EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of July 21, 2000
between Mothlake International Limited ("Purchaser"), and Cavion
Technologies, Inc. (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, pursuant to a Common Stock Purchase Agreement dated the date
hereof (the "Purchase Agreement") the Purchaser has committed to purchase
up to 1,000,000 shares of the Company's Common Stock (terms not defined
herein shall have the meanings ascribed to them in the Purchase Agreement)
and Warrants; and
WHEREAS, the Company desires to grant to the Purchaser the
registration rights set forth herein with respect to the Shares and the
Shares issuable upon exercise of the Warrants from time to time (the
"Warrant Shares") (collectively, the "Securities").
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" means the Securities until (i) all Securities have
been disposed of pursuant to the Registration Statement, (ii) all
Securities have been sold under circumstances under which all of the
applicable conditions of Rule 144 (or any similar provision then in force)
under the Securities Act ("Rule 144") are met, (iii) all Securities have
been otherwise transferred to persons who may trade such Securities
without restriction under the Securities Act, and the Company has
delivered a new certificate or other evidence of ownership for such
Securities not bearing a restrictive legend or (iv) such time as, in the
opinion of counsel to the Company, all Securities may be sold without any
time, volume or manner limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the
foregoing definition of a "Registrable Security." In the event of any
merger, reorganization, consolidation, recapitalization or other change in
corporate structure affecting the Common Stock, such adjustment shall be
deemed to be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. The Purchaser acknowledges
and understands that in the absence of an effective Registration Statement
authorizing the resale of the Securities as provided herein, the
Securities are "restricted securities" as defined in Rule 144. The
Purchaser understands that no disposition or transfer of the Securities
may be made by Purchaser in the absence of (i) an opinion of counsel to
the Purchaser, in form and substance reasonably satisfactory to the
Company, that such transfer may be made without registration under the
Securities Act or (ii) such registration.
With a view to making available to the Purchaser the benefits of Rule 144
that may at any time permit the Purchaser to sell securities of the
Company to the public without registration ("Rule 144"), the Company
agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule
144; and
(b) file with the Commission in a timely manner all reports
and other documents required to be filed by the Company pursuant to
Section 13 or 15(d) under the Exchange Act; and, if at any time it is not
required to file such reports but in the past had been required to or did
file such reports, it will, upon the request of the Purchaser, make
available other information as required by, and so long as necessary to
permit sales of, its Registrable Securities pursuant to Rule 144.
Section 3. Registration Rights With Respect to the Securities.
(a) The Company agrees that it will prepare and file with
the Securities and Exchange Commission ("Commission"), within forty-five
(45) days after the date hereof, a registration statement (on Form S-3
and/or S-1, or other appropriate form of registration statement) under the
Securities Act (the "Registration Statement"), at the sole expense of the
Company (except as provided in Section 3(c) hereof), in respect of
Purchaser, so as to permit a public offering and resale of the Securities
under the Securities Act by Purchaser.
The Company shall use its best efforts to cause the Registration
Statement to become effective within five (5) days of SEC clearance and
will within said five (5) days request acceleration of effectiveness. If
the Registration Statement is not declared effective by November 30, 2000,
this Agreement and the Purchase Agreement shall terminate. The Company
will notify Purchaser of the effectiveness of the Registration Statement
within one Trading Day of such event.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 hereof effective under
the Securities Act until the earliest of (i) the date that all the
Securities have been disposed of pursuant to the Registration Statement,
(ii) the date that all of the Securities have been sold pursuant to the
Registration Statement, (iii) the date the holders thereof receive an
opinion of counsel to the Company, which opinion shall be reasonably
acceptable to the Purchaser, that the Securities may be sold under the
provisions of Rule 144 without limitation as to volume, (iv) all
Securities have been otherwise transferred to persons who may trade such
shares without restriction under the Securities Act, and the Company has
delivered a new certificate or other evidence of ownership for such
securities not bearing a restrictive legend, or (v) all Securities may be
sold without any time, volume or manner limitations pursuant to Rule
144(k) or any similar provision then in effect under the Securities Act in
the opinion of counsel to the Company, which counsel shall be reasonably
acceptable to the Purchaser (the "Effectiveness Period").
