,697 172,816 -
COMMITMENTS AND CONTINGENCIES
(Notes 1 and 7)
STOCKHOLDERS' EQUITY:
Series A Convertible Preferred
Stock; $.0001 par value,
10,000,000 shares authorized;
700,000 (unaudited), 567,000
and 0 issued and outstanding,
respectively (liquidation
value of $4,200,000
(unaudited), $3,402,000,
and 0 1,682,800 1,496,880 -
Class A Common Stock; $.0001 par
value, 19,970,000 shares
authorized; 2,706,326
(unaudited), 3,006,210 and
2,625,356 issued and outstanding,
respectively 271 302 263
Warrants 165,200 - 13,284
Additional paid-in capital 3,188,765 3,188,765 2,010,224
Accumulated deficit (1,836,491) (694,113) (35,944)
--------- --------- ---------
Total stockholders' equity 3,200,545 3,991,834 1,987,827
--------- --------- ---------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 5,793,826 $ 6,353,661 $ 2,273,961
========= ========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these balance sheets.
CAVION TECHNOLOGIES, INC.
-------------------------
(Formerly Network Acquisitions, Inc. )
STATEMENTS OF OPERATIONS
------------------------
<TABLE>
<CAPTION>
Period from
Six Three- Inception
Months Months (August 18,
Ended Ended 1998) to
June 30, March 31, December 31,
1999 1999 1998
----------- ----------- -----------
(unaudited)
<S> <C> <C> <C>
REVENUE:
Network access and $ 156,207 $ 55,578 $ -
connectivity fees
Installation services 45,225 9,623 -
Software licensing fees 3,901 1,338 -
--------- ---------- ---------
Total revenue 205,333 66,539 -
--------- ---------- ---------
COST OF REVENUE:
Network access and connectivity 99,900 34,749 -
Installation services 33,717 6,694 -
--------- ---------- ---------
Total cost of revenue 133,617 41,443 -
--------- --------- ---------
Gross profit 71,716 25,096 -
--------- --------- ---------
OPERATING EXPENSES:
General and administrative 1,063,079 404,249 6,877
Research and development 162,089 46,584 -
Amortization of goodwill 394,509 158,776 -
--------- ---------- ---------
Total operating expenses 1,619,677 609,609 6,877
--------- ---------- ---------
LOSS FROM OPERATIONS (1,547,961) (584,513) (6,877)
INTEREST EXPENSE (224,131) (73,656) (29,067)
--------- ---------- ---------
NET LOSS $(1,772,092) $ (658,169) $ (35,944)
========= ========== =========
NET LOSS APPLICABLE TO COMMON
SHAREHOLDERS
Net loss $(1,772,092) (658,169) $ (35,944)
Dividends on redeemable,
convertible preferred
stock (28,455) - -
---------- ---------- ---------
NET LOSS APPLICABLE TO COMMON
STOCKHOLDERS $(1,800,547) $ (658,169) $ (35,944)
========== ========== =========
BASIC AND DILUTED NET LOSS
PER SHARE $ (0.65) $ (0.23) $ (0.02)
========= ========= =========
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING - BASIC AND DILUTED 2,757,306 2,875,879 2,078,170
========= ========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
CAVION TECHNOLOGIES, INC.
-------------------------
(formerly Network Acquisitions, Inc.)
STATEMENTS OF STOCKHOLDERS' EQUITY
----------------------------------
FOR THE THREE MONTHS ENDED JUNE 30, 1999 (UNAUDITED),
-----------------------------------------------------
THREE MONTHS ENDED MARCH 31, 1999
---------------------------------
AND FOR THE PERIOD FROM INCEPTION (AUGUST 18,1998)
--------------------------------------------------
TO DECEMBER 31, 1998
--------------------
<TABLE>
<CAPTION>
Series A
Convertible
Preferred Stock Common Stock
------------------- ----------------
Shares Amount Shares Amount
------- ------------------- ------
<S> <C> <C> <C> <C>
BALANCES, August 18, 1998 - $ - - $ -
Issuance of common stock
for $.0001 per share - - 2,000,000 200
Issuance of common stock
for $.01 per share, recorded
at December 21, 1998
estimated fair value of $3.00
per share - - 625,356 63
Issuance of warrants to note
holders - - - -
Repurchase of common stock - - (44,400) (4)
Issuance of warrants to Selling
Agent - - - -
Exercise of warrants by note
holders - - 44,400 4
Net loss - - - -
--------- --------- --------- ----
BALANCES, December 31, 1998 - - 2,625,356 263
Issuance of common stock for
LanXtra business, recorded at
February 1, 1999, estimated
fair value of $3.00 per share - - 375,214 38
Issuance of warrants to note
holders - - - -
Repurchase of common stock - - (12,000) (1)
Issuance of warrants to Selling
Agent - - - -
Exercise of warrants by
note holders and Selling
Agent - - 17,640 2
Issuance of Series A Preferred
Stock for $3.00 per share,
net of offering costs of
$204,120 567,000 1,496,880 - -
Net loss - - - -
------- --------- --------- ----
BALANCES, March 31, 1999 567,000 1,496,880 3,006,210 302
</TABLE>
<TABLE>
<CAPTION>
Addi- Warrants Total
tional for Accumu- Stock-
Paid-In Common lated holders'
Capital Stock Deficit Equity
---------- -------- -------- --------
<S> <C> <C> <C> <C>
BALANCES, August 18, 1998 $ - $ - $ - $ -
Issuance of common stock
for $.0001 per share - - - 200
Issuance of common stock
for $.01 per share,
recorded at December 21,
1998 estimated fair
value of $3.00 per share 1,876,005 - - 1,876,068
Issuance of warrants to
note holders - 133,775 - 133,775
Repurchase of common stock - - - (4)
Issuance of warrants to
Selling Agent - 13,284 - 13,284
Exercise of warrants by
note holders 134,219 (133,775) - 448
Net loss - - (35,944) (35,944)
--------- -------- --------- ---------
BALANCES, December 31, 1998 2,010,224 13,284 (35,944) 1,987,827
Issuance of common stock
for LanXtra business,
recorded at February 1,
1999, estimated fair
value of $3.00 per share 1,125,604 - - 1,125,642
Issuance of warrants to
note holders - 35,885 - 35,885
Repurchase of common stock - - - (1)
Issuance of warrants to
Selling Agent - 3,590 - 3,590
Exercise of warrants by
note holders and Selling
Agent 52,937 (52,759) - 180
Issuance of Series A
Preferred Stock for $3.00
per share, net of offering
costs of $204,120 - - - 1,496,880
Net loss - - (658,169) (658,169)
--------- ------- -------- ---------
BALANCES, March 31, 1999 3,188,765 - (694,113) 3,991,834
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
CAVION TECHNOLOGIES, INC.
-------------------------
(formerly Network Acquisitions, Inc.)
STATEMENTS OF STOCKHOLDERS' EQUITY
----------------------------------
FOR THE THREE MONTHS ENDED JUNE 30, 1999 (UNAUDITED),
-----------------------------------------------------
THREE MONTHS ENDED MARCH 31, 1999
---------------------------------
AND FOR THE PERIOD FROM INCEPTION (AUGUST 18,1998)
--------------------------------------------------
TO DECEMBER 31, 1998
--------------------
<TABLE>
<CAPTION>
Series A
Convertible
Preferred Stock Common Stock
------------------- ----------------
Shares Amount Shares Amount
------- ------------------- ------
<S> <C> <C> <C> <C>
Issuance of Series A
Preferred Stock for $3.00
per share, net of offering
costs of $213,080, including
warrant valued at $165,200 133,000 185,920 - -
Repurchase of common stock - - (299,884) (31)
Dividends on Series A
Preferred Stock - - - -
Net loss - - - -
------- --------- --------- ----
BALANCES, June 30, 1999
(unaudited) 700,000 $1,682,800 2,706,326 $271
======= ========= ========= ====
</TABLE>
<TABLE>
<CAPTION>
Addi- Total
tional Accumu- Stock-
Paid-In lated holders'
Capital Warrants Deficit Equity
---------- -------- ------------ ----------
<S> <C> <C> <C> <C>
Issuance of Series A
Preferred Stock for
$3.00 per share, net of
offering costs of
$213,080, including
warrant valued at
$165,200 - 165,200 - 351,120
Repurchase of common stock - - - (31)
Dividends on Series A
Preferred Stock - - (28,455) (28,455)
Net loss - - (1,113,923) (1,113,923)
---------- -------- ----------- ----------
BALANCES, June 30, 1999 $3,188,765 $165,200$(1,836,491) $3,200,545
(unaudited)
========== ======== =========== ==========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
Page 1 of 2
CAVION TECHNOLOGIES, INC.
-------------------------
(formerly Network Acquisitions, Inc.)
STATEMENTS OF CASH FLOWS
------------------------
<TABLE>
<CAPTION>
Period from
Six Three Inception
Months Months (August 18,
Ended Ended 1998) to
June 30, March 31, December 31,
1999 1999 1998
------------ ----------- ------------
(unaudited)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES:
Net loss $(1,772,092) $ (658,169) $ (35,944)
Adjustments to reconcile net
loss to net cash used in
operating activities-
Depreciation and
amortization 445,577 184,178 -
Accretion of debt
discount 126,902 24,880 16,608
Accretion of putable
stock 17,500 5,619 4,232
Change in operating assets
and liabilities-
Accounts receivable (9,744) 7,065 -
Prepaids and inventories (29,929) (17,721) -
Other assets 10,517 (2,667) -
Accounts payable 100,120 (83,681) -
Accrued liabilities 92,162 162,031 2,116
Deferred revenue 28,253 21,151 -
----------- ---------- ----------
Net cash used in
operating activities (990,734) (357,314) (12,988)
----------- ---------- ----------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Purchase of property
and equipment (87,015) (35,810) -
Acquisition of LanXtra - - (335,000)
----------- ---------- ----------
Net cash used in
investing activities (87,015) (35,810) (335,000)
--------- ---------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from notes
payable 100,000 100,000 370,000
Repurchases of common stock (31) - -
Proceeds from issuance
of Common Stock 178 178 6,898
Proceeds from issuance
of Series A Preferred
Stock 2,100,000 1,701,000 -
Series A Preferred Stock
offering costs (252,000) (204,120) -
Payment of debt issuance
costs (36,567) (36,567) (9,175)
Principal payments on
capital leases (22,387) (12,099) -
Deferred offering costs (372,298) (119,773) -
----------- ---------- ----------
Net cash provided
by financing
activities 1,516,895 1,428,619 367,723
----------- ---------- ----------
NET INCREASE IN CASH AND
CASH EQUIVALENTS 439,146 1,035,495 19,735
CASH AND CASH EQUIVALENTS,
beginning of period 19,735 19,735 -
---------- --------- ---------
CASH AND CASH EQUIVALENTS,
end of period $ 458,881 $1,055,230 $ 19,735
========== ========= =========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
Page 2 of 2
CAVION TECHNOLOGIES, INC.
-------------------------
(formerly Network Acquisitions, Inc.)
STATEMENTS OF CASH FLOWS
------------------------
<TABLE>
<CAPTION>
Period from
Six Three Inception
Months Months (August 18,
Ended Ended 1998) to
June 30, March 31, December 31,
1999 1999 1998
------------ ----------- ------------
(Unaudited)
<S> <C> <C> <C>
SUPPLEMENTAL DISCLOSURE OF
CASH FLOW INFORMATION:
Cash paid for interest $ 35,771 $ 16,679 $ 6,111
=========== ========== ==========
SUPPLEMENTAL DISCLOSURE OF
NON-CASH FINANCING ACTIVITIES:
Value of warrants to purchase
preferred stock issued to
Placement Agent $ 165,200 $ - $ -
=========== ========== ==========
Property acquired with capital
leases $ 63,804 $ 63,804 $ -
=========== ========== ==========
Value of warrants to purchase
common stock issued to
note holders $ 35,885 $ 35,885 $ 133,775
=========== ========== ==========
Value of warrants to purchase
common stock issued to
Selling Agent $ 35,590 $ 3,590 $ 13,284
=========== ========== ==========
Debt issuance costs included
in accrued liabilities $ - $ - $ 31,185
=========== ========== ==========
Estimated value of shares
issued to LanXtra management
shareholders $ - $ - $1,876,068
=========== ========== ==========
</TABLE>
The accompanying notes to financial statements
are an integral part of these statements.
CAVION TECHNOLOGIES, INC.
-------------------------
(formerly Network Acquisitions, Inc.)
NOTES TO FINANCIAL STATEMENTS
-----------------------------
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND
---------------------------------------------
FOR THE PERIOD FROM INCEPTION (AUGUST 18, 1998)
-----------------------------------------------
TO DECEMBER 31, 1998
--------------------
(Information as of June 30, 1999 and for
the six months then ended is unaudited)
(1) DESCRIPTION OF BUSINESS
-----------------------
Organization
------------
The Company was incorporated in Colorado on August 18, 1998 as Network
Acquisitions, Inc. to acquire the assets of Cavion Technologies, Inc., now
known as LanXtra, Inc. ("LanXtra"), which was engaged in providing
internet, intranet, and extranet services to the credit union industry.
On February 1, 1999, the Company acquired the business of LanXtra, and the
Company changed its name to Cavion Technologies, Inc., doing business as
cavion.com.
The Company has devoted substantially all of its efforts since inception
to the acquisition of LanXtra's assets and to raising capital and other
organizational activities. The Company financed its operations through a
private placement of its 15% notes, which were offered commencing on
October 20, 1998 (the "Offering") and the sale of Series A Preferred
Stock. The Company advanced a portion of the proceeds from the Offering
to LanXtra in anticipation of the acquisition of LanXtra. Through
December 31, 1998, the Company had raised $370,000 in the private
placement and had advanced LanXtra a total of $335,000 under an agreement
dated September 14, 1998. As of March 31, 1999, an additional $100,000
was raised from the Offering (see Note 3).
Purchase of LanXtra's Assets, Liabilities and Operations
--------------------------------------------------------
In August 1998, the Company signed a letter of intent to purchase
LanXtra's business. In December 1998, the Company signed an Asset
Purchase Agreement (the "Purchase Agreement") with LanXtra to purchase
substantially all the assets of LanXtra in exchange for approximately
375,214 shares and 28,648 shares of the Company's Class A and B common
stock, respectively, and the assumption by the Company of certain
liabilities of LanXtra. The number of Class A common stock shares issued
to LanXtra represents approximately 12% of the Company's equity interest.
The Purchase Agreement was consummated on February 1, 1999 and the Company
assumed the operations of LanXtra on that date. Upon consummation,
significant modifications were made to LanXtra's capital structure.
On December 21, 1998, the Company issued 625,356 shares to certain
shareholders of LanXtra who could continue as management of the Company.
One of these shareholders held directly and through irrevocable proxies
sufficient voting shares to approve the transaction. The shares are non-
forfeitable and not contingent upon the management's continued employment
with the Company. As a result, the shares have been considered additional
purchase consideration and are recorded at their estimated fair value of
$3 per share.
The estimated fair value of assets acquired, liabilities assumed, and
consideration issued in the transaction with LanXtra are as follows:
<TABLE>
<CAPTION>
<S> <C>
Consideration:
Class A common stock $3,001,710
Class B common stock 167,197
Cash 338,735
---------
3,507,642
Add: Net liabilities (assets) assumed:
Working capital deficit assumed 704,044
Property and equipment (331,020)
Borrowings assumed 924,417
Other assets (41,815)
---------
Goodwill and other intangible assets $4,763,268
=========
</TABLE>
The Company has recorded the fair value of its stock issued to LanXtra at
$3 per share based principally upon its private placement of Series A
Preferred Stock completed in February 1999. The transaction with LanXtra
resulted in approximately $4,760,000 of intangible assets (primarily
technology, customer lists and goodwill). These intangible assets will be
amortized over five years. The purchase price allocation is subject to
adjustment based on the final determination of the fair value of the
assets and liabilities assumed, which could take as long as one year from
February 1, 1999. Because the business now operated by the Company has
never been profitable, and due to the other risks and uncertainties
discussed herein, it is reasonably possible that an analysis of these long-
lived assets in future periods could result in a conclusion that they are
impaired, and the amount of the impairment could be substantial.
The Company's operations, as assumed from LanXtra, are subject to various
risks and uncertainties frequently encountered by companies in the early
stages of development, particularly companies in the new and rapidly
evolving market of internet-based products and services. Such risks and
uncertainties include, but are not limited to, its limited operating
history, evolving technology, and the management of rapid growth. To
address these risks, the Company must, among other things, maintain and
increase its customer base, implement and successfully execute its
business and marketing strategy, continue to develop and upgrade its
technology, provide superior customer service and attract, retain and
motivate qualified personnel. There can be no guarantee that the Company
will be successful in addressing such risks.
The business purchased from LanXtra has never achieved profitability and
the Company expects to incur net losses for the foreseeable future. This
business has never generated sufficient revenue to cover the substantial
amounts spent to create, launch and enhance its services. Even if the
Company's operations do achieve profitability in the future, it may not
sustain or increase its profitability. LanXtra historically funded its
operations through borrowings and sales of equity.
The Company has expended, and will continue to expend, significant
resources marketing its products and establishing a customer base.
Management believes, but cannot guarantee, that such products will be
accepted by the marketplace in sufficient quantities to provide for
profitable operations at some future date. The Company's ability to
achieve and attain profitable operations and positive cash flow from
operations depends upon various factors including, among others, the costs
of and resources for developing and marketing its products, the extent and
timing of market acceptance of the Company's products, competitive factors
and other factors, certain of which may be beyond the Company's control.
In order to execute its business plan, the Company will require additional
public or private debt or equity financing. There can be no guarantees
that such financing will be available in the future.
As a result of these factors, there is substantial doubt about the
Company's ability to continue as a going concern. The accompanying
financial statements do not include any adjustments relating to the
recoverability and classification of asset carrying amounts or the amount
and classification of liabilities that might result should the Company be
unable to continue as a going concern. Management intends to seek
additional equity financing, and to continue to aggressively market the
Company's products to its identified market, in response to these factors.
Subsequent to March 31, 1999, the Company sold an additional 133,000
shares of Series A Preferred Sock for gross proceeds of $399,000. The
Company believes that the proceeds of this offering and the cash on hand
at March 31, 1999 will be sufficient to fund the Company's operations
through September 1999 (see Note 9).
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
------------------------------------------
Interim Financial Statements (Unaudited)
----------------------------------------
The interim financial statements as of and for the six months ended June
30, 1999, are unaudited and have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission. Accordingly, they
do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the
opinion of the Company's management, the unaudited interim financial
statements contain all adjustments, consisting of normal recurring
adjustments, considered necessary for a fair presentation. The results of
operations for the interim period is not necessarily indicative of the
results of the entire year.
Use of Estimates
----------------
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions. These estimates and assumptions affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements, and the reported
amounts of revenue and expenses during the reporting period. Actual
results could differ from those estimates.
As of March 31, 1999, the Company has recorded capital contributions of
$4,890,066, of which only $1,708,076 was issued for cash consideration.
The Company based the estimated fair value of its stock issued to LanXtra
management shareholders in December 1998, and the stock issued to LanXtra
in February 1999, upon its private placement of preferred shares in
February 1999. The Company believes its estimate of fair value is
reasonable, however, there can be no assurance that future cash offerings
will substantiate the estimated per share value of the Company's stock.
Cash and Cash Equivalents
-------------------------
The Company considers all highly liquid investments with original
maturities of three months or less to be cash equivalents.
Concentration of Credit Risk
----------------------------
Financial instruments which subject the Company to concentrations of
credit risk are accounts receivable and cash equivalents. The Company's
receivables are concentrated among credit unions. The Company performs
ongoing credit evaluations of its customers' financial condition and
generally requires no collateral. Additionally, the Company manages a
portion of its credit risk by billing certain services in advance. The
Company has no significant financial instruments with off-balance sheet
risk of accounting loss, such as foreign exchange contracts, option
contracts or other hedging arrangements.
Fair Value of Financial Instruments
-----------------------------------
The Company's financial instruments consist of cash, accounts receivable,
short-term trade payables, putable common stock and borrowings. The
carrying values of the instruments acquired from LanXtra approximate the
fair value placed upon them on February 1, 1999, in connection with their
assumption. Fair values were principally determined by discounting
expected future cash flows at a market cost of debt. The fair value of
the Company's other borrowings approximate their carrying values based
upon current market rates of interest.
Property and Equipment
----------------------
Property and equipment acquired from LanXtra was recorded at its estimated
fair value. Additions are recorded at cost. Property and equipment are
depreciated using the straight-line method over the lesser of the lease
term or their estimated lives as follows.
<TABLE>
<CAPTION>
<S> <C>
Furniture and fixtures 7 years
Computer equipment 3 - 5 years
Licensed software 3 years
Leasehold improvements Life of the lease
</TABLE>
Impairment of Long-Lived Assets
-------------------------------
The Company reviews its long-lived assets for impairment whenever events
or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable from future undiscounted cash flows. Impairment
losses are recorded for the difference between the carrying value and fair
value of the long-lived assets. The acquisition of LanXtra generated
approximately $4,760,000 of intangible assets. Because the Company is the
successor to a business which has not demonstrated the ability to achieve
profitable operations, it is reasonably possible that these intangibles
will be written down in the near future.
Deferred Offering Costs
-----------------------
The Company has recorded deferred offering costs totaling $119,773 at
March 31, 1999. Such costs represent legal and other professional fees
incurred related to the Company's proposed initial public offering. Such
costs will be offset against the initial public offering proceeds upon the
consummation of such offering. There can be no guarantee that the
offering will be consummated, and if the offering is unsuccessful, such
deferred offering costs would be expensed.
Accrued Liabilities
-------------------
Accrued liabilities consist of the following:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
--------- ------------
<S> <C> <C>
Accrued payroll and vacation $ 52,882 $ -
Accrued vendor payable 78,673 -
Accrued professional fees 133,657 -
Other liabilities 21,445 31,185
------- ------
Total accrued liabilities $286,657 $31,185
======= ======
</TABLE>
Income Taxes
------------
A current provision for income taxes is recorded for actual or estimated
amounts payable or refundable on tax returns filed or to be filed for each
year. Deferred income tax assets and liabilities are recorded for the
expected future income tax consequences, based on enacted tax laws, of
temporary differences between the financial reporting and tax bases of
assets and liabilities and carryforwards. The overall change in deferred
tax assets and liabilities for the period measures the deferred tax
expense for the period. Effects of changes in tax laws on deferred tax
assets and liabilities are reflected as adjustments to tax expense in the
period of enactment. Deferred tax assets are recognized for the expected
future tax effects of all deductible temporary differences, loss
carryforwards and tax credit carryforwards. Deferred tax assets are
reduced, if deemed necessary, by a valuation allowance for the amount of
any tax benefits which, more likely than not based on current
circumstances, are not expected to be realized.
Net Loss Per Share
------------------
The Company reports net loss per share in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share"
which requires the presentation of both basic and diluted earnings (loss)
per share. Basic net loss per common share has been computed based upon
the weighted average number of shares of common stock outstanding during
the period. Weighted average common shares excludes 28,648 shares of
putable Class B common stock as an assumed cash settlement is more
dilutive. Diluted net loss per share is computed by dividing the net loss
for the period by the weighted average number of common and potential
common shares outstanding during the period if the effect of the potential
common shares is dilutive. The Company has excluded the weighted average
effect of common stock issuable upon exercise of all warrants and options
from the computation of diluted earnings per share as the effect of all
such securities is anti-dilutive for the periods presented. The shares
excluded related to outstanding options and warrants (without regard to
the treasury stock method) at March 31, 1999 and December 31, 1998 were
345,000 and 4,440, respectively. The Company has also excluded the effect
of the convertible preferred stock as such effect would be antidilutive.
Stock Based Compensation
------------------------
The Company accounts for its employee stock option plan and other employee
stock-based compensation arrangements in accordance with the provisions of
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued
to Employees" ("APB No. 25"), and related interpretations. The Company
adopted the disclosure-only provisions of SFAS No. 123 "Accounting for
Stock-Based Compensation" ("SFAS No. 123"), which allows entities to
continue to apply the provisions of APB Opinion No. 25 for transactions
with employees and provide pro forma disclosures for employee stock grants
as if the fair-value-based method of accounting in SFAS No. 123 had been
applied to these transactions. The Company accounts for equity
instruments issued to non-employees in accordance with the provisions of
SFAS No. 123.
Revenue Recognition
-------------------
The Company generates revenue from three sources: (1) service revenue for
the installation of internet access equipment at customer sites, (2)
software license fees, and (3) recurring monthly network access and
connectivity fees. Service revenue is recognized as the services are
performed. Software license arrangements typically provide for
enhancements over the term of the arrangement, and software license fees
are generally received in advance, deferred and recognized ratably over
the term of the arrangement. Network access and connectivity fees are
typically billed in advance and recognized in the month that the
access/connectivity is provided.
Software Development Costs
--------------------------
Capitalization of software development costs commences upon the
establishment of technological feasibility of the software product. The
Company's software products are deemed to be technologically feasible at
the point the Company commences field testing of the software. The period
from field testing to general customer release of the software has been
brief and the costs incurred during this period were insignificant.
Accordingly, the Company has not capitalized any qualifying software
development costs.
In March 1998, the AICPA issued Statement of Position 98-1, "Accounting
for the Costs of Computer Software Developed or Obtained for Internal Use
("SOP 98-1")". In general, SOP 98-1 requires that certain costs to
develop software for internal use be capitalized effective for fiscal
years beginning after December 15, 1998. The adoption of this Statement
of Position has no impact on the Company's financial statements.
Comprehensive Income
--------------------
The Company has adopted the provisions of SFAS No. 130, "Reporting
Comprehensive Income" ("SFAS No. 130"). SFAS No. 130 establishes
standards for reporting comprehensive income and its components in the
financial statements. Comprehensive income, as defined, includes all
changes in equity (net assets) during a period from non-owner sources.
From inception through June 30, 1999, there have been no differences
between the Company's comprehensive loss and its net loss.
Segment Information
-------------------
In June 1997, the Financial Accounting Standards Board issued SFAS No.
131, "Disclosure about Segments of an Enterprise and Related Information"
("SFAS No. 131"). This statement establishes standards for the way
companies report information about operating segments in annual financial
statements. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. The Company
believes it has one reportable segment.
Recently Issued Accounting Pronouncements
-----------------------------------------
Statement of Financial Accounting Standards No. 133
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("SFAS No. 133"). The Company is
required to adopt SFAS No. 133 in the year ended December 31, 2000. SFAS
No. 133 establishes methods of accounting for derivative financial
instruments and hedging activities related to those instruments as well as
other hedging activities. To date, the Company has not entered into any
derivative financial instruments or hedging activities.
Statement of Position 98-5
In April 1998, the AICPA issued Statement of Position 98-5, "Reporting on
the Costs of Start-Up Activities ("SOP 98-5")". SOP 98-5 provides
guidance on the financial reporting of start-up and organization costs and
requires costs of start-up activities and organization costs to be
expensed as incurred. SOP 98-5 is effective for fiscal years beginning
after December 15, 1998, and was adopted by the Company on January 1,
1999. The adoption of SOP 98-5 had no impact on the Company's financial
statements as the Company had not capitalized any such costs.
(3) BORROWINGS
----------
The Company's borrowings at March 31, 1999 and December 31, 1998,
consisted of the following:
<TABLE>
<CAPTION>
March 31, 1999 December 31, 1998
------------------------ ----------------------
Unamortized Unamortized
Face Value Discount Face Value Discount
---------- ----------- ---------------------
<S> <C> <C> <C> <C>
Notes payable $ 470,000 $(131,845) $370,000 $(117,167)
Revolving line of
credit 600,000 - - -
Notes payable to
stockholders 300,000 (46,607) - -
Related party
collateralized loans 13,410 (1,824) - -
--------- -------- ------- --------
$1,383,410 $(180,276) $370,000 $(117,167)
========= ======== ======= ========
</TABLE>
Note Payable
------------
Beginning on October 20, 1998, the Company offered through its officers,
directors and First Capital Investments, Inc. (the "Selling Agent"), up to
$2,000,000 of 15% secured notes due October 19, 2000 (the "Notes") along
with warrants to purchase Class A common stock (the "Warrants"). At
December 31, 1998, the Company had raised $370,000 through the Offering.
The Company raised a total of $470,000 as of March 31, 1999 and the
Offering closed on February 8, 1999.
The Notes are secured by substantially all of the assets now owned and
hereafter acquired by the Company, including the assets acquired from
LanXtra in February 1999. There is no pre-payment penalty.
In connection with the Offering, the Company granted note holders warrants
to purchase 1,200 shares of the Company's Class A common stock for every
$10,000 of Notes Payable purchased. Accordingly, at December 31, 1998,
the Company had issued warrants for 44,400 shares, and in February 1999,
issued warrants for an additional 12,000 shares. Such warrants had an
exercise price of $0.01 per share. These detachable warrants were valued
at a total of $169,660 utilizing the Black-Scholes option pricing model,
assuming a volatility factor of 70%, a risk free interest rate of 4.31%
and a fair market value of the underlying common stock of $3 per share.
All warrants were exercised prior to March 31, 1999.
Revolving Line of Credit
------------------------
As part of the Purchase Agreement, a $600,000 Revolving Line of Credit was
assumed by the Company. The maturity date of the line of credit was
extended to December 31, 1999 and interest accrues at a rate equal to the
Bank's reference rate plus 1.5% (9.25% at March 31, 1999 and December 31,
1998). The Revolving Line of Credit is collateralized by letters of
credit issued by the Company and certain LanXtra stockholders as well as
by agreements among certain LanXtra stockholders. No additional amounts
may be drawn upon the line of credit.
Notes Payable to Stockholders
-----------------------------
The Company assumed notes payable to certain LanXtra stockholders as part
of the Purchase Agreement. The maturity date on these notes was extended
to the date on which Cavion obtains 100 credit union customers (the "100
Credit Union Date"). Management believes the 100 Credit Union Date will
be reached on or before December 31, 1999. In addition, interest terms
were amended such that no interest will accrue for the remaining term of
the notes payable. At the acquisition date, the notes were discounted to
reflect their fair value. The discount is being amortized as interest
expense over the remaining estimated term of the notes.
As additional consideration for shareholder notes with a face value of
$240,000, LanXtra issued 28,648 shares of its putable common stock. These
putable shares were exchanged for 28,648 shares of the Company's Class B
putable common stock. The Lenders have the right to sell these shares
back to the Company for a purchase price of $7 per share, 30 days after
the 100 Credit Union Date is reached, or can convert these shares into
equivalent shares of Class A common stock. As a result of this
transaction, the Class B shares have been recorded at their estimated fair
value of $167,197. The difference between this amount and the put value
is being accreted as interest expense over the estimated term of the
notes.
Related Party Collateralized Loans
----------------------------------
The Company also assumed certain factoring agreements (the "Agreements")
with management and a stockholder of the Company as part of the Purchase
Agreement. The interest terms were amended such that no interest will be
accrued for the remaining term of the loans and the maturity of these
loans was extended to the 100 Credit Union Date.
Maturities of Borrowings
------------------------
The maturities of the Company's borrowings are as follows:
<TABLE>
<CAPTION>
<S> <C>
1999 $ 913,410
2000 470,000
---------
1,383,410
Less-debt discounts (180,276)
---------
$1,203,134
=========
</TABLE>
(4) CAPITAL LEASE OBLIGATIONS
-------------------------
The Company assumed several capital lease agreements related to computers
and various office equipment in conjunction with the Purchase Agreement.
The Company has also entered into additional capital lease agreements
during the period ending March 31, 1999. The capital leases have terms
ranging from 24 to 36 months with interest rates ranging between 11.4% and
20.3%.
As of March 31, 1999, the present value of future minimum lease payments
are as follows:
<TABLE>
<CAPTION>
<S> <C>
Period ending March 31,
2000 $ 56,889
2001 43,339
2002 31,920
-------
132,148
Less: amounts representing interest (17,332)
-------
114,816
Less: current portion (52,378)
-------
Long-term capital lease obligation $ 62,438
=======
</TABLE>
The net book value of assets under capital lease obligations as of March
31,1999 was approximately $120,000.
(5) STOCKHOLDERS' EQUITY
--------------------
The Company is authorized to issue 20,000,000 shares of common stock, par
value $.0001 per share. The common stock is segregated into two classes;
Class A and Class B. Of the 20,000,000 shares of common stock, 19,970,000
are designated as Class A and 30,000 are designated as Class B.
Class A Common Stock
--------------------
At March 31, 1999, 3,006,210 shares of Class A common stock were issued
and outstanding. Two million shares were issued for consideration of
$.0001 per share (par value). Certain LanXtra shareholders and management
were issued 625,356 shares for cash consideration of $.01 per share. The
estimated fair value assigned to these shares was $3 per share which is
consistent with the value assigned to the 375,214 shares issued to LanXtra
in February 1999. The holders of Class A common stock are entitled to one
vote for each share held on record on each matter submitted to a vote of
shareholders. Cumulative voting for election of directors is not
permitted. Holders of Class A common stock have no preemptive rights or
rights to convert their Class A common stock into any other securities.
Class B Common Stock
--------------------
As of March 31, 1999, there were 28,648 shares of the Class B voting
common stock issued and outstanding. These shares were issued in exchange
for similar securities of LanXtra as partial consideration for the
purchase of LanXtra's business, and are callable by the Company at $7 per
share. The holders of Class B common stock have the right to sell the
Class B common stock to the Company at $7 per share or convert their
shares to equivalent units of Class A common stock at the 100 Credit Union
Date. The Class B common stock was authorized so that the Company could
exchange its Class B common stock for LanXtra's existing nonvoting putable
common stock with similar terms.
