EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of July 21,
2000, by and among Cavion Technologies, Inc., a corporation incorporated
under the laws of Colorado (the "Company"), Mothlake International Limited
("Purchaser"), and Epstein Becker & Green, P.C., having an address at 250
Park Avenue, New York, NY 10177 (the "Escrow Agent"). Capitalized terms
used but not defined herein shall have the meanings set forth in the
Common Stock Purchase Agreement referred to in the first recital.
WHEREAS, the Purchaser will from time to time as requested by
the Company, purchase shares of the Company's Common Stock from the
Company as set forth in that certain Common Stock Purchase Agreement (the
"Purchase Agreement") dated the date hereof between the Purchaser and the
Company, which will be issued as per the terms and conditions contained
herein and in the Purchase Agreement; and
WHEREAS, the Company and the Purchaser have requested that the
Escrow Agent hold in escrow and then distribute the initial documents and
certain funds which are conditions precedent to the effectiveness of the
Purchase Agreement, and have further requested that upon each exercise of
a Draw Down, the Escrow Agent hold the relevant documents and the
applicable purchase price pending receipt by Purchaser of certificates
representing the securities issuable upon such Draw Down;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged and
intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW FOR THE INITIAL CLOSING
1.1. The parties hereby agree to establish an escrow account
with the Escrow Agent whereby the Escrow Agent shall hold the funds and
documents which are referenced in Section 5.2 of the Purchase Agreement.
1.2. At the Closing, the Company shall deliver to the Escrow
Agent:
(i) the original executed Registration Rights Agreement in
the form of Exhibit A to the Purchase Agreement;
(ii) the original executed opinion of Gorsuch Kirgis LLP,
in the form of Exhibit C to the Purchase Agreement;
(iii) the sum of $25,000 for the fees and expenses of the
Purchaser's counsel;
(iv) the original executed Company counterpart of this
Escrow Agreement;
(v) the original executed Company counterpart of the
Purchase Agreement;
(vi) the original executed Initial Warrant in the form of
Exhibit E to the Purchase Agreement; and
(vii) a warrant certificate issued to Avalon Research to
purchase up to 80,000 shares of Common Stock with a
term and exercise price identical to that of the
Initial Warrant (the "Avalon Warrant").
1.3 Upon receipt of the foregoing, and receipt of executed
counterparts from Purchaser of the Purchase Agreement, the Registration
Rights Agreement and this Escrow Agreement, the Escrow Agent shall
calculate and enter the number, the exercise price, the issuance date and
termination date on the face of the Initial Warrant and the Avalon Warrant
and immediately transfer the sum of Twenty-Five Thousand Dollars ($25,000)
to Epstein Becker & Green, P.C. ("EB&G"), 250 Park Avenue, New York, New
York 10177 for the Purchaser's legal, administrative and escrow costs and
the Escrow Agent shall then arrange to have the Purchase Agreement, this
Escrow Agreement, the Registration Rights Agreement, the Initial Warrant
and the Avalon Warrant and the opinion of counsel delivered to the
appropriate parties.
1.4 Wire transfers to the Escrow Agent shall be made as
follows:
Epstein Becker & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
1411 Broadway - Fifth Floor
New York, New York 10018
ABA No. 021000021
Account No. 035-1-346036
Attention: L. Borneo
ARTICLE II
TERMS OF THE ESCROW FOR EACH DRAW DOWN
2.1 Each time the Company shall send a Draw Down Notice to
the Purchaser as provided in the Purchase Agreement, it shall send a copy,
by facsimile, to the Escrow Agent.
2.2 Each time the Purchaser shall purchase Shares pursuant
to a Draw Down, the Purchaser shall send the applicable purchase price of
the Draw Down Shares to the Escrow Agent, which shall advise the Company
in writing that it has received the purchase price for such Draw Down
Shares. The Company shall promptly, but no later than three (3) Trading
Days after receipt of such funding notice from the Escrow Agent, cause its
transfer agent to issue the Draw Down Shares to the Purchaser via DTC
deposit to the account specified by the Purchaser from time to time and
deliver the Purchase Warrants to the Escrow Agent. Upon receipt of
written confirmation from the transfer agent or from the Purchaser that
such Draw Down Shares have been so deposited, or have been so delivered,
the Escrow Agent shall, within one (1) Trading Day, calculate and enter
the number, exercise price, the initial issuance date and the termination
date on the face of the Purchase Warrants and wire 92% of the Purchase
Price of the Draw Down per the written instructions of the Company, net of
$1,500 as escrow expenses to the Escrow Agent, and the remaining 8% of the
purchase price as directed by Avalon Research and deliver the Purchase
Warrants to the Purchaser.
ARTICLE III
MISCELLANEOUS
3.1 No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision herein contained.
No extension of time for performance of any obligation or act shall be
deemed an extension of the time for performance of any other obligation or
act.
3.2 All notices or other communications required or
permitted hereunder shall be in writing, and shall be sent by fax,
overnight courier, registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed received upon receipt thereof, as
set forth in the Purchase Agreement.