(c) All fees, disbursements and out-of-pocket expenses and
costs incurred by the Company in connection with the preparation and
filing of the Registration Statement under subparagraph 3(a) and in
complying with applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of the Company) shall be borne by the
Company. The Purchaser shall bear the cost of underwriting and/or
brokerage discounts, fees and commissions, if any, applicable to the
Securities being registered and the fees and expenses of its counsel. The
Purchaser and its counsel shall have a reasonable period, not to exceed
seven (7) Trading Days, to review the proposed Registration Statement or
any amendment thereto, prior to filing with the Commission, and the
Company shall provide the Purchaser with copies of any comment letters
received from the Commission with respect thereto within two (2) Trading
Days of receipt thereof. The Company shall make reasonably available for
inspection by Purchaser, any underwriter participating in any disposition
pursuant to the Registration Statement, and any attorney, accountant or
other agent retained by the Purchaser or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries, and cause the Company's officers,
directors and employees to supply all information reasonably requested by
the Purchaser or any such underwriter, attorney, accountant or agent in
connection with the Registration Statement, in each case, as is customary
for similar due diligence examinations; provided, however, that all
records, information and documents that are designated in writing by the
Company, in good faith, as confidential, proprietary or containing any
material non-public information shall be kept confidential by the
Purchaser and any such underwriter, attorney, accountant or agent
(pursuant to an appropriate confidentiality agreement in the case of the
Purchaser, underwriter, attorney, accountant or agent), unless such
disclosure is made pursuant to judicial process in a court proceeding
(after first giving the Company an opportunity promptly to seek a
protective order or otherwise limit the scope of the information sought to
be disclosed) or is required by law, or such records, information or
documents become available to the public generally or through a third
party not in violation of an accompanying obligation of confidentiality;
and provided further that, if the foregoing inspection and information
gathering would otherwise disrupt the Company's conduct of its business,
such inspection and information gathering shall, to the maximum extent
possible, be coordinated on behalf of the Purchaser and the other parties
entitled thereto by one firm of counsel designed by and on behalf of the
majority in interest of Purchaser and other parties. The Company shall
qualify any of the securities for sale in such states as the Purchaser
reasonably designates and shall furnish indemnification in the manner
provided in Section 6 hereof. However, the Company shall not be required
to qualify in any state which will require an escrow or other restriction
relating to the Company and/or the sellers, or which will require the
Company to qualify to do business in such state or require the Company to
file therein any general consent to service of process. The Company at
its expense will supply the Purchaser with copies of the Registration
Statement and the prospectus included therein and other related documents
in such quantities as may be reasonably requested by the Purchaser.
(d) The Company shall not be required by this Section 3 to
include the Purchaser's Securities in any Registration Statement which is
to be filed if, in the opinion of counsel for both the Purchaser and the
Company (or, should they not agree, in the opinion of another counsel
experienced in securities law matters acceptable to counsel for the
Purchaser and the Company) the proposed offering or other transfer as to
which such registration is requested is exempt from applicable federal and
state securities laws and would result in all purchasers or transferees
obtaining securities which are not "restricted securities", as defined in
Rule 144 under the Securities Act.
(e) If at any time or from time to time after the effective
date of the Registration Statement, the Company notifies the Purchaser in
writing of the existence of a Potential Material Event (as defined in
Section 3(f) below), the Purchaser shall not offer or sell any Securities
or engage in any other transaction involving or relating to Securities,
from the time of the giving of notice with respect to a Potential Material
Event until the Purchaser receives written notice from the Company that
such Potential Material Event either has been disclosed to the public or
no longer constitutes a Potential Material Event; provided, however, that
if the Company so suspends the right to such holders of Securities for
more than twenty (20) days in the aggregate during any twelve month
period, during the periods the Registration Statement is required to be in
effect then the Company must compensate the Purchaser for any decline in
market value of the Securities held by Purchaser at the beginning of such
suspension through the end of such suspension. If a Potential Material
Event shall occur prior to the date the Registration Statement is filed,
then the Company's obligation to file the Registration Statement shall be
delayed without penalty for not more than thirty (30) calendar days. The
Company must give Purchaser notice in writing at least two (2) Trading
Days prior to the first day of the blackout period, if lawful to do so.