Preferred Stock
---------------
In February 1999, the Board of Directors authorized the Company, without
further action by the shareholders, to issue 10,000,000 shares of one or
more series of preferred stock at a par value of $.0001, all of which is
nonvoting. The Board of Directors may, without shareholder approval,
determine the dividend rates, redemption prices, preferences on
liquidation or dissolution, conversion rights, voting rights and any other
preferences. In addition, the Company authorized the sale of 770,000
shares of Series A convertible preferred stock in conjunction with a
private placement offering of the stock. Each share of the Series A
preferred stock is convertible at any time at the holder's option into an
equal number of shares of Class A common stock of the Company at a
conversion price initially equal to the offering price, which was
established at $3 per share. Each share of the Series A preferred stock
is automatically convertible into an equal number of Class A shares, if
the Company completes a qualified initial public offering, which
Management believes will occur in 1999 (see Note 9). In addition, each
share of the Series A preferred stock is convertible into Class A shares
at the option of the Company beginning on January 1, 2004. The Series A
preferred stock will entitle each holder to receive cumulative
preferential dividends at the rate of 5% per year, payable in cash or in
shares of the Company's Class A common stock quarterly. The Series A
preferred stock also entitles the holder to a liquidation preference at a
liquidation value which is initially equal to two times the offering
price.
As of March 31, 1999, the Company sold 567,000 shares of Series A
preferred stock at $3 per share, raising proceeds of $1,701,000 before
offering costs. Subsequent to March 31, 1999, an additional 133,000
shares were sold, also at $3 per share.
Warrants
--------
In conjunction with the Series A preferred stock offering, the Placement
Agent received warrants to purchase shares of the Company's Series A
preferred stock as compensation. As of June 30, 1999, 70,000 warrants
were issued to the Placement Agent. The warrants can be exercised over a
five year period at an exercise price of $3.
The Company issued warrants with the private placement of notes payable
which allow the purchase of 1,200 shares of the Company's Class A common
stock for every $10,000 of notes payable. The exercise price was $0.01
per share. Originally, the warrant exercise period was for a period of
one year beginning on the maturity date of the notes payable. On December
22, 1998, the Company accelerated the exercise period to begin immediately
and end one year after each note's issuance date. All holders of warrants
at that date elected to immediately exercise their warrants. Warrants for
44,400 shares of Class A common stock were issued and exercised at
December 31, 1998. In the three months ended March 31, 1999, warrants for
an additional 12,000 shares of Class A common stock were issued and
immediately exercised.
The Company redeemed 17,640 and 44,400 shares of Class A common stock from
its existing shareholders for a redemption price of $.0001 per share
during the periods ended March 31, 1999 and December 31, 1998,
respectively. The redeemed shares were reissued in connection with the
exercise of the warrants issued to note holders and the Selling Agent
(discussed below).
As part of the Selling Agent's compensation, the Company agreed to issue
additional warrants for the Company's Class A common stock. The warrants
are exercisable at any time during a five-year term at 110% of the price
paid by the holders of the Notes for the Class A common stock. At
December 31, 1998, the Selling Agent earned the right to purchase 4,440
shares of the Company's Class A common stock at an exercise price of $.011
per share. At March 31, 1999, the Selling Agent earned the right to
purchase an additional 1,200 shares under the same terms. The 4,440
warrants outstanding at December 31, 1998, were valued at a total of
$13,284 and the additional 1,200 warrants were valued at $3,590, utilizing
the Black-Scholes option pricing model assuming a volatility factor of
70%, a risk free interest rate of 4.31% and a fair market value of the
underlying shares of $3 per share. The warrants were recorded as debt
issuance costs and are being amortized into interest expense over the life
of the debt. All such warrants were exercised prior to March 31, 1999.
Stock Options
-------------
Effective March 19, 1999, the Company adopted a stock option plan (the
"Plan"). The Plan provides for grants of incentive stock options,
nonqualified stock options and restricted stock to designated employees,
officers, directors, advisors and independent contractors. The Plan
authorizes the issuance of up to 750,000 shares of Class A common stock.
Under the Plan, the exercise price per share of a non-qualified stock
option must be equal to at least 50% of the fair market value of the
common stock at the grant date, and the exercise price per share of an
incentive stock option must equal the fair market value of the common
stock at the grant date. Through March 31, 1999, options for 345,000
shares of Class A common stock have been issued under the Plan. The
outstanding stock options have an exercise price of $3.00 per share and
vest over various terms with a maximum vesting period of 18 months and
expire after a maximum of 10 years.
The following table summarizes stock option activity under the Plan:
<TABLE>
<CAPTION>
Granted to Granted to
Employees Non-Employees
---------------- ----------------
Weighted Weighted
Average Average
Exercise Exercise
Shares Price Shares Price
------- -------- ------- --------
<S> <C> <C> <C> <C>
Outstanding at December 31, 1998 - $ - - $ -
Granted 280,000 $3.00 65,000 $3.00
------- ---- ------ ----
Outstanding at March 31, 1999 280,000 $3.00 65,000 $3.00
======= ==== ====== ====
Exercisable at March 31, 1999 - $ - - $ -
======= ==== ====== ====
Weighted average fair value of options
granted during the year $ .41 $ .72
==== ====
</TABLE>
Under the fair value approach of SFAS 123, the total fair value of options
granted to employees under the Plan during 1999 was approximately
$113,646. If the Company had accounted for its stock option plan in
accordance with SFAS 123, the Company's net loss and pro forma net loss
would have been reported as follows:
<TABLE>
<CAPTION>
Three-Months
Ending
March 31, 1999
--------------
<S> <C> <C>
Net loss: As reported $(658,169)
========
Pro forma $(664,035)
========
Per share data: As reported $ (.23)
========
Pro forma $ (.23)
========
</TABLE>
The fair value of each employee option grant was estimated on the date of
the grant using the Black-Scholes option pricing model. Assumptions used
to calculate the fair value were risk free interest rates of 4.48% to
4.99%, no dividend yields, volatility of 0.001% and an expected life of
five years.
In March 1999, the Company granted options for 65,000 shares of Class A
common stock to non-employees in exchange for services. The fair value of
these options on the date of grant was approximately $47,000. Expense
related to such options will be recorded over the term the services are
provided. The fair value of each non-employee option grant was estimated
on the date of the grant using the Black-Scholes option pricing model.
Assumptions used to calculate the fair value were risk free interest rates
of 4.48% to 4.99%, no dividend yields, an expected life of five years and
volatility of 100%.
(6) INCOME TAXES
------------
From its inception, the Company has generated losses for both financial
reporting and tax purposes. In conjunction with the Purchase Agreement,
the Company obtained the right to LanXtra's net operating loss ("NOL")
carryforward, which was fully offset by a valuation allowance. At March
31, 1999 and December 31, 1998, the Company had a NOL carryforward for
income tax purposes of $2,001,000 and $12,459, respectively. The NOL is
subject to examination by the tax authorities and expire in various years
through 2019. A portion of the NOL is subject to limitations on use as
determined by the Internal Revenue Code. The NOL, as well as expenses not
yet deductible for tax purposes, resulted in a deferred tax asset of
approximately $770,000 and $7,000 at March 31, 1999 and December 31, 1998,
respectively. Due to the uncertainty relating to the realization of the
benefit of the deferred tax asset, a valuation allowance has been recorded
for the full amount. The difference between the statutory tax rate and
the effective tax rate is due to the following:
<TABLE>
<CAPTION>
Three
Months Inception
Ended Through
March 31, December 31,
1999 1998
---------- ------------
<S> <C> <C>
Provision (benefit) at statutory rate $(225,953) $(12,221)
State tax benefit, net (21,931) (1,258)
Valuation allowance 247,884 13,479
--------- --------
Provision (benefit) $ - $ -
======== =======
</TABLE>
The Company has acquired a NOL carryforward of approximately $1.4 million
from LanXtra. If the Company generates sufficient taxable income to allow
it to utilize this NOL, such utilization will reduce cash tax payments due
by the Company as well as the amount of goodwill carried by the Company.
(7) COMMITMENTS AND CONTINGENCIES
-----------------------------
Legal Matters
-------------
In connection with the Purchase Agreement transaction, a shareholder of
LanXtra exercised his rights as a dissenting shareholder. The Company
assumed LanXtra's obligation (if any) to this dissenting shareholder. If
the shareholder is permitted to pursue his claim in a legal proceeding,
LanXtra could be required to pay the shareholder the fair value of his
shares immediately before the closing date of the Purchase Agreement. The
Company's and LanXtra's management believes that the value paid on account
of these shares pursuant to the Purchase Agreement is greater than the
amount which the dissenting shareholder could recover under Colorado law.
The dissenting shareholder has asserted that the value of his 50,000
LanXtra shares immediately before the closing date of the Purchase
Agreement would be approximately $250,000. The ultimate resolution of the
matter, which is expected to occur within one year, could result in an
obligation to such shareholder. Further, should LanXtra, or Cavion as
successor, be required to make a payment to this shareholder, such payment
could result in the purchase transaction being treated as a taxable
transaction which could subject Cavion to a significant tax liability.
In accordance with the Purchase Agreement, the Company may become legally
obligated to satisfy additional liabilities of LanXtra, including
liabilities arising on or after the closing date with respect to LanXtra's
assets or business. To date, no liabilities other than those identified
in the Purchase Agreement have arisen, however, other liabilities could
arise in the future. Any such liabilities would be evaluated in the
Company's determination of the fair value of liabilities assumed from
LanXtra.
(8) ACQUISITION OF LANXTRA BUSINESS
-------------------------------
As discussed above, the Company acquired the business of LanXtra on
February 1, 1999. The following is pro forma operating information. For
purposes of the pro forma statement of operations, the transaction was
assumed to be consummated on January 1, 1998. Pro forma earnings per
share are calculated as if the Purchase Agreement was completed on January
1, 1998 and the related 1,029,218 shares of common stock were issued on
that date.
The pro forma statement of operations for the year ended December 31, 1998
is as follows:
<TABLE>
<CAPTION>
Pro Forma
LanXtra Cavion Adjustments Pro Forma
----------- --------- -------------------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenue $ 215,022 $ - $ - $ 215,022
Cost of revenue 222,419 - - 222,419
---------- ------- -------- ----------
Gross loss (7,397) - - (7,397)
Operating expenses 1,117,892 6,877914,146 (1) 2,038,915
Nonoperating
expenses 845,213 29,067(584,480) (2) 289,800
---------- ------- -------- ----------
Loss from
continuing
operations $(1,970,502) $(35,944) $(329,666) $(2,336,112)
========== ======= ======== ==========
Unaudited pro forma
net loss from
continuing
operations per
basic and diluted
share $(.77)
=====
Weighted average
shares
outstanding 3,029,218
=========
</TABLE>
The pro forma statement of operations for the six month period ended June
30, 1999 is as follows:
<TABLE>
<CAPTION>
Pro Forma
LanXtra Cavion Adjustments Pro Forma
--------- ------------ -------------- ------------
(unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenue $ 37,850 $ 205,333 $ - $ 243,183
Cost of revenue 31,898 133,617 - 165,515
--------- ---------- -------- -----------
Gross profit 5,952 71,716 - 77,668
Operating expenses 213,311 1,619,677 79,388 (1) 1,912,376
Interest expense
and other 64,069 252,586(52,932) (2) 263,723
--------- ----------- -------- -----------
Net Loss $(271,428) $(1,800,547) $(26,456) $(2,098,431)
========= =========== ======== ===========
Net loss per
basic share $(.75)
=====
Weighted average
shares
outstanding $2,788,574
==========
</TABLE>
Adjustments
-----------
(1) Amortization of goodwill
(2) Reduction of interest expense to reflect Cavion's capital structure
(9) SUBSEQUENT EVENTS
-----------------
The Company intends to file an initial public offering with the Securities
and Exchange Commission to sell 1,200,000 shares of it's common stock in
the second quarter of 1999. There can be no guarantee that such offering
will be completed.
In April 1999, the Company repurchased 299,884 shares of Class A common
stock issued to its majority shareholders for a price of $.0001 per share
in satisfaction of an agreement to adjust share ownership following the
closing of the Purchase Agreement and the final determination of certain
factors in April 1999.
Change in Repayment Date (Unaudited)
- ------------------------------------
The Company has obligations (see Note 3) which had repayment terms based
upon the Company's achievement of the 100 Credit Union Date. On May 28,
1999, such repayment terms were modified such that these obligations must
be repaid on the date that the initial public offering discussed above is
completed. The June 30, 1999 unaudited financial statements have been
prepared to reflect the changes in the repayment terms of these
obligations.
[Outside Back Cover]
TABLE OF CONTENTS
Prospectus Summary 3
Risk Factors 6
Use of Proceeds 14
Dividends 15
Capitalization 15
Dilution 17
Selected Financial Information 18
Management's Discussion and Analysis of Financial Condition and
Results of Operations 22
Our Business 31
Management 41
Executive Compensation 46
Equity Incentive Plan 48
Principal Shareholders 51
Description of Capital Stock 53
Shares Eligible for Future Sale 57
Certain Relationships and Related Transactions 58
Underwriting 64
Additional Information 68
Reports to Security Holders 68
Experts 68
Legal Matters 69
Index to Financial Statements F-1
You should rely only on the information contained in this prospectus.
We have not authorized anyone to provide you with information different
from that contained in this prospectus. We are offering to sell, and
seeking offers to buy, shares of common stock only in jurisdictions where
offers and sales are permitted. The information contained in this
prospectus is accurate only as of the date of this prospectus, regardless
of the time of delivery of this prospectus or of any sale of common stock.
Until , 1999, all dealers selling shares of the
common stock, whether or not participating in this offering, may be
required to deliver a prospectus. This is in addition to the obligation
of dealers to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
PART II
Information not Required in Prospectus
ITEM 24. Indemnification of directors and officers.
The only statute, bylaw, contract or arrangement under which any
controlling person, director or officer of cavion.com is insured or
indemnified in any matter against liability which he may incur in his
capacity as such, are as follows:
Article VIII of the Amended and Restated Articles of Incorporation of
cavion.com include the following provisions:
Indemnification
(a) The Corporation shall indemnify, to the fullest extent permitted
by applicable law in effect from time to time, any person, and the estate
and personal representative of any such person, against all liability and
expense (including attorneys' fees) incurred by reason of the fact that
such person is or was a director or officer of the Corporation or, while
serving as a director or officer of the Corporation, such person is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of, or in any similar managerial or
fiduciary position of, another domestic or foreign corporation or other
individual or entity or of an employee benefit plan. The Corporation
shall also indemnify any person who is serving or has served the
Corporation as director, officer, employee, fiduciary, or agent, and that
person's estate and personal representative, to the extent and in the
manner provided in any bylaw, resolution of the shareholders or directors,
contract, or otherwise, so long as such provision is legally permissible.
(b) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding
in advance of final disposition of the preceding if:
(i) the director or officer furnishes to the Corporation a
written affirmation of his or her good faith belief that he or she has met
the standard of conduct described in Section 7-109-102 of the Colorado
Business Corporation Act;
(ii) the director or officer furnishes to the Corporation a
written undertaking, executed personally or on the director's or officer's
behalf, to repay the advance if it is ultimately determined that he or she
did not meet the standard of conduct; and
(iii) a determination is made that the facts known to those
making the determination would not preclude indemnification under Article
109 of the Colorado Business Corporation Act.
Article V of the Bylaws of cavion.com includes the following
provisions:
1. Indemnification. The Corporation shall indemnify any person
against all liability and expense incurred by reason of the person being
or having been a director or officer of the Corporation to the full extent
and in any manner that directors may be indemnified under the Colorado
Business Corporation Act, as in effect at any time. The Corporation shall
also indemnify any person who is serving or has served the Corporation as
director or officer to the extent and in any manner provided in any bylaw,
resolution of the directors or shareholders, contract or otherwise, so
long as such provision is legally permissible. In the discretion of the
board of directors, the Corporation may indemnify an employee, fiduciary
or agent who is not a director or officer to the same extent as a director
or officer.
2. Insurance. The Corporation may purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee,
fiduciary, or agent of this Corporation or who, while a director, officer,
employee, fiduciary, or agent of this Corporation, is or was serving at
the request of this Corporation as a director, officer, partner, trustee,
employee, fiduciary, or agent of any other entity (including without
limitation an employee benefit plan), against any liability asserted
against or incurred by the person in that capacity or arising from his or
her status as a director, officer, employee, fiduciary, or agent, whether
or not the Corporation would have power to indemnify the person against
the same liability under this Article. Any such insurance may be procured
from any insurance company designated by the board of directors, whether
such insurance company is formed under this state or any other
jurisdiction of the United States or elsewhere, including any insurance
company in which the Corporation has equity or any other interest through
stock ownership or otherwise.
3. Notice to shareholders of indemnification of director. If the
Corporation indemnifies or advances expenses to a director in connection
with a proceeding by or in the right of the Corporation, the Corporation
shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders' meeting.
If the next shareholder action is taken without a meeting at the
instigation of the board of directors, such notice shall be given to the
shareholders at or before the time the first shareholder signs a writing
consenting to such action.
4. Indemnification nonexclusive; inurement. The indemnification
provided by this Article shall not be deemed exclusive of any other rights
and procedures to which the indemnified party may be entitled under the
articles of incorporation, any bylaw, agreement, vote of the shareholders
or directors, contract or otherwise. Such indemnification shall continue
as to a person who has ceased to be a director, officer, employee,
fiduciary or agent and shall inure to the benefit of such person's heirs,
personal representatives and administrators.
The provisions of Article 109 of the Colorado Revised Statutes on
indemnification are as follows:
Section 7-109-101. Definitions. As used in this article:
(1) "Corporation" includes any domestic or foreign entity that is a
predecessor of a corporation by reason of a merger or other transaction in
which the predecessor's existence ceased upon consummation of the
transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is or
was serving at the corporation's request as a director, an officer, an
agent, an associate, an employee, a fiduciary, a manager, a member, a
partner, a promoter, or a trustee of, or to hold any similar position
with, another domestic or foreign corporation or other person or of an
employee benefit plan. A director is considered to be serving an employee
benefit plan at the corporation's request if the director's duties to the
corporation also impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(3) "Expenses" includes counsel fees.
(4) "Liability" means the obligation incurred with respect to a
proceeding to pay a judgment, settlement, penalty, fine, including an
excise tax assessed with respect to an employee benefit plan, or
reasonable expenses.
(5) "Official capacity," means, when used with respect to a
director, the office of director in a corporation and, when used with
respect to a person other than a director as contemplated by Section 7-109-
107, the office in a corporation held by the officer or the employment,
fiduciary, or agency relationship undertaken by the employee, fiduciary,
or agent on behalf of the corporation. "Official capacity" does not
include service for any other domestic or foreign corporation or other
person or employee benefit plan.
(6) "Party" includes a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 7-109-102 . Authority to indemnify directors. (1) Except
as provided in subsection (4) of this section, a corporation may indemnify
a person made a party to a proceeding because the person is or was a
director against liability incurred in the proceeding if:
(a) The person conducted himself or herself in good faith; and
(b) He reasonably believed:
(I) In the case of conduct in an official capacity with
the corporation, that his or her conduct was in the corporation's best
interests; and
(II) In all other cases, that his or her conduct was at
least not opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(2) A director's conduct with respect to an employee benefit plan
for a purpose the director reasonably believed to be in the interests of
the participants in or beneficiaries of the plan is conduct that satisfies
the requirements of subparagraph (II) of paragraph (b) of section (1) of
this section. A director's conduct with respect to an employee benefit
plan for a purpose that the director did not reasonably believe to be in
the interests of the participants in or beneficiaries of the plan shall
not be deemed not to satisfy the requirements of paragraph (a) of
subsection (1) of this section.
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of
conduct described in this section.
(4) A corporation may not indemnify a director under this section:
(a) In connection with any proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation;
or
(b) In connection with any proceeding charging that the
director derived an improper personal benefit, whether or not involving
action in an official capacity, in which proceeding the director was
adjudged liable on the basis that he or she derived an improper personal
benefit.
(5) Indemnification permitted under this section in connection with
a proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 7-109-103. Mandatory indemnification of directors. Unless
limited by its articles of incorporation, a corporation shall indemnify a
person who was wholly successful, on the merits or otherwise, in defense
of any proceeding to which the person was a party because the person is or
was a director, against reasonable expenses incurred by him or her in
connection with the proceeding.
Section 7-107-104. Advance of expenses to directors. (1) A
corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of the final
disposition of the proceeding if:
(a) The director furnishes to the corporation a written
affirmation of the director's good faith belief that he or she has met the
standard of conduct described in section 7-109-102;
(b) The director furnishes to the corporation a written
undertaking, executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that he or she did not meet the
standard of conduct; and
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this
article.
(2) The undertaking required by paragraph (b) of subsection (1) of
this section shall be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to financial
ability to make repayment.
(3) Determinations and authorizations of payments under this section
shall be made in the manner specified in section 7-109-106.
Section 7-109-105. Court ordered indemnification of directors. (1)
Unless otherwise provided in the articles of incorporation, a director who
is or was a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court, after giving any
notice the court considers necessary, may order indemnification in the
following manner:
(a) If it determines that the director is entitled to mandatory
indemnification under section 7-109-103, the court shall order
indemnification, in which case the court shall also order the corporation
to pay the director's reasonable expenses incurred to obtain court-ordered
indemnification.
(b) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances,
whether or not the director met the standard of conduct set forth in
section 7-109-102(1) or was adjudged liable in the circumstances described
in section 7-109-102(4), the court may order such indemnification as the
court deems proper; except that the indemnification with respect to any
proceeding in which liability shall have been adjudged in the
circumstances described in section 7-109-102(4) is limited to reasonable
expenses incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
Section 7-109-106. Determination and authorization of
indemnification of directors.
(1) A corporation may not indemnify a director under section 7-109-
102 unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the
circumstances because the director has met the standard of conduct set
forth in section 7-109-102. A corporation shall not advance expenses to a
director under section 7-109-104 unless authorized in the specific case
after the written affirmation and undertaking required by section 7-109-
104(1)(a) and (1)(b) are received and the determination required by
section 7-109-104(1)(c) has been made.
(2) The determinations required by subsection (1) of this section
shall be made:
(a) By the board of directors by a majority vote of those
present at a meeting at which a quorum is present, and only those
directors not parties to the proceeding shall be counted in satisfying the
quorum; or
(b) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board or directors,
which committee shall consist of two or more directors not parties to the
proceeding; except that directors who are parties to the proceeding may
participate in the designation of directors for the committee.
(3) If a quorum cannot be obtained as contemplated in paragraph (a)
of subsection (2) of this section, and a committee cannot be established
under paragraph (b) of subsection (2) of this section, or, even if a
quorum is obtained or a committee is designated, if a majority of the
directors constituting such quorum or such committee so directs, the
determination required to be made by subsection (1) of this section shall
be made:
(a) By independent legal counsel selected by a vote of the
board of directors or the committee in the manner specified in paragraph
(a) or (b) of subsection (2) of this section or, if a quorum of the full
board cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full board of
directors; or
(b) By the shareholders.
(4) Authorization of indemnification and advance of expenses shall
be made in the same manner as the determination that indemnification or
advance of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is permissible is made by
independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected said counsel.
Section 7-109-107. Indemnification of officers, employees,
fiduciaries, and agents. (1) Unless otherwise provided in the articles
of incorporation:
(a) An officer is entitled to mandatory indemnification under
section 7-109-103, and is entitled to apply for court-ordered
indemnification under section 7-109-105, in each case to the same extent
as a director;
(b) A corporation may indemnify and advance expenses to an
officer, fiduciary, employee, or agent of the corporation to the same
extent as a director; and
(c) A corporation may also indemnify and advance expenses to an
officer, employee, fiduciaries, or agent who is not a director to a
greater extent, if not inconsistent with public policy, and if provided
for by its bylaws, general or specific action of its board of directors or
shareholders, or a contract.
Section 7-109-108. Insurance. A corporation may purchase and
maintain insurance on behalf of a person who is or was a director,
officer, employee, fiduciary, or agent of the corporation, or who, while a
director, officer, employee, fiduciary, or agent of the corporation, is or
was serving at the request of the corporation as a director, officer,
partner, trustee, employee, fiduciary, or agent of any other domestic or
foreign corporation or other person, or of an employee benefit plan,
against liability asserted against or incurred by the person in that
capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the corporation would have
the power to indemnify the person against the same liability under section
7-109-102, 7-109-103, or 7-109-107. Any such insurance may be procured
from any insurance company designated by the board of directors, whether
such insurance company is formed under the laws of this state or any other
jurisdiction of the United States or elsewhere, including any insurance
company in which the corporation has equity or any other interest through
stock ownership or otherwise.
Section 7-109-109. Limitation of indemnification of directors. (1)
A provision treating a corporation's indemnification of, or advance of
expenses to, directors that is contained in its articles of incorporation
or bylaws, in a resolution of its shareholders or board of directors, or
in a contract, except an insurance policy, or otherwise, is valid only to
the extent the provision is not consistent with sections 7-109-101 to 7-
109-108. If the articles of incorporation limit indemnification or
advances of expenses, indemnification and advance of expenses are valid
only to the extent not inconsistent with the articles of incorporation.
(a) Sections 7-109-101 to 7-109-108 do not limit a
corporation's power to pay or reimburse expenses incurred by a director in
connection with an appearance as a witness in a proceeding at a time when
he or she has not been made a named defendant or respondent in the
proceeding.
Section 7-109-110. Notice to shareholders of indemnification of
director. If a corporation indemnifies or advances expenses to a director
under this article in connection with a proceeding by or in the right of
the corporation, the corporation shall give written notice of the
indemnification or advance to the shareholders with or before the notice
of the next shareholders' meeting. If the next shareholder action is
taken without a meeting at the instigation of the board of directors, such
notice shall be given to the shareholders at or before the time the first
shareholder signs a writing consenting to such action.
Section 7-108-402(2) of the Colorado Revised Statutes states as
follows:
No director or officer shall be personally liable for any injury to
person or property arising out of a tort committed by an employee unless
such director or officer was personally involved in the situation giving
rise to the litigation or unless such director or director committed a
criminal offense in connection with such situation. The protection
afforded in this subsection (2) shall not restrict other common-law
protections and rights that an director or officer may have. This
subsection (2) shall not restrict the corporation's right to eliminate or
limit the personal liability of a director to the corporation or to its
shareholders for monetary damages for breach of fiduciary duty as a
director as provided in subsection (1) of this section.
Article VII of the Amended and Restated Articles of Incorporation of
cavion.com includes the following provision:
A director of the Corporation shall not be personally liable to the
Corporation or to its shareholders for monetary damages for breach of
fiduciary duty as a director; except that this provision shall not
eliminate or limit the liability of the director to the Corporation or to
its shareholders for monetary damages otherwise existing for (i) any
breach of the director's duty of loyalty to the Corporation or to its
shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) acts specified
in Section 7-108-403 of the Colorado Business Corporation Act; or (iv) any
transaction from which the director derived an improper personal benefit.
If the Colorado Business Corporation Act is later amended to eliminate or
limit further the liability of a director, then, in addition to the
elimination and limitation of liability provided by the preceding
sentence, the liability of each director shall be eliminated or limited to
the fullest extent permitted by the Colorado Business Corporation Act as
so amended. Any repeal or modification of this Article VII shall not
adversely affect any right or protection of a director of the Corporation
under this Article VII, as in effect immediately prior to such repeal or
modification, with respect to any liability that would have accrued, but
for this Article VII, prior to such repeal or modification.
Also, cavion.com has entered into indemnification agreements with the
officers and directors to indemnify them and to advance expenses to the
fullest extent permitted by law either in connection with the
investigation, defense, adjudication, settlement or appeal of a proceeding
or in connection with establishing or enforcing a right to indemnification
or advancement of expenses. In addition, the agreements provide that no
claim or cause of action may be asserted by cavion.com against any
director or officer after two years from the date of the alleged act or
omission, provided that if in fact the person has fraudulently concealed
the facts, then no claim or cause of action may be asserted after two
years from the earlier of the date cavion.com discovers the facts or the
date cavion.com should have discovered such facts by the exercise of
reasonable diligence. The term of the agreement and cavion.com's
obligations apply while the person is an agent of cavion.com and continues
so long as the person is subject to any claim by reason of the fact that
he or she served as an agent of cavion.com.
In addition, the Underwriting Agreement for our initial public
offering provides for indemnification by the Representative of cavion.com,
its directors and officers against certain liabilities, including
liabilities under the Securities Act of 1933.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling cavion.com as provided in the foregoing provisions, cavion.com
has been informed that, in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and thus cannot be enforced.
ITEM 25. Other expenses of issuance and distribution.
Estimates of fees and expenses incurred or to be incurred in
connection with the issuance and distribution of securities being
registered, other than underwriting discounts and commissions are as
follows:
SEC Registration Fees $ 2,918*
Printing and Mailing Fees and Costs 50,000*
Transfer Agent Fees and Costs 2,150*
Legal Fees and Costs 230,000*
Accounting Fees and Costs 90,000*
Nasdaq Listing Fees 13,635*
Director & Officers Insurance Premium 50,000*
Miscellaneous Expenses 59,297*
---------
TOTAL $498,000*
* Estimated.
ITEM 26. Recent sales of unregistered securities.
Founders shares. In August 1998, we issued 2,000,000 shares of
$.0001 common stock to our two founding shareholders at $.0001 per share.
These issuances to the two accredited investors were effected without
registration under the Securities Act of 1933 in reliance upon the
exemption from registration contained in Section 4(2) of the Act. As
founding shareholders, they had access to complete information regarding
our business at the time of issuance.
1998-1999 private placement of notes and warrants. On October 20,
1998, we began conducting a private placement and between October 27, 1998
and February 8, 1999, we issued $470,000 in 15% secured promissory notes
due October 19, 2000 and a total of 56,400 warrants to purchase shares of
Class A common stock at an exercise price of $.01 per share. We relied on
the exemption from registration provided by Section 4(2) of the Securities
Act and Rule 505 of Regulation D adopted under the Act, as well as
exemptions under various state securities laws. The securities were sold
to 13 private investors. One was an accredited investor and 12 were
sophisticated investors. Investors received private placement memorandum
documents relating to the sale of the assets of LanXtra to cavion.com
which closed in February 1999 and the loan from cavion.com to LanXtra
which has since been extinguished. Between December 28, 1998 and February
8, 1999, all of the warrants were exercised. In connection with the
offering, the agent for the offering, First Capital Investments, Inc. was
issued an agent warrant to purchase 5,640 shares of Class A common stock
at $.01 per share which was exercised on February 8, 1999. In addition,
First Capital received a total offering commission of $37,600.
Management shares. In December 1998, we issued 625,356 shares of
Class A common stock to our management shareholders at $.01 per share.
These issuances to the three sophisticated investors were effected without
registration under the Securities Act of 1933 in reliance upon the
exemption from registration contained in Section 4(2) of the Act. As
these individuals were part of management at the time the shares were
issued, they had access to complete information regarding our business at
the time of issuance.
LanXtra asset purchase. In February 1999, we issued 375,214 shares
of Class A common stock and 28,648 shares of Class B common stock to
LanXtra, Inc. in exchange for the assets and liabilities of LanXtra. This
issuance was effected without registration under the Securities Act of
1933 in reliance upon the exemption from registration contained in Section
4(2) of the Act, relating to the sale of securities by an issuer not
involving a public offering. Since cavion.com was formed to purchase the
assets and liabilities of LanXtra, the management and shareholders of
LanXtra had access to complete information regarding our business at the
time of issuance.
1999 private placement of preferred stock. In March and April 1999,
we issued 700,000 shares of convertible preferred stock, Series A,
convertible into Class A common stock, for an aggregate of $2,100,000,
prior to expenses and commissions. The initial conversion price was $3.00
per share of Class A common stock, but the conversion price was subject to
adjustment upon certain events affecting cavion.com's capitalization. The
shares of preferred stock will automatically convert into Class A common
stock upon the earlier to occur of (i) consummation of a public offering
of common stock registered under the Securities Act of 1933 or (ii) the
date specified in a notice thereof delivered by cavion.com on any date
after January 1, 2000. The securities were sold in reliance on the
exemption from registration provided by Section 4(2) of the Securities Act
and Rule 506 of Regulation D adopted thereunder, as well as exemptions
under various state securities laws. The offering was sold to accredited
investors only. Investors received a private placement memorandum
including financial statements. In connection with the offering, the
agent for the offering, NTB was issued a five year agent warrant to
purchase 70,000 shares of preferred stock at an exercise price of $3.00
per share. In addition, NTB received a commission of $210,000 and a non-
accountable expense allowance of $42,000.
August 1999 private placement of notes and warrants. In August 1999
we raised $300,000 through the issuance of 14% promissory notes along with
warrants to purchase 30,000 shares of common stock. Each $50,000 note
entitled the subscriber to warrants to purchase 5,000 shares of Class A
common stock. The notes are due on the first to occur of the closing of
this offering or one year from the date of their issuance. The warrants
are exercisable for period of five years, beginning on the first to occur
of the closing of this offering or one year from the date of their
issuance. The warrant exercise price is the price at which common stock
is offered in this offering, or, if this offering does not close within
one year of the date of the issuance of the warrants, then at $6.00 per
share. The notes and warrants were sold to 4 accredited investors. We
relied on the exemption from registration provided by Sections 4(2) and
4(6) of the Securities Act and Rule 506 of Regulation D adopted under the
Act, as well as exemptions under various state securities laws.
With respect to all of the foregoing offerings, the securities were
offered for investment only and not for the purposes of resale or
distribution, and the transfer thereof was appropriately restricted by us.
Each certificate representing the above shares contains a legend
indicating that such shares are restricted and may not be sold without
registration under the Securities Act of 1933 or pursuant to an available
exemption from such registration. The notes and the warrants, before the
exercise of warrants for shares of Class A common stock, contain a similar
legend. In addition, all of the shares of common and preferred stock are
subject to lock-up arrangements with the underwriter except for 5,000
shares issuable on exercise of the warrants issued to one new shareholder
in our August 1999 private placement of notes and warrants.
