Bridge Loan Agreement - Cavion Technologies Inc., British Far East Holdings Ltd. and Fairway Realty Associates
BRIDGE LOAN AGREEMENT
This Bridge Loan Agreement is made as of May 28, 1998 between Cavion
Technologies, Inc., a Colorado corporation formerly known as Sigmacom
Corporation (the "Company"), and the investors listed on the SCHEDULE OF
INVESTORS attached hereto (the "Investors").
Pursuant to the Investment Agreement dated as of August 1, 1996, the
Investors (together with the William M. B. Berger Living Trust) provided
letters of credit and certificates of deposit as security for the
Company's credit facility with US Bank, formerly known as Colorado
National Bank, and received stock in the Company. The Investors also were
granted additional rights with respect to the Company and its other
shareholders under the Investment Agreement, a Put Agreement between the
Company and the Investors, a Share Escrow Agreement between the Company,
the Investors, and Norwest Bank Colorado (as escrow agent), and a
Subordination Agreement between the Company and its other shareholders
(the "Shareholder Subordination Agreement"), each of which was dated as of
August 1, 1996.
Management of the Company is now investigating the potential for a
new equity investment or sale of the Company, but will not be able to
complete any such transaction without an immediate infusion of short-term
working capital. In order to provide for this need, the Investors and the
Company are now entering into a bridge loan in the aggregate amount of
$150,000, and related transactions, on the terms of this Agreement.
The Company is also anticipating possible additional bridge loans
aggregating $150,000 or less by certain other persons identified in the
SCHEDULE OF POSSIBLE ADDITIONAL INVESTORS (the "Additional Investors")
attached hereto and possible further bridge loans by others who are
presently shareholders of the Company (the "Other Shareholder Investors")
in the amount of not more than $50,000 for each such Other Shareholder
Investor (in each case, with the purchase of nonvoting shares with put).
There is no assurance that any Additional Investor or any Other
Shareholder Investor will make any such additional bridge loan, and the
obligations of the Company and the Investors under this Bridge Loan and
the instruments and agreements contemplated herein are not conditioned
upon the making of any such additional bridge loan.
In consideration of the mutual covenants contained in this Agreement,
it is agreed as follows:
1. INITIAL BRIDGE TRANSACTION. Concurrently with execution of this
Agreement, each Investor will deliver to the Company funds equal to
the "Loan Amount" listed on the Schedule of Investors, plus (as
consideration for purchase of the Shares) funds equal to $0.01 times
the "Share Amount" listed on the Schedule of Investors. Upon receipt
of the funds, the Company will issue to each Investor:
(a) a Senior Promissory Note in the form attached as EXHIBIT A
(which, with any notes on substantially the same terms that may
be issued to any or all of the Additional Investors or the Other
Shareholder Investors under bridge loan agreements on
substantially the same terms as contained in this Agreement, are
herein called the "Senior Notes"), in a principal amount equal
to the "Loan Amount" listed on the Schedule of Investors;
(b) a number of shares of the nonvoting common stock, par value
$0.01 per share, of the Company (the "Shares") equal to the
"Share Amount" listed on the Schedule of Investors; and
(c) a Put Agreement in the form attached as EXHIBIT B.
2. ADDITIONAL BRIDGE TRANSACTION. Each Investor acknowledges and agrees
that one or more or all of the Additional Investors and of the Other
Shareholder Investors may participate in additional bridge loans to
the Company (and the purchase of nonvoting shares with put) on terms
essentially equivalent to those herein extended to the Investors.
3. SUBORDINATION.
(a) All indebtedness of the Company to the Investors, and all other
rights of the Investors under the Investment Agreement, the Put
Agreement, the Share Escrow Agreement, and the Shareholder
Subordination Agreement (collectively the "1996 Rights"), are
hereby made subordinate and junior to the Senior Indebtedness
(as defined below). Upon
(1) any distribution of all or substantially all of the assets
of the Company, or
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property, or
securities, to creditors in connection with any
dissolution, winding-up, total or partial liquidation or
reorganization of the Company,
all principal and interest due or to become due upon all Senior
Indebtedness will first be paid in full before any Investor will be
entitled to receive any payments or retain any assets so paid or
distributed with respect to the 1996 Rights; and the Investors irrevocably
authorize and direct the Company to effect all payments required by this
sentence.