(f) "Potential Material Event" means any of the following:
(a) the possession by the Company of material information that is not ripe
for disclosure in a registration statement, as determined in good faith by
the Chief Executive Officer or the Board of Directors of the Company or
that disclosure of such information in the Registration Statement would be
detrimental to the business and affairs of the Company; or (b) any
material engagement or activity by the Company which would, in the good
faith determination of the Chief Executive Officer or the Board of
Directors of the Company, be adversely affected by disclosure in a
registration statement at such time, which determination shall be
accompanied by a good faith determination by the Chief Executive Officer
or the Board of Directors of the Company that the Registration Statement
would be materially misleading absent the inclusion of such information.
Section 4. Cooperation with Company. Purchaser will cooperate
with the Company in all respects in connection with this Agreement,
including timely supplying all information reasonably requested by the
Company (which shall include all information regarding the Purchaser and
proposed manner of sale of the Registrable Securities required to be
disclosed in the Registration Statement) and executing and returning all
documents reasonably requested in connection with the registration and
sale of the Registrable Securities and entering into and performing its
obligations under any underwriting agreement, if the offering is an
underwritten offering, in usual and customary form, with the managing
underwriter or underwriters of such underwritten offering. The Purchaser
shall consent to be named as an underwriter in the Registration Statement.
Purchaser acknowledges that in accordance with current Commission policy,
the Purchaser will be named as the underwriter of the Securities in the
Registration Statement.
Section 5. Registration Procedures. If and whenever the Company
is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Act, the
Company shall (except as otherwise provided in this Agreement), as
expeditiously as possible, subject to the Purchaser's assistance and
cooperation as reasonably required:
(a) prepare and file with the Commission such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of all securities covered by such
registration statement whenever the Purchaser of such Registrable
Securities shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of securities
from time to time in connection with a registration statement pursuant to
Rule 415 promulgated under the Act) and (ii) take all lawful action such
that each of (A) the Registration Statement and any amendment thereto does
not, when it becomes effective, 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, not misleading and (B) the
Prospectus forming part of the Registration Statement, and any amendment
or supplement thereto, does not at any time during the Registration Period
include 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.
(b) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the
distribution or delivery of any prospectus (including any supplements
thereto), provide draft copies thereof to the Purchaser and reflect in
such documents all such comments as the Purchaser (and its counsel)
reasonably may propose and (ii) furnish to the Purchaser such numbers of
copies of a prospectus including a preliminary prospectus or any amendment
or supplement to any prospectus, as applicable, in conformity with the
requirements of the Act, and such other documents, as the Purchaser may
reasonably request in order to facilitate the public sale or other
disposition of the securities owned by the Purchaser;
(c) register and qualify the Registrable Securities covered
by the Registration Statement under New York blue sky laws (subject to the
limitations set forth in Section 3(d) above), and do any and all other
acts and things which may be reasonably necessary or advisable to enable
the Purchaser to consummate the public sale or other disposition in such
jurisdiction of the securities owned by the Purchaser, except that the
Company shall not for any such purpose be required to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service of process;
(d) list such Registrable Securities on the Principal
Market, and any other exchange on which the Common Stock of the Company is
then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or the Nasdaq Stock Market;
(e) notify the Purchaser at any time when a prospectus
relating thereto covered by the Registration Statement is required to be
delivered under the Act, of the happening of any event of which it has
knowledge as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and the Company shall prepare and file a
curative amendment under Section 5(a) as quickly as commercially possible;
(f) as promptly as practicable after becoming aware of such
event, notify the Purchaser who holds Registrable Securities being sold
(or, in the event of an underwritten offering, the managing underwriters)
of the issuance by the Commission or any state authority of any stop order
or other suspension of the effectiveness of the Registration Statement at
the earliest possible time and take all lawful action to effect the
withdrawal, recession or removal of such stop order or other suspension;
(g) cooperate with the Purchaser to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to
be offered pursuant to the Registration Statement and enable such
certificates for the Registrable Securities to be in such denominations or
amounts, as the case may be, as the Purchaser reasonably may request and
registered in such names as the Purchaser may request; and, within three
(3) Trading Days after a Registration Statement which includes Registrable