As provided in agreements with our founding shareholders, Venture
Funding, Ltd. and Boutine Capital, LLC, out of their initial purchases of
Class A common stock in August 1998, we redeemed 56,400 of their shares
for the exercise of the warrants in the October 1998 private placement,
603 shares were transferred by them to each of our management
shareholders, Craig Lassen, David J. Selina, and Jeffrey W. Marshall,
1,085 shares were transferred by them to LanXtra, Inc. and we redeemed an
additional 299,884 shares which were returned to authorized, but unissued
shares of our Class A common stock.
The following sets forth the owner, amount of notes, warrants,
shares of Class A common stock, Class B common stock, preferred stock, as
well as the price paid by the purchasers in our private placements of
notes, warrants, Class A common stock, Class B common stock and preferred
stock:
<TABLE>
<CAPTION>
Nature and
Title and Name of person aggregate
amount of or class to amount
Date of securities whom securities of
sale sold were sold consideration
-------- ---------- --------------- -------------
FOUNDERS SHARES:
<S> <C> <C> <C>
8-14-98 1,100,000 Venture Funding, Ltd. $110.00
Class A Common Cash
8-14-98 900,000 Boutine, LLC $90.00
Class A Common Cash
1998-1999 PRIVATE PLACEMENT OF NOTES AND WARRANTS:
12-2-98 $50,000 Lorene Allison Trust
Note $50,000.00
Cash
12-2-98 6,000 Lorene Allison Trust $60.00
Class A Common Cash
12-2-98 $50,000 Newpax Venture Corp.$50,000.00
Note Cash
12-2-98 6,000 Newpax Venture Corp. $60.00
Class A Common Cash
12-2-98 $10,000 MN Trust $10,000.00
Note Cash
12-2-98 1,200 MN Trust $12.00
Class A Common Cash
12-2-98 $10,000 MLN Trust $10,000.00
Note Cash
12-2-98 1,200 MLN Trust $12.00
Class A Common Cash
12-2-98 $50,000 Arthur Harrison $50,000.00
Note TRUST Cash
12-2-98 6,000 Arthur Harrison $60.00
Class A Common TRUST Cash
12-2-98 $50,000 Ilse Diamant $50,000.00
Note Cash
12-2-98 6,000 Ilse Diamant $60.00
Class A Common Cash
12-2-98 $20,000 Matt Eccles $20,000.00
Note Cash
12-2-98 2,400 Matt Eccles $24.00
Class A Common Cash
12-2-98 $30,000 J. Kipp Monroe $30,000.00
Note Cash
12-2-98 3,600 J. Kipp Monroe $36.00
Class A Common Cash
12-2-98 $20,000 Peter Prato $20,000.00
Note Cash
12-2-98 2,400 Peter Prato $24.00
Class A Common Cash
12-2-98 $10,000 Wesley Zepelin & $10,000.00
NOTE Susan Elliott JT Cash
12-2-98 1,200 Wesley Zepelin & 12.00
Class A Common Susan Elliott JT Cash
12-2-98 $20,000 Go East, LLC $20,000.00
Note Cash
12-2-98 2,400 Go East, LLC $24.00
Class A Common Cash
12-2-98 $25,000 Gale Daniel $25,000.00
Note Cash
12-2-98 3,000 Gale Daniel $30.00
Class A Common Cash
12-2-98 $25,000 Rike Wootten $25,000.00
Note Cash
12-2-98 3,000 Rike Wootten $30.00
Class A Common Cash
2-1-99 $50,000 Gail Daniel $50,000.00
Note Cash
2-1-99 6,000 Gail Daniel $60.00
Class A Common Cash
2-1-99 $50,000 Arthur Harrison $50,000.00
Note Trust Cash
2-1-99 6,000 Arthur Harrison $60.00
Class A Common Trust Cash
2-8-99 5,640 First Capital $62.04
Class A Common Investment, Inc. Cash
MANAGEMENT SHARES:
12-21-98 208,452 Craig Lassen $2,084.52
Class A Common Cash
12-21-98 208,452 David J. Selina $2,084.52
Class A Common Cash
12-21-98 208,452 Jeffrey W. Marshall $2,084.52
Class A Common Cash
LANXTRA ASSET PURCHASE:
2-1-99 375,214 LanXtra, Inc. $1,125,642.00
Class A Common Assets
2-1-99 28,648 LanXtra, Inc. $172,816.00
Class B Common Assets
1999 PRIVATE PLACEMENT OF PREFERRED STOCK:
3-10-99 10,000 Anne D. Dyde Trustee$30,000.00
Preferred Anne D. Dyde Trust Cash
3-10-99 10,000 James F. Dyde Trustee$30,000.00
Preferred James F. Dyde Insurance CASH
Trust
3-10-99 10,000 Jon D. Kostival $30,000.00
Preferred Cash
3-10-99 10,000 James F. Seifert & $30,000.00
PreferredNancy L. Seifert CASH
As Trustees or Successor
Trustees of James F. Seifert
Management Trust
3-10-99 10,000 Dianne M. Giambusso $30,000.00
Preferred Cash
3-10-99 20,000 Carol Nixon $60,000.00
Preferred Cash
3-10-99 10,000 Adam Glickman $30,000.00
Preferred Cash
3-10-99 10,000 Leland E. Tate $30,000.00
Preferred Cash
3-10-99 16,000 William Ettenger $48,000.00
Preferred Cash
3-10-99 10,000 Jeffrey Telsey $30,000.00
Preferred Trustee Special Needs Trust Cash
3-10-99 10,000 Lincoln Trust $30,000.00
Preferred Company Custodian for CASH
Jerry Schnepp
3-10-99 20,000 MBM Young $60,000.00
Preferred Cash
3-10-99 80,000 Jeff Kavy $240,000.00
Preferred Cash
3-10-99 10,000 William J. Nooney $30,000.00
Preferred Cash
3-10-99 10,000 Robert C. Tucker Jr.$30,000.00
Preferred & Karen D. Tucker JT Cash
3-10-99 20,000 William Oyen & $60,000.00
Preferred Carolyn S. Oyen JT Cash
3-10-99 10,000 Michael Mara $30,000.00
Preferred Cash
3-10-99 20,000 John E. Tarrillion $60,000.00
Preferred Cash
3-10-99 10,000 Daniel A. Dupre $30,000.00
Preferred Cash
3-10-99 10,000 Carla G. Stewart $30,000.00
Preferred Cash
3-10-99 14,000 Martin J. Sherlock $42,000.00
Preferred Trustee Marion A. Cash
Sherlock Trust
3-10-99 10,000 Jerry Schempp & $30,000.00
Preferred Bruce E. Kobey TEN COM Cash
3-10-99 10,000 Janet M. Searl & $30,000.00
Preferred Kent E. Searl JT TEN Cash
3-10-99 10,000 Gregory Werts $30,000.00
Preferred Cash
3-10-99 10,000 Julie A. Hackett $30,000.00
Preferred Cash
3-10-99 10,000 Tyrone M. Clark $30,000.00
Preferred Cash
3-10-99 10,000 Lisa H. Robb & $30,000.00
Preferred Michael B. Robb JT TEN Cash
3-10-99 10,000 Jack C. Moore $30,000.00
Preferred Cash
3-10-99 10,000 Robert C. Werts & $30,000.00
Preferred Patricia CASH
Schulte-Werts
JT TEN
3-10-99 17,000 Michael K. Carney $51,000.00
Preferred Cash
3-10-99 10,000 Joseph Reinke $30,000.00
Preferred Cash
3-10-99 10,000 Alan L. Talesnick & $30,000.00
Preferred Robert M. Bearman CASH
TEN COM
3-31-99 10,000 Roswell S. Monroe & $30,000.00
Preferred Wanda V. Monroe Trustees CASH
of the Roswell & Wanda
Monroe Family Trust
U/D/T DTD 1-31-90
3-31-99 10,000 Walter J. $30,000.00
Preferred Schoefberger Cash
3-31-99 10,000 William Kilzer $30,000.00
Preferred Cash
3-31-99 10,000 Robert L. Young & $30,000.00
Preferred Anna M. Young JT Cash
3-31-99 10,000 Karl D. Smith $30,000.00
Preferred Cash
3-31-99 10,000 Schield Management $30,000.00
Preferred COMPANY Cash
3-31-99 10,000 John R. McKowen $30,000.00
Preferred Cash
3-31-99 10,000 John Metzger $30,000.00
Preferred Cash
3-31-99 10,000 Trans-L A $30,000.00
Preferred Partnership Cash
3-31-99 10,000 Lucas Liakos $30,000.00
Preferred Cash
3-31-99 10,000 Carl Brad Linder & $30,000.00
Preferred Cathy Linder JT Cash
3-31-99 10,000 Thomas J. Obradovich$30,000.00
Preferred Cash
4-30-99 10,000 Thomas R. Ashford $30,000.00
Preferred Cash
4-30-99 10,000 Stanley Ranch $30,000.00
Preferred Cash
4-30-99 10,000 Denora Corporation $30,000.00
Preferred Cash
4-30-99 10,000 Ronald D. Devoe $30,000.00
Preferred Cash
4-30-99 10,000 William Daniel $30,000.00
PREFERRED Carter TTEE of Cash
the William Daniel
Carter Trust
4-30-99 10,000 Third Millenium $30,000.00
Preferred Trading LLP Cash
4-30-99 10,000 Advent Fund LLC $30,000.00
Preferred Cash
4-30-99 10,000 Mariusz Witek $30,000.00
Preferred Cash
4-30-99 10,000 Randal A. Alford $30,000.00
Preferred Cash
4-30-99 10,000 Farhad Ghaffarour $30,000.00
Preferred Cash
4-30-99 10,000 Erven J. Nelson $30,000.00
Preferred TTEE for the Erven J. Cash
nelson ltd psp
4-30-99 10,000 Leonard B. Zelin $30,000.00
Preferred Cash
4-30-99 13,000 Fiscal Dynamics $39,000.00
Preferred corporation Cash
AUGUST 1999 PRIVATE PLACEMENT OF NOTES AND WARRANTS:
8-20-99 $50,000 Arthur D. Harrison $50,000.00
Note Cash
8-20-99 5,000 Arthur D. Harrison 0
Warrants Cash
8-24-99 $50,000 R. Gale Daniel $50,000.00
Note Cash
8-24-99 5,000 R. Gale Daniel 0
Warrants Cash
8-30-99 $50,000 Jackson IV, LLC $50,000.00
Note Cash
8-30-99 5,000 Jackson IV, LLC 0
Warrants Cash
8-31-99 $100,000 Jeff Kavy $50,000.00
Note Cash
8-31-99 10,000 Jeff Kavy 0
Warrants Cash
8-31-99 $50,000 Arthur D. Harrison $50,000.00
Note Cash
8-31-99 5,000 Arthur D. Harrison 0
Warrants Cash
</TABLE>
ITEM 27. EXHIBITS.
Exhibit No. Description
- ---------- -----------
*1.1 Form of Underwriting Agreement
1.2 Form of Agreement Among Underwriters
1.3 Representative's Warrant Agreement
2 Asset Purchase Agreement with Cavion Technologies, Inc.
dated December 31, 1998
3.1a Amended and Restated Articles of Incorporation as filed
with the Colorado Secretary of State on February 1, 1999
3.1b Articles of Amendment to the Amended and Restated
Articles of Incorporation setting forth Statement of
Designation of Series and Determination of Rights and
Preferences of convertible preferred stock, Series A, as
filed with the Colorado Secretary of State on February 26,
1999
3.2 Amended and Restated Bylaws of the Company as adopted
by its Board of Directors on March 22, 1999
4.1 Specimen Certificate for $.0001 par value Class A
common stock of the Company
4.2 Specimen Certificate for $.0001 par value Class B
common stock of the Company
4.3 Specimen Certificate for $.0001 par value Series A
preferred stock of the Company
4.4 Form of Subscription Agreement in the Offering of
Convertible preferred stock of the Company
4.5 Form of Preferred Stock Warrant issued to Neidiger,
Tucker, Bruner, Inc.
*4.6 Form of Subscription Agreement in the 1999 offering of
Promissory Notes and Warrants
*4.7 Form of Warrant in 1999 offering
5 Opinion of Gorsuch Kirgis LLP
10.1 Promissory Note to Herman D. Axelrod dated July 1, 1992
10.2 Promissory Note to Craig E. Lassen dated August 1, 1992
10.3 Factoring Agreements to Herman D. Axelrod dated
September 8, 1997 and September 15, 1997
10.4 Factoring Agreement to Craig E. Lassen dated October
15, 1997
10.5 Bridge Loan Agreement, Promissory Notes and Put
Agreement with Far East Holdings, Ltd., Martin Cooper and
Fairway Realty Associates with Sigmacom Corporation dated
May 28, 1998
10.6 Additional Bridge Loan Agreement, Promissory Notes and
Put Agreement with Jeff Marshall, David Selina and Randal
Burtis dated May 28, 1998
10.7 Termination and Modification Agreement dated September
28, 1998, and Amendment to Termination and Modification
Agreement dated January 15, 1999, with British Far East
Holdings, Ltd., William M.B. Berger Living Trust, Martin
Cooper, Fairway Realty Associates, Craig Lassen, Herman
Axelrod and David Selina
10.8 Engagement Letter with First Capital Investments, Inc.
dated September 20, 1998
10.9 Form of 15% Secured Promissory Notes due October 19,
2000
10.10 Agreement for Post-Closing Adjustments by and
among Venture Funding, Ltd., Boutine Capital, LLC, Network
Acquisitions, Inc., Cavion Technologies, Inc., Craig E.
Lassen, David J. Selina and Jeff Marshall dated February 1,
1999
10.11 Share Allocation Agreement by and among Venture
Funding Ltd., Boutine Capital, LLC, Cavion Technologies,
Inc., LanXtra, Inc., Craig E. Lassen, David J. Selina and
Jeff Marshall, dated April 16, 1999
10.12 Office Lease Agreement with TTD Associates dated
December 4, 1996 for the corporate offices located at 7475
Dakin Street, Denver, Colorado
*10.13 Business Loan Agreement and Promissory Note with
US Bank dated January 18, 1999, and First Amendment to
Business Loan Agreement with US Bank dated March 24, 1999
10.14 Executive Employment Agreement with David J.
Selina effective February 1. 1999
10.15 Executive Employment Agreement with Marshall E.
Aster effective March 8, 1999
10.16 Executive Employment Agreement with Jeff Marshall
effective February 1, 1999
10.17 Executive Employment Agreement with Craig E.
Lassen effective February 1, 1999
10.18 Equity Incentive Plan dated March 19, 1999
10.19 Form of Indemnification Agreement with officers
and directors
10.20 Agreement to Modify Deferred Obligations dated May
28, 1999 with British Far East Holdings, Ltd., William M.B.
Berger Living Trust, Martin Cooper, Fairway Realty
Associates, David J. Selina, Jeff Marshall, Randal W.
Burtis, Convergent Communications, Inc., Craig E. Lassen and
Herman D. Axelrod
10.21 Form of Secure Network Services Agreement
10.22 Forms of Lock-Up Agreements among the officers and
directors of the Company, 5% or more shareholders and the
other shareholders and the Representative
10.23 Settlement Agreement and Mutual General Release
with Craig E. Lassen dated June 8, 1999
*10.24 Form of Promissory Note in the 1999 offering
*10.25 License Agreement with MoneyLine America, LLC
dated August 18, 1999
*23.1 Consent of Arthur Andersen LLP
23.2 Consent of Gorsuch Kirgis LLP contained in its opinion
filed as Exhibit 5
27 Financial Data Schedule
* Filed herewith. All other exhibits have been previously filed.
ITEM 28. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of cavion.com according to the foregoing provisions,
or otherwise, cavion.com has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and so it cannot be enforced. In the event
that a claim for indemnification against such liabilities, other than the
payment by us of expenses incurred or paid by a director, officer or
controlling person of cavion.com in the successful defense of any action,
suit or proceeding, is asserted by such director, officer or controlling
person in connection with the securities being registered, cavion.com
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
(1) To treat the information omitted from this form of prospectus
filed as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by us under Rule 424(b)(1), or
(4) or 497(h) under the Act as part of this registration statement as of
the time the Securities and Exchange Commission declared it effective.
(2) To treat each post-effective amendment that contains a form of
prospectus as a new registration statement for the securities offered in
the registration statement, and that offering of the securities at that
time as the initial bona fide offering of those securities.
We undertake with respect to the securities being offered and
sold in this offering:
(1) To file, during any period in which offers or sales are being
made, a post- effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of
the Act;
(b) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement, or the most recent
post-effective amendment thereof, which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(c) to include any additional or changed material information
on the plan of distribution.
(2) That, for the purpose of determining liability under the Act,
each such post- effective amendment shall be deemed to be a new
registration statement of the securities offered in the registration
statement, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering.
(3) To remove from registration by means of a post-effective
amendment any of the securities which remain unsold at the end of the
offering.
SIGNATURES
In accordance with the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form SB-2 and authorizes this Registration
Statement to be signed on its behalf by the undersigned, in the City and
County of Denver, State of Colorado, on September 17, 1999.
CAVION TECHNOLOGIES, INC.
By:/s/David J. Selina
David J. Selina, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ David J. Selina Date: September 17, 1999
David J. Selina,
Director, President, Chief Executive Officer,
Principal Executive Officer and Chief
Operating Officer
/s/ Marshall E. Aster Date: September 17, 1999
Marshall E. Aster, Chief Financial Officer
and Principal Financial and Accounting
Officer
/s/ Andrew I. Telsey Date: September 17, 1999
Andrew I. Telsey, Director
/s/ Stephen B. Friedman Date: September 17, 1999
Stephen B. Friedman, Director
/s/ Jeffrey W. Marshall Date: September 17, 1999
Jeffrey W. Marshall, Director
EXHIBIT INDEX
All of the following exhibits were filed herewith electronically:
Exhibit No. Description
- ---------- -----------
1.1 Form of Underwriting Agreement
4.6 Form of Subscription Agreement in the 1999 offering of
Promissory Notes and Warrants
4.7 Form of Warrant in 1999 offering
10.13 Business Loan Agreement and Promissory Note with
US Bank dated January 18, 1999, and First Amendment to
Business Loan Agreement with US Bank dated March 24, 1999
10.24 Form of Promissory Note in the 1999 offering
10.25 License Agreement with MoneyLine America, LLC
dated August 18, 1999
23.1 Consent of Arthur Andersen LLP
1,200,000 Shares
CAVION TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
NEIDIGER, TUCKER, BRUNER, INC.
300 Plaza Level
1675 Larimer Street
Denver, Colorado 80202
(as Representative of the Several
Underwriters named in Schedule I hereto)
------------------, 1999
Gentlemen:
Cavion Technologies, Inc., a Colorado corporation d/b/a cavion.com
(the "Company"), proposes, on the terms and subject to the conditions
stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (collectively the "Underwriters"), on whose behalf
Neidiger, Tucker, Bruner, Inc. ("NTB") is acting as representative (the
"Representative"), a total of 1,200,000 shares (the "Firm Shares"), of the
Company's Common Stock, par value $.0001 per share (the "Common Stock").
The Underwriters will have the option to purchase from the Company up to
180,000 additional shares of Common Stock (the "Option Shares") solely to
cover over-allotments in the sale of the Firm Shares. The Firm Shares and
any Option Shares are referred to collectively herein as the "Securities."
The Company also proposes to issue and sell to you individually, and not
in your capacity as Representative, five-year warrants (the
"Representative's Warrants") to purchase, for 125% of the public offering
price of the Firm Shares, an aggregate of 120,000 shares of the Common
Stock as provided in Section 2 hereof. The Representative's Warrants and
the shares of Common Stock issuable upon exercise of the Representative's
Warrants are referred to collectively herein as the "Representative's
Securities."
As the Representative, you have advised the Company that you are
authorized to enter into this Agreement on behalf of the several
Underwriters and that the several Underwriters are willing, severally and
not jointly, to purchase the number of Firm Shares set forth opposite
their respective names on Schedule I. The term "Underwriters" refers to
any individual member of the underwriting syndicate and includes any party
or parties substituted for an Underwriter pursuant to Section 9 hereof.
In consideration of the mutual agreements contained herein, the
parties hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with, the Underwriters that:
1.1 A registration statement, and amendments thereto, on Form SB-2
(Reg. No. 333-80421) with respect to the Securities, the Representative's
Securities and other shares of Common Stock for the benefit of the holders
thereof, including a preliminary form of prospectus, has been carefully
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act") and has been filed with the
Securities and Exchange Commission (the "Commission"). The conditions for
use of Form SB-2, set forth in the General Instructions thereto, have been
satisfied. Such registration statement, as finally amended and revised at
the time such registration statement was or is declared effective by the
Commission (including the information contained in the form of final
prospectus, if any, filed with the Commission pursuant to Rule 424(b) and
Rule 430A under the Act and deemed to be part of the registration
statement if the registration statement has been declared effective
pursuant to Rule 430A(b)) and as thereafter amended by post-effective
amendment, if any, is herein referred to as the "Registration Statement."
The related final prospectus in the form first filed with the Commission
pursuant to Rule 424(b) or, if no such filing is required, as included in
the Registration Statement, or any supplement thereto, is herein referred
to as the "Prospectus." The prospectus subject to completion in the form
included in the Registration Statement at the time of the initial filing
of the Registration Statement with the Commission, and each such
prospectus as amended from time to time until the date of the Prospectus,
is referred to herein as the "Preliminary Prospectus." Reference made
herein to each Preliminary Prospectus or the Prospectus, as amended or
supplemented, shall include all documents and information incorporated by
reference therein under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Each Preliminary Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act. The Company has prepared and
filed such amendments to the Registration Statement since its initial
filing with the Commission, if any, as may have been required to the date
hereof, and will file such additional amendments thereto as may hereafter
be required. There have been delivered to the Representative two signed
copies of the Registration Statement and each amendment thereto, if any,
including one copy of any document filed under the Exchange Act and deemed
to be incorporated by reference into the Registration Statement, together
with one copy of each exhibit filed therewith or incorporated by reference
therein, and such number of conformed copies for each of the Underwriters
of the Registration Statement and each amendment thereto, if any (but
without exhibits), and of each Preliminary Prospectus and of the
Prospectus as the Representatives have requested. For purposes of this
Agreement, "Rules and Regulations" means the rules and regulations adopted
by the Commission under either the Act or the Exchange Act, as the context
requires. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to EDGAR.
1.2 No stop order preventing or suspending the use of or
requiring the recirculation of any Preliminary Prospectus has been issued
by the Commission nor have any proceedings been instituted for the
purpose. Each Preliminary Prospectus, at the time of first delivery to
the Underwriters for distribution, conformed in all material respects to
the requirements of the Act and the Rules and Regulations, and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty as to the information contained in or omitted from any
Preliminary Prospectus in its reliance upon and in conformity with written
information furnished to the Company as stated in Section 7.1 hereof by or
on behalf of any Underwriter through the Representative expressly for use
with reference to the Underwriters in connection with the preparation of
the Registration Statement.
1.3 As of the time the Registration Statement (or any post-
effective amendment thereto) is or was declared effective by the
Commission, upon the filing or first delivery to the Underwriters of the
Prospectus (or any supplement to the Prospectus), and at the Firm Closing
Date and the Option Closing Date (as defined in Section 2), the
Registration Statement and the Prospectus contain and will contain all
statements which are required to be made therein and conform and will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, and neither the Registration Statement nor the
Prospectus contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or the
Prospectus in its reliance upon and in conformity with written information
furnished to the Company as stated in Section 12 hereof by or on behalf of
any Underwriter through the Representative expressly for use with
reference to the Underwriters in connection with the preparation of the
Registration Statement. The Company meets all requirements for the use of
a Form SB-2 registration statement in connection with the offer and sale
of the Securities.
1.4 The Company does not own or control any corporation,
partnership, joint venture, unincorporated association or other entity.
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state or country of its
organization, with full corporate power and authority and all consents,
authorizations, approvals, orders, licenses, certificates and permits of
and from all third parties, including without limitation, federal, state,
local and other governmental authorities and all courts and other
tribunals, as are necessary and material to enable the Company to own,
lease, license and use its properties and assets and conduct its business
as described in the Prospectus. The Company has not received notice of or
have knowledge of any basis for any proceeding or action for the
revocation or suspension of any such consent, authorization, approval,
order, license, certificate or permit or any other action or proposed
action by any regulatory authority having jurisdiction over the Company
that would have a material adverse effect on the Company. The Company is
duly qualified to do business and is in good standing in each jurisdiction
in which the character of the business conducted by it or the location of
the properties owned or leased by it makes such qualification necessary,
except where the failure to do so would not result in a material adverse
effect upon the Company.
1.5 The capitalization of the Company is, and upon consummation
of the transactions contemplated hereby will be, in all material respects
as set forth in the Prospectus. The outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully
paid and nonassessable, and the holders thereof are not subject to
personal liability by reason of being such holders and have no rights of
rescission with respect thereto which, if exercised, would have a material
adverse effect on the Company. None of such shares have been issued by
the Company in violation of any preemptive or similar rights or, to the
Company's knowledge, in violation of federal or state securities laws.
Except as described in the Prospectus, there is no commitment, plan or
arrangement to issue, and no outstanding option, warrant, convertible
security or other instrument or right calling for the issuance of, any
shares of capital stock of the Company or any security or other instrument
which is convertible into or exercisable or exchangeable for capital stock
of the Company. The capital stock of the Company, all stock option, stock
bonus and other stock plans or arrangements relating to any capital stock
of the Company, including the Securities and the Representative's
Securities, conform in all respects to the descriptions thereof contained
in the Prospectus.
1.6 The Securities have been duly authorized and, when issued
and paid for as provided herein, will be validly issued, fully paid and
nonassessable. No person has any preemptive or other similar rights with
respect to any of the Securities or the issue and sale thereof.
1.7 Except as described in the Prospectus, no holder of any
securities of the Company or of any options, warrants, or other
convertible or exchangeable securities of the Company (i) has the right to
include any securities of the Company in the Registration Statement or
(ii) has the right to include any securities issued by the Company in any
registration statement to be filed by the Company or to require the
Company to file a registration statement under the Act other than those
which have been waived or satisfied; and no person or entity holds any
anti-dilution rights with respect to any securities of the Company.
1.8 Arthur Anderson LLP, which has audited the financial
statements and related notes of the Company filed with the Commission as
part of the Registration Statement, are, and during the periods covered by
their reports were, independent certified public accountants with respect
to the Company as required by the Act and the Rules and Regulations.
1.9 The financial statements of the Company, together with
related notes, and schedules, as set forth in the Registration Statement,
comply in all material respects with the requirements of the Act and the
Rules and Regulations and present fairly the financial position and the
results of operations of the Company, at the indicated dates and for the
indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principals consistently
applied throughout the periods involved and with the Rules and
Regulations, and all adjustments necessary for a fair presentation of
results for such periods have been made. The Company maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (a) transactions are executed in accordance with management's general
or specific authorization and (b) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and the rules of regulatory authorities
having jurisdiction over the Company. No other financial statements or
schedules are required to be included or incorporated by reference in the
Registration Statement or the Prospectus. The selected financial data and
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with the financial statements in the Registration Statement.
1.10 The minute books and stock record books of the Company are
complete and correct and accurately reflect all material actions taken at
meetings of the shareholders and directors of the Company, and all
committees thereof, including, without limitation, the audit committee and
compensation committee, and all issuances and transfers of any shares of
the capital stock of the Company.
1.11 The Company has filed with the appropriate federal, state
and local governmental agencies, and all foreign countries and political
subdivisions thereof, all tax returns, including franchise tax returns,
which are required to be filed (or has duly obtained extensions of time
for the filing thereof) and has paid all taxes shown on such returns and
all assessments received by them to the extent that the same have become
due. The provisions for income taxes payable, if any, shown on the
financial statements filed with or as part of the Registration Statement
are sufficient for all accrued and unpaid foreign and domestic taxes,
whether or not disputed, and for all periods to and including the dates of
such financial statements. The Company has not executed or filed with any
taxing authority, foreign or domestic, any agreement extending the period
for assessment or collection of any income taxes and is not a party to any
pending action or proceeding by any foreign or domestic governmental
agency for assessment or collection of taxes; and no claims for assessment
or collection of taxes have been asserted against the Company.
1.12 Since the respective dates as of which information is given
in the Registration Statement and except as contemplated by the
Prospectus, there has not been (i) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, condition (financial or other), earnings, results
of operations or properties of the Company, whether or not occurring the
ordinary course of business; (ii) any transaction entered into or any
liability or obligation, absolute or contingent, incurred by the Company
which is material to the Company or is otherwise required to be disclosed
in the Registration Statement; (iii) except as disclosed in the
Registration Statement, any change in the capital stock of the Company,
any increase in the short-term or long-term debt (including capitalized
lease obligations) of the Company, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock of
the Company; or (iv) any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or any
acquisition by the Company of any capital stock of the Company. The
Company has no material contingent obligations or commitments which are
not disclosed in the Registration Statement.
1.13 The Company maintains insurance of the type and in the
amounts as are prudent and generally deemed adequate for their respective
businesses and consistent with insurance maintained by similar companies
in similar businesses, including general liability insurance, performance
guaranty bonds, and insurance covering all real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, including
computer failure, all of which insurance is in full force and effect. The
Company has not been refused any insurance or bonding coverage sought or
applied for; and the Company has no reason to believe that it will not be
able to renew its existing insurance coverage and any performance guaranty
bonds as and when such coverage expires or to obtain similar coverage from
insurers and bonding firms of recognized financial responsibility.
1.14 Except as disclosed in the Prospectus, there is no
litigation or governmental proceeding to which the Company is a party or
to which any property of the Company is subject or which is pending in
which either the Company has been served or, to the best knowledge of the
Company, is otherwise pending or threatened against the Company which, if
adversely determined, will result in any material adverse change in the
financial condition, results of operations, business or prospects of the
Company or which is required to be disclosed in the Prospectus which has
not been so disclosed. To the best knowledge of the Company, no labor
dispute by the employees of the Company exists or is imminent and which,
if it now exists or comes to exist, is expected materially to affect
adversely the financial condition, results of operations, business or
prospects of the Company or which is required to be disclosed in the
Prospectus.
1.15 Each of this Agreement, the Representative's Warrants and
NTB's Financial Consulting Agreement (as provided in Section 4.18 hereof)
constitutes the valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except insofar as rights
to indemnity and/or contribution may be limited by federal or state
securities laws or the public policy underlying such laws and except as
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally, and be subject
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). The Securities have
been duly and validly authorized by the Company and upon their delivery in
accordance herewith will be duly issued and will be validly issued, fully
paid and nonassessable. The shares of Common Stock issuable upon exercise
of the Representative's Warrants have been duly authorized and reserved
for issuance upon the exercise of such Warrants and when issued upon
payment of the exercise price therefor will be validly issued, fully paid
and nonassessable shares of Common Stock.
1.16 The Company is not in violation of or in default under, and
the consummation of the transactions contemplated herein and the
fulfillment of the terms hereof will not conflict with or result in a
violation of or default under, the Certificate or Articles of
Incorporation, Bylaws of the Company, or under foreign or domestic
judgment, decree, order, statute, rule or regulation applicable to the
Company or any of their respective properties, or under any permit, lease,
license, contract, indenture, mortgage, deed of trust, loan agreement or
other agreement, instrument or obligation to which the Company is a party
or by which any of them or of their respective properties is bound. Each
approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental
body or court necessary in connection with the execution and delivery of
the Company of this Agreement, the Representative's Warrants and the
Financial Consulting Agreement and the consummation of the transactions
contemplated hereby and thereby (except additional steps as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD"), or which may be necessary to qualify the Securities for public
offering by the Underwriters under state securities or "Blue Sky" Laws)
has been obtained or made and is in full force and effect.
1.17 Except as disclosed in the Prospectus, the business and
operations conducted by the Company are being conducted in compliance in
all material respects with all applicable federal, state and local laws.
1.18 The descriptions in the Registration Statement and the
Prospectus of material contracts, including the Company's licenses, leases
and other agreements, are accurate in all material respects and present
fairly the information required to be disclosed, and there are no
contracts or other documents required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement under the Act or the Rules and Regulations which have not been
so described or filed as required.
1.19 Each material contract or other instrument (however
characterized or described) to which the Company is a party or by which
its property or business is or may be bound or affected and to which
reference is made in the Prospectus has been duly and validly executed by
the Company, is in full force and effect in all material respects and is
enforceable against the parties thereto in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights
of creditors generally; and none of such contracts or instruments has been
assigned by the Company and neither the Company nor, to the best knowledge
of the Company, any other party is in default thereunder, which default
would have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company, and, to the best
knowledge of the Company, no event has occurred which, with the lapse of
time or the giving of notice, or both, would constitute a default
thereunder and would have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company.
1.20 Each employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("Employee Benefit Plan"), and each bonus, retirement, pension, profit
sharing, stock bonus, thrift, stock option, stock purchase, incentive,
severance, deferred or other compensation or welfare benefit plan,
program, agreement or arrangement of, or applicable to employees of the
Company ("Benefit Plans"), which is presently in existence, or was in
existence at any time during the prior five calendar years, was or has
been established, maintained, and operated in all material respects in
compliance with all applicable federal, state and local statutes, orders,
governmental rules and regulations, including, but not limited to, ERISA
and the Internal Revenue Code of 1986, as amended (the "Code"). The
Company does not, either directly or indirectly as a member of a
controlled group within the meaning of Sections 414(b), (c), (m) and (o)
of the Code ("Controlled Group"), have any material liability that remains
unsatisfied for (A) the termination of any single employer plan under
Section 4062 or 4064 of ERISA, (B) any interest payments under Section
302(e) of ERISA or Section 412(m) of the Code, (C) any excise tax imposed
by Section 4971, Section 4972, Section 4975 or Section 4979 of the Code,
(D) any minimum funding contributions under Section 302(c)(11) of ERISA or
Section 412(c)(11) of the Code, (E) any accumulated funding deficiency
within the meaning of Section 412(a) of the Code, whether or not waived,
or (F) to the Internal Revenue Service, the Department of Labor, the
Pension Benefit Guaranty Corporation, or any Benefit Plan or any
multiemployer plan (as defined in Section 3(37) of ERISA) ("Multiemployer
Plan") under Subtitle D or Subtitle E of Title IV of ERISA, under
Subchapter D of Chapter 1 of Subtitle A of the Code or under Chapter 43 of
Subtitle D of the Code. No action, suit, grievance, arbitration or other
matter of litigation or claim with respect to any Benefit Plan (other than
routine claims for benefits made in the ordinary course of plan
administration for which plan administrative procedures have not been
exhausted) is pending or, to the Company's knowledge, threatened or
imminent against or with respect to any Benefit Plan, any member of a
Controlled Group that includes the Company, or any fiduciary within the
meaning of Section 3(21) of ERISA with respect to a Benefit Plan which, if
determined adversely to the Company, would have a material adverse effect
on the Company. Neither the Company, nor any member of a Controlled Group
that includes the Company has any knowledge of any facts that would give
rise to any action, suit, grievance, arbitration or any other manner of
litigation or claim with respect to any Benefit Plan.