(b) For purposes of this Agreement, "Senior Indebtedness" means all
principal, premium, interest, costs and other amounts due in
respect of the Senior Notes (and all renewals, extensions,
refundings, refinancings and replacements of such obligations).
(c) Nothing in this Agreement will impair the Company's obligation
to any Investor to pay such Investor in accordance with the
terms of the 1996 Rights. No claim or right of any Investor is
subordinated hereby to any claim against the Company by any
other person except to the extent expressly provided in this
Agreement.
(d) The provisions of this section will terminate upon payment to
the holder of each Senior Note of an amount equal to the
principal amount of each Senior Note.
4. COMPANY'S REPRESENTATIONS AND COVENANT. The Company represents,
warrants and covenants to each Investor as follows:
(a) the Company has entered into the bridge transaction after
careful consideration of all alternatives;
(b) the Company is aware of the potential return to the Investors
pursuant to the bridge transaction, and acknowledges that the
amount of the potential return to the Investors appropriately
reflects the risk inherent in the bridge transaction; and
(c) the Company hereby covenants not to assert a defense of usury to
any action by an Investor to collect any amount due under a
Senior Note or the Put Agreement.
5. INVESTORS' REPRESENTATIONS. Each Investor represents and warrants to
the Company as follows:
(a) the Investor is an "accredited investor" within the meaning of
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act");
(b) the Investor is acquiring the Shares for its own account for
purposes of investment, and not with a view toward the sale or other
distribution thereof,
(c) the Investor has received or had access to all information it
deems necessary to make a judgment with respect to the acquisition of the
Shares, including the opportunity to ask questions of and discuss the
Company's business with management of the Company;
(d) the Investor understands that the Shares must be held
indefinitely unless registered under the Securities Act or unless an
exemption from registration exists, that no public market now exists for
the Shares, and that there may never exist a public market for the Shares;
and
(e) the Investor understands that the Shares have not been
registered under the Securities Act (on the ground that the sale of the
Shares is exempt from registration as not involving a public offering),
and that the reliance of the Company on such exemption is based upon the
representations made in this section.
6. RESTRICTED SECURITIES. The Shares have not been registered under the
Securities Act or any state securities law, and are not transferable
except pursuant to
(a) a public offering registered under the Securities Act, or
(b) subject to the conditions specified in the following subsection,
Rule 144 of the Securities and Exchange Commission (if
available), or any other legally available means of transfer.
In connection with the transfer of any Shares (except in a registered
public offering), the Investor shall deliver to the Company written
notice describing the proposed transfer in reasonable detail,
together with an opinion of counsel which (to the Company's
reasonable satisfaction) is knowledgeable in securities law matters,
to the effect that such transfer may be effected without registration
or qualification of such Shares under the Securities Act or
applicable state securities laws. The Investor shall not transfer
the certificates representing the Shares until the transferee has
confirmed to the Company in writing its agreement to be bound by the
conditions contained in this section. Any person acquiring any
securities of the Company from any Investor shall, upon acquiring
such securities, become bound by the terms of this Agreement, and the
transfer of such securities shall not be made on the books of the
Company until a copy of this Agreement has been executed by such
person. Failure or refusal of the transferee to sign this Agreement
shall not relieve such person from any obligations under this
Agreement.
7. NOTICES. All notices under this Agreement will be in writing and
deemed given upon receipt, by (1) personal delivery, (2)
telephonically confirmed fax, (3) receipted courier service or (4)
certified or registered mail, return receipt requested, addressed to
the principal office of the Company (if to the Company), or to the
address shown on the shareholder records of the Company (if to an
Investor). Refusal to accept delivery will be deemed receipt.
8. GENERAL. This Agreement will be governed by the laws of the State of
Delaware. This Agreement will be binding upon the personal
representatives, successors and assigns of the parties hereto, but
will not be assignable without the prior written consent of the non-
assigning party. This Agreement constitutes the entire agreement
between the parties and may not be waived or modified except in
writing. This Agreement may be executed in any number of
counterparts, each of which will be an original and all of which
together will be one instrument. The headings used in this Agreement
are for convenience only and will not affect the interpretation
hereof.
[Signatures follow.]
IN WITNESS WHEREOF, the parties have executed this Bridge Loan
Agreement as of the date first set forth above.
CAVION TECHNOLOGIES, INC. BRITISH FAR EAST HOLDINGS LTD.