Securities is declared effective by the Commission, deliver and cause
legal counsel selected by the Company to deliver to the transfer agent for
the Registrable Securities (with copies to the Purchaser whose Registrable
Securities are included in such Registration Statement) an appropriate
instruction and, to the extent necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary
to expedite and facilitate the disposition by the Purchaser of their
Registrable Securities in accordance with the intended methods therefor
provided in the prospectus which are customary for issuers to perform
under the circumstances;
(i) in the event of an underwritten offering, promptly
include or incorporate in a Prospectus supplement or post-effective
amendment to the Registration Statement such information as the managing
underwriters reasonably agree should be included therein and to which the
Company does not reasonably object and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable
after it is notified of the matters to be included or incorporated in such
Prospectus supplement or post-effective amendment; and
(j) maintain a transfer agent for its Common Stock.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Purchaser and each person, if any, who controls the Purchaser within the
meaning of the Securities Act ("Distributing Purchaser") against any
losses, claims, damages or liabilities, joint or several (which shall, for
all purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all reasonable
attorneys' fees), to which the Distributing Purchaser may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any related
preliminary prospectus, final prospectus or 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 not misleading; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, preliminary
prospectus, final prospectus or amendment or supplement thereto in
reliance upon, and in conformity with, written information furnished to
the Company by the Distributing Purchaser, specifically for use in the
preparation thereof. This Section 6(a) shall not inure to the benefit of
any Distributing Purchaser with respect to any person asserting such loss,
claim, damage or liability who purchased the Registrable Securities which
are the subject thereof if the Distributing Purchaser failed to send or
give (in violation of the Securities Act or the rules and regulations
promulgated thereunder) a copy of the prospectus contained in such
Registration Statement to such person at or prior to the written
confirmation to such person of the sale of such Registrable Securities,
where the Distributing Purchaser was obligated to do so under the
Securities Act or the rules and regulations promulgated thereunder. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Distributing Purchaser agrees that it will
indemnify and hold harmless the Company, and each officer, director of the
Company or person, if any, who controls the Company within the meaning of
the Securities Act, against any losses, claims, damages or liabilities
(which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees) to which the Company or any such officer,
director or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, or any related preliminary prospectus, final
prospectus or amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, preliminary
prospectus, final prospectus or amendment or supplement thereto in
reliance upon, and in conformity with, written information furnished to
the Company by such Distributing Purchaser, specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Distributing Purchaser may otherwise have.
Notwithstanding anything to the contrary herein, the Distributing
Purchaser shall not be liable under this Section 6(b) for any amount in
excess of the net proceeds to such Distributing Purchaser as a result of
the sale of Registrable Securities pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any indemnified party except to the
extent of actual prejudice demonstrated by the indemnifying party. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, assume the defense thereof, subject to the provisions herein
stated and 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 under this Section 6
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs
of investigation, unless the indemnifying party shall not pursue the
action to its final conclusion. The indemnified party shall have the
right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall not
be at the expense of the indemnifying party if the indemnifying party has
assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party; provided that if the indemnified party is the
Distributing Purchaser, the fees and expenses of such counsel shall be at
the expense of the indemnifying party if (i) the employment of such
counsel has been specifically authorized in writing by the indemnifying
party, or (ii) the named parties to any such action (including any
impleaded parties) include both the Distributing Purchaser and the
indemnifying party and the Distributing Purchaser shall have been advised
by such counsel that there may be one or more legal defenses available to
the indemnifying party different from or in conflict with any legal
defenses which may be available to the Distributing Purchaser (in which
case the indemnifying party shall not have the right to assume the defense
of such action on behalf of the Distributing Purchaser, it being
understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the Distributing Purchaser,
which firm shall be designated in writing by the Distributing Purchaser
and be approved by the indemnifying party). No settlement of any action
against an indemnified party shall be made without the prior written
consent of the indemnified party, which consent shall not be unreasonably
withheld.