1.21 The Company has not taken and will not take, directly or
indirectly, any action (and does not know of any action by its directors,
officers or stockholders or by others) designed to or which has
constituted or which might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities.
1.22 All transactions during the Company's current or last three
fiscal years between the Company and any person who is or was during such
time period an officer or director or the owner of 5% or more of the
outstanding voting stock of the Company have been disclosed in the
Prospectus to the extent required by the Act and the Rules and
Regulations; and the terms of each such transaction are and were in all
material respects fair to the Company and no less favorable to the Company
than the terms that could have been obtained from unrelated parties.
1.23 To the best knowledge of the Company after due inquiry, the
Company owns or has the irrevocable right to use all patents, trademarks,
service marks, assumed names, trade names, copyrights, and other
intellectual property rights (collectively referred to herein as
"Intellectual Property Rights") necessary to conduct their respective
businesses as now conducted or proposed to be conducted as described in
the Prospectus. The Company has no knowledge of (i) any infringement or
claimed infringement by it or the Subsidiary of any Intellectual Property
Rights of any third party or (ii) any infringement by any third party of
any such intellectual property right of the Company. Except as set forth
in the Prospectus, the Company is not obligated or any liability to make
any payment by way of royalty, fee or otherwise to any owner or licensee
of, or other claimant to, any Intellectual Property Rights with respect to
the Company's use thereof or in connection with the conduct of the
business of the Company.
1.24 The Company has taken reasonable measures to protect the
secrecy, confidentiality and value of all of its Intellectual Property
Rights in all material respects.
1.25 The Company has good and marketable title to, or valid and
enforceable leasehold estates in, all items of real and personal property
described or referred to in the Prospectus to be owned or leased by it
free and clear of all liens of any kind whatsoever, other than (i) those
referred to in the Prospectus and (ii) liens for taxes not yet due and
payable.
1.26 Except as disclosed in the Registration Statement and the
Prospectus, the Company has not issued, sold or offered for sale within
the last three years any shares of its Common Stock, any right to acquire
any shares of its Common Stock or any securities or instrument exercisable
for or convertible into any shares of its Common Stock.
1.27 There are no agreements, claims, payments, issuances,
arrangements or understandings, whether oral or written, for services in
the nature of a finder's, consulting or origination fee with respect to
the sale of the Securities payments, issuances, arrangements or
understandings with respect to the Company or any of its officers,
directors, stockholders, partners, employees, or affiliates that may
affect the Underwriters' compensation, as determined by the National
Association of Securities Dealers, Inc. ("NASD") or for which the Company
or any Underwriter may be responsible.
1.28 As of the effective date of the Registration Statement, (i)
the Common Stock has been duly registered under Section 12(g) of the
Exchange Act, and (ii) the Common Stock has been approved for inclusion in
the Automated Quotation System of the National Association of Securities
Dealers, Inc. ("NASDAQ").
1.29 Neither the Company nor to best of the Company's knowledge
any officer, director or employee of or agent acting on behalf of the
Company has at any time (i) made any contributions to any candidate for
political office in violation of law, or failed to disclose fully any
contributions to any candidate for political office in accordance with any
applicable statute, rule, regulation or ordinance requiring such
disclosure, (ii) made any payment to any governmental officer or official,
or other person charged with similar public or quasi-public duties, other
than payments required or allowed by applicable law, (iii) made any
payment outside the ordinary course of business to any purchasing or
selling agent or person charged with similar duties of any entity to which
the Company sells or from which the Company buys products for the purpose
of influencing such agent or person to buy products from or sell products
to the Company, or (iv) engaged in any transaction on behalf of the
Company, maintained any bank account for the Company, or used any
corporate funds of the Company, except for transactions, bank accounts and
funds which have been and are reflected in the normally maintained books
and records of the Company.
1.30 Except as set forth in the Prospectus, no officer, director
or principal stockholder of the Company, nor any "affiliate" or
"associate" (as these terms are defined in Rule 405 promulgated under the
Rules and Regulations) of any of the foregoing persons or entities, has or
has had, either directly or indirectly, (i) an interest in any person or
entity that (A) furnishes or sells services or products that are furnished
or sold or are proposed to be furnished or sold by the Company, or (B)
purchases from or sells or furnishes to the Company any goods or services,
or (ii) a beneficial interest in any contract or agreement to which the
Company is a party or by which it may be bound or affected. Except as set
forth in the Prospectus under "Certain Transactions," there are no
existing or proposed agreements, arrangements, understandings, or
transactions between or among the Company and any officer, director, or
principal stockholder of the Company, or any partner, affiliate or
associate of any of the foregoing persons or entities.
1.31 Any certificate signed by any officer of the Company on
behalf of the Company and delivered to the Representative or to
Representative's counsel shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
1.32 The Company is not, and upon completion of the transactions
contemplated hereby will not be, required to register as an investment
company under the Investment Company Act of 1940, as amended.
1.33 The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than such Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by
the Company, subject to the Representative's prior written approval
thereof or consent thereto.
1.34 The Company has obtained from each shareholder of the
Company an enforceable written agreement that for the agreed upon terms,
such shareholder will not, without the Representative's prior written
consent, offer, pledge, sell, contract to sell, grant any option for the
sale of, or other dispose of, directly or indirectly, any shares of Common
Stock or any security or other instrument which by its terms is
convertible into, exercisable for or exchangeable for shares of Common
Stock.
1.35 The Company has (i) entered into an employment agreement
with each of David J. Selina, Marshall E. Aster, and Jeffrey W. Marshall
in the forms filed as Exhibits 10.14, 10.15 and 10.16, respectively, to
the Registration Statement, and (ii) purchased term key-person insurance
on the lives of ---------- and ------------- each in the amount of
$1,000,000, which policies name the Company as the beneficiary thereof.
1.36 No action has been taken suspending the registration or
qualification of the Securities in any jurisdiction designated by the
Representative pursuant to Section 4.2 hereof, nor have any proceedings
been initiated or threatened for any such purpose.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. The Company
agrees to sell the Firm Shares to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase, at the price
set forth below, the number of Firm Shares set forth opposite its name on
Schedule I hereto, subject to adjustments in accordance with Section 9
hereof. The purchase price for the Firm Shares shall be $------ per
Share.
2.1 Payment for the Firm Shares shall be made to the Company by
wire transfer or certified or bank cashier's check in same-day funds
against delivery of certificates for the Firm Shares to the Representative
for the several accounts of the Underwriters. Such payment and delivery
shall be conducted at the offices of NTB, 300 Plaza Level, 1675 Larimer
Street, Denver, Colorado 80202 (or such other place as mutually may be
agreed upon by the Representative and the Company), at -------- a.m.
Denver, time, on the fourth full Business Day after the date of this
Agreement or at such other time and date thereafter as the Representative
and the Company shall agree upon, such time and date being herein referred
to as the "Firm Closing Date."
2.2 In addition, the Company hereby grants to the several
Underwriters an option to purchase, on the terms and subject to the
conditions set forth herein, up to 120,000 Option Shares at the price per
Share set forth above, solely to cover over-allotments in the sale of the
Firm Shares. Nothing contained herein shall obligate the Underwriters to
make any over-allotments in the sale of the Firm Shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been,
or simultaneously are, sold and delivered.
2.3 The over-allotment option may be exercised, in whole or in
part, at any time upon written notice given within 45 days after the date
of this Agreement, by NTB, as Representative of the several Underwriters,
to the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the over-allotment option, the names
and denominations in which the certificates representing the Option Shares
are to be registered and the time and date at which such certificates are
to be delivered (such time and date being referred to herein as the
"Option Closing Date"). The Option Closing Date shall be determined by
the Representative but shall not be earlier than 3 nor later than 10 full
Business Days after the exercise of the over-allotment option, nor in any
event prior to the Firm Closing Date. If the date of exercise of the over-
allotment option is 3 or more days before the Firm Closing Date, the
notice of exercise shall set the Firm Closing Date as the Option Closing
Date. As Representative of the several Underwriters, NTB may cancel the
over-allotment option at any time prior to its expiration by giving
written notice of such cancellation to the Company. If the over-allotment
option is exercised, payment for the Option Shares shall be made to the
Company on the Option Closing Date by wire transfer or certified or bank
cashier's check in same-day funds against delivery of certificates for the
Option Shares at the above stated offices of NTB in Denver, Colorado.
Delivery of certificates for the Firm Shares and any Option Shares shall
be made by or on behalf of the Company through the facilities of the
Depository Trust Company ("DTC") to the Representative for the respective
accounts of the several Underwriters, against payment of the purchase
price therefore by wire transfer or certified or bank cashier's check in
same-day funds to the order of the Company. Certificates for the Firm
Shares and any Option Shares shall be registered in such names and
denominations as the Representative shall have requested at least 2 full
Business Days prior to the applicable Closing Date, and shall be made
available for checking and packaging at a location as may be designated by
the Representative at least 1 full Business Day prior to such Closing
Date. Time shall be of the essence, and delivery at the time and place
specified is a further condition to the obligations of each Underwriter.
2.4 At the closing of the sale of the Firm Shares, the Company
will sell and deliver to the Representative, at an aggregate purchase
price of $100, Representative's Warrants, dated the Firm Closing Date,
substantially in the form filed as an exhibit to the Registration
Statement, evidencing the right of the Representative, and/or
Representative's permitted designees, to purchase up to 120,000 shares
(equal to 10% of the Firm Shares) of Common Stock (subject to adjustment
as provided in the Representative's Warrants) at the price of $----- per
share and on the terms and conditions provided in the Warrants. The
Company shall not be obligated to sell and deliver the Representative's
Warrants, and the Representative shall not be obligated to purchase and
pay for the Warrants, except upon payment for the Firm Shares.
3. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters intend to make a public offering of the Firm Shares as soon
as the Representative deems it advisable to do so. The Firm Shares are to
be initially offered to the public at the initial public offering price
set forth in the Prospectus. The Representative may from time to time
thereafter change the public offering price and other selling terms. To
the extent, if at all, that Option Shares are purchased pursuant to the
over-allotment option, the Underwriters will offer them to the public on
the foregoing terms. It is further understood that the Representative
will act as the representative for the Underwriters in the offering and
sale of the Securities pursuant to an Agreement Among Underwriters entered
into by the Representative and the several other Underwriters.
4. Covenants of the Company. The Company covenants and agrees with
each Underwriter as follows:
4.1 If the Registration Statement has not yet been declared
effective, the Company shall use its best efforts to cause the
Registration Statement and any amendment thereto to become effective under
the Act and, upon notification from the Commission that the Registration
Statement or any amendment thereto has become effective, shall so advise
you immediately, in writing. The Company shall comply with the provisions
of and make all requisite filings with the Commission pursuant to Rule
430A and Rule 424(b) under the Act and notify you in writing of all such
filings. The Company shall notify you promptly of any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information; the Company
shall carefully prepare and file with the Commission promptly upon your
request, any amendment of or supplement to the Registration Statement or
Prospectus which, in your reasonable opinion, may be necessary or
advisable in connection with the distribution of the Securities; and the
Company shall not file or make any amendment of or supplement to the
Registration Statement or the Prospectus which is not approved by you
after reasonable notice from the Company to you, which approval shall not
be unreasonably withheld or delayed. The Company shall advise you
immediately of the issuance by the Commission, any state securities
commission or any other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement, suspending or
preventing the use of any Preliminary Prospectus or the Prospectus or
suspending the qualification of the Securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order or
other such order be issued, to obtain as soon as possible the lifting
thereof.
4.2 The Company shall cooperate with you and your counsel in
connection with the registration or qualification of the Securities for
sale under the securities or "Blue Sky" laws of such jurisdictions as the
Representative shall designate and the continuance of such qualification
in effect for so long a period as the Representative may reasonably
request, except the Company shall not be required to qualify as a foreign
corporation in any jurisdiction where it is not already so qualified or to
execute a general consent to service of process in actions other then
those arising out of the offer and sale of the Securities or take any
action which would subject it to taxation in any jurisdiction where it is
not now so subject.
4.3 Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company shall
comply with all requirements imposed upon it by the Act and the Exchange
Act, as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Securities as contemplated by
the provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or would omit to
state a material fact necessary to make the statements therein, in light
of the circumstances then existing, not misleading, or if during such
period it is otherwise necessary, in the opinion of the Company or in your
opinion, to amend the Registration Statement or supplement the Prospectus
to comply with the Act, the Company or you, as the case may be, shall
promptly notify the other party and the Company shall amend the
Registration Statement or supplement the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
4.4 The Company shall make generally available to its security
holders (and shall deliver to you), in the manner contemplated by Rule
158(b) under the Act, as soon as practicable but in any event not later
then 45 days after the end of its fiscal quarter in which the first
anniversary date of the effective date of Registration Statement occurs,
an earnings statement satisfying the requirements of Section 11(a) of the
Act covering a period of at least 12 consecutive months beginning after
the effective date of the Registration Statement; and will advise you in
writing when such statement has been made available.
4.5 For a period of five years from the Firm Closing Date, the
Company will deliver to you on a timely basis (i) a copy of each report,
including, without limitation, reports on Form 8-K, 10-C, 10-K (or 10-KSB)
and 10-Q (or 10-QSB) or any successor form and exhibits thereto filed with
or furnished by the Company to the Commission, any securities exchange or
the National Association of Securities Dealers, Inc. ("NASD") on the date
each such report or document is so filed or furnished; (ii) as soon as
practicable, copies of any reports or communications (financial or other)
of the Company mailed to its security holders; (iii) as soon as
practicable, a copy of any Schedule 13D, 13G, 14D-1, 13E-3 or 13E-4 (or
any successor form) received or prepared by the Company from time to time;
and (iv) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request
and which can be prepared or obtained by the Company without unreasonable
effort or expense.
4.6 The Company shall furnish or cause to be furnished to the
Representative or on the Representative's order, without charge, at such
place as the Representative may designate, copies of each Preliminary
Prospectus, the Registration Statement and any pre-effective or post-
effective amendments thereto, the Prospectus, and all amendments and
supplements thereto, including any Prospectus prepared after the effective
date of the Registration Statement, in each case as soon as available and
in such quantities as the Representative may request. The Company will
deliver to the Representative, at or before the Firm Closing Date, two
signed copies of the Registration Statement and all pre-effective or post-
effective amendments thereto including all exhibits filed therewith.
4.7 The Company shall not, during the 180 day period following
the Firm Closing Date, except with the Representative's prior written
consent, offer for sale, contract to sell, issue, distribute, grant any
option, right or warrant to purchase any shares of Common Stock or other
equity securities of the Company or any securities convertible into shares
of Common Stock or such other equity securities, except the Securities,
the Representative's Securities, those options to purchase shares of
Common Stock issued under the Company's Equity Incentive Plan and those
other options to purchase shares of Common Stock (collectively the
"Options") and shares of Common Stock issued upon exercise of the Options,
as those Options are described in the Prospectus.
4.8 The Company shall cause (i) each officer and director of
the Company and each holder of 5% or more of the Company's Common Stock
(or securities convertible into shares Common Stock) to furnish to the
Representative, prior to the date of this Agreement, in form and substance
satisfactory to Representative's counsel, whereby each such person shall
agree not to offer for sale, contract to sell, sell, distribute, grant any
option or other right to purchase or otherwise dispose of or contract to
dispose of any of their shares of the Company's Common Stock (or any
security convertible into shares of the Company's Common Stock) without
the Representative's prior written consent during the 12 month period
following the effective date of the Registration Statement; and (ii) each
other holder of the Company's Common Stock (or other security convertible
into Common Stock) to furnish to the Representative, prior to the date of
this Agreement, a written agreement, in form and substance satisfactory to
Representative's counsel whereby each such person shall agree not to offer
for sale, contract to sell, sell, distribute, grant any option or other
right to purchase or otherwise dispose of or contract to dispose of any of
their shares of the Company's Common Stock (or any security convertible
into shares of the Company's Common Stock) for a period of 9 months from
the effective date of the Registration Statement without the
Representative's prior written consent. Except as the Representative may
consent, in it sole discretion, the foregoing agreements shall also
provide that any sale of shares of the Company's Common Stock by any such
person during the 18 month period from the effective date of the
Registration Statement, and which sale is made pursuant to Rule 144 under
the Act (or comparable provision under the Act) shall be made only in a
transaction or transactions by or directly with the Representative,
providing the compensation charged by the Representative is competitive
with other broker-dealers.
4.9 The Company shall not take, or permit any of its officers
of directors or shareholders or any affiliate (within the meaning of the
term "affiliate" in the Rules and Regulations) to take, directly or
indirectly, any action designed to or which has constituted or might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities; and has not effected any sales of shares of Common Stock or
other securities that are required to be disclosed in response to Item 26
of Part II of the Registration Statement.
4.10 The Company shall apply the net proceeds from the sale of
the Securities in the manner, and subject to the conditions, set forth
under "Use of Proceeds" in the Prospectus. No portion of the net proceeds
will be used, directly or indirectly, to acquire any securities issued by
the Company.
4.11 The Company shall timely file all such reports, forms and
other documents as may be required (including, without limitation, a Form
SR as may be required pursuant to Rule 463 under the Act) from time to
time under the Act, the Exchange Act, and the Rules and Regulations, and
all such reports, forms and documents filed shall comply as to form and
substance with the applicable requirements under the Act, the Exchange
Act, and the Rules and Regulations.
4.12 The Company shall use its best efforts to maintain the
inclusion of the Common Stock for quotation on the SmallCap Market of
NASDAQ.
4.13 For a period of three years from the Firm Closing Date, the
Company shall (i) retain American Securities Transfer & Trust, Inc.,
Denver, Colorado as the transfer agent for the Common Stock and shall
instruct the transfer agent to furnish to the Representative, as and to
the extent reasonably requested by the Representative, at the Company's
sole expense, with copies of the Company's stock transfer sheets relating
to the Company's securities, including a current list of the holders of
all of the Company's securities and a list of the beneficial owners of
securities held by Depository Trust Company; (ii) retain such accounting
firm as the Company's independent public accountants as shall be
reasonably acceptable to the Representative; and (iii) retain such
financial public relations firm as shall be reasonably acceptable to the
Representative for consecutive 6 month terms; provided, however, that any
renewal of such firm's engagement shall be subject to NTB's approval.
4.14 The Company shall take all necessary action, on an
expedited basis, to be included effective with the First Closing Date in
Standard and Poor's Corporate Records, Stock Quotes and Stock Guide
published by Standard and Poor's Corporation and to continue such
inclusion for a period of not less than seven years from the Firm Closing
Date.
4.15 Until that date which is 90 days after the Firm Closing
Date, the Company shall not, without the prior written approval of the
Representative, issue, directly or indirectly, any press release or other
communication or hold any press conference with respect to the Company or
its activities or the offering contemplated hereby, other than trade
releases issued in the ordinary course of the Company's business
consistent with past practices with respect to the Company's operations or
such releases as counsel for the Representative and the Company have
advised are necessary to comply with applicable law.
4.16 For a period of two years from the Firm Closing Date, the
Company agrees that NTB shall have the right to designate one person as an
advisor to the Company's Board of Directors. Such advisor will be
reimbursed for his or her expenses in attending meetings of the Board of
Directors and will receive cash compensation equal to that received by any
other outside director but will have no power to vote as a director. Such
person shall be indemnified by the Company against any claim arising out
of his or her participation in meetings of the Board of Directors to the
same extent as directors. During the stated two year period, NTB's
advisor to the Company's Board of Directors will be (i) invited to attend
all meetings of the Company's Board of Directors; (ii) provided with a
copy of all Actions by Unanimous Written Consent of the Board of Directors
in Lieu of an Actual Meeting; (iii) furnished with a copy of all public
filings by the Company and Company press releases as released; (iv)
updated by the Company's management, on at least a quarterly basis,
regarding the Company's activities, prospects and financial condition; and
(v) advised immediately of material events to the extent consistent with
applicable law. During the subject two year period, the Company shall
hold meetings of its Board of Directors at intervals of not less than once
each calendar quarter. Any advisor to the Company's Board of Directors
designated by NTB shall be acceptable to the Company, which acceptance
shall not be unreasonably withheld.
4.17 For a period of 12 months from the Firm Closing Date, the
Company shall not authorize or otherwise effect any change in the
compensation to any officer and/or director of the Company without 30
days' prior written notice to the Representative.
4.18 On the Firm Closing Date, the Company shall enter into a
consulting agreement, retaining NTB, individually, and not as
Representative of the Underwriters, as financial consultant to the Company
for a period of 24 months at a fee of $48,000 payable in full on the Firm
Closing Date. As financial consultant, the Representative will advise the
Company as to market conditions, financial alternatives, resource
allocation and similar investment banking services. Such consulting
agreement shall also provide for compensation to the Representative as
follows: 5% of the first $3 million, 2.5% of any consideration between $3
million and $5 million; 2% of any consideration between $5 million and $10
million; and 1% of any consideration greater than $10 million paid or
received by the Company (or its shareholders) in any transaction
(including mergers, assets sales and acquisitions) accepted by the Company
(or its shareholders) within 36 months from the Firm Closing Date,
provided the Representative introduced the other party to the Company.
5. COSTS AND EXPENSES. Whether or not the transactions
contemplated by this Agreement are consummated, the Company will pay all
costs, expenses and fees incident to the performance of the obligations of
the Company under this Agreement, including, without limiting the
generality of the foregoing, the following: (i) all expenses (including
stock transfer taxes, if any) incurred in connection with the delivery of
the Firm Shares and Option Shares to the Underwriters, (ii) all fees and
expenses (including, without limitation, fees and expenses of the
Company's accountants and counsel, but excluding fees and expenses of
counsel for the Underwriters, except as provided in (iii) below) in
connection with the preparation, printing, filing, delivery and shipping
of the Registration Statement (including the financial statements therein
and all amendments and exhibits thereto), each Preliminary Prospectus and
the Prospectus as amended or supplemented, and the printing, delivery and
shipping of this Agreement and other underwriting documents, including
Underwriters' Questionnaires, Underwriters' Powers of Attorney, Blue Sky
Memoranda, Agreements Among Underwriters and Selected Dealer Agreements
and any letters transmitting the offering material to selling group
members (including costs of shipment and delivery), (iii) all filing fees
and fees and disbursements of Representative's counsel incurred in
connection with the qualification of the Securities under state securities
laws as provided in Section 4.2 hereof, (iv) the filing fees of the
Commission and NASD, (v) the fees and expenses of inclusion of the Common
Stock on NASDAQ NMS as well as and any other securities exchange, (vi) the
cost of printing certificates representing the Common Stock, (vii) the
cost and charges of the transfer agent or registrar, (viii) the costs of
"tombstone" advertisements in such publications as you shall reasonably
request, as well as the costs of any other advertising undertaken at the
Company's request, (ix) the costs of preparing, printing and distributing
bound volumes for the Representative and its counsel, (x) all fees and
costs for due diligence information, examinations, (xi) the costs and
expenses associated with the production of materials related to and travel
expenses incurred by the Company's management and you in connection with,
the various meetings to be held between the Company's management and
prospective investors; and (xii) all other costs and expenses incident to
the performance of the obligations of the Company hereunder which are not
otherwise provided for in this section. In addition, the Company shall
also pay you, individually and not in your capacity as Representative, at
the applicable Closing Date, a non-accountable expense allowance equal to
2% of the initial public offering price of the Securities purchased on
such Closing Date (including Option Shares purchased pursuant to the
option granted pursuant to Section 2 hereof). If the sale of the
Securities provided for herein is not consummated by reason of any
termination of this Agreement pursuant to Section 10.2 hereof, or by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed hereunder or because any
condition of the Underwriters' obligations set forth in Section 6 herein
is not fulfilled, the Company shall reimburse the Representative for all
of Representative's accountable out-of-pocket expenses (including fees and
disbursements of its counsel) actually incurred by the Representative in
connection with the investigation, preparing to market and marketing of
the Securities or in contemplation of performing its obligations
hereunder, such reimbursement not to exceed in the aggregate $65,000. You
acknowledge that $45,000 has been paid to you pursuant to the Company's
prior agreement to be applied against the expense allowance (and which
shall be applied toward such reimbursement of the Representative). You
agree that any portion of such $45,000 that is not necessary to reimburse
you for your out-of-pocket expenses actually incurred if the sale of the
Securities, as contemplated by this Agreement, is not consummated for any
reason shall be repaid to the Company.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase and pay for the Firm Shares on
the Firm Closing Date and the Option Shares, if any, on the Option Closing
Date shall be subject, as of the date hereof, the Firm Closing Date and
the relevant Option Closing Date, if any, respectively, of each of the
representations and warranties on the part of the Company contained
herein, to the performance by the Company of all of its agreements herein
contained, to the fulfillment of or compliance by the Company with all
covenants and conditions hereunder, and to the following additional
conditions:
6.1 The Registration Statement thereto shall have become
effective not later than 5:30 p.m., Washington, D.C. time, on the date of
this Agreement or such later date and time as shall be consented to in
writing by the Representative; all post-effective amendments thereto shall
have become effective and all filings required by Rule 424(b) and Rule
430A under the Act have been completed within the time period required by
the Rules and Regulations prior to the Firm Closing Date; no stop order
suspending the effectiveness of the Registration Statement, or any
amendment or supplement thereto shall have been issued and no proceedings
for the issuance of such an order shall have been indicated or threatened;
and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to Representative's satisfaction.
6.2 The Representative shall not have advised the Company that
(i) the Prospectus, or any supplement thereto, contains an untrue
statement of fact which, in the Representative's reasonable opinion, is
material, or omits to state a fact which, in the Representative's
reasonable opinion, is material and is required to be stated therein or is
necessary to make the statements therein, in light of the circumstances
under which they were made not misleading, or (ii) that the Registration
Statement, or any amendment thereto, contains an untrue statement of fact
which, in the Representative's reasonable opinion, is material, or omits
to state a fact which, in the Representative's reasonable opinion is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
6.3 On or prior to the Firm Closing Date and the Option Closing
Date, if any, the Representative shall have received from John G. Herbert,
P.C., counsel for the Representative, such opinion or opinions with
respect to the sufficiency of all corporate proceedings and other legal
matters relating to this Underwriting Agreement and the transactions
contemplated hereby as the Representative reasonably may require, and such
counsel shall have received from the Company or counsel to the Company
such documents and information as they reasonably request to enable them
to pass upon such matters.
6.4 The Representative shall have received at or prior to the
date of this Agreement, the Firm Closing Date from John G. Herbert, P.C.,
a memorandum or written summary, in form and substance satisfactory to the
Representative, with respect to the qualification for offering and sale by
the Underwriters of the Securities under the state securities or Blue Sky
laws of such jurisdictions as the Representative may reasonably have
designated to the Company.
6.5 The Representative shall have received on the Firm Closing
Date the opinion of Gorsuch Kirgis LLP, counsel for the Company, dated
such Closing Date, addressed to the Representative covering the matters
set forth on Annex A attached hereto.
6.6 The Representative shall have received on the Firm Closing
Date the opinion of ---------------------, special counsel to the Company
with respect to intellectual property matters, dated such Closing Date,
addressed to the Representative covering the matters set forth on Annex B
attached hereto.
6.7 The Representative shall have received at the Option
Closing Date, if any, the favorable opinions of the Company's counsel and
special counsel, respectively, addressed to the Representative, confirming
as of such Option Closing Date the statements made by such counsel in its
opinion delivered on the Firm Closing Date.
6.8 As of the Firm Closing Date and Option Closing Date, if
any, (i) there shall have been no transaction, not in the ordinary course
of business, entered into by the Company after the latest date as of which
the financial condition of the Company is set forth in the Registration
Statement and Prospectus that is materially adverse to the Company; (ii)
the Company shall not be in material breach or material default under any
provision of any instrument relating to any outstanding indebtedness;
(iii) the Company shall not have issued any securities (other than as
described in the Registration Statement and other than the Securities and
the Representative's Securities) or declared or paid any dividend or made
any distribution in respect of its capital stock of any class and there
shall not have been any change in the capital stock or any material change
in the debt (long or short term) or liabilities or obligations of the
Company (contingent or otherwise); (iv) no material amount of the assets
of the Company shall have been pledged or mortgaged, except as set forth
in the Registration Statement and Prospectus; (v) no action, suit or
proceeding, at law or in equity, shall have been pending or threatened (or
circumstances giving rise to same) against the Company, or involving or
affecting its business or properties, before or by any court or federal,
state or foreign commission, board or other administrative agency wherein
an unfavorable decision, ruling or finding could have a material adverse
effect on the Company, except as set forth in the Registration Statement
and Prospectus; and (vi) no stop order shall have been issued under the
Act and no proceedings therefor shall have been initiated, threatened or
contemplated by the Commission or any state securities regulatory agency.
6.9 The Representative shall have received on the Firm Closing
Date and the Option Closing Date, if any, a certificate or certificates of
the Company, signed by the Chief Executive Officer and by the Chief
Financial Officer to the effect that each of such persons has carefully
reviewed the Registration Statement, the Prospectus and this Agreement,
and that, as of such Closing Date:
6.9.1 The Registration Statement has become
effective under the Act, no stop order suspending the
effectiveness of the Registration Statement has been issued, and
no proceedings for that purpose have been instituted or are
pending or are, to the best of each of such person's knowledge
after due inquiry, contemplated by the Commission; and
6.9.2 The representations and warranties of the
Company in this Agreement are true and correct, as if made on
and as of the Firm Closing Date or the Option Closing Date, as
the case may be, and the Company has complied with all
agreements and satisfied all conditions set forth in this
Agreement on its part to be performed or satisfied at or prior
to the Firm Closing Date or the Option Closing Date, as the case
may be; and
6.9.3 they have carefully examined the
Registration Statement, the Prospectus and any amendments or
supplements thereto, and (a) neither the Registration Statement
nor the Prospectus, nor any amendment or supplement thereto,
contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (b)
since the effective date of the Registration Statement there has
occurred no event required to be set forth in an amended or
supplemented prospectus which has not been so set forth, (c)
subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the
Company has not incurred any material liability or obligation,
direct or contingent, or entered into any material transaction,
whether or not in the ordinary course of business, or declared
or paid any dividend on any capital stock of the Company, and
there has not been any change in the capital stock, or any
material increase, in the short-term debt or long-term debt
(including any capitalized lease obligation), or any issuance of
options, warrants, convertible securities or other rights to
purchase the capital stock, of the Company, or any material
adverse change, or any development involving a prospective
material change, in the business, key personnel, condition
(financial or other), properties, assets, net worth or results
of operations of the Company, and the Company has not sustained
any material loss or damage to its property or interference with
its business, whether or not any of the foregoing is insured,
which is material to the Company, and (d) except as disclosed in
the Prospectus, there is not pending, threatened or, to their
knowledge, contemplated any action, suit, proceeding or
investigation before or by any court or governmental agency or
body, or any arbitrator which would result in any material
adverse change in the general affairs, business, condition
(financial or other) properties, assets, net worth or results of
operations of the Company.
6.10 The Representative shall have received on or prior to the
date of this Agreement, the approval of the NASD of the terms of the
Underwriters' participation in the distribution of the Securities and the
amount and type of compensation allowable or payable to the Representative
and the Underwriters therefor.
6.11 The Representative shall have received a signed letter from
Arthur Anderson LLP, addressed to the Representative, on the date of this
Agreement, the Firm Closing Date and, if applicable, the Option Closing
Date, respectively, and a draft of such letter not less than five days
prior to each said date, from Arthur Anderson LLP dated as of the date
hereof, the Firm Closing Date and, if applicable, the Option Closing Date,
as the case may be, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letter to the
Representative delivered by Arthur Anderson LLP on the date hereof, which
letter shall be to the effect set forth in Annex C hereto, that nothing
has come to their attention during the period from the date not more than
5 days prior to date hereof, to a date not more than 5 days prior to the
Firm Closing Date and the Option Closing Date, as the case may be, which
would require any change in their letter dated the date hereof if it were
required to be dated and delivered on the Firm Closing Date or the Option
Closing Date, as the case may be. All such letters shall be in form and
substance satisfactory to the Representative.
6.12 On each of the Firm Closing Date and relevant Option
Closing Date, if any, there shall have been duly tendered to the
Representative for its account and the accounts of the several
Underwriters, certificates representing the Securities in the names and
denominations instructed by the Representative against payment therefor as
provided herein.
6.13 No order suspending the sale of the Securities in any
jurisdiction designated by the Representative pursuant to Section 4.2
hereof shall have been issued and no proceedings for that purpose shall
have been instituted or shall be threatened.
6.14 On or before the Firm Closing Date, the Company shall have
executed and delivered to the Representative the Representative's Warrants
in such denominations and in the names of such designees as shall have
been instructed by the Representative in writing.
6.15 On or before the date of this Agreement, the Common Stock
shall have been duly approved for inclusion on NASDAQ SmallCap Market
subject to official notice of issuance.