By: /s/ Craig E. Lassen By:/s/Arthur Lipper
Craig E. Lassen Arthur Lipper III
Chairman and Chief Chairman
Executive Officer
FAIRWAY REALTY ASSOCIATES
/s/ Martin Cooper /s/Robert Ingenito
MARTIN COOPER, individually Robert Ingenito
General Partner
By:/s/John DiNozzi
John DiNozzi
General Partner
SCHEDULE TO
BRIDGE LOAN AGREEMENT
SCHEDULE OF INVESTORS
NAME AND ADDRESS SHARE LOAN
AMOUNT AMOUNT
British Far East Holdings Ltd. 5,509 50,000
Tax id no: 13 359 1950
14911 Caminito Ladera
Del Mar, CA 92014-3929
Attn: Arthur Lipper III, Chairman
Fax: 619-793-7199
Voice: 619-793-7100
Martin Cooper 5,509 50,000
Tax id no: 34 120 4626
100 Via de la Valle
Del Mar, CA 92014
Fax: 619-481-2322
Voice: 619-481-2700
Fairway Realty Associates 5,509 50,000
Tax id no: 11 307 0403
c/o Access Direct Systems, Inc.
91 Executive Boulevard
Farmingdale, NY 11735-4713
Attn: Ronald J. Palumberi, Director of Finance
Fax: 516-420-1647
Voice: 516-420-0770 x.203
SCHEDULE TO
BRIDGE LOAN AGREEMENT
SCHEDULE OF POSSIBLE ADDITIONAL INVESTORS
SHARING UP TO $150,000 IN LOAN PRINCIPAL AND
16,527 SHARES AMONG THEM
Craig E. Lassen
2218 Elm Street
Denver, CO 80207
David J. Selina
5523 South Jasper Way
Aurora, CO 80015
Jeff Marshall
6198 South Killarney Dr.
Aurora, CO 80016
Randal W. Burtis
1665 Logan #944
Denver, CO 80203
EXHIBIT A TO
BRIDGE LOAN AGREEMENT
CAVION TECHNOLOGIES, INC.
-------------------------
SENIOR PROMISSORY NOTE
$50,000 May 28, 1998
Cavion Technologies, Inc., a Colorado corporation ("Maker"), hereby
promises to pay to ----------------------------------------- ("Holder"),
at --------------------------------------------- or at such other address
as may be specified by Holder, the principal sum of Fifty Thousand Dollars
($50,000), together with interest as described below, in lawful money of
the United States of America.
The principal indebtedness evidenced by this Note shall earn interest
at the rate of forty-two percent (42%) per annum. Principal and interest
shall be paid in three monthly installments of $20,479.51 each, commencing
on November 1, 1998, and continuing on the first day of each of the
subsequent three months, with the entire balance of principal and accrued
interest being due and payable on January 1, 1999.
This Note may be prepaid in full, but not in part, at any time,
subject to a prepayment penalty equal to the difference obtained by
subtracting (1) all amounts paid on this Note to and including the
prepayment from (2) all amounts that would have been paid on this Note had
payment been made only as and when scheduled in the preceding sentence.
Upon failure of Maker to pay any installment in full when due, Holder
may, by notice to Maker, accelerate the obligation of Maker to pay the
entire balance of this Note, and upon such acceleration there shall be due
to Holder such amount as would be due if the Note had been prepaid in
accordance with the preceding paragraph on the date notice of acceleration
was given by Holder.
The principal amount of this Note is "Senior Indebtedness" as defined
in the Bridge Loan Agreement dated the date hereof among Maker, Holder and
certain other investors in Maker.
This Note is registered on the books of Maker and is transferable
only by surrender thereof at the principal office of Maker, duly endorsed
or accompanied by a written instrument of transfer executed by the
registered Holder of this Note. Payment of or on account of principal and
interest on this Note shall be made only to or upon the order in writing
of the registered Holder.
The provisions of this Note and of all agreements now or hereafter
existing between Maker and Holder are hereby expressly limited so that in
no event whatever shall the amount paid or agreed to be paid to Holder for
the use, forbearance or detention of the sums evidenced by this Note
exceed the maximum amount permissible under applicable law. If from any
circumstance whatever the performance or fulfillment of any provision of
this Note, or of any other agreement between Maker and Holder, should
involve or purport to require any payment in excess of the limit
prescribed by law, then the obligation to be performed or fulfilled is
hereby reduced to the limit of such validity, and if from any circumstance
whatever Holder should ever receive as interest an amount which would
exceed the highest lawful rate, then the amount which would be excessive
interest shall be applied to the reduction of principal (or, at Maker's
option, be paid over to Maker) and shall not be counted as interest.