3.3 This Escrow Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and permitted assigns of
the parties hereto.
3.4 This Escrow Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the
subject matter hereof and supersedes all prior understandings with respect
thereto. This Escrow Agreement may not be modified, changed, supplemented
or terminated, nor may any obligations hereunder be waived, except by
written instrument signed by the parties to be charged or by their
respective agents duly authorized in writing or as otherwise expressly
permitted herein.
3.5 Whenever required by the context of this Escrow
Agreement, the singular shall include the plural and masculine shall
include the feminine. This Escrow Agreement shall not be construed as if
it had been prepared by one of the parties, but rather as if both parties
had prepared the same. Unless otherwise indicated, all references to
Articles are to this Escrow Agreement.
3.6 The parties hereto expressly agree that this Escrow
Agreement shall be governed by, interpreted under and construed and
enforced in accordance with the laws of the State of New York. Except as
expressly set forth herein, any action to enforce, arising out of, or
relating in any way to, any provisions of this Escrow Agreement shall
brought in the Federal or state courts of New York, New York as is more
fully set forth in the Purchase Agreement.
3.7 The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company,
Purchaser and the Escrow Agent.
3.8 The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may
rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by the Escrow Agent to be genuine and to
have been signed or presented by the proper party or parties. The Escrow
Agent shall not be personally liable for any act the Escrow Agent may do
or omit to do hereunder as the Escrow Agent while acting in good faith,
excepting only its own gross negligence or willful misconduct, and any act
done or omitted by the Escrow Agent pursuant to the advice of the Escrow
Agent's attorneys-at-law (other than Escrow Agent itself) shall be
conclusive evidence of such good faith.
3.9 The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto or by
any other person or corporation, excepting only orders or process of
courts of law and is hereby expressly authorized to comply with and obey
orders, judgments or decrees of any court. In case the Escrow Agent obeys
or complies with any such order, judgment or decree, the Escrow Agent
shall not be liable to any of the parties hereto or to any other person,
firm or corporation by reason of such decree being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered
without jurisdiction.
3.10 The Escrow Agent shall not be liable in any respect
on account of the identity, authorization or rights of the parties
executing or delivering or purporting to execute or deliver the Purchase
Agreement or any documents or papers deposited or called for thereunder or
hereunder.
3.11 The Escrow Agent shall be entitled to employ such
legal counsel and other experts as the Escrow Agent may deem necessary
properly to advise the Escrow Agent in connection with the Escrow Agent's
duties hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor. THE ESCROW AGENT HAS ACTED
AS LEGAL COUNSEL FOR THE PURCHASER, AND MAY CONTINUE TO ACT AS LEGAL
COUNSEL FOR THE PURCHASER, FROM TIME TO TIME, NOTWITHSTANDING ITS DUTIES
AS THE ESCROW AGENT HEREUNDER. THE COMPANY CONSENTS TO THE ESCROW AGENT
IN SUCH CAPACITY AS LEGAL COUNSEL FOR THE PURCHASER AND WAIVES ANY CLAIM
THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF INTEREST ON THE PART OF
THE ESCROW AGENT. THE COMPANY UNDERSTANDS THAT THE PURCHASER AND THE
ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION IN ENTERING
INTO THIS ESCROW AGREEMENT.
3.12 The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written
notice to the Company and the Purchaser. In the event of any such
resignation, the Purchaser and the Company shall appoint a successor
Escrow Agent.
3.13 If the Escrow Agent reasonably requires other or
further instruments in connection with this Escrow Agreement or
obligations in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.
3.14 It is understood and agreed that should any dispute
arise with respect to the delivery and/or ownership or right of possession
of the documents or the escrow funds held by the Escrow Agent hereunder,
the Escrow Agent is authorized and directed in the Escrow Agent's sole
discretion (1) to retain in the Escrow Agent's possession without
liability to anyone all or any part of said documents or the escrow funds
until such disputes shall have been settled either by mutual written
agreement of the parties concerned by a final order, decree or judgment or
a court of competent jurisdiction after the time for appeal has expired
and no appeal has been perfected, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings or (2) to
deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent
subject matter jurisdiction and located in the State and City of New York
in accordance with the applicable procedure therefor.
3.15 The Company and the Purchaser agree jointly and
severally to indemnify and hold harmless the Escrow Agent and its
partners, employees, agents and representatives from any and all claims,
liabilities, costs or expenses in any way arising from or relating to the
duties or performance of the Escrow Agent hereunder or the transactions
contemplated hereby or by the Purchase Agreement other than any such
claim, liability, cost or expense to the extent the same shall have been
determined by final, unappealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of this 21st day of July, 2000.
CAVION TECHNOLOGIES, INC.
By:/s/David J. Selina
David J. Selina, President & CEO
MOTHLAKE INTERNATIONAL LIMITED
By:/s/ Hans Gassner
Hans Gassner, Authorized Signatory
ESCROW AGENT:
EPSTEIN BECKER & GREEN, P.C.
By:/s/Robert F. Charron
Robert F. Charron, Authorized
Signatory