6.16 Since the effective date of the Registration Statement, the
Company shall not have sustained any loss by fire, flood, accident or
other calamity, nor shall it have become a party to or the subject of any
litigation, individually or in the aggregate, which is materially adverse
to the Company, nor shall there have been a material adverse change in the
general affairs, business, key personnel, capitalization, financial
position or net worth of the Company, whether or not arising in the
ordinary course of business, which loss, litigation or change, in your
reasonable judgment, shall render it inadvisable to proceed with the
delivery of the Securities.
6.17 Subsequent to the date of this Agreement or, if earlier,
the dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in Section 6.11 or (ii) any
change, or any development involving a prospective change, in or affecting
the business or properties of the Company the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
6.18 At or prior to the Firm Closing Date, the Representative
shall have received the written agreements and performance of the matters
specified in Sections 4.8 and 4.18 hereof.
6.19 Prior to the Firm Closing Date, the Company shall have
furnished to the Representative such further information, certificates and
documents confirming the representations and warranties of the Company and
compliance with the conditions contained herein as the Representative may
reasonably have requested.
The options and certificates mentioned in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are
in all respects reasonably satisfactory to the Representative and its
counsel.
If any of the conditions established in this Section 6 shall not
have been fulfilled when and as required, the obligations of the
Underwriters hereunder may be terminated at the election of the
Representative upon written notification to the Company on or prior to the
Firm Closing Date or the Option Closing Date, if any, as the case may be
without liability on the part of any Underwriter, including the
Representative, or the Company except to the extent provided in Sections
5, 7 and 10 hereof.
7. INDEMNIFICATION.
7.1 The Company will indemnify and hold harmless each
Underwriter, its officers, directors and counsel and each person, if any,
who controls any Underwriter (including each person who may be substituted
for an Underwriter as provided in Section 9 hereof) within the meaning of
the Act or the Exchange Act, from and against any losses, claims, damages,
expenses, liabilities or actions in respect thereof ("Claims"), joint or
several, to which such Underwriter, its officers, directors or counsel or
each such controlling person may become subject under the Act, the
Exchange Act, Blue Sky Laws or other federal or state statutory laws or
regulations, at common law or otherwise (including payments made in
settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such Claims arise out of or
are based upon any breach of any representation, warranty or covenant made
by the Company in this Agreement, or any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or in any application or other document executed by
the Company or based upon written information furnished by the Company and
filed in any state or other jurisdiction to qualify any of the Shares for
offer/sale under the securities laws thereof or filed with the SEC or any
securities association or exchange (any such document, application or
information being hereinafter called an "Application") or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (with respect to the Prospectus, in
light of the circumstances under which they were made). The Company
agrees to reimburse each such indemnified party for any legal fees or
other expense as incurred by such indemnified party in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with such Claims; provided, however, the
Company will not be liable in any such case to the extent that any such
Claims arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto or in any Application in reliance upon and in
conformity with written information furnished by the Representative to
the Company pursuant to Section 12 of this Agreement. The indemnification
obligations of the Company as provided herein are in addition to and in no
way limit any liability the Company may otherwise have.
7.2 Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors and officers and each
person, if any, who controls the Company within the meaning of the Act or
the Exchange Act against any Claim to which the Company, or any such
director, officer or controlling person may become subject under the Act,
the Exchange Act, Blue Sky Laws or other federal or state statutory laws
or regulations, at common law or otherwise (including payments made in
settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter and the Representative), insofar as
such Claim arises out of or is based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application, or arises out of or is based upon the omission
or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances under which they were made), not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or in
any Application in reliance solely upon and in conformity with written
information furnished by the Representative to the Company pursuant to
Section 12 of this Agreement. The indemnification obligations of each
Underwriter as provided above are in addition to any liabilities any such
Underwriter may otherwise have. Notwithstanding the provisions of this
section, no Underwriter shall be required to indemnify or reimburse the
Company, or any officer, director, controlling person in an aggregate
amount in excess of the total price at which the Shares purchased by any
such Underwriter hereunder were offered to the public, less the amount of
any damages such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission.
7.3 Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action in respect of a Claim,
such indemnified party will, if a Claim in respect thereof is to be made
against an indemnifying party under this section, notify the indemnifying
party in writing of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve an indemnifying party from
any liability it may have to any indemnified party under this section or
otherwise, except to the extent that the indemnifying party is prejudiced
in its ability to defend such action. In case any such action is brought
against any indemnified party, and such indemnified party notifies an
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate in and, to the extent that he, she or it
may wish, jointly with all other indemnifying parties, similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and any indemnifying party and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to the indemnified party and/or other indemnified
parties which are different from or additional to those available to any
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties.
7.4 Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by the indemnified party of
counsel selected by the indemnifying party, the indemnifying party will
not be liable to such indemnified party under this section for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (a) the indemnified party shall
have employed separate counsel in connection with the assumption of legal
defenses in accordance with the last sentence of Section 7.3 (it being
understood, however, that the indemnifying party shall not be liable for
the legal fees and expenses of more than one separate counsel approved by
the Representative, if one or more of the Underwriters or their officers,
directors, counsel or controlling persons are the indemnified parties);
(b) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action; or (c) the indemnifying
party has authorized the employment of counsel at the expense of the
indemnifying party.
7.5 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection 7.1 or 7.2 hereof in
respect of any Claim referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall, subject to the
limitations hereinafter set forth, contribute to the amount paid or
payable by such indemnified party as a result of such Claim (a) in such
proportion as is appropriate to reflect the relative benefits received by
the Company and the Underwriters from the offering of the Shares; or (b)
if the allocation provided by clause (a) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (a), but also the relative fault of the
Company and the Underwriters in connection with the statements or
omissions which resulted in such Claim, as well as any other relevant
equitable considerations. The relative benefits received by each of the
Company and the Underwriters shall be deemed to be in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the amount of the underwriting discounts and commissions
per Share appearing on the cover page of the Prospectus bears to the
public offering price per Share appearing thereon, and the Company is
responsible for the remaining portion. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the Claims referred to above shall be deemed to
include, subject to the limitations set forth in subsections 7.3 and 7.4
of this section, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or
claim.
7.6 The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this section were
determined by pro rata or per capita allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method or
allocation which does not take into account the equitable considerations
referred to in subsection 7.5 of this section. Notwithstanding the other
provisions of this section, no Underwriter shall be required to contribute
any amount that is greater than the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this section are several in
proportion to their respective underwriting commitments and not joint.
7.7 If any proceeding is brought in a court of competent
jurisdiction against any person in respect of which indemnification or
contribution may be sought under this Section 7, the other parties hereto
hereby (a) consent to the jurisdiction of the court in which such
proceeding is brought for purposes of enforcing this Section 7, (b) agree
that process issuing from such court may be served upon them by any other
person seeking indemnification or contribution; and (c) agree that they
may be joined as additional defendants in any such proceeding.
8. SURVIVAL OF INDEMNITIES, CONTRIBUTION, WARRANTIES AND
REPRESENTATIONS. The indemnity and contribution agreements contained in
Section 7 and the representations, warranties and agreements of the
Company in Sections 1 and 4 hereof shall survive the delivery of the
Securities to the Underwriters hereunder and shall remain in full force
and effect, regardless of any termination or cancellation of this
Underwriting Agreement or any investigation made by or on behalf of any
indemnified party.
9. DEFAULT BY UNDERWRITERS; SUBSTITUTION. If on the Firm Closing
Date or the Option Closing Date, as the case may be, any Underwriter shall
fail to purchase and pay for the portion of the securities which such
Underwriter has agreed to purchase and pay for on such data (otherwise
than by reason of the nonfulfillment of any condition to its obligation to
do so hereunder), you, as Representative of the Underwriters, shall use
your best efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase such amounts as may be
agreed upon, and upon the terms set forth herein, of the Firm Securities
or Option Securities, as the case may be, which the defaulting Underwriter
or Underwriters failed to purchase. If during such 36 hours you, as
Representative, shall not have procured such other Underwriters, or any
others, to purchase the Firm Securities or Option Securities, as the case
may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of securities with respect
to which such default shall occur does not exceed 9.09% of the Firm
Securities or Option Securities as the case may be, covered hereby, the
other Underwriters shall be obligated, severally, in proportion to the
respective numbers of Firm Securities or Option Securities, as the case
may be, which they are obligated to purchase hereunder, to purchase the
Firm Securities or Option Securities, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase (provided that
any non-defaulting Underwriter shall not be obligated to purchase any
Securities which the defaulting Underwriter(s) agreed to purchase if such
additional purchase would cause the non-defaulting Underwriter to be in
violation of the net capital rules of the Commission), or (b) if the
aggregate number of Securities with respect to which such default shall
occur exceeds 9.09% of the Firm Securities or Option Securities, as the
case may be, covered hereby, you as the Representative of the Underwriters
will have the right, by written notice given within the next 36-hour
period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters, or of
the Company except for expenses to be borne by the Company as provided in
Section 5 hereof and the indemnity and contribution agreements in Section
7 hereof. In the event of a default by any Underwriter or Underwriters,
as set forth in this Section 9, the Firm Closing Date or Option Closing
Date, as the case may be, may be postponed for such period, not exceeding
seven days, as you, as Representative, may determine in order that the
required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. EFFECTIVE DATE AND TERMINATION.
10.1 Subject to its execution and delivery by the parties this
Agreement shall become effective at 10:00 a.m., Denver time, on the later
of (i) the first full Business Day following the date the Registration
Statement becomes effective or (ii) at such time after the Registration
Statement becomes effective as you, in your discretion, shall release the
Firm Shares for the sale to the public. You shall notify the Company and
its counsel immediately after you have taken any action that causes this
Agreement to become effective. Until this Agreement is effective, it may
be terminated by the Company by giving written notice as hereinafter
provided to you or by you giving notice as hereinafter provided to the
Company, except that the provisions of Sections 5, 7 and 10 hereof shall
at all times be effective. For purposes of this Agreement, the release of
the Firm Shares for sale to the public shall be deemed to have been made
when you release, by telegram or otherwise, firm offers of the Firm Shares
to securities dealers or release for publication a newspaper advertisement
relating to the Securities, whichever occurs first.
10.2 Without limiting the right to terminate this Agreement
pursuant to any other provision hereof, the Representative shall have the
right to terminated this Agreement at any time on or before the Firm
Closing Date or terminate any obligation of the Underwriters to purchase
the Option Shares at any time on or before the Option Closing Date, as the
case may be, if any of the following has occurred since the effective date
hereof: (A) the Company shall have failed, refused or been unable to
perform any agreement or condition on its part to be performed hereunder
unless compliance therewith or performance or satisfaction thereof shall
have been expressly waived in writing by the Representative; (B) any other
condition of the obligations of the Underwriters is not fulfilled; (C) any
event shall have occurred or shall exist which makes untrue or incorrect
in any material respect any statement or information contained in the
Registration Statement which is not reflected in the Registration
Statement but should be reflected therein (exclusive of any amendment or
supplement thereto) to make the statements or information contained
therein not misleading in any material respect; (D) any outbreak or
escalation of major hostilities in which the United States is involved, a
declaration of war by the United States or any other substantial national
calamity or emergency; (E) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ or any suspension of trading in the common stock of
the Company on the NASDAQ; or (F) declaration of a banking moratorium by
either federal or state authorities or a moratorium in foreign exchange
trading by major international banks or persons has been declared.
10.3 In the event the NASD determines that any person has
rendered services of any nature whatsoever to the Company for which such
person has received compensation required to be aggregated with the
compensation to be received by the Representative, the Representative may
terminate this Agreement and its obligations with respect to the public
offering, without liability on its part of any kind to the Company; and in
any such event the Company shall reimburse NTB for all of its accountable
expenses in the maximum amount of $65,000, inclusive of the $45,000
previously paid by the Company.
10.4 Any termination of this Agreement pursuant to this Section
10 shall be without liability on the part of the Company or the
Underwriters, except as otherwise provided in Sections 5 and 7 hereof and
this Section 10.
10.5 Any notice referred to above may be given at the address
specified in Section 10 hereof in writing or by telegraph, facsimile or
telephone, and if by telephone, shall be immediately confirmed in writing.
11. NOTICES. Except as otherwise provided in this Agreement, (a)
whenever notice is required by the provisions hereof to be given to the
Company, such notice shall be in writing and hand delivered or sent by
mail or facsimile transmission to Cavion Technologies, Inc., at 7475 Dakin
Street, Suite 607, Denver, Colorado 80221, facsimile number: (303) 657-
8212, Attn: President, and (b) whenever notice is required by the
provisions hereof to be given to the Representative, such notice shall be
in writing and hand delivered or sent by mail or facsimile transmission to
Neidiger, Tucker, Bruner, Inc., 300 Plaza Level, 1675 Larimer Street,
Denver, Colorado, 80202, facsimile number: (303) 623-9310, Attn:
Corporate Finance Department.
12. INFORMATION FURNISHED BY UNDERWRITERS. [to be completed]
13. PARTIES. This Agreement shall inure solely to the benefit of
and shall be binding upon, the Underwriters, the Company and the
controlling persons, directors and officers referred to in Section 7
hereof, and their respective successors, legal representatives and
assigns, and no other person shall have or be construed to have any legal
or equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provisions herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
14. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado without
giving any effect to any choice of law or conflict of law provision or
rule whether of the State of Colorado or any other jurisdiction that would
cause the application of the laws of any jurisdiction other than the State
of Colorado. The parties agree to the exclusive jurisdiction of the
courts of the State of Colorado or of the United States of America for the
District of Colorado, and irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive, in connection with any action brought by
any party hereto relating to this Agreement or the transactions which are
the subject matter hereof.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the
Representative's Warrant Agreement and the Financial Consultant Agreement
constitute the entire agreement of the parties hereto and supersede all
prior written or oral agreements, understandings, and negotiations with
respect to the subject matter hereof, including without limitation a
letter of intent dated December 22, 1998 and accepted December 23, 1998
between the Company and NTB. This Agreement may not be amended except in
a writing signed by the Representative and the Company.
16. SEVERABILITY. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision of this Agreement. The parties agree,
however, that in the event any provision of this Agreement shall be
declared invalid or unenforceable, the parties shall negotiate a new
provision achieving to the extent possible the purpose of the invalid
provision.
17. DEFINITION OF BUSINESS DAY. For purposes of this Agreement,
"Business Day" means any day on which the New York Stock Exchange, Inc. is
open for trading.
If the foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among the Company and each of the several Underwriters.
Very truly yours,
CAVION TECHNOLOGIES, INC.
By -------------------------------------
David J. Selina
President and Chief Executive Officer
Confirmed and accepted
as of the date first above written:
NEIDIGER, TUCKER, BRUNER, INC.
As Representative of the several Underwriters
named in the attached Schedule I hereto
By: NEIDIGER, TUCKER, BRUNER, INC.
By -----------------------------------------
Anthony B. Petrelli
Senior Vice President
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
- ------------------
Neidiger, Tucker, Bruner, Inc...............
---------
TOTAL 1,200,000
=========
ANNEX A
Matters to be Covered in the Opinion of
Gorsuch Kirgis LLP, Counsel for the Company
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its organization, with full corporate power and authority necessary to own
or hold its properties and conduct the business in which it is presently
engaged as described in the Prospectus and is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which the character of the business conducted by it or the
properties owned or held by it make such qualification necessary.
(ii) The authorized, issued and outstanding share capital of the
company as of the effective date of the Registration Statement is as set
forth under the caption "Capitalization" in the Prospectus, the Common
Stock and the Representative's Warrants conform to the descriptions
thereof contained under the captions "Description of Securities" and
"Underwriting" in the Prospectus. The outstanding shares of Common Stock
have been, and the Shares upon issuance and delivery and payment therefor
in the manner herein described and in the Representative's Warrants, will
be, duly authorized, validly issued, fully paid and nonassessable. There
are no preemptive or, except as described in the Registration Statement,
other rights to subscribe for or to purchase from the Company, or any
restriction upon the voting or transfer of, any Common Stock pursuant to
the Company's Articles of Incorporation or Bylaws, as amended, or other
governing documents or, to the best knowledge of such counsel, any
agreement or other instrument to which the Company is a party or by which
it is bound, except restrictions under applicable securities laws.
(iii) To the best of such counsel's knowledge, the Company is
not, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, nor will the execution or delivery
hereof or of the Representative's Warrants or consummation of the
transactions contemplated hereby or thereby result in a violation of, or
constitute a default under, the Company's Articles of Incorporation or
Bylaws, as amended, or other governing documents of the Company, or any
agreement, indenture or other instrument to which the Company is a party
or by which it is bound nor will the performance by the Company of its
obligations hereunder or under the Representative's Warrants violate any
law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over the Company or any of
its properties which would have a material and adverse effect, or result
in the creation or imposition of any lien, charge, claim or encumbrance,
upon any property or asset of the Company.
(iv) Each of this Underwriting Agreement, the Representative's
Warrants and the Financial Consultant Agreement has been duly authorized,
executed and delivered by the Company, constitutes the valid and binding
agreement of the Company, and is enforceable against the Company in
accordance with its terms except insofar as rights to indemnity and/or
contribution may be limited by applicable securities laws or the public
policy underlying such laws and except as enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally, and be subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The shares of Common Stock issuable upon exercise of the
Representative's Warrants have been duly authorized and reserved for
issuance and, when issued and delivered in accordance with the terms of
the Representative's Warrants, respectively, will be duly and validly
issued, fully paid and nonassessable.
(vi) The certificates representing the Shares and the
Representative's Warrants are in due and proper form.
(vii) The information, if any, required to be set forth in the
Registration Statement in answer to Item ----- of Form SB-2 (insofar as
its relates to such counsel) is to the best of such counsel's knowledge
accurately and adequately set forth therein in all material respects, and
the description of the Company's Equity Incentive Plan and other option
arrangements, and the shares and options which may be issued and granted
thereunder, set forth in the Prospectus is accurate in all material
respects.
(viii) All descriptions in the Prospectus of statutes,
regulations, legal or governmental proceedings, contracts and other
documents and the description of the consequences to the Company of such
laws, proceedings or documents are accurate and fairly present the
information required to be shown; and to the best knowledge of such
counsel, there are no contracts or documents of a character required to be
summarized or described in the Prospectus or to be filed as exhibits to
the Registration Statement which are not so summarized, described or
filed, nor to the best knowledge of such counsel, is there any pending or
threatened litigation or any governmental proceeding, statute or
regulation required to be described in the Prospectus which is not so
described.
(ix) To the best of such counsel's knowledge, no holder of any
securities of the Company has any right to require registration of shares
of Common Stock or other securities of the Company under the Act, except
as any such right may arise under the Representative's Warrant Agreement.
(x) The presently outstanding shares of Common Stock of the Company
were issued in transactions which were not subject to the registration
provisions of the Act and applicable state securities laws. To the best
knowledge of such counsel, there is a reasonable basis to conclude that
neither the offering nor sale of any presently outstanding shares of
Common Stock will be integrated with the offering of the Shares for
purposes of registration under the Act or qualification under any state
securities laws.
(xi) Except for the order of the Commission declaring the
Registration Statement effective under the Act, and except for permits and
similar authorizations required under the securities or "Blue Sky" laws of
certain jurisdictions and for such permits and authorizations which have
been obtained, no consent, approval, authorization or order of any federal
or state court, governmental agency or body is required in connection with
the consummation by the Company of the transactions contemplated by this
Underwriting Agreement, the Representative's Warrants or the Financial
Consulting Agreement.
(xii) The Registration Statement and all post-effective
amendments thereto have become effective under the Act and, to the best of
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending before or threatened by the
Commission or any state of the United States or other regulatory body and
all filings required by Rule 424 under the Act in connection with the
public offering of the Shares have been made within the time periods
required; and the Registration Statement and the Prospectus and any
amendment or supplement thereto, as of their respective effective dates,
comply as to form in all material respects with the requirements of the
Act (except that counsel need express no opinion with respect to the
financial statements, management's discussion and analysis or other
financial data included therein).
(xiii) The Company meets all the requirements for filing on Form
SB-2.
(xiv) The Company is not, and following completion of the
offering of the Shares and receipt and intended investment of proceeds
therefrom as described in the Final Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
In rendering the foregoing opinion, counsel may state that such
opinion is limited to federal and applicable state law, and rely, as to
matters of fact, upon certificates of responsible officers of the Company
and on certificates of public officials, and may base its opinion upon
such reasonable investigations and assumptions as shall be set forth in
such opinion. In rendering such opinion such counsel may rely, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to counsel to the Underwriters) of other counsel
familiar with the applicable laws and admitted to practice in the
applicable jurisdiction. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and that in their opinion you and they are
justified in relying thereon. In addition, such counsel shall state that
such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
counsel for the Underwriters at which the contents of the Registration
Statement and related matters were discussed and; although such counsel
has not independently verified, is not passing upon and does not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, no facts have come to
the attention of such counsel that lead them to believe that the
Registration Statement, as of the date it is declared effective by the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus as of the
Closing Date includes an untrue statement of a material tact or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not comment as to
the financial statements, management's discussion and analysis, and other
financial data included in the Registration Statement, the Prospectus or
the exhibits to the Registration Statement).
ANNEX B
Matters to be Covered in the Opinion of Special Counsel
1. such counsel represents the Company in certain matters relating
to intellectual property, including patents and proprietary rights;
2. such counsel is familiar with the technology and processes used
by the Company in its business and the manner of its use and has read the
portions of the Registration Statement and the Prospectus entitled "Risk
Factors-- --------------," and "Business-- -----------------," "Business--
- ---------------," "Proprietary Rights, Trade Names and Trademarks";
3. to the extent that the Intellectual Property Portion contains
descriptions of the Company's patent applications and patent applications
licensed to the Company (collectively the "Applications") and patents
issued to or otherwise owned or licensed by it (collectively the
"Patents"), such descriptions are accurate and do not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
4. such counsel has reviewed the Patents and Applications which
Patents and Applications are described in the Intellectual Property
Portion, and based upon such review, a review of the prior art references
made known to counsel and discussions with Company personnel, such counsel
is aware of no valid United States or foreign issued patent that is or
would be infringed by the activities of the Company in the manufacture,
use or sale of any product or proposed product or other material as
described in the Prospectus and made or used according to the Patents or
the Applications;
5. The Applications have been properly prepared and filed on behalf
of the Company or its strategic partners, as the case may be, and are
being diligently pursued by the Company or its strategic partners, as the
case may be; each of the Applications is assigned or licensed to the
Company or its strategic partners, as the case may be; to such counsel's
knowledge, no other entity or individual has any right in or to any of the
inventions claimed in any of the Applications or patents sought to be
issued therefrom; and each of the Applications discloses patentable
subject matter; and
6. such counsel is aware of no pending or threatened judicial,
administrative or other proceedings by governmental authorities or others
relating to the Patents or Applications challenging the validity or scope
of the Patents or Applications (other than customary prosecution
proceedings relating to the Applications).
Such counsel shall also state that it has no reason to believe that
the information contained in the Intellectual Property Portion of the
Registration Statement or the Prospectus, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the information contained in the
Intellectual Property Portion of the Prospectus, as of its date or the
date of such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering any such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates and written
statements of responsible officers of the Company and public officials,
provided that copies of any such statements or certificates shall be
delivered to Underwriters' Counsel.
References to the Registration Statement and the Prospectus in this
Annex shall include any amendment or supplement thereto at the date of
such opinion.
ANNEX C
Matters to be Covered in the Comfort Letter
of Arthur Anderson LLP
1. confirming that they are independent certified public
accountants with respect to the Company within the meaning of the Act and
the applicable Rules and Regulations;
2. stating their opinion that, (i) the financial statements
examined by them of the Company at all dates and for all periods referred
to in their opinion and included in the Registration Statement and
Prospectus, comply in all material respects with the applicable accounting
requirements of the Act and the published Rules and Regulations thereunder
with respect to registration statements on Form SB-2, (ii) on the basis of
certain indicated procedures (but not an examination in accordance with
generally accepted accounting principles), including examinations of the
instruments of the Company set forth under "Capitalization" in the
Prospectus, a reading of the latest available interim unaudited financial
statements of the Company, whether or not appearing in the Prospectus,
inquiries of the officers of the Company or other persons responsible for
its financial and accounting matters regarding the specific items for
which representations are requested below and a reading of the minute
books of the Company, nothing has come to their attention which would
cause them to believe that during the period from the last audited balance
sheet included in the Registration Statement to a specified date not more
than five days prior to the date of such letter (a) there has been any
change in the capital stock or other securities of the Company or any
payment or declaration of any dividend or other distribution in respect
thereof or exchange therefor from that shown on its audited balance sheets
or in the debt of the Company from that shown or contemplated under
"Capitalization" in the Registration Statement or Prospectus other than as
set forth in or contemplated by the Registration Statement or Prospectus;
(b) there have been any material decreases in net current assets or net
assets as compared with amounts shown in the last audited balance sheet
included in the Prospectus so as to make said financial statements
misleading; and (c) on the basis of the indicated procedures and
discussions referred to in clause (ii) above, nothing has come to their
attention which, in their judgment, would cause them to believe or
indicate that (1) the unaudited financial statements and schedules set
forth in the Registration Statement and Prospectus do not present fairly
the financial position and results of the Company, for the periods
indicated, in conformity with the generally accepted accounting principles
applied on a consistent basis with the audited financial statements, and
(2) the comparison of specific dollar amounts, numbers of shares,
percentages of revenues and earnings, statements and other financial
information pertaining to the Company set forth in the Prospectus in each
case to the extent that such amounts, numbers, percentages, statements and
information may be derived from the general accounting records, including
work sheets, of the Company and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards), are not in
agreement;
3. stating that they have not during the immediately preceding five
year period (or such shorter period as the Company shall have been in
existence) brought to the attention of any of the Company's management any
"material weakness," as defined in Statement of Auditing Standard No.60
"Communication of Internal Control Structure Related Matters Noted in an
Audit," in any of the Company's internal controls;
4. stating that they have in addition carried out certain specified
procedures, not constituting an audit, with respect to certain pro forma
financial information which is included in the Registration Statement and
the Prospectus and that nothing has come to their attention as a result of
such procedures that caused them to believe such unaudited pro forma
financial information does not comply in form in all respects with the
applicable accounting requirements of Item 301 Regulation S-B or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of that information; and
5. statements as to such other matters incident to the transaction
contemplated hereby as the Representative may request.
SUBSCRIPTION AGREEMENT AND
CONFIDENTIAL INVESTOR QUESTIONNAIRE
THIS SUBSCRIPTION AGREEMENT is entered into as of -----------------
1999, between CAVION TECHNOLOGIES, INC., a Colorado corporation with its
principal offices at 7475 Dakin Street, Suite 607, Denver, Colorado 80221
(the "Company"), and the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue promissory notes and warrants
for the purchase of the Company's Class A Common Stock, $0.0001 par value
(the "common stock"), in a private placement on the terms and conditions
set forth in the Term Sheet attached hereto as Exhibit A (the "Term
Sheet") and as hereinafter set forth;
WHEREAS, Neidiger, Tucker, Bruner, Inc. and First Capital
Investments, Inc. (the "Placement Agents") are each acting as placement
agents for the Company in connection with the offer and sale of the
promissory notes and warrants; and
WHEREAS, the Subscriber desires to acquire a promissory note, and
related warrant, in the amount set forth on the signature page hereof.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree
as follows:
I. SUBSCRIPTION FOR PROMISSORY NOTES AND WARRANTS AND
REPRESENTATIONS BY AND COVENANTS OF SUBSCRIBER
1.1 Subject to the terms and conditions hereof, the Subscriber
hereby subscribes for and agrees to purchase from the Company a promissory
note (a "Note") in the amount set forth on the signature page hereof, in a
minimum amount of $50,000. The Note shall bear interest at fourteen
percent (14%) per annum and mature upon the earlier to occur of (i) the
closing of the Company's initial public offering (the "IPO") as filed in
the SB-2 Registration Statement on June 10, 1999 with the U.S. Securities
and Exchange Commission, and as subsequently amended, file no. 333-80421
(the "SB-2"), or (ii) one year from the date of the Note. The form of
Note is attached hereto as Exhibit B. The purchase of each $50,000 Note
will entitle the Subscriber to receive a warrant (a "Warrant") to purchase
5,000 shares of common stock. The Warrant is exercisable for a period of
five years beginning on the earlier to occur of (i) the closing of the
IPO, or (ii) one year from the date of the Warrant. The form of Warrant
is attached hereto as Exhibit C. The Company agrees to sell such Notes
and Warrants to the Subscriber for said purchase price. The purchase
price is payable to Cavion Technologies, Inc. by certified check or wire
transfer, contemporaneously with the execution and delivery of this
Subscription Agreement. The Note and Warrant will be delivered by the
Company to the Subscriber not later than ten (10) days following the
consummation of this offering as set forth in Article II hereof.
1.2 The Subscriber recognizes that the purchase of the Note and
Warrant involves a high degree of risk in that (i) the Company is
relatively new and will require substantial funds in addition to the
proceeds of this private placement; (ii) an investment in the Company is
highly speculative, and only investors who can afford the loss of their
entire investment should consider investing in the Company and the Notes
and Warrants; (iii) investors may not be able to liquidate their
investment; (iv) transferability of the Notes and Warrants, and the common
stock issuable on exercise of the Warrants (collectively, the
"Securities") is restricted. There are additional risks associated with
this investment as more fully set forth herein and in the SB-2.
1.3 The Subscriber represents that he or she is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated
under the United States Securities Act of 1933, as amended (the "Act"), as
indicated by the Subscriber's responses to the Confidential Investor
Questionnaire contained in Article VI hereof, and that the Subscriber is
able to bear the economic risk of an investment in the Shares.
1.4 The Subscriber acknowledges that Subscriber either has a
preexisting personal or business relationship with the Company or with one
or more of its officers, directors or controlling persons, or by reason of
the Subscriber's business or financial experience, including investment in
non-listed and non-registered securities, or the business or financial
experience of the Subscriber's professional advisors who are unaffiliated
with and who are not compensated by the Company or any affiliate or
selling agent of the Company, directly or indirectly, could be reasonably
assumed to have the capacity to protect the Subscriber's own interests in
connection with an investment in the Notes and Warrants. The Subscriber
further acknowledges that he or she has the capacity to evaluate the
merits and risks of such an investment and that the Subscriber recognizes
the highly speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of
the Term Sheet, the SB-2, and the exhibits thereto, (the SB-2 is attached
hereto as Exhibit D) (the "Offering Documents"); that the Subscriber has
been informed that he/she/it may review the Exhibits to the SB-2 upon
request to the Company; that the Subscriber has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning the terms and
conditions of the offering and the information in the Offering Documents;
and that Subscriber has been provided any additional information which the
Subscriber had requested.
1.6 The Subscriber acknowledges that this offering may involve
tax consequences, and that the contents of the Offering Documents do not
contain tax advice or information. The Subscriber acknowledges that the
Subscriber must retain the Subscriber's own professional advisors to
evaluate the tax and other consequences of an investment in the
Securities.
1.7 The Subscriber acknowledges that this offering has not been
reviewed by the United States Securities and Exchange Commission ("SEC")
because of the Company's representations that this is intended to be a
nonpublic offering pursuant to Sections 4(2) or 4(6) of the Act. The
Subscriber represents that the Securities being purchased by the
Subscriber are being purchased for the Subscriber's own account, for
investment and not for distribution or resale to others. The Subscriber
agrees that the Subscriber will not sell or otherwise transfer the
Securities unless they are registered under the Act or unless an exemption
from such registration is available.
1.8 The Subscriber understands that the Securities have not
been registered under the Act by reason of a claimed exemption under the
provisions of the Act which depends, in part, upon the Subscriber's
investment intention. In that connection, the Subscriber understands that
it is the position of the SEC that the statutory basis for such exemption
would not be present if the Subscriber's representation merely meant that
the Subscriber's present intention was to hold such securities for a short
period, such as the capital gains period of tax statutes, for a deferred
sale, for a market rise, assuming that a market develops, or for any other
similarly fixed period. The Subscriber realizes that, in the view of the
SEC, a purchase now with an intent to resell would represent a purchase
with an intent inconsistent with the Subscriber's representation to the
Company, and the SEC might regard such a sale or disposition as a sale to
which such exemptions are not available.
1.9 The Subscriber understands that there is no public market
for the Securities. The Subscriber understands that even if a public
market develops for the common stock issuable upon exercise of the
Warrants, Rule 144 (the "Rule") promulgated under the Act requires, among
other conditions, a one-year holding period prior to the resale (in
limited amounts) of securities acquired in a non-public offering without
having to satisfy the registration requirements under the Act. The
Subscriber understands that the Company makes no representation or
warranty regarding its fulfillment in the future of any reporting
requirements under the Securities Exchange Act of 1934, as amended, or its
dissemination to the public of any current financial or other information
concerning the Company, as is required by the Rule as one of the
conditions of its availability. The Subscriber understands and hereby
acknowledges that the Company is under no obligation to register the
Securities with the exception of certain limited registration rights set
forth in Article III hereof. The Subscriber consents that the Company
may, if it desires, permit the transfer of the Securities out of the
Subscriber's name only when the Subscriber's request for transfer is
accompanied by an opinion of counsel reasonably satisfactory to the
Company that neither the sale nor the proposed transfer results in a
violation of the Act or any applicable state "blue sky" laws (collectively
"Securities Laws") and subject to the provisions of Section 1.10 hereof.
The Subscriber agrees to hold the Company and its directors, officers and
controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all
liabilities, costs and expenses incurred by them as a result of any
misrepresentation made by the Subscriber contained herein or in the
Confidential Investor Questionnaire contained in Article VI hereof or any
sale or distribution by the undersigned Subscriber in violation of any
Securities Laws.
1.10 The Subscriber consents to the placement of a legend on any
certificate or other document evidencing the Securities stating that they
have not been registered under the Act and setting forth or referring to
the restrictions on transferability and sale thereof.