Maker hereby waives presentment, protest, demand or notice of any
kind in connection with any failure to pay when due the indebtedness
evidenced by this Note. If Maker fails to pay the indebtedness when due,
Maker agrees to pay Holder's reasonable legal fees and expenses incurred
in connection with the enforcement of this Note.
Regardless of the place of its execution, this Note shall be
construed in accordance with the laws of the State of Delaware.
CAVION TECHNOLOGIES, INC.,
a Colorado corporation
By:----------------------------------
Craig E. Lassen, Chairman and CEO
EXHIBIT B
TO
BRIDGE LOAN AGREEMENT
PUT AGREEMENT
This Put Agreement is made as of May 28, 1998 between Cavion
Technologies, Inc., a Colorado corporation (the "Company"), and the
investors listed on the signature pages hereof (the "Investors").
The Investors have purchased from the Company an aggregate of 16,527
shares of the nonvoting common stock, par value $0.01 per share, of the
Company (the "Shares"), pursuant to the Bridge Loan Agreement between the
Investors and the Company dated the date hereof (the "Bridge Loan
Agreement"). As a condition of the purchase, the Company has agreed to
grant the Investors an option to sell all or part of the Shares to the
Company on the terms of this Agreement. In consideration of the Bridge
Loan Agreement, and for other valuable consideration, it is agreed as
follows:
1 GRANT OF PUT. The Company grants to each Investor an option (the
"Put"), subject to the conditions of this Agreement, to sell to the
Company all or part of the Shares held by such Investor during the
Exercise Period (as defined below), at a price of $7.00 per share (as
adjusted pursuant to section 4).
2 EXERCISE OF PUT.
(a) The Put shall be exercisable only by giving notice of exercise
to the Company during a 60-day period beginning on January 1, 1999 (the
"Exercise Period"), specifying the number of shares as to which the Put is
exercised. If not exercised within the Exercise Period, the Put shall
expire at 5:00 Denver, Colorado time on the last day of the Exercise
Period.
(b) Within 60 days after the end of the Exercise Period, the Company
shall tender payment in full for the shares as to which the Put is
exercised (plus any accumulated but unpaid dividends), in immediately
available funds, against delivery to the principal offices of the Company
of certificates representing the shares, accompanied by executed stock
powers in proper form for transfer, free and clear of all liens, claims,
and encumbrances.
3 TERMINATION. The Put shall terminate upon completion of the
transactions described in the preceding section.
4 ADJUSTMENT. In the event of any recapitalization, stock split,
combination of shares, or stock dividend, any shares into which the Shares
are converted shall be subject to the Put, and appropriate adjustment
shall be made in the purchase price of the Put.
5 Notices. All notices under this Agreement shall be in writing and
deemed given upon receipt, by (1) personal delivery, (2) telephonically
confirmed fax, receipted courier service or (4) certified or registered
mail, return receipt requested, addressed to the principal office of the
Company (if to the Company), or to the address shown on the shareholder
records of the Company (if to an Investor). Refusal to accept delivery
shall be deemed receipt.
6 GENERAL. This Agreement shall be governed by the laws of the State
of Delaware. This Agreement shall be binding upon the personal
representatives, successors and assigns of the parties hereto, but shall
not be assignable without the prior written consent of the non-assigning
party. This Agreement constitutes the entire agreement between the
parties and may not be waived or modified except in writing. This
Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which together shall be one instrument.
The headings used in this Agreement are for convenience only and shall not
affect the interpretation hereof.
[Signatures follow.]
IN WITNESS WHEREOF, the parties have executed this Put Agreement as
of the date first written above.
CAVION TECHNOLOGIES, INC. BRITISH FAR EAST HOLDINGS LTD.
By: /s/ Craig E. Lassen By:/s/Arthur Lipper
Craig E. Lassen Arthur Lipper III
Chairman and Chief Chairman
Executive Officer
FAIRWAY REALTY ASSOCIATES
/s/ Martin Cooper By:/s/Robert Ingenito
MARTIN COOPER, individually Robert Ingenito
General Partner
By:/s/John DiNozzi
John DiNozzi
General Partner