1.11 The Subscriber understands that the Company will review
this Subscription Agreement and the Confidential Investor Questionnaire
contained herein and is hereby given authority by the undersigned, if an
individual, to call his or her bank or place of employment or otherwise
review the financial standing of the Subscriber insofar as is relevant to
the Subscriber's representations herein; and it is further agreed that the
Company reserves the unrestricted right to reject or limit any
subscription and to close any offer of Securities at any time.
1.12 The Subscriber hereby represents that the address of
Subscriber furnished by the Subscriber at the end of this Subscription
Agreement is the undersigned's principal residence if the Subscriber is an
individual or its principal business address if the Subscriber is a
corporation or other entity.
1.13 THE SUBSCRIBER HEREBY REPRESENTS AND WARRANTS THAT, EXCEPT
AS SET FORTH IN THE OFFERING DOCUMENTS, NO REPRESENTATIONS OR WARRANTIES
HAVE BEEN MADE TO THE SUBSCRIBER BY THE COMPANY OR ANY AGENT, EMPLOYEE,
REPRESENTATIVE OR AFFILIATE OF THE COMPANY AND THAT, IN ENTERING INTO THIS
TRANSACTION AND SUBSCRIBING FOR THE SECURITIES, THE SUBSCRIBER IS NOT
RELYING ON ANY INFORMATION, OTHER THAN THAT CONTAINED IN THE OFFERING
DOCUMENTS AND THE RESULTS OF SUBSCRIBER'S INDEPENDENT INVESTIGATION.
1.14 The Subscriber acknowledges that at such time, if ever, as
the shares of common stock issuable upon exercise of the Warrants are
registered, sales of such securities will be subject to Securities Laws,
which may require, among other requirements, any securities sold to be
sold through a registered broker-dealer or in reliance upon an exemption
from registration.
II. TERMS OF SUBSCRIPTION
2.1 The subscription period will begin on August 12, 1999 and
will terminate at 5:00 p.m. Denver time fourteen (14) days thereafter,
unless extended by the Company and the Placement Agents for up to an
additional fourteen (14) days (the "Termination Date"). The minimum
subscription per subscriber shall be a $50,000 Note and Warrant to
purchase 5,000 shares.
2.2 Placement of the Securities will be made by the Placement
Agents, who will receive a placement fee in the amount of 9% of the
purchase price of the Notes placed.
2.3 There is no minimum offering amount. The Company may
utilize the proceeds of this offering immediately upon receipt.
2.4 The Subscriber hereby authorizes and directs the Company to
deliver the securities to be issued to such Subscriber pursuant to this
Subscription Agreement to the residential or business address indicated in
the Confidential Investor Questionnaire included herein.
2.5 The Subscriber hereby authorizes and directs the Company to
return any funds for unaccepted subscriptions to the same account from
which the funds were drawn, including any customer account maintained with
the Placement Agent.
2.6 If the Subscriber is not a United States person, such
Subscriber hereby represents that he, she or it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Shares or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the
purchase of the Securities, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that
may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Securities. The Subscriber represents
and warrants that the Subscriber's subscription and payment for, and the
Subscriber's continued beneficial ownership of the Securities, will not
violate any applicable securities or other laws of the Subscriber's
jurisdiction.
III. REGISTRATION RIGHTS
3.1 CERTAIN DEFINITIONS. For purposes of this Section, the
following definitions shall apply:
(a) The terms "register," "registered," and "registration"
refer to a registration under the Act effected by preparing and filing a
registration statement in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or amendment
thereto.
(b) The term "Registrable Securities" means any shares of
common stock issued or issuable upon exercise of the Warrants.
3.2 REGISTRATION RIGHTS.
(a) The Company currently intends to file an additional
registration statement under the Act as soon as practicable after the
effective date of the SB-2. The Company intends to include the
Registrable Securities in such registration statement. The Company does
not hereby make any representations as to the date on which the filing of
such registration will be made. When the Company determines to proceed
with the actual preparation and filing of such registration statement
under the Act, in connection with the proposed offer and sale of any of
its common stock by it or any of its security holders, the Company will,
except as herein provided, cause all such Registrable Securities to be
included in such registration statement, all to the extent required to
permit the sale or other disposition by the prospective seller or sellers
of the Registrable Securities to be so registered; provided, further, that
nothing herein shall prevent the Company from, at any time, abandoning or
delaying any registration. If the offering is underwritten, the
Registrable Securities included in any registration pursuant to this
Section 3.2 shall be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters
thereof. If in the good faith judgment of the managing underwriter, if
any, of such public offering the inclusion of all of the Registrable
Securities (the "Requested Stock") would interfere with the successful
marketing of the shares of stock offered by the Company, the number of
shares of Requested Stock otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares) among the
holders thereof or excluded in their entirety if so required by the
underwriter. To the extent only a portion of the Requested Stock is
included in the underwritten public offering, those shares of Requested
Stock which are thus excluded from the underwritten public offering shall
be withheld from the market by the holders thereof for a period, not to
exceed 270 days, which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering. The
obligation of the Company under this Section 3.2 shall not apply to
Registrable Securities that at such time are eligible for immediate resale
pursuant to the Rule (without regard to volume limitations).
(b) The Company may suspend the effectiveness of any such
registration effected pursuant to this Section 3.2 in the event, and for
such period of time as, such a suspension is required by the rules and
regulations of the SEC and may suspend use of the prospectus included in
the Registration Statement if such prospectus ceases to meet the
requirements of Section 10 of the Act. The Company will immediately
advise the security holders participating in such registration of any such
suspension, and will use its best efforts to cause such suspension to
terminate at the earliest possible date. The Subscriber agrees that
following receipt of any such notice, and until such suspension is
terminated, the Subscriber will not make use of the suspended prospectus
and will make no sales requiring delivery of such prospectus.
3.3 REGISTRATION PROCEDURES. If and when the Company is
required by the provisions of Section 3.2 to effect the registration of
Registrable Securities under the Act, the Company will:
(a) prepare and file with the SEC a registration statement
with respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective until the
Registrable Securities are freely salable without the volume limitations
of the Rule;
(b) prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective until
the Registrable Securities are freely salable without regard to the volume
limitations of the Rule;
(c) furnish to the security holders participating in such
registration and to the underwriters of the securities being registered
such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) use its best efforts to register or qualify the
securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating
holders may reasonably request in writing within twenty (20) days
following the original filing of such registration statement, except that
the Company shall not for any purpose be required to execute a general
consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) notify the security holders participating in such
registration, promptly after it shall receive notice thereof, of the time
when such registration statement has become effective or a supplement to
any prospectus forming a part of such registration statement has been
filed;
(f) notify such holders promptly of any request by the SEC
for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the SEC, promptly upon the
request of any such holders, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel for
such holders (and concurred in by counsel for the Company), is required
under the Act or the rules and regulations thereunder in connection with
the distribution of Common Stock by such holder;
(h) prepare and promptly file with the SEC and promptly
notify such holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading; and
(i) advise such holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by
the SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.
3.4 EXPENSES.
(a) With respect to each inclusion of Registrable
Securities in a registration statement pursuant to Section 3.2 hereof, all
fees, costs and expenses of and incidental to such registration, inclusion
and public offering (as specified in paragraph (b) below) in connection
therewith shall be borne by the Company; provided, however, that any
security holders participating in such registration shall bear their pro
rata share of underwriting discounts and commissions and transfer taxes.
(b) The fees, costs and expenses of registration to be
borne by the Company as provided in paragraph (a) above shall include,
without limitation but subject to paragraph (a) above, all registration,
filing, and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or
blue sky laws of any jurisdictions in which the securities to be offered
are to be registered and qualified. Fees and disbursements of counsel,
other advisors and accountants for the holders of Registrable Securities
and any other expenses incurred by the holders not expressly included
above shall be borne by the holders.
3.5 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of Section 3.1 or 3.2 hereof, its
directors and officers, and any underwriter (as defined in the Act) for
such holder and each person, if any, who controls such holder or such
underwriter within the meaning of the Act, from and against, and will
reimburse such holder and each such underwriter and controlling person
with respect to, any and all loss, damage, liability, cost and expense to
which such holder or any such underwriter or controlling person may become
subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent that
any such loss, damage, liability, cost or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by such
holder, such underwriter or such controlling person in writing
specifically for use in the preparation thereof.
(b) Each holder of Registrable Securities included in a
registration pursuant to the provisions of Section 3.2 hereof will
indemnify and hold harmless the Company, its directors and officers, any
controlling person and any underwriter from and against, and will
reimburse the Company, its directors and officers, any controlling person
and any underwriter with respect to, any and all loss, damage, liability,
cost or expense to which the Company or any controlling person and/or any
underwriter may become subject under the Act or otherwise, insofar as such
losses, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance
upon and in strict conformity with written information furnished by or on
behalf of such holder specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section 3.5 of
notice of the commencement of any action involving the subject matter of
the foregoing indemnity provisions such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of said paragraph (a) or (b), promptly notify the indemnifying
party of the commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 3.5. In
case such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or in addition to those available to the indemnified party,
or if there is a conflict of interest which would prevent counsel for the
indemnifying party from also representing the indemnified party, the
indemnified party or parties have the right to select separate counsel to
participate in the defense of such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant
to the provisions of paragraph (a) or (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation, unless (i)
the indemnified party shall have employed counsel in accordance with the
provisions of the preceding sentence, (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after the
notice of the commencement of the action, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
IV. MISCELLANEOUS
4.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail,
return receipt requested. Notices sent to the Company shall be addressed
to the Company's office at 7475 Dakin Street, Suite 607, Denver, Colorado
80221, Attention: President. Notices sent to the Subscriber shall be
addressed to the Subscriber's address indicated on the last page of this
Subscription Agreement. Notices shall be deemed to have been given on the
date of mailing, except notices of change of address, which shall be
deemed to have been given when received.
4.2 This Subscription Agreement shall not be changed, modified
or amended except by a writing signed by the parties to be charged, and
this Subscription Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be
charged.
4.3 This Subscription Agreement shall be binding upon and inure
to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets
forth the entire agreement and understanding between the parties as to the
subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them.
4.4 Notwithstanding the place where this Subscription Agreement
may be executed by any of the parties hereto, the parties expressly agree
that all the terms and provisions hereof shall be construed in accordance
with and governed by the laws of the State of Colorado.
4.5 Each of the Company and the Subscriber agree that any
action or proceeding based hereon, or arising out of the Offering
Documents, shall be brought and maintained exclusively in the courts of
the State of Colorado located in the City and County of Denver or in the
United States District Court for the District of Colorado. The Company
and the Subscriber each hereby irrevocably submit to the jurisdiction of
the courts of the State of Colorado located in the City and County of
Denver and of the United States District Court for the District of
Colorado for the purpose of any such action or proceeding as set forth
above and irrevocably agree to be bound by any judgment rendered thereby
in connection with such action or proceeding. Each of the Company and the
Subscriber hereby irrevocably waive, to the fullest extent permitted by
law, any objection which it may have or hereafter may have to the laying
of venue of any such action or proceeding brought in any such court
referred to above and any claim that any such action or proceeding has
been brought in an inconvenient forum.
4.6 This Subscription Agreement may be executed in
counterparts. Upon the execution and delivery of this Subscription
Agreement by the Subscriber, this Subscription Agreement shall become a
binding obligation of the Subscriber with respect to the purchase of
Shares as herein provided; subject, however, to the right hereby reserved
to the Company to enter into the same agreements with other subscribers
and to add and/or to delete other persons as subscribers.
4.7 The holding of any provision of this Subscription Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall
not affect any other provision of this Subscription Agreement, which shall
remain in full force and effect.
4.8 It is agreed that a waiver by either party of a breach of
any provision of this Subscription Agreement shall not operate, or be
construed, as a waiver of any subsequent breach by that same party.
4.9 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out more fully the
purposes and intent of this Subscription Agreement.
4.10 The Company agrees not to disclose the names, addresses or
any other information about the Subscriber, except as required by law,
provided, that the Company may use information relating to the Subscriber
in any registration statement under the Act.
V. CONFIDENTIAL INVESTOR QUESTIONNAIRE
5.1 SUBSCRIBER CATEGORIES. The Subscriber represents, warrants,
covenant and agrees that, at the time such purchase will be made and as of
the date of this Subscription Agreement, the Subscriber is an "accredited
investor" as defined in Regulation D promulgated under the Act because of
one or more of the following:
(INITIAL ALL APPROPRIATE PARAGRAPHS BELOW;
YOU MUST INITIAL ONE PARAGRAPH)
---- The Subscriber is a private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940;
---- The Subscriber is an organization described in Section 501(c)(3)
of the Internal Revenue Code, a corporation, a Massachusetts or
a similar business trust, or a partnership, not formed for the
specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
---- The Subscriber is a director, executive officer, or general
partner of the Partnership, or a director, executive officer or
general partner of a general partner of the Partnership;
---- The Subscriber is a natural person whose individual net worth,
or joint net worth with my spouse, at the time of my purchase
exceeds $1,000,000;
---- The Subscriber is a natural person who had an individual income
in excess of $200,000 in each of the two most recent years or
joint income with my spouse in excess of $300,000 in each of
those years and I have a reasonable expectation of reaching the
same income level in the current year.
---- The Subscriber is a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a
sophisticated person as described in Section 230.506.(b)(2)(ii);
and
---- The Subscriber is an entity in which all of the equity owners
are accredited investors.
The Subscriber understands that, in determining whether the
Subscriber or the entity the Subscriber represents qualifies under
any of the foregoing categories of "accredited investor," the
Subscriber should be guided by the definition of "accredited
investor" in the Act. The Subscriber further understands that, to
the extent he, she or it have made representations as to his, her or
its net worth, assets or income herein, the Subscriber may be
requested by the Company to supply verifying documentation, including
but not limited to copies of federal income tax returns or other
governmental filings required by law, and the Company has the
Subscriber's permission to obtain information concerning my financial
condition, including but not limited to obtaining a credit report.
The Subscriber covenants and agrees that he, she or it will notify
the Company at any time on or prior to the Company's acceptance of
this subscription in the event that the representations and
warranties in this Agreement shall cease to be true, accurate and
complete.
5.2 MANNER IN WHICH TITLE TO BE HELD. (Circle one)
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant with Right of Survivorship (both parties
must sign)
(d) Partnership*
(e) Tenants in Common
(f) Company*
(g) Trust*
(h) Other
5.3 NASD AFFILIATION:
Are you associated with an NASD member firm? (Please check
one)
YES------- NO-------
If Yes, please describe: ----------------------------------
-----------------------------------------------------------
--------------------------------------------------------
(1) The NASD defines a "person associated with a member" or "associated
person of a member" as being every sole proprietor, general or limited
partner, officer, director or branch manager of any member, or any natural
person occupying a similar status or performing similar functions, or any
natural person engaged in the investment banking or securities business
who is directly or indirectly controlling or controlled by such member
(for example, any employee), whether or not any such person is registered
or exempt from registration with the NASD. Thus, "person associated with
a member" or "associated person of a member" includes a sole proprietor,
general or limited partner, officer, director or branch manager of an
organization of any kind (whether a corporation, partnership or other
business entity) which itself is either a "member" or a "Person associated
with a member" or "associated person of a member." In addition, an
organization of any kind is a "person associated with a member" or
"associated person of a member" if its sole proprietor or any one of its
general or limited partners, officers, directors or branch managers is a
"member," "person associated with a member" or "associated person of a
member."
(2) The NASD defines a "member" as being any individual, partnership,
corporation or other legal entity that is a broker or dealer admitted to
membership in the NASD.
*IF SUBSCRIBER IS A REGISTERED REPRESENTATIVE WITH AN NASD
MEMBER FIRM, HAVE THE FOLLOWING ACKNOWLEDGMENT SIGNED BY
THE APPROPRIATE PARTY:
The undersigned NASD member firm acknowledges receipt of
the notice required by Rule 3050 of the NASD Conduct Rules or any
successor rules or regulations.
---------------------------------------------------
Name of NASD Member Firm
By: ----------------------------------------------
Authorized Officer
Date:----------------------------------------------
5.4 RELIANCE. The undersigned is informed of the significance
to the Company of the foregoing representations and answers contained in
the Confidential Investor Questionnaire contained in this Article V and
such answers have been provided under the assumption that the Company will
rely on them.
INDIVIDUAL INVESTOR SIGNATURE PAGE
----------------------------------
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
AMOUNT OF PURCHASE (MUST BE AT LEAST $50,000): $-------------------------
PURCHASE OF EACH $50,000 NOTE ENTITLES PURCHASER TO 5,000 WARRANTS.
Signature Signature (if purchasing jointly)
- --------------------------- -------------------------------
Name Typed or Printed Name Typed or Printed
- --------------------------- -------------------------------
Address Address
- --------------------------- -------------------------------
City, State and Zip Code City, State and Zip Code
- --------------------------- -------------------------------
Telephone - Business Telephone - Business
- --------------------------- -------------------------------
Telephone-Residence Telephone-Residence
- --------------------------- -------------------------------
Facsimile - Business Facsimile - Business
- --------------------------- -------------------------------
Facsimile - Residence Facsimile - Residence
- --------------------------- -------------------------------
Tax ID# or Social Security # Tax ID# or Social Security #
ENTITY INVESTOR SIGNATURE PAGE
------------------------------
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
AMOUNT OF PURCHASE (MUST BE AT LEAST $50,000): $------------------------
PURCHASE OF EACH $50,000 NOTE ENTITLES PURCHASER TO 5,000 WARRANTS.
PURCHASER:
- ---------------------------------------
Name typed or printed
SIGNATURE OF AUTHORIZED SIGNATORY
- ---------------------------------------
Name typed or printed
- ---------------------------------------
Title of authorized signatory
- ---------------------------------------
Address of Purchaser
- ---------------------------------------
City, State and Zip Code
- ---------------------------------------
Telephone - Business
- ---------------------------------------
Facsimile - Business
- ---------------------------------------
Tax ID# or Social Security # of Purchaser
Name in which securities should be issued: -----------------------------
Dated: -----------------------, 1999
This Subscription Agreement is agreed to and accepted as of -----------, -
- ------.
CAVION TECHNOLOGIES, INC.
By: ---------------------------------------
Title:-------------------------------------
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES
LAW. THESE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM.
THIS WARRANT MAY NOT BE EXERCISED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS TO THE REASONABLE SATISFACTION OF THE
COMPANY AND LEGAL COUNSEL FOR THE COMPANY.
Warrant No. ---------
CAVION TECHNOLOGIES, INC.
STOCK PURCHASE WARRANT
This Warrant is issued as of ---------------, 1999, by Cavion
Technologies, Inc., a Colorado corporation, the ("Company") to and for the
benefit of ------------------ ("Holder").
WHEREAS, this Warrant is being issued pursuant to a certain
Promissory Note payable to Holder dated -----------------, 1999 (the
"Note") and a Subscription Agreement (the "Subscription Agreement")
between the Company and the Holder.
WHEREAS, the Subscription Agreement provides that the Holder is
entitled to the issuance of Warrants to purchase the Company's Class A
Common Stock, upon the Holder's grant of a loan pursuant to the Note and
Subscription Agreement.
WHEREAS, the Holder has loaned the Company -------------------------
($-----------) pursuant to the Note and Subscription Agreement.
NOW, THEREFORE, for good and valuable consideration, consisting of
the covenants contained in the Note and the Subscription Agreement, the
Company agrees as follows:
1. GRANT OF WARRANTS. The Company hereby grants to Holder, the
right to purchase, subject to the terms and conditions hereinafter set
forth, an aggregate of -,000 fully paid and nonassessable shares
("Shares") of the Class A Common Stock of the Company ("Common Stock").
2. WARRANT PRICE. The purchase price of the Shares upon exercise
of this Warrant is the price at which shares of the Company's Common Stock
are sold in its initial public offering, as filed in the SB-2 Registration
Statement on June 10, 1999 with the U.S. Securities and Exchange
Commission, and as subsequently amended (the "IPO"), or, if the IPO does
not close within one (1) year from the date of this Warrant, then at $6.00
per share.
3. TERM. The purchase right represented by this Warrant is
exercisable, in whole or in part, at any time and from time to time for a
period of five (5) years beginning on the earlier of the date on which the
Company receives the proceeds of the IPO (not necessarily including
proceeds from the over-allotment option) (the "IPO Closing Date"), or one
(1) year from the date of this Warrant (the "Exercise Period"). The
Company shall have no obligation to furnish any further notice of the
expiration date of this Warrant to Holder before the expiration date.
4. Method of Exercise; Payment; Issuance of New Warrant.
(a) Subject to paragraph 3 hereof, Holder may exercise the
purchase right represented by this Warrant, in whole or in part, by
delivering to the principal office of the Company a notice of exercise
("Exercise Notice") in the form attached hereto as Exhibit A, duly
executed, this Warrant, and payment to the Company, by check, of an amount
equal to the then applicable Warrant Price per share multiplied by the
number of Shares then being purchased. The Company shall within twenty
(20) business days after its receipt of the original Exercise Notice, this
Warrant and payment, issue and deliver to the Holder at the Company's
principal office, or at such other place designated by Holder, a
certificate evidencing the issuance of those Shares to which Holder is
entitled pursuant to the terms hereunder. If this Warrant is not fully
exercised, a new Warrant representing the portion of the Shares with
respect to which this Warrant shall not have been exercised shall be
issued to Holder within thirty (30) days. No cashless exercise of this
Warrant is permitted.
(b) Exercise shall be deemed to be effective on the date the
Exercise Notice, this Warrant and payment are received by the Company as
described in (a) above. Upon the effective date of exercise, the Holder
shall be deemed to be the holder of record of the Shares, notwithstanding
that the certificate representing the Shares shall not then be actually
delivered to such Holder or that such Shares are not then set forth on the
stock transfer books of the Company.
5. STOCK FULLY PAID; RESERVATION OF SHARES. All Shares which may
be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issue thereof. During the
period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized, and reserved for
the purpose of the issue upon exercise of the purchase rights evidenced by
this Warrant, a sufficient number of shares of its Common Stock to provide
for the exercise of the rights represented by this Warrant.
6. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number
and kind of securities purchasable upon the exercise of this Warrant and
the Warrant Price shall be subject to adjustment from time to time upon
the occurrence of certain events, as follows:
(a) RECLASSIFICATION OR MERGER. In case of any
reclassification or change of outstanding securities of the class issuable
upon exercise of this Warrant (other than a change in par value, or from
par value to no par value, or from no par value to par value, or in case
of any merger of the Company with or into another corporation (other than
a merger with another corporation in which the Company is a continuing
corporation and which does not result in any reclassification or change of
outstanding securities issuable upon exercise of this Warrant), or in case
of any sale of all or substantially all of the assets of the Company, the
Company shall, as condition precedent to such transaction, cause
provisions to be made so that Holder shall have the right, upon exercise
of this Warrant, to receive, in lieu of each share of the Company's Common
Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable
upon such reclassification, change or merger by the holder of one share of
the Company's Common Stock. The provisions of this subparagraph (a) shall
similarly apply to successive reclassifications, changes, mergers and
sales of assets.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its Common Stock, the Warrant Price shall be
proportionately decreased in the case of a subdivision or increased in the
case of a combination.
(c) STOCK DIVIDENDS. If the Company at any time while this
Warrant is outstanding and unexpired shall pay a dividend with respect to
Common Stock payable in Common Stock, or make any other distribution with
respect to Common Stock (except any distribution specifically provided for
in the foregoing subparagraphs (a) and (b)) then the Warrant Price shall
be adjusted, from and after the date of determination of shareholders
entitled to receive such dividend or distribution, to that price
determined by multiplying the Warrant Price in effect immediately prior to
such date of determination by a fraction (a) the numerator of which shall
be the total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution, and (b) the denominator of which
shall be the total number of shares of Common Stock outstanding
immediately after such dividend or distribution.
(d) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in
the Warrant Price, the number of Shares of Common Stock purchasable
hereunder shall be adjusted, to the nearest whole share, to the product
obtained by multiplying the number of Shares purchasable immediately prior
to such adjustment in the Warrant Price by a fraction, the numerator of
which shall be the Warrant Price immediately prior to such adjustment and
the denominator of which shall be the Warrant Price immediately
thereafter.
7. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be
adjusted pursuant to paragraph 6 hereof, the Company shall make a
certificate signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the
Warrant Price or Prices after giving effect to such adjustment, and shall
cause copies of such certificate to be mailed by first class mail, postage
prepaid, to Holder.
8. FRACTIONAL SHARES. No fractional shares of Common will be
issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefore in an
amount determined in such reasonable manner as may be prescribed by the
board of directors of the Company.
9. COMPLIANCE WITH SECURITIES ACT; NON-TRANSFERABILITY OF WARRANT;
DISPOSITION OF SHARES OF COMMON.
(a) COMPLIANCE WITH SECURITIES ACT. By acceptance hereof,
Holder agrees that this Warrant and the shares of Common Stock to be
issued upon exercise hereof are being acquired for investment and that
it/he/she will not offer, sell or otherwise dispose of this Warrant or the
Shares except under circumstances which will not result in a violation of
the Securities Act of 1933, as amended (the "Act"). In the absence of
registration of the Shares (including but not limited to registration
pursuant to the Subscription Agreement under which the Warrant was
purchased from the Company), upon exercise of this Warrant, Holder shall
confirm in writing, in the form attached hereto as Exhibit B, that the
shares of Common Stock so purchased are being acquired for investment and
not with a view toward distribution or resale. In addition, Holder shall
provide such additional information regarding Holder's financial and
investment background as the Company may reasonably request. All shares
of Common Stock issued upon exercise of this Warrant (unless registered
under the Act) shall be stamped or imprinted with a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT"). NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY AND WITHOUT REGISTRATION UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, IF ANY, OR PURSUANT TO EXEMPTIONS
THEREFROM."
10. RIGHTS OF SHAREHOLDERS. Holder shall not be entitled to vote or
receive dividends and shall not be deemed the holder of Common Stock or
any other securities of the Company which may at any time be issuable on
the exercise hereof for any purpose. Nothing contained herein shall be
construed to confer upon Holder, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value, consolidation,
merger, conveyance, or otherwise) or to receive notice of meetings, or to
receive dividends or subscription rights or otherwise until the Warrant
shall have been exercised and the Shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein.
11. REGISTRATION RIGHTS. The Shares obtained upon exercise of this
Warrant shall have the registration rights, obligations and restrictions
set forth in the Subscription Agreement. The term "Registrable
Securities" in such Subscription Agreement shall mean the Common Stock
obtained upon exercise of this Warrant.
12. GOVERNING LAW. The terms and conditions of this Warrant shall
be governed by and construed in accordance with Colorado law.
13. MISCELLANEOUS. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a
part hereof. Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally but only by an instrument in
writing signed by the Company and the registered holder hereof. All
notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to
such party at its address or telecopy number contained in the Company's
records or such other address or telecopy number as such party may
hereafter specify in writing to the Company at such address for that
purpose, or, if to the Company, to 7475 Dakin Street, Suite 607, Denver,
CO 80221, telecopy number 303/657-8210. Each such notice, request or
other communication shall be effective (i) if given by telecopy, when such
message is transmitted to the telecopy number contained in the Company's
records or such other number as a party may specify in writing to the
Company at such address, or (ii) if given by any other means, the earlier
of (x) when delivered by hand to the address contained in the Company's
record or such other address as a party may specify in writing to the
Company at such address or (y) five (5) business days after the mailing of
such notice by certified mail.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed in its name by the signature of its President and attested by the
signature of its Chief Financial Officer and this Warrant to be dated
August ----, 1999.
CAVION TECHNOLOGIES, INC.
ATTEST:
By:---------------------------- By:----------------------------
Marshall E. Aster, David J. Selina, President
Chief Financial Officer
EXHIBIT A
---------
TO STOCK PURCHASE WARRANT
-------------------------
NOTICE OF EXERCISE
TO: CAVION TECHNOLOGIES, INC.
1. The undersigned hereby elects to purchase ------------ shares of
Class A Common Stock of Cavion Technologies, Inc. pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price
of such shares in full, together with all applicable transfer taxes, if
any.
2. Please issue a certificate or certificates representing said
shares of Class A Common Stock in the name of the undersigned or in such
other names as is specified below:
--------------------------------
(Name)
--------------------------------
--------------------------------
(Address)
3. [For use only in the absence of an effective registration
statement covering the Shares] The undersigned represents that the
aforesaid shares of Class A Common Stock are being acquired for the
account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such
shares. In support thereof, the undersigned has executed an Investment
Representation Statement attached hereto as Exhibit B.
--------------------------------
(Signature)
- ----------------------------
(Date)
EXHIBIT B
---------
TO STOCK PURCHASE WARRANT
-------------------------
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : -------------------------
COMPANY : CAVION TECHNOLOGIES, INC.
SECURITY : CLASS A COMMON STOCK
AMOUNT : -------------------------
DATE : -------------------------
In connection with the purchase of the above-listed securities (the
"Securities"), I, the Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Securities. I
am purchasing these Securities for my own account for investment purposes
only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933
("Securities Act").
(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand
that, in the view of the Securities and Exchange Commission ("SEC"), the
statutory basis for such exemption may be unavailable if my representation
was predicated solely upon a present intention to hold these Securities
for the minimum capital gains period specified under tax statutes, for a
deferred sale, for or until an increase or decrease in the market price of
the Securities, or for a period of one year or any other fixed period in
the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available. Moreover, I
understand that the Company is under no obligation to register the
Securities except as set forth in the Subscription Agreement. In
addition, I understand that the certificate evidencing the Securities will
be imprinted with a legend which prohibits the transfer of the Securities
unless they are registered or such registration is not required in the
opinion of counsel for the Company.
(d) I am aware of the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non- public offering
subject to the satisfaction of certain conditions.
(e) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale.
(f) I further understand that in the event all of the requirements
of Rule 144 are not satisfied, registration under the Securities Act,
compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not
exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial
burden of proof in establishing that an exemption from registration is
available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own
risk.
Signature of Purchaser:
Date: ------------------------- -------------------------
BUSINESS LOAN AGREEMENT
BETWEEN
U.S. BANK NATIONAL ASSOCIATION
AND
NETWORK ACQUISITIONS, INC.
The undersigned, jointly and severally if more than one (herein called
"Borrower"), hereby warrants, covenants and agrees with U.S. BANK NATIONAL
ASSOCIATION (herein called "Bank"), as follows:
1. BORROWING
In consideration of the mutual promises herein contained and in
reliance upon the representations and warranties herein subject to
the terms and conditions hereof, Bank does hereby commit or loan to
Borrower, and Borrower acknowledges the following described
indebtedness to Bank currently outstanding or which may be hereafter
advanced:
$600,000.00 Revolving Line of Credit
2. REPAYMENT
Borrower promises and agrees to repay the Loan and all other
Indebtedness (as hereinafter defined) of Borrower to Bank with
interest in accordance with the terms and conditions of the
promissory note or notes (herein called the "Note") executed by
Borrower on even date herewith and any extensions or renewals
thereof, it being agreed that all Indebtedness not evidenced by such
Note shall be payable by Borrower to Bank upon demand.
3. COLLATERAL
As collateral for the Indebtedness to Bank, the Borrower grants to
the Bank a security interest in the following:
a) Three (3) Certificates of Deposits issued by U.S. Bank National
Association as follows:
CERTIFICATE NUMBER AMOUNT NAME
--------------------------- ----
394311236639 20,000.00 Network Acquisitions, Inc.
------------ ---------- --------------------------
394311236738 100,000.00 Fairway Realty Associates
------------ ---------- -------------------------
394311236688 300,000.00 William M.B. Berger Living Trust
------------ ---------- ---------------------------------
b) Two Letters of Credit for the benefit of U.S. Bank National
Association as follows:
ISSUER ............. AMOUNT
------ ------
Peninsula Bank of San Diego $100,000.00
--------------------------- -----------
Marathon National Bank of New York $100,000.00
---------------------------------- -----------
4. AFFIRMATIVE COVENANTS
So long as any part of the Indebtedness to Bank remains unpaid,
Borrower will:
a) Carry on and conduct its business in substantially the same
manner and in substantially the same fields as such business is
now and has heretofore been carried on, and maintain its legal
existence and comply with all valid and applicable statutes,
rules and regulations.
b) Maintain a system of bookkeeping and accounting in accordance
with generally accepted accounting principles.
c) Maintain executive management reasonably acceptable to the Bank
and give notice to the Bank of any changes thereof.
d) Furnish to Bank such other information as Bank may reasonably
request, and allow Bank, by or through its officers, agents,
attorneys or accountants, to examine and inspect the books and
records of the Borrower and to make abstracts and copies thereof
and to visit and inspect any of the property of the Borrower.
e) File all Federal, State and other tax and similar returns and
has paid, or provided for the payment of, all taxes and
assessments due thereunder through the current date, including
all withholding, FICA, franchise and other taxes and will
continue to file and pay, or provide for the payment of, such
returns and taxes before any penalties are imposed, except where
the validity of any tax is being diligently contested in good
faith. Borrower's Federal income tax returns have been accepted
as filed by the Internal Revenue Service and there are no unpaid
deficiency assessments for any taxes payable now or for any
prior years.
f) Maintain all of Borrowers depository accounts and balances with
U.S. Bank National Association.
g) If, in the banks opinion, the financial condition of the banks
issuing any of the Letters of Credit pledged as collateral for
this Loan deteriorates, the Borrower will be required to a)
substitute collateral acceptable to the Bank or b) pay down the
Loan to a balance acceptable to the Bank. At that time, the
Bank will reduce the availability of the Revolving Line of
Credit accordingly.
h) Comply in all material respects, with all applicable laws,
rules, regulations and orders of any government authority, non-
compliance with which would materially adversely affect its
business or credit.
5. REPORTING REQUIREMENTS:
a) Borrower agrees to furnish to the Bank, the following:
i) Within sixty (60) days after the end of each quarter:
a) For that period and fiscal year to date, a balance
sheet and statement of income and expenses in a format
acceptable to Bank.
ii) Within ninety (90) days after the Borrowers fiscal year
end:
a) CPA audited financial statements.
6. NEGATIVE COVENANTS.
a) So long as any part of the Indebtedness to Bank remains unpaid,
Borrower will not, without Bank's prior written consent:
i) Invest in, organize or participate in the organization of
any other business entity or merge, consolidate with or
into any other corporation or entity;
ii) Pay or declare any dividends; or
iii) Incur, assume, or permit any liability to exist for
borrowed money except from Bank, or incur, assume or permit
any other debts outside of the ordinary course of business
or loan money to, or guarantee or otherwise become in any
way liable for the obligations of, a firm, person or
corporation.
iv) Engage in any line of business substantially different from
the current business.
7. ENVIRONMENTAL PROVISIONS.
a) The Borrower shall carry on the business and operations at the
property to comply in all respects, and will remain in
compliance, with all applicable federal, state, regional, county
or local laws, statutes, rules, regulations or ordinances,
concerning public health, safety or the environment including,
without limitation,
i) laws or regulations relating to releases, discharges,
emissions or disposals to air, water, land or groundwater,
ii) to the withdrawal or use of groundwater,
iii) to the use, handling or disposal of polychlorinated
biphenyls (PCB's), asbestos or urea formaldehyde,
iv) to the treatment, storage, disposal or management of
hazardous substances (including, without limitation,
petroleum, its derivatives, by-products or other
hydrocarbons), and any other solid, liquid or gaseous
substance, exposure to which is prohibited, limited or
regulated, or may or could pose a hazard to the health and
safety of the occupants of the Side and Facility or the
property adjacent to or surrounding the Site,
V) to the exposure of persons to toxic, hazardous, or other
controlled, prohibited or regulated substance,
vi) to the transportation, storage, disposal, management or
release of gaseous or liquid substances, and any
regulation, order, injunction, judgment, declaration,
notice or demand issued thereunder.
b) Bank's obligation to advance funds on a line of credit or other
open ended credit arrangement will terminate upon the occurrence
of a breach of any provision of this Section. Borrower agrees
to indemnify and hold harmless Bank, its assigns, successors,
and grantees against any and all claims and losses resulting
from a breach of this Section and Borrower will pay or reimburse
Bank for all costs and expenses for expert opinions or
investigations required or requested by Bank in Bank's sole
discretion, to insure compliance with this Section. This
obligation to indemnify shall survive the payment of the
Indebtedness of Borrower to Bank.
8. EVENTS OF DEFAULT.
a) Upon the occurrence of any of the following events, Bank, may,
at its option and upon notice to Borrower, declare the principal
of and interest on any Note of Borrower and all Indebtedness of
Borrower then remaining unpaid to be immediately due and
payable, all without demand, presentment or other notice of any
kind, which are hereby expressly waived:
i) Non-payment of any principal or interest on its
Indebtedness to Bank or material non-contested liability to
others when and as the same shall have come due and
payable, whether at maturity, by acceleration or otherwise.
ii) Failure to promptly perform and observe the covenants,
terms and conditions hereof, in the application relative
thereto, or of any statement, warranty or representation
made herein, or in any agreement, application, or writing
made or executed and delivered to Bank in connection
herewith is or proves to be untrue or misleading in any
material respect.
iii) Borrower's adjudication as a bankrupt, or if it makes any
general assignment for the benefit of creditors, or the
institution by or against it of any type of insolvency
proceeding or of any proceeding for the liquidation or
winding up of its affairs, or the appointment of a receiver
or trustee for Borrower or for any of its assets, or the
approval of a properly filed petition for its
reorganization under the Bankruptcy Act or other similar
act, or the filing of any petition by Borrower for an
arrangement under Chapter XI of the Bankruptcy Act or other
similar act, except that institution of an insolvency
proceeding against Borrower will not be a default if
dismissed within 45 days..
iv) Termination or dissolution of Borrower.
v) If the Bank in good faith believes that the prospect of
prompt payment of Indebtedness in full as and when due or
the full performance of Borrower's obligations by Borrower
is impaired.
vi) If any of the Letters of Credit that have been pledged as
collateral for this loan are not renewed.
vii) The occurrence of any event described in Section 8 a) i),
ii), iii), iv), v) or vi) hereof with respect to any
endorser or guarantor or any other party liable for payment
of Borrower's Indebtedness to Bank.
9. MISCELLANEOUS
a) As used herein "Indebtedness" means and includes:
i) all Indebtedness and liabilities of whatsoever kind, nature
or description owed to Bank by Borrower, whether direct or
indirect, absolute or contingent due or to become due,
whether now existing or acquired, whether joint, joint and
several, or several, and
ii) all costs and expenses incurred by Bank in the protection,
preservation, enforcement and collection of any of the
foregoing, including, without limitation, attorney's fees.
b) In all cases where the context and construction so require, all
words used in the singular shall be deemed to have been used in
the plural, and words phrased in one gender shall included all
genders.
c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, representatives,
successors, and assigns.
d) The laws of the State of Colorado shall govern this Agreement
and all rights and obligations hereunder, including matters of
construction, validity and performance.
e) No course of dealing on the part of the Bank, its officers or
employees, nor any failure or delay by Bank with respect to the
exercise of any right, power or privilege by Bank under this
loan agreement shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall
not preclude any later exercise thereof or any exercise of any
other right, power or privilege hereunder. No waiver or default
shall be effective unless in writing, signed by an officer of
the Bank. No waiver of any default or forbearance on the part
of Bank in enforcing any of its rights under this loan agreement
shall operate as a waiver of any other default or right or of
the same default or right on a future occasion.
f) If there is any conflict between this Agreement and the
Additional Provisions contained in the Note, this Agreement
controls.
Signed and sealed by Borrower this 18th day of January, 1999.
NETWORK ACQUISITIONS, INC.
7475 Dakin Street, Suite 607
Denver, Colorado 80221
BY: /s/ Craig E. Lassen
Craig E. Lassen, CEO
U.S. BANK NATIONAL ASSOCIATION
8401 East Belleview Avenue
Denver, CO 80237
BY: /s/ Ralph P. Atkinson
Ralph P. Atkinson
Vice President
PROMISSORY NOTE
---------------
FOR BANK USE ONLY
Initial Rate:
Scheduled Maturity:
Note No.:
This Note renews/replaces Note
No.
Dated:
Officer Approval: /s/
(Single/Multiple Advance - Single Pay/Demand/Installment - Commercial/
Construction/Agricultural)
January 18, 1999 Denver, CO
-------------- ------------------------------
Note Date City, State where Bank located
For value received, the undersigned (if more than one, jointly and
severally, the "Borrower") promises to pay to the order of U.S. Bank
National Association (The "Bank"), its successors and assigns, at the
Bank's office at 918 17th Street, Denver, CO 80202, or at any other place
designated in writing by the Bank or any subsequent holder hereof (the
"Holder"), in lawful money of the United States of America, the principal
sum of SIX HUNDRED THOUSAND AND NO/100 Dollars ($600,000.00) or so much
thereof as has been advanced and remains outstanding hereunder on the
Maturity Date, as shown by the Holder's books and records, together with
interest at a rate described below (calculated on the basis of actual days
elapsed and a 360-day year) on the unpaid principal hereof, from time to
time outstanding, from the date hereof until this Promissory Note ("Note")
is fully paid, as follows:
A. INTEREST RATE:
[--] A fixed annual rate of ----------%.
[XX] A variable annual rate equal to the Reference Rate plus 1.50% (The
term "Reference Rate" means the rate determined and announced from
time to time as U.S. Bank National Association's Reference Rate. The
Bank may lend to its customers at rates that are at, above, or below
the Reference Rate).
[--] A variable annual rate equal to the Prime Rate ------------------
(The term "Prime Rate" means the highest rate published from time to
time in the WALL STREET JOURNAL as the Prime Rate. If a range of
rates is so published, the Holder may choose any rate within the
range.).
[--] Other ---------------------------------------------------------------
-------------------------------------------------------------------
If the index used to compute a variable rate ceases to be available, the
Holder may choose a comparable successor index.
If this Note bears interest at a variable rate, the annual rate of
interest hereon shall never exceed the highest rate permitted by
applicable law; and the rate of interest shall be determined initially as
of the date hereof and thereafter shall be adjusted when and as the index
changes.
B. PAYMENTS:
[--] Principal and interest shall be paid in a single payment on ---------
------------------ ("Maturity Date").
[XX] Principal shall be paid in a single payment: [--] on demand or [X]
on 12/31/99 ("Maturity Date"); interest shall be paid [X]]monthly or
[--] quarterly or [--]--------------------- commencing on 02/28/99,
and continuing on the same day of each successive month/quarter/MONTH
(as applicable) thereafter with a final payment of all unpaid
interest at the time of payment of the principal.
[--] Principal shall be paid in ----------------------------- (---) equal
[--] monthly, [--] quarterly, [--] semi-annual or[--] annual
installments of $---------- each, commencing on ---------------, and
continuing on the same day of each successive month/quarter/six
months/year (as applicable) thereafter, with a final payment of all
unpaid principal on ------------------ ("Maturity Date"); interest
shall be paid [--] monthly or [--] quarterly or [--] --------------
commencing on ---------------------, and continuing on the same day
of each successive month/quarter/ -------------(as applicable)
thereafter until the final payment of all unpaid principal is
received.
[--] Principal and interest shall be paid in ------------ (------) equal [-
-] monthly, [--] quarterly, [--] semi-annual, or [--] annual
installments of $------------ each, commencing on ------------, and
continuing an the same day of each successive month/quarter/ six
months/year (as applicable) thereafter with a final payment of all
unpaid principal and interest on ------------ ("Maturity Date").
The Bank may charge the Borrower's Account No. ------------ maintained
with the Bank for payments of [--] interest only, or [--] principal and
interest due under this Note.
All principal and interest due but not paid on the Maturity Date shall
bear interest at a rate of interest five percent (5%) per annum in excess
of the rate otherwise applicable to this Note on the Maturity Date, unless
applicable law limits the rate of interest which may be charged after the
Maturity Date, in which event unpaid principal shall bear interest after
the Maturity Date at the rate in effect on the Maturity Date.
C. MISCELLANEOUS:
[XX] To the extent the Bank has agreed in a separate written agreement,
amounts repaid may be readvanced to the Borrower and be evidenced by
this Note.
[XX] This Note is secured. [--] This Note Is guaranteed.
The Bank has no obligation to renew, modify or extend this Note.
Purpose:
[--] This Note evidences a construction loan in accordance with C.R.S. 4-9-
313(l)(c).
[XX] Other: Working capital line
OTHER TERMS:
[XX] This Note Is delivered in connection with a certain written agreement
dated January 18, 1999.
[XX] (2) Letters of Credit and (3) U.S. Bank National Association Bank
TCD'S
JURY TRIAL WAIVER. THE BANK AND THE BORROWER EACH IRREVOCABLY WAIVES ITS
RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING OF ANY ISSUE, CLAIM,
COUNTERCLAIM OR OTHER CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, BASED
UPON OR ARISING OUT OF THIS NOTE, THE DEBT EVIDENCED HEREBY, ANY
COLLATERAL PROPERTY SECURING SUCH DEBT, OR ANY OTHER AGREEMENT OR DEALINGS
RELATING TO THIS NOTE OR SUCH DEBT.
THIS NOTE IS SUBJECT TO THE ADDITIONAL PROVISIONS
SET FORTH ON THE SECOND PAGE HEREOF.
CAVION TECHNOLOGIES, INC.
/s/ Craig E. Lassen (Its) CEO
- ----------------------------------
Address 7475 DAKIN STREET
of Borrower DENVER, CO 80221
ADDITIONAL PROVISIONS
---------------------
Prepayment
- ----------
So long as this Note bears interest at a variable rate, it may be
prepaid in whole or in part at any time. Unless otherwise agreed to in
writing by the Holder, any prepayment shall be applied first to unpaid
accrued interest with the remainder applied to reduction of principal,
and, if principal is payable in installments, shall be applied to
principal in the inverse order of maturities. If the demand feature of
this Note does not apply and this Note bears interest at a rate that is
fixed or based upon multiple fixed rate advances, this Note or any fixed
rate advance hereunder may only be prepaid with the prior written consent
of the Holder. The Holder may impose a prepayment charge as a condition
for granting such consent.
Holidays
- --------
Any extension of time for the payment of the principal of this Note
resulting from the Maturity Date failing on a Saturday, Sunday or legal
holiday shall be included in the computation of interest.
Default
- -------
If payments of principal or interest hereon are not paid when due; or
if any other indebtedness of the Borrower, or of any guarantor, endorser
or surety hereof (an "Accommodator"), to the Holder is not paid when due;
or if a garnishment summons or a writ of attachment or levy is issued
against or served upon the Holder for the attachment of any property of
the Borrower or an Accommodator in the Holder's possession or any
indebtedness owing by the Holder to the Borrower or an Accommodator; or if
the Borrower or an Accommodator shall submit to the Holder any credit
application or financial statement containing information which shall
prove to be incorrect in any material respect when submitted; or if the
Borrower or an Accommodator shall fail to provide annual financial
statements upon request; or if the Borrower shall fail to pay when due any
indebtedness the Borrower may owe to others for money borrowed; or if the
Borrower or an Accommodator shall violate any terms of any mortgage,
security agreement or guaranty securing this Note, including any "due on
sale" clause, or of any other agreement relating to this Note; or if the
Holder shall at any time in good faith believe that the prospect of due
and punctual payment of this Note is impaired, THEN, in any such event,
the Holder may, at its option, declare this Note to be immediately due and
payable and thereupon this Note shall be immediately due and payable,
together with all unpaid interest accrued hereon, without notice or
demand; provided, however, that if this Note is payable upon demand,
nothing herein contained shall preclude or limit the Holder from demanding
payment of this Note at any time and for any reason, without prior notice.
This Note shall also become automatically due and payable (together
with unpaid interest accrued hereon) without notice or demand should the
Borrower or any Accommodator die (if an individual), or should a petition
be filed by or against the Borrower or an Accommodator under the United
States Bankruptcy Code or any other law relating to insolvency,
reorganization, receivership or relief of debtors.
Cost, Setoff
- ------------
If this Note is not paid on the Maturity Date or any event occurs
that would entitle the Holder to declare this Note to be immediately due
and payable, the Borrower and each Accommodator agree to pay all costs of
collection, including reasonable attorney fees, where not prohibited by
state law. Any sums credited by or due from the Holder to the Borrower or
any Accommodator and any other property of any Borrower or any
Accommodator in the Holder's possession may at all times be held and
treated as collateral security for the payment hereof. The Holder shall
have the right to setoff the indebtedness evidenced by this Note against
any indebtedness of the Holder to the Borrower or to an Accommodator.
Waivers
- -------
The Holder may at any time renew or modify this Note, extend its
Maturity Date for any period, accept partial payments, or release or
substitute any security for or any party to (including any other
Accommodator) this Note, all without notice to or consent of and without
releasing any Accommodator, or affecting their liability to the Holder.
Each Accommodator waives any and all defenses that may be available to a
surety, and any right to require the Holder to proceed against any
security for this Note prior to proceeding under this Note against any
Accommodator or the Borrower. except as said rights may otherwise be set
forth in separate instruments between Bank and any Accommodator.
Presentment or other demand for payment, protest, notice of dishonor
and notice of protest are hereby waived by the Borrower and each
Accommodator.
Miscellaneous
- -------------
The Borrower and each Accommodator agree that each provision, for
which the box immediately preceding such provision is checked, is part of
this Note and those provisions for which the relevant box is not checked
are not a part of this Note.
This Note shall be governed by the substantive laws of the state
COLORADO, except insofar as the Bank may rely on the laws of the United
States to justify the interest rate charged hereunder.
The unenforceability of any provision of this Note shall not affect
the enforceability or validity of any other provision hereof.
THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE NOTE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY STATE SECURITIES LAW. THESE SECURITIES MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM.
CAVION TECHNOLOGIES, INC.
PROMISSORY NOTE
Note No. -------
August ---, 1999
FOR VALUE RECEIVED, the undersigned, Cavion Technologies, Inc., a
Colorado corporation (the "Company"), does hereby promise to pay to the
order of ----------------- ("Holder"), at ------------------------------,
or at such other place as Holder may hereafter designate in writing, the
principal sum of $-------------- and interest on the unpaid principal
balance thereof. The Company agrees to pay the Holder interest on the
unpaid principal balance at the rate of fourteen percent (14%) per annum
from the date of this promissory note until maturity. The entire unpaid
principal balance, all accrued and unpaid interest, and any other sums due
hereunder, shall be due on the first to occur of (i) one (1) year from the
date of this promissory note, or (ii) the date when the Company receives
the proceeds of its initial public offering of its Class A common stock,
as filed in the SB-2 Registration Statement with the U.S. Securities and
Exchange Commission on June 10, 1999, and as subsequently amended (the
"Maturity Date"). Until the Maturity Date, accrued interest shall be
payable quarterly, beginning January 1, 2000.
This Promissory Note (the "Note") may be prepaid at any time, in
whole or in part, without notice or penalty.
If any of the following events shall occur (an "Event of Default")
and shall be continuing: (a) default in the payment of quarterly interest
and of principal and accrued interest of the Note on the Maturity Date;
(b) default in the due observance or performance of any other covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to the terms hereof or of the covenants set forth in
the Subscription Agreement of even date herewith; (c) the entry of a
decree or order by a court having jurisdiction in the premises adjudging
the Company as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under federal bankruptcy laws or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of sixty (60) consecutive days;
(d) the institution by the Company of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it or the filing by it of a
petition or answer or consent seeking reorganization or release under
federal bankruptcy laws or any other applicable federal or state law, or
the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due or the taking of corporate action by
the Company in furtherance of any such action;
then the Holder may provide notice of such default to the Company (the
"Notice of Default") specifying such default and making the request that
the same be remedied, and upon the expiration of the thirty (30) days
period from the Company's receipt of the Notice of Default, if the default
has not been cured, the unpaid principal balance of this Note, together
with interest accrued thereon, shall be due and payable immediately,
without presentment, demand, protest or further notice of any kind, all of
which are expressly waived by the Company to the extent permitted by law.
If an Event of Default shall occur, the unpaid principal balance of
this Note shall bear interest after the expiration of the thirty (30) days
period from the Company's receipt of the Notice of Default, at a default
rate equal to the lesser of: (i) five percent (5%) above the prime rate
quoted and in effect from time to time in the Wall Street Journal, or (ii)
the highest rate permitted by law. If this Note is placed in the hands of
an attorney for collection, the Company agrees to pay all collection costs
and expenses, including reasonable attorneys' fees.
The Holder intends to conform strictly to the usury laws now or
hereafter in force in the State of Colorado. Any interest payable under
this Note shall be subject to reduction by the amount in excess of the
maximum non-usurious amount allowed under the usury laws of Colorado as
now or hereafter construed by the courts having jurisdiction over such
matters.
By acceptance hereof, Holder agrees that this Note is being acquired
for investment and that it/he/she will not offer, sell or otherwise
dispose of this Note except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended.
Neither this Note nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing
signed by the Company and Holder. All notices, requests and other
communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given to such party at its
address or telecopy number contained in the Company's records or such
other address or telecopy number as such party may hereafter specify in
writing to the Company for that purpose. If to the Company, to 7475 Dakin
Street, Suite 607, Denver, CO 80221, telecopy number 303/657-8210,
attention President. Each such notice, request or other communication
shall be effective (i) if given by telecopy, when such message is
transmitted to the telecopy number contained in the Company's records or
such other number as a party may specify in writing to the Company at such
address, or (ii) if given by any other means, the earlier of (x) when
delivered by hand to the address contained in the Company's record or such
other address as a party may specify in writing to the Company at such
address, or (y) five (5) business days after the mailing of such notice by
certified mail.
IN WITNESS WHEREOF, the Company has caused this Note to be executed
in its name by the signature of its President and attested by the
signature of its Chief Financial Officer, and this Note to be dated August
- --, 1999.
CAVION TECHNOLOGIES, INC.
ATTEST:
- ----------------------------- By: --------------------------
Marshall E. Aster, David J. Selina, President
Chief Financial Officer
LICENSE AGREEMENT
-----------------
THIS LICENSE AGREEMENT (the "Agreement") is entered into as of this
18th day of August, 1999, by and between MONEYLINE AMERICA, LLC
("MoneyLine"), a California limited liability company with its principal
place of business located at 38350 Fremont Blvd., Suite 200, Fremont, CA
94536, and CAVION TECHNOLOGIES, INC., DOING BUSINESS AS CAVION.COM
("Cavion"), a Colorado corporation with its principal place of business
located at 7475 Dakin Street, Suite 607, Denver, Colorado 80221, sometimes
collectively referred to herein as the "Parties" and individually as a
"Party."
W I T N E S S E T H:
--------------------
WHEREAS, Cavion is a provider of Internet related products and
services to the credit union industry and is building and managing a
secure, virtual private communications network, exclusively for the credit
union industry, to act as a service delivery platform for credit unions
and their suppliers (hereinafter referred to as the "Cavion Network");
WHEREAS, MoneyLine is a full-service mortgage lender with an interest
in providing mortgage services to the credit unions, and the credit union
members, connected to the Cavion Network; and
WHEREAS, the Parties desire to enter into this Agreement, whereby,
subject to the terms and conditions contained herein, certain of
MoneyLine's products and services will be licensed to Cavion and the
Parties will cooperate in MoneyLine's offering of mortgage loan services
to members of credit unions affiliated with the Cavion Network.
NOW THEREFORE, in consideration of the mutual promises of the
Parties, in reliance on the representations, warranties, covenants and
conditions contained in this Agreement, and for other good and valuable
consideration, the Parties agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the term "Cavion Content" shall mean
and refer to the information, data and other materials contained
on the Cavion Network, exclusive of any information, data or
other materials relating or referring to MoneyLine's products or
services, or the MoneyLine Mortgages, as defined herein.
1.2 As used in this Agreement, the term "Click-Throughs" shall mean
and refer to a User presence at the MoneyLine Web Site which
originated from any site on the Cavion Network, or which linked
to the MoneyLine Web Site from a bookmark created during a
session originating from any site on the Cavion Network.
1.3 As used in this Agreement, the term "Intellectual Property
Rights" shall mean and refer to all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as
all moral rights, common law rights, and any and all similar
rights of any type under the laws of any governmental authority,
domestic or foreign.
1.4 As used in this Agreement, the term "Internet" shall mean and
refer to the collection of computer networks commonly known and
referred to as the Internet and shall include, without
limitation, the World Wide Web.
1.5 As used in this Agreement, the term "MoneyLine Content" shall
mean and refer to all information, data and materials relating
to the real estate mortgage products offered by MoneyLine, as
defined in this Agreement, and shall include, without
limitation, all programs utilized by MoneyLine relative to the
application for mortgage services, as well as the evaluation and
processing of the applications.
1.6 As used in this Agreement, the term "MoneyLine Mortgages" shall
mean and refer to the variety of real estate mortgage products
and services to be offered through the Cavion Network by
MoneyLine and shall include, but not be limited to,
conventional, Jumbo, Super-Jumbo, government, seconds, home
improvement, equity, piggy back, and any and all such other home
loan programs or residential mortgage services as may become
available to or through MoneyLine from time to time.
1.7 As used in this Agreement, the term "MoneyLine Symbols" shall
mean and refer to all of MoneyLine's trademarks, service marks,
logos, and other distinctive brand features of MoneyLine
utilized by MoneyLine at any time during the term of this
Agreement. A list of the current MoneyLine Symbols, as of the
date of execution of this Agreement, is attached hereto as
Exhibit "A" and incorporated herein by this reference.
1.8 As used in this Agreement, the term "Cavion Symbols" shall mean
and refer to all of Cavion's trademarks, service marks, logos,
and other distinctive brand features, including the term "Member
Emporium" and any variation thereof used or utilized by Cavion,
of Cavion utilized by Cavion at any time during the term of this
Agreement. A list of the current Cavion Symbols, as of the date
of execution of this Agreement, is attached hereto as Exhibit
"B" and incorporated herein by this reference.
1.9 As used in this Agreement, the term "Credit Union Symbols" shall
mean and refer to all of the trademarks, service marks, logos,
and other distinctive brand features of the credit unions
connected to the Cavion Network which agree to utilize or have
access to the MoneyLine Content at any time during the term of
this Agreement.
1.10 As used in this Agreement, the term "MoneyLine Web Site" shall
mean and refer to MoneyLine's site on the Internet.
1.11 As used in this Agreement, the term the "Cavion Network" shall
mean and refer to Cavion's secure, virtual private
communications network, including its network services such as
Member Emporium and Internet banking, including any credit union
member Internet personal start pages or other services to which
Cavion serves network-based advertising, and including the
network presence of any and all credit unions hosted by Cavion
or any credit union facilitating transactions through the Cavion
private communications network.
1.12 As used in this Agreement, the term "Advertising Impressions"
shall mean and refer to each occurrence that a MoneyLine product
or service is displayed or promoted on the Cavion Network using
advertising banners or other similar methods deployed on the
Cavion Network. An occurrence will be defined based upon
Cavion's reasonable advertising standards as applied to other
advertisers on the Cavion Network.
2. MUTUAL AND RESPECTIVE LICENSES
2.1 Subject to the terms and conditions of this Agreement, MoneyLine
hereby grants to Cavion:
(a) a non-exclusive, worldwide license to use, reproduce,
distribute, display and transmit the MoneyLine Content on,
through or in connection with the Cavion Network and to
permit Users to utilize, including, but not limited to, the
ability to download and print, some or all of the MoneyLine
Content, as Cavion shall determine.
(b) a non-exclusive, worldwide license to modify the MoneyLine
Content, upon the advance, written consent of MoneyLine,
which consent shall not be unreasonably withheld, for
purposes of conforming the MoneyLine content to other
material, data and information on the Cavion Network.
(c) a non-exclusive, worldwide, fully paid license to use,
reproduce and display the MoneyLine Symbols in connection
with the display, marketing, advertising or promotion of
the MoneyLine Content on or relating to the Cavion Network.
(d) The foregoing terms in this Section 2.1 are subject to the
restriction that the MoneyLine Symbols may not be used to
advertise any product or service, other than MoneyLine's
products and services, without MoneyLine's prior written
consent, which consent shall not be unreasonably withheld.
2.2 Subject to the terms and conditions of this Agreement, Cavion
hereby grants to MoneyLine:
(a) a non-exclusive, worldwide, fully paid license to use,
reproduce and display the Cavion Symbols in connection with
the display, marketing, advertising or promotion of the
Cavion Network on MoneyLine's Site or in any of the
MoneyLine Content.
2.3 It is fully agreed and understood by and between the Parties
hereto that no provision of this Agreement prohibits, or in any
way inhibits, the ability or right of MoneyLine to serve non-
credit union members who access the MoneyLine Web Site and seek
to utilize MoneyLine's products or services or to have a
separate site on the Internet which is not connected, linked or
related to the Cavion Network for servicing non-credit union
persons.
3. EXCLUSIVITY OF RELATIONSHIP
3.1 On the Cavion Network, MoneyLine shall be the exclusive Cavion
approved and recommended, on-line mortgage lender for the
MoneyLine Mortgages, or any same or similar products or
services.
(a) Except as otherwise may be provided for in Section 4.1 of
this Agreement, MoneyLine's exclusivity, as provided for in
this Section, shall operate so as to preclude Cavion from
providing any other individual or entity a direct link from
the Cavion Network to any site on the Internet
highlighting, promoting or offering, or otherwise providing
content relating to, any type of residential real estate
mortgage, including, but not limited to, those products and
services which are the same or similar to the MoneyLine
Mortgages. Further, Cavion shall not place any advertising
on the Cavion Network for any residential real estate loan
or mortgage services other than the MoneyLine Content.
3.2 MoneyLine shall not license, distribute or integrate any of the
MoneyLine Content with any competitor of Cavion in the credit
union vertical market, without the prior, written consent of
Cavion.
4. LIMITATIONS ON MONEYLINE EXCLUSIVITY AND CONDUCT
4.1 Under the terms of this Agreement, and pursuant to the Parties'
express intent, MoneyLine's exclusivity with Cavion will be
superseded in the event an individual credit union has entered
into, whether prior or subsequent to the execution of this
Agreement, any other mortgage services arrangement.
(a) In such event, such a credit union or credit unions may
elect to feature MoneyLine's services, in addition to any
other mortgage services provider, but Cavion is under no
obligation to take any action on behalf of MoneyLine
respecting an individual credit union's decision whether or
not to feature MoneyLine's services in addition to the
services of any other provider of mortgage services with
whom the credit union has a relationship. In the event a
credit union elects not to feature the MoneyLine services,
the respective obligations of each of the Parties to this
Agreement shall not be altered but shall remain fully in
place and enforceable by either Party. Notwithstanding the
foregoing, MoneyLine's services may still be offered to the
credit union as an alternative mortgage loan lending
source.
4.2 Cavion, by entering into this Agreement with MoneyLine, will
endorse and recommend MoneyLine's services to the credit unions
connected to the Cavion Network, and shall use commercially
reasonable efforts to promote MoneyLine's services to such
credit unions.
(a) Notwithstanding the foregoing, both Parties to this
Agreement expressly acknowledge, understand and accept that
the decision of each credit union connected to the Cavion
Network to permit MoneyLine to serve its members through
the Cavion Network will be in the sole discretion of the
credit union. Any decision by any credit union not to
permit MoneyLine to provide mortgage services to its
members, or to permit any other provider of mortgage
services to serve its members through the Cavion Network,
shall be deemed to be outside the control of either
MoneyLine or Cavion and shall not operate to the detriment
of either MoneyLine or Cavion under any term or provision
of this Agreement, each of which shall remain in full force
and effect and shall be enforceable by either Party hereto.
(b) The Parties acknowledge that certain elements of the Cavion
Network are identified to a User by the Credit Union
Symbols of that User's credit union (for example, the
credit union's home page hosted by Cavion), and certain
elements of the Cavion Network are identified to a User by
the Cavion Symbols and also by the Credit Union Symbols of
that User's credit union (for example, the credit union's
Internet banking application served by Cavion). All such
elements of the Cavion Network are referred to herein as
"portions of the Cavion Network co-branded by a credit
union". The credit union's discretion as described in
Section 4.2(a) applies to all portions of the Cavion
Network co-branded by a credit union.
4.3 Upon being connected to the Cavion Network, MoneyLine will not
offer to the individual members of the credit unions connected
to the Cavion Network any products or services which compete or
interfere, or reasonably could compete or interfere, with the
relationship between a credit union and its individual members,
including the products and services offered by a credit union to
its members.
(a) In the event one or more of the products or services
furnished by MoneyLine under the terms of this Agreement
are in conflict or interfere with one or more products or
services offered by a credit union to its members, but
other MoneyLine products or services would not be in
conflict or interfere with a credit union's products or
services, MoneyLine, at its sole and unfettered discretion,
may elect to offer only those not competing or interfering
products or services, on a credit union by credit union
basis.
(b) Cavion shall notify MoneyLine, in writing, in as prompt a
manner as is commercially reasonable and practical, of any
claim that a MoneyLine product or service is in conflict
with or interferes with any credit union product or
service. Cavion may turn off any link to the MoneyLine Web
Site from any portion of the Cavion Network co-branded by
the complaining credit union(s), until the conflict is
resolved to the credit union's satisfaction. In response to
any claimed conflict, MoneyLine may, at its option, (i)
demonstrate to the credit union(s) that no such conflict or
interference exists, (ii) modify its offered or advertised
products or services so as to negate the conflict or
interference, (iii) remove the conflicting or interfering
product or service from its offering from the relevant
credit union site(s), or (iv) take no action.
5. MONEYLINE PRODUCTS AND SERVICES
5.1 The residential mortgage products to be offered and the services
to be performed by MoneyLine pursuant to this Agreement, as part
of being a full-service, residential mortgage lender, include,
but are not necessarily limited to, the following:
(a) Internet-based pre-approval application process
(b) Automated loan status
(c) MoneyLine's loan application software will be modified to
create a "seamless interface" to Cavion's software and
hardware.
(d) Reduced documentation and "no doc" loans
(e) In-house funding
(f) Flexible underwriting guidelines ("common sense")
(g) High and no FICO scores
(h) Special pricing for credit union members
(i) Loan programs enabling credit union participation
(j) Loan programs enabling credit union compensation
(k) Regional loan completion services
6. CAVION'S OBLIGATIONS TO MONEYLINE
6.1 Subject to the additional terms and conditions of this
Agreement, Cavion shall be solely responsible for the design,
layout, posting and maintenance of the Cavion Content,
including any pages on the Cavion Network featuring a banner or
other Advertising Impression advertising the MoneyLine Content.
(a) Any page featuring a MoneyLine Advertising Impression shall
include a hot link (or a text link or other method of
linking the user directly to the target site, referred to
hereinafter as a "hot link") which shall be in a prominent
position, and which shall direct a User directly to the
MoneyLine Web Site.
6.2 Cavion shall not make any material changes to the MoneyLine
Content as it appears on or through the Cavion Network without
the advance written consent of MoneyLine, which consent shall
not be unreasonably withheld.
6.3 At all times during the term of this Agreement, for purposes of
advertising MoneyLine's products and services on the Cavion
Network, MoneyLine shall be considered and construed to be a
"key" vendor, as defined hereinbelow. However, MoneyLine's
treatment as a "key" vendor with respect to any portion of the
Cavion Network co-branded by a credit union shall be subject to
the credit union's discretion as described in Section 4.2(a).
(a) For purposes of this Agreement, a "key" vendor shall be a
featured vendor, whose products or services shall be
prominently advertised and/or highlighted on the Cavion
Network, with no other vendor's advertising or highlighting
placed in a more prominent position, or with more prominent
timing, on the Network than that offered to MoneyLine.
(i) The foregoing requirement that no other vendor shall
have a more prominent position (either as to location
or timing) on the Network is based on an "on-going
basis" and does not preclude Cavion from more
prominently featuring a vendor on a limited or
special basis, which in no event shall continue for
more than 30 days.
(b) Further, for purposes of this Agreement, Cavion shall make
commercially reasonable efforts to provide the positioning
and timing of a "key" vendor's advertising on the Cavion
Network in the manner most appropriate in light of the
vendor and its products and services.
6.4 In light of MoneyLine's position as a "key" vendor, subject to
the credit union's discretion with respect to any portion of the
Cavion Network co-branded by a credit union, Cavion shall
highlight and advertise MoneyLine as follows:
(a) Each credit union connected to Cavion's Network shall have
a link on its home page with a title substantially similar
to "Mortgage Services" which provides a direct or "hot"
link to the MoneyLine Web Site.
(b) MoneyLine, either directly or through an advertisement for
mortgage services with a hot link to the MoneyLine Web
Site, shall be featured and advertised on the bill paying
and Internet banking start pages of each credit union
member connected to the Cavion Network.
6.5 Subject to the credit union's discretion with respect to any
portion of the Cavion Network co-branded by a credit union,
Cavion will provide a direct or "hot" link to the MoneyLine Web
Site from any generalized advertisement or description in the
Cavion Member Emporium or elsewhere on the Cavion Network for
mortgage loans.
6.6 Each month, Cavion shall provide Advertising Impressions as
described in the following sentence, providing a link to either
the Cavion Network's real estate mortgage site, with a
subsequent direct link to the MoneyLine Web Site, or a direct,
hot link to the MoneyLine Web Site. Subject to subsection (b)
below, Cavion shall provide 200,000 Advertising Impressions per
month during Year Two of this Agreement, 500,000 Advertising
Impressions per month during Year Three, and 1,000,000
Advertising Impressions per month during Years Four and after.
MoneyLine shall provide all content for the Advertising
Impressions, subject to approval by Cavion prior to
implementation, which approval shall not be unreasonably
withheld.
(a) In the event Cavion fails to provide the number of
Advertising Impressions provided for in this Section 6.6,
Cavion will "make good" the shortfall the following month.
In the event there is a shortfall for more than three (3)
consecutive months, Cavion shall be deemed to be in
material breach of this Agreement. If there is a shortfall
at the conclusion of the term of this Agreement, Cavion
will extend its obligations under this Section 6.6 beyond
the term of the Agreement until Cavion's Advertising
Impression obligations are satisfied in full.
(b) It specifically is agreed to by and between the Parties to
this Agreement that the provisions of this Section 6.6
shall not apply until the Cavion Network is fully
implemented, as shall subsequently be understood and agreed
to by and between the Parties in their reasonable, good
faith business judgment. However and notwithstanding the
foregoing, the provisions of this Section 6.6 shall apply
no earlier than one (1) year from the date of execution of
this Agreement. The Parties further acknowledge that
Cavion's obligations under this Section 6.6 are conditional
upon MoneyLine's substantial compliance with those
obligations under Section 7 that would reasonably be
expected to affect the competitive appeal of MoneyLine's
services to credit unions affiliated with the Cavion
Network.
6.7 Prior to the execution of this Agreement, Cavion shall provide a
complete set of technical specifications as needed for MoneyLine
to complete the on-line mortgage loan application and approval
system described in Section 7.1. A true and correct copy of
said specifications is attached hereto as Exhibit "C" and
incorporated herein by this reference. Cavion's technical
specifications are subject to change, within commercially
reasonable limits and dictated by good faith business
relationships, at Cavion's discretion, upon thirty (30) days
written, advance notice.
6.8 Cavion shall implement an interface with the MoneyLine automatic
lending program described in Section 7.1 which is in sound and
operable condition and sufficient to permit MoneyLine to
commence the operations, including the provision of products and
services, under the terms of this Agreement, within 90 days of
the date of execution of this Agreement. Any failure of Cavion
to comply with the foregoing time requirements, without the
written consent of MoneyLine, which consent shall not be
unreasonably withheld, shall constitute a material breach of
this Agreement.
6.9 Throughout the term of this Agreement, MoneyLine's position on
the Cavion Network, as detailed in this Section, shall not be
altered, changed or modified in a material adverse manner as a
result of any upgrades or modifications to the Cavion Network by
Cavion, or any other party, without MoneyLine's prior written
consent, which consent shall not be unreasonably withheld.
6.10 Subject to the credit union's discretion with respect to any
portion of the Cavion Network co-branded by a credit union,
Cavion shall provide MoneyLine with reasonable assistance in
MoneyLine's efforts to advertise and otherwise solicit for its
products and services, by, without limitation, such methods as
flyers, mail inserts or lobby displays, through the credit
unions connected to the Cavion Network.
6.11 Cavion's sales people shall be trained by MoneyLine, as provided
for in Section 7.13, however, Cavion shall take all reasonably
necessary steps to ensure that its salespeople are appropriately
familiar with and knowledgeable of both MoneyLine, and its
products and services, and the residential, real estate mortgage
business.
7. MONEYLINE'S OBLIGATIONS TO CAVION
7.1 As soon as practicable upon execution of this Agreement, but in
no event later than thirty (30) days from said date, MoneyLine
shall develop and implement an automatic lending format and
program and shall develop an Internet page or pages relative to
its mortgage services, each of which must conform to Cavion's
specifications, as referenced and described in Section 6.7
hereinabove, and each of which must be approved by Cavion prior
to implementation, which approval shall not be unreasonably
withheld.
(a) MoneyLine shall use its commercially reasonable efforts to
ensure that all pages of the MoneyLine Web Site which are
linked, directly or indirectly, to the Cavion Network
comply with the scale, speed and performance equivalent to
that provided on the Cavion home site.
(b) MoneyLine shall operate and maintain the MoneyLine Web Site
so as to keep the MoneyLine Web Site competitive with
similar sites on the Internet, based upon performance,
quality, appearance, and loan terms, and shall, at all
times during the term of this Agreement, use its
commercially reasonable efforts to ensure that the
MoneyLine Web Site is comparable in look and feel and
otherwise compatible with the Cavion Network.
7.2 Those customers who proceed directly to the MoneyLine Web Site
will be provided with a hot link directly to Cavion's Member
Emporium page. Similarly, a User proceeding to the MoneyLine
Web Site through the Cavion Network will be provided with a hot
link directly back to the Cavion or credit union page from which
the User linked to the MoneyLine Web Site. Each page of the
MoneyLine Web Site will contain a textual hot link, in a form to
be approved by Cavion, which consent shall not be unreasonably
withheld, linking a User to the Cavion Network.
7.3 MoneyLine expressly recognizes that any and all advertising on
the Cavion Network is both a source of revenue for Cavion and
vital to its image and relationship with its credit union
members. Accordingly, MoneyLine expressly warrants and
represents that it will not place any advertising or promotion
of any product or service on the MoneyLine Web Site, or permit
any other person or entity to do the same, without Cavion's
advance, written authorization, which authorization shall not be
unreasonably withheld and which shall be based upon reasonable
and good faith business justification and necessity.
(a) MoneyLine will not place an advertisement on the MoneyLine
Web Site or place any type of link on the MoneyLine Web
Site, on any of its pages, relating to or regarding any
competitor of Cavion or any competitor of a client of
Cavion.
(b) MoneyLine will not place any advertisement on the MoneyLine
Web Site for adult, Soldier of Fortune, firearms, sexual,
hate or other violent or sexually oriented web sites.
Moreover, MoneyLine will not advertise on the MoneyLine Web
Site any advertisers blacklisted or censured by the Federal
Trade Commission, Direct Marketing Association, Advertising
Association or any other recognized authority for filtering
Internet content.
(c) The provisions of this Section 7.3 specifically and
expressly apply only to those portions of the MoneyLine Web
Site which are accessible to credit union members through
the Cavion Network.
7.4 MoneyLine covenants and represents that it will associate with
any financial underwriters, or any other service providers,
necessary to fulfill its obligations to Cavion under the terms
and provisions of this Agreement, and that any such association
shall be at MoneyLine's sole cost. Further, upon reasonable
notice from Cavion, in no event to be less than 15 days,
MoneyLine will provide Cavion with written evidence,
satisfactory to Cavion, in its reasonable and good faith
business judgment, of its ability, particularly, but not
necessarily limited to its financial ability, to fulfill its
obligations to Cavion under the terms and provisions of this
Agreement.
7.5 MoneyLine shall provide and host a secure Web site accessible to
Cavion which contains the information relating to a User's
application on or other use of the MoneyLine Web Site described
in the following section.
7.6 MoneyLine will provide Cavion and the credit unions connected to
Cavion's Network with information, in a form to be agreed upon
between MoneyLine and Cavion, in their good-faith, reasonable
business judgement, notice and information regarding the number
and identity of Users, the number of Click-Throughs, and
detailed tracking of applications, including all information in
MoneyLine's possession regarding a User's application on or
other use of the MoneyLine Web Site. Sharing of information
under this Section shall be subject to any regulatory
limitations applicable to MoneyLine.
7.7 MoneyLine will institute such procedures as reasonably are
necessary to coordinate and transact with the individual credit
unions connected to the Cavion Network both in terms of
processing and servicing of residential mortgage loan
applications through MoneyLine.
7.8 Within 90 days of the date of execution of this Agreement,
MoneyLine's Web Site shall provide Users with an on-line, real-
time method of tracking their application and/or loan with
MoneyLine, which shall include e-mail and telephone contact
information for a MoneyLine employee who can provide further
information.
7.9 MoneyLine shall use its commercially reasonable best efforts to
ensure that all transactions between MoneyLine and a User are
accurate, comprehensive and error free.
7.10 MoneyLine shall use its best efforts to ensure that all
information provided to it by Users is maintained, accessed and
transmitted in a secure environment and shall make all
reasonable effort to comply with any security requests or
concerns of Cavion.
7.11 The MoneyLine Content and any updates shall be transmitted to
Cavion in the manner and form specified by Cavion, as set forth
in Exhibit "D" hereto, which is incorporated herein by this
reference.
7.12 MoneyLine will implement a privacy policy in accordance with any
federal or other government or agency requirement in effect
from time to time and, in any event and notwithstanding any
other regulation, MoneyLine will comply with any reasonable
privacy policy implemented by Cavion, provided that Cavion gives
MoneyLine thirty (30) days written notice of any such privacy
policy, or any change thereto.
7.13 Subject to the terms of Section 6.11 hereinabove, MoneyLine will
train Cavion's salespeople with respect to the MoneyLine
Mortgages, the MoneyLine Content and any other pertinent
matters relating to this Agreement. Trainings will occur at
Cavion's field offices, at times to be agreed upon between
MoneyLine and Cavion, in their good-faith, reasonable business
judgement. The Parties will each bear their own expenses of
attending the trainings.
7.14 Within 30 days after execution of this Agreement, MoneyLine
shall provide a complete set of technical specifications as
needed for Cavion to implement the interface with the MoneyLine
host data processing software described in Section 6.8.
MoneyLine's technical specifications are subject to change,
within commercially reasonable limits and dictated by good faith
business relationships, at MoneyLine's discretion, upon thirty
(30) days written, advance notice.
8. MUTUAL OBLIGATIONS OF THE PARTIES
8.1 Each Party shall comply with any intellectual property
guidelines provided by the other Party with respect to the use
of such Party's products and neither Party will alter or impair
any acknowledgment of the other Party's copyright or other
Intellectual Property Rights.
8.2 Cavion will remain solely responsible for the operation of the
Cavion Network, and all related sites, and MoneyLine will remain
solely responsible for the operation of the MoneyLine Web Site.
Each Party, subject to the terms of this Agreement, will retain
sole right and control over the programming, content, and
conduct of transactions over its respective site.
8.3 Each Party shall provide on-going assistance to the other Party
with regard to technical, administrative and service-oriented
issues relating to the terms of this Agreement, and the
execution of the respective obligations and conditions set forth
herein as the Parties, or either of them, reasonably may
request.
9. COMPENSATION
9.1 INITIAL EXCLUSIVITY FEE: In consideration for the obligations
and duties to be performed by Cavion under the terms of this
Agreement, and in consideration and in exchange for the
exclusivity provided for in Section 3.1 of this Agreement,
MoneyLine shall pay to Cavion an Annual Exclusivity Fee payable
as follows:
(a) For Year One (as defined below) of this Agreement, the
Annual Exclusivity Fee to be paid by MoneyLine shall be
$300,000 paid as follows:
(i) $100,000 on September 3,1999
(ii) $200,000 on September 23,1999
(b) In each subsequent year of this Agreement, the Minimum
Annual Exclusivity Fee shall be subject to the following
graduated scale ( and shall be subject to automatic
adjustments as detailed in Section 9.1(c) below):
(i) Year Two: $350,000
(ii) Years Three, Four and Five: $500,000
(iii) Years Six through Ten: $1,000,000
(c) The actual Annual Exclusivity Fee to be paid to Cavion in
each year following the first year of this Agreement shall
be the greater of the Minimum Annual Exclusivity Fee or the
Click-Through Fee, which shall be $0.10 per Click-Through,
as defined in this Agreement.
(i) The Click-Through fee shall be paid by MoneyLine to
Cavion within thirty (30) days of the last day of
each Quarterly Period (as defined below) throughout
the term of this Agreement.
(ii) In the event the Click-Through fees paid in any given
Year are not equal to or greater than the Minimum
Annual Exclusivity Fee, as detailed in Section 9.1(b)
of this Agreement, the difference shall be paid by
MoneyLine to Cavion within thirty (30) days of the
end of such Year.
(d) Cavion, in its sole and unfettered discretion, at any time
during the term of this Agreement may elect to become a
licensed real estate broker in each state where MoneyLine
offers its services. In such event, at Cavion's sole and
unfettered option, in lieu of the Annual Exclusivity Fee
detailed above, from the date of such licensing in each and
every such state throughout the term of this Agreement,
Cavion may elect to be entitled to $50.00 for each loan
generated through the Cavion network or as otherwise
covered by this Agreement (the "Loan Fee"). For this
purpose, any loan to a member of a credit union affiliated
with the Cavion Network is covered by this Agreement.
Cavion may elect to be entitled to the Loan Fee or the
Annual Exclusivity Fee from time to time throughout the
term of this Agreement, but no more frequently than once in
any twelve-month period, and in each case upon at least
sixty (60) days notice.
(i) In the event Cavion elects to become registered as a
real estate broker in accordance with the terms of
the preceding paragraph, prior to electing to receive
the payment described in that paragraph in lieu of
the Annual Exclusivity Fee detailed in Sections
9.1(a), (b) and (c) above, Cavion must present
MoneyLine with evidence of its valid registration as
a real estate broker. For as long as Cavion is
entitled to receive that payment, Cavion must provide
MoneyLine with evidence of any and all renewals of
such licenses during the term of this Agreement and
further must provide MoneyLine with immediate written
notice in the event any license is terminated or
revoked.
(ii) In addition, and in any event, Cavion shall provide
MoneyLine with thirty (30) days written notice of its
election to receive its compensation under this
Agreement pursuant to the terms of Section 9.1(d).
(iii) Regardless of any registration by Cavion as a real
estate broker, MoneyLine shall maintain the
exclusivity provided for in this Agreement for the
entire term of this Agreement and at no time shall
Cavion become a competitor of MoneyLine in the
provision of residential real estate mortgage
services.
(e) For purposes of calculating the Annual Exclusivity Fee
detailed above, "Year One" of this Agreement shall be the
twelve-month period beginning on the first day of the month
in which the interface with the MoneyLine Web Site
described in Section 6.8 is completed, but in no event
later than January 1, 2000 (the "Implementation Date"), and
each Year of this Agreement shall be the twelve-month
period following the preceding Year. The first "Quarterly
Period" shall be the three-month period beginning on the
first anniversary of the Implementation Date, and each
Quarterly Period of this Agreement shall be the three-month
period following the preceding Quarterly Period.
9.2 The compensation detailed in Section 9.1 of this Agreement
expressly is contingent upon the conditions described in this
Section 9.2, in order to reflect the continued growth and
vitality of Cavion during the term of this Agreement. In the
event Cavion has not signed and connected to its network either
1,500 credit unions or 12% of United States credit unions by the
end of the third Year of this Agreement, the Minimum Annual
Exclusivity Fee shall thereafter be reduced proportionately and
such adjustment shall continue for so long as Cavion does not
have either 1,500 credit unions or 12% of United States credit
unions signed and connected to its network.
9.3 It is expressly understood and agreed by and between the
Parties, and each of them, that the Annual Exclusivity Fee
referenced in Section 9.1 of this Agreement is a fee negotiated
between the Parties without reference, in any manner or form, to
the number or amount of loan applications taken or loans
originated by MoneyLine in connection with this Agreement.
10. AUDIT RIGHTS
10.1 Cavion shall have the right, at its own expense, to direct an
independent certified public accounting firm to inspect and
audit the books and records of MoneyLine which, in the sole and
unfettered judgment of the certified public accounting firm, are
relevant to the payments by MoneyLine to Cavion set forth in
Section 9 of this Agreement, provided, however, that:
(a) MoneyLine shall be provided with not less than thirty (30)
days notice of any such audit;
(b) any such audit shall be conducted during MoneyLine's normal
and regular business hours and shall be conducted in such a
manner so as to minimize interference with MoneyLine's
normal business activities;
(c) in no event shall Cavion call for audits any more
frequently than one (1) per calendar year, unless an
underpayment by MoneyLine of more than ten percent 10 % for
any calendar quarter, in which case Cavion shall be
entitled to call for one (1) audit each calendar quarter,
not to exceed a total of four (4) audits per calendar year,
for a period of two (2) years after such underpayment is
revealed by an audit report prepared by an independent
certified public accounting firm;
(d) in the event an audit reveals an underpayment by MoneyLine
of more than ten percent 10% for any calendar quarter,
MoneyLine shall be required to reimburse Cavion for the
reasonable and actual costs of such an audit; and
(e) in the event any audit reveals an overpayment by MoneyLine,
MoneyLine shall be entitled to offset such amounts against
any further payments due to Cavion under the terms of this
Agreement, and , in the event no such future payments are
due, to have such amounts refunded by Cavion in a prompt
manner.
11. ADVERTISING REVENUE
11.1 Cavion shall have the sole and exclusive right to sell, license
or otherwise dispose of all advertising and promotional rights
with respect to the Cavion Network, and all pageviews on the
Cavion Network.
12. PAYMENT INFORMATION
12.1 All payments made hereunder are non-refundable and non-
creditable, except as is provided in for in Section 9
hereinabove, and shall be made by wire transfer pursuant to the
wire instructions set forth in Exhibit "E" hereto, which is
incorporated herein by this reference.
12.2 Any portion of the payments required to be made under the terms
of this Agreement not paid on the date or dates provided for
herein shall bear interest at the lesser of (i) eight percent
(8%) per month or (ii) the maximum amount allowed by law.
12.3 Notwithstanding any other provision of this Agreement, any
failure of MoneyLine to make any of the payments called for
under the terms of this Agreement within thirty (30) days of the
date or dates provided for herein shall constitute a material
breach of this Agreement.
13. OWNERSHIP
13.1 The Parties hereto agree and understand that they will jointly
own, equally and without distinction, any and all information
collected as a result of the collaboration between the Parties
hereto contemplated by this Agreement. Accordingly, neither
Party will make any claim to or from the other Party with
respect to any revenues or products derived from such data
unless otherwise agreed to by the Parties in writing.
13.2 Cavion and other parties with which Cavion has a business
relationship own or license all Intellectual Property Rights in
the Cavion Content and the Cavion Symbols. MoneyLine owns or
licenses all Intellectual Property Rights in the MoneyLine
Content and the MoneyLine Symbols. Neither Party will acquire
any rights to Intellectual Property Rights of the other by
virtue of this Agreement, except as specifically stated in
Section 2.
14. TERM
14.1 This Agreement shall have a term, commencing on the date first
set forth hereinabove, and continuing thereafter for a period of
ten (10) years, with a subsequent renewal for ten (10) years
upon mutual agreement.
(a) In the event of a renewal of this Agreement, the Annual
Exclusivity Fee to be paid shall be as mutually agreed.
(b) If within one year prior to the expiration of the initial
term of this Agreement, Cavion has received an offer from a
competitor of MoneyLine to be the exclusive Cavion approved
and recommended on-line residential mortgage lender, and
Cavion intends to accept such offer rather than renew this
Agreement, MoneyLine shall have a first right to match such
offer under this Section 14.1(b). Cavion shall give notice
(the "Refusal Notice") to MoneyLine, specifying all
material information about the proposed transaction,
including the identity of the proposed lender and all
material terms of the proposed transaction. If MoneyLine
does not, within 30 days after the Refusal Notice, offer to
Cavion a transaction that matches the proposed transaction
in all material respects, Cavion may enter into the
proposed transaction upon expiration of this Agreement.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 In order to implement the operation of this Agreement, the
Parties hereto jointly and severally represent, warrant,
covenant, agree and consent as follows:
(a) The execution, delivery and performance of this Agreement,
in the time and manner herein specified, will not conflict
with, result in a breach of, or constitute a default under
any existing agreement, indenture, or other instrument to
which either Party to this Agreement is a party or by which
either Party may be bound or affected or any government
order or decree to which they are subject;
(b) Both Parties hereto have full legal authority to enter into
this Agreement and to perform the same in the time and
manner contemplated;
(c) This Agreement has been submitted to, ratified and approved
by the respective Board of Directors of Cavion and
MoneyLine;
(d) Each of the Parties warrants and represents that it will
cooperate with the other Party, and promptly will provide
the other Party with all pertinent materials and requested
information in order for such Party to perform its
obligations under this Agreement;
(e) Each of the Parties, at all times during the term of this
Agreement, shall have all the licenses and approvals
necessary to enter into and perform under this Agreement
and specifically to grant the licenses contained herein;
(f) MoneyLine warrants and represents that it is, and at all
times during the term of this Agreement will be, in
compliance with any and all applicable laws, rules and
regulations of any jurisdiction applicable to its business
activities, including, without limitation, the Federal Real
Estate Settlement Procedures Act of 1974 and HUD
Regulation X promulgated thereunder, the Federal Equal
Credit Opportunity Act, and Federal Reserve Regulation B,
the Federal Truth in Lending Act and Federal Reserve
Regulation Z promulgated thereunder, the Fair Credit
Reporting Act, and all federal, state and local privacy
laws, rules and regulations and any other applicable laws
of any jurisdiction applicable to MoneyLine's business
activities now in effect or which may come into effect
during the term of this Agreement.
(g) MoneyLine represents and warrants that its program and
materials are substantially free from programming errors or
viruses and will produce results in response to a User's
inquiries which are accurate, comprehensive and error-free.
MoneyLine further represents and warrants that its program
and materials will accurately process date data from, into
and between the twentieth and twenty-first centuries, and
the years 1999 and 2000, including leap year data, provided
that all other products used in combination with the
MoneyLine program and materials properly exchange date data
with them. MoneyLine further represents and warrants that
all User information will be obtained, maintained and
distributed in a secure environment.
16. INDEMNIFICATION
16.1 MoneyLine, at its own expense, will indemnify, defend and hold
harmless Cavion, its affiliates, employees, representatives, or
agents, against any claim, suit, action or other proceeding
brought against Cavion based on or arising from a claim (a)
that, if true, would constitute a breach of warranties and
representations set forth in Section 15 hereinabove, or (b) that
the MoneyLine Content or any material, product, information,
data or service produced, distributed, offered or provided by
MoneyLine or any material presented on any site on the Internet
produced, maintained, or published by MoneyLine infringes, in
any manner, any copyright, patent, trademark, trade secret or
any other intellectual property right of any third party, is or
contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or
regulation, is negligently performed, or otherwise breaches or
violates any duty toward, or the rights of any person or
personality, or otherwise has resulted in any consumer fraud,
product liability, tort, breach of contract, injury, damage or
harm of any kind to any person or entity, and also including any
claim relating to any mortgage loan approval or mortgage
application provided by MoneyLine.
16.2 Cavion, at its own expense, will indemnify, defend and hold
harmless MoneyLine and its employees, representatives, agents
and affiliates, against any claim, suit, action, or other
proceeding brought against MoneyLine based on or arising from a
claim (a) that, if true, would constitute a breach of warranties
and representations set forth in Section 15 hereinabove, or (b)
that the Cavion Content or any material, product, information,
data or service produced, distributed, offered or provided by
Cavion or any material presented on any site on the Internet
produced, maintained, or published by Cavion infringes, in any
manner, any copyright, patent, trademark, trade secret or any
other intellectual property right of any third party, is or
contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or
regulation, is negligently performed, or otherwise breaches or
violates any duty toward, or the rights of any person or
personality, or otherwise has resulted in any consumer fraud,
product liability, tort, breach of contract, injury, damage or
harm of any kind to any person or entity.
16.3 Any indemnification under this Section 16 is subject to the
conditions that (a) the indemnified party provides the
indemnifying party with prompt notice of any such claim, (b) the
indemnified party permits the indemnifying party to assume and
control the defense of such action, with counsel to be selected
by the indemnifying party, and (c) no settlement or compromise
of such a claim shall be entered into without the prior written
consent of any Party that would be bound by or required to make
a payment under such settlement, which consent shall be
unreasonably withheld. Upon the indemnifying party's written
notice, the indemnified party will provide to the indemnifying
party all available information and such reasonable assistance
as may be necessary for the indemnifying party to defend such
claim.
17. LIMITATION OF LIABILITY
17.1 EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 16 OF THIS
AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MONEYLINE, CAVION, OR
ANY AFFILIATE OF EITHER MONEYLINE OR CAVION BE LIABLE TO ANY
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH
SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF REVENUES,
ANTICIPATED PROFITS OR LOST PROFITS.
18. PUBLIC ANNOUNCEMENTS
18.1 Neither Party shall make any public announcement regarding this
Agreement or the relationship between the Parties set forth
herein without the express, prior written consent of the other
Party. However, it is understood that Cavion is required to file
this Agreement as a public document with the Securities and
Exchange Commission.
19. CONFIDENTIALITY
19.1 Except as may be agreed between the Parties with respect to a
public announcement, neither Party shall disclose to any third-
party either the existence of this Agreement, or the terms
hereof, without the prior written consent of the other Party,
except as may be required by law.
19.2 The Parties hereto have entered into a Mutual Nondisclosure
Agreement to protect the confidential and/or proprietary
information of both Parties during the term of this Agreement, a
true and correct copy of which is attached hereto as Exhibit F
and incorporated herein by this reference.
20. INSURANCE
20.1 MoneyLine agrees that it will maintain insurance with a carrier
that is reasonably acceptable to Cavion and with coverage for
commercial general liability of at least two million dollars
($2,000,000) per occurrence for Year One of this Agreement, and
thereafter at least five million dollars ($5,000,000) per
occurrence, or such larger amount as is commercially reasonable
for a residential real estate mortgage lender of MoneyLine's
size. Prior to the launch of the MoneyLine Content on the Cavion
Network, MoneyLine shall obtain and thereafter maintain coverage
for errors and omissions of at least two million dollars
($2,000,000) per occurrence for Year One of this Agreement, and
thereafter at least five million dollars ($5,000,000) per
occurrence, or such larger amount as is commercially reasonable
for a residential real estate mortgage lender of MoneyLine's
size. MoneyLine will name Cavion as an additional insured on
each such insurance policy, and will provide evidence of such
insurance to Cavion prior to the launch of the MoneyLine Content
on the Cavion Network. MoneyLine shall not cancel or modify such
insurance without Cavion's prior written consent and such
insurance shall remain in effect after the termination hereof.
MoneyLine shall not be obligated to continue to name Cavion as
an additional insured after the expiration of this Agreement,
except to the extent that (i) a claim or potential claim is
pending at the time of such termination, or (ii) Cavion is
required under this Agreement to maintain any link to the
MoneyLine Web Site after such expiration.
21. TERMINATION
21.1 Unless otherwise expressly provided for in this Agreement, this
Agreement may be terminated by either Party if the other Party:
(a) files a petition in bankruptcy, or an insolvency filing
against the other party is not dismissed within 60 days;
(b) makes an assignment for the benefit of its creditors;
(c) is subject to a receivership; or
(d) materially breaches any of its obligations under this
Agreement provided that such material breach is not
remedied within ninety (90) days, or in the case of an
obligation to make any payment within ten (10) days, after
notice thereof.
21.2 Any termination pursuant to this Section shall be without
liability or obligation of the terminating Party, except as with
respect to any breach of this Agreement occurring prior to the
termination.
21.3 The provisions of Sections 9.1, 10, 12, 13 and 15 through 22,
inclusive, of this Agreement, shall survive any termination of
this Agreement, or this Agreement's expiration.
22. MISCELLANEOUS
22.1 NOTICES.
(a) All notices and other communications made pursuant to this
Agreement shall be in writing and shall be deemed to have
been given upon receipt by (1) personal delivery, (2)
receipted courier service, or (3) certified or registered
mail, return receipt requested, addressed as shown below.
Refusal to accept delivery shall be deemed receipt. All
notices shall be directed to the following addresses:
(i) If to MoneyLine:
MoneyLine America, LLC
38350 Fremont Blvd., Suite 200
Fremont, CA 94536
Attn: Shamim Ritter
(ii) If to Cavion:
cavion.com
7475 Dakin Street, Suite 607
Denver, CO 80221
Attn: David J. Selina, President and CEO
(b) Any Party hereto may change the address to which notices
shall be directed under this by giving written notice of
such change to the other Party.
22.2 WAIVERS. The rights and remedies under this Agreement shall be
cumulative and not exclusive of any rights or remedies which the
Parties hereto otherwise would have. No failure or delay in
exercising any right shall operate as waiver of such right. Any
waiver or indulgence granted shall not constitute a modification
of this Agreement, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at
variance with the terms of the Agreement such as to require
further notice of the intent to require strict adherence to the
terms of the Agreement in the future. Any such actions shall
not, in any way, affect the ability of the Parties, in their
sole discretion, to exercise any rights available to them under
this Agreement.
22.3 GOVERNING LAW; BINDING EFFECT. This Agreement and each of the
other documents attached hereto or contemplated hereby shall be
deemed to have been made in Denver, Colorado, and shall be
interpreted, and the rights and liabilities of the Parties
hereto shall for all purposes be governed by and construed and
enforced without giving effect to the principles of conflicts of
laws, in accordance with the laws of the State of Colorado
applicable to agreements executed, delivered and performed
within such State. In the event of any controversy arising out
of the interpretation, construction, performance or breach of
this Agreement, the Parties hereby consent to the jurisdiction
and venue of the United States District Court for the District
of Colorado, and further agree and consent that personal service
or process in any such action or proceeding outside of the State
of Colorado, and outside Denver County, Colorado shall be
tantamount to service in person within Denver County, Colorado
and shall confer personal jurisdiction and venue upon said
Court.
22.4 TRANSFER. In the event either Party, or any part thereof,
including any products, affiliates, divisions or subsidiaries,
to this Agreement is sold, transferred or acquired by any other
person or entity, the respective rights and obligations of the
Party being sold, transferred or acquired pursuant to this
Agreement shall transfer to the acquiring party, and each Party
to this Agreement hereby agrees and warrants that, in the event
of any sale, transfer or acquisition, such Party will ensure
that the rights and obligations of this Agreement duly are
transferred pursuant to such sale, transfer or acquisition. This
Agreement may not otherwise be assigned without the prior
written consent of the non-assigning party, which shall not be
unreasonably withheld.
22.5 HEADINGS. The headings used in this Agreement are for
convenience only and shall not be used in connection with the
interpretation of any provision hereof.
22.6 AMENDMENT AND WAIVER. Neither this Agreement nor any term
hereof may be amended orally, nor may any provision hereof be
waived orally, but rather, only by a written instrument signed
by each of the Parties hereto.
22.7 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement and the other documents described or
contemplated herein embody the entire agreement and
understanding among the Parties hereto and supersede all prior
agreements and understandings relating to the subject matter
hereof.
22.8 DRAFTING PARTY. This Agreement expresses the mutual intent of
the Buyer and Seller. Accordingly, regardless of the Party
preparing any document, the rule of construction against the
drafting Party shall have no application to this Agreement.
22.9 FACSIMILE SIGNATURE / COUNTERPARTS. Facsimile signatures on
this document shall be sufficient and acceptable to bind the
parties and for execution of this Agreement. This Agreement
shall be effective and binding only when executed by all Parties
hereto. This Agreement may be executed in counterparts by
facsimile, each of which so executed shall be deemed an original
and constitute one and the same agreement,
22.10 Dominant Agreement. This Agreement shall be construed, in all
relevant manners, to be the dominant agreement between the
Parties relevant to the subject matter hereto and shall be
severed from any contrary provision, or any provision deemed
void or otherwise unenforceable, of any Exhibit or other
document incorporated herein.
22.11 Disputes. In the event of any dispute under this Contract, the
Party claiming a dispute will give notice to the other Party
describing the dispute. Both Parties will make good faith
efforts to resolve the dispute informally. If the dispute has
not been resolved within 30 days after the notice, either Party
may, upon notice to the other, submit the dispute to mediation
in Denver, Colorado, before a mutually acceptable mediator. If
the Parties are unable to agree upon a mediator, either Party
may request the appointment of a mediator by any established
dispute resolution organization. If mediation is not successful
within 90 days or if either Party will not submit to mediation,
either Party may, upon notice to the other, submit the dispute
to binding arbitration in Denver, Colorado, in accordance with
the rules of any established dispute resolution organization, by
a single arbitrator. The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, and
judgment upon the award may be entered by any court of competent
jurisdiction. The arbitrator will not be empowered to award
damages in excess of actual damages, but will be empowered, but
not required, to require any Party to pay the reasonable
attorney fees, expert witness fees, and other arbitration costs
of any other Party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
or caused it to be executed by their duly authorized officers as of the
day and year first above written.
MONEYLINE AMERICA, LLC CAVION TECHNOLOGIES, INC.
By:/s/Shamin S. Ritter By:/s/David J. Selina
Shamim S. Ritter David J. Selina
Title: President Title:
President/Chief
Executive Officer
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) in this Registration Statement
on Form SB-2 dated September 17, 1999.
/s/ Arthur Andersen LLP
Denver, Colorado,
September 16, 1999.