All fees and expenses of the indemnified party (including
reasonable costs of defense and investigation in a manner not inconsistent
with this Section and all reasonable attorneys' fees and expenses) shall
be paid to the indemnified party, as incurred, within ten (10) Trading
Days of written notice thereof to the indemnifying party (regardless of
whether it is ultimately determined that an indemnified party is not
entitled to indemnification hereunder; provided, that the indemnifying
party may require such indemnified party to undertake to reimburse all
such fees and expenses to the extent it is finally judicially determined
that such indemnified party is not entitled to indemnification hereunder).
Section 7. Contribution. In order to provide for just and
equitable contribution under the Securities Act in any case in which (i)
the indemnified party makes a claim for indemnification pursuant to
Section 6 hereof but is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 6 hereof provide for
indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of any indemnified party, then the Company
and the applicable Distributing Purchaser shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be
subject (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees), in either such case (after contribution from
others) on the basis of relative fault as well as any other relevant
equitable considerations. The relative fault 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 on the one
hand or the applicable Distributing Purchaser on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Distributing Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 7.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 7, in no
event shall any (i) Purchaser be required to undertake liability to any
person under this Section 7 for any amounts in excess of the dollar amount
of the net proceeds to be received by the Purchaser from the sale of the
Purchaser's Registrable Securities (after deducting any fees, discounts
and commissions applicable thereto) pursuant to any Registration Statement
under which such Registrable Securities are to be registered under the
Securities Act and (ii) underwriter be required to undertake liability to
any person hereunder for any amounts in excess of the aggregate discount,
commission or other compensation payable to such underwriter with respect
to the Registrable Securities underwritten by it and distributed pursuant
to the Registration Statement.
Section 8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall
be in writing and, unless otherwise specified herein, shall be delivered
as set forth in the Purchase Agreement.
Section 9. Assignment. Neither this Agreement nor any rights of
the Purchaser or the Company hereunder may be assigned by either party to
any other person. Notwithstanding the foregoing, (a) the provisions of
this Agreement shall inure to the benefit of, and be enforceable by, any
transferee of any of the Common Stock purchased by the Purchaser pursuant
to the Purchase Agreement other than through open-market sales, and (b)
upon the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed in the case of an assignment to an
affiliate of the Purchaser, the Purchaser's interest in this Agreement may
be assigned at any time, in whole or in part, to any other person or
entity (including any affiliate of the Purchaser) who agrees to be bound
hereby.
Section 10. Counterparts/Facsimile. This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when together shall constitute but one and the
same instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other party.
In lieu of the original, a facsimile transmission or copy of the original
shall be as effective and enforceable as the original.
Section 11. Remedies. The remedies provided in this Agreement
are cumulative and not exclusive of any remedies provided by law. If any
term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Section 12. Conflicting Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement or otherwise prevents the Company from complying with all of its
obligations hereunder.
Section 13. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York
applicable to contracts made in New York by persons domiciled in New York
City and without regard to its principles of conflicts of laws. Any action
may be brought as set forth in the Purchase Agreement. Any party shall
have the right to seek injunctive relief from any court of competent
jurisdiction in any case where such relief is available. Any dispute
under this Agreement shall be submitted to arbitration under the American
Arbitration Association (the "AAA") in New York City, New York, and shall
be finally and conclusively determined by the decision of a board of
arbitration consisting of three (3) members (hereinafter referred to as
the "Board of Arbitration") selected as according to the rules governing
the AAA. The Board of Arbitration shall meet on consecutive business days
in New York City, New York, and shall reach and render a decision in
writing (concurred in by a majority of the members of the Board of
Arbitration) with respect to the amount, if any, which the losing party is
required to pay to the other party in respect of a claim filed. In
connection with rendering its decisions, the Board of Arbitration shall
adopt and follow the laws of the State of New York. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more
than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision
to be delivered to all parties involved in the dispute. The Board of
Arbitration shall be authorized and is directed to enter a default
judgment against any party refusing to participate in the arbitration
proceeding within thirty days of any deadline for such participation. Any
decision made by the Board of Arbitration (either prior to or after the
expiration of such thirty (30) calendar day period) shall be final,
binding and conclusive on the parties to the dispute, and entitled to be
enforced to the fullest extent permitted by law and entered in any court
of competent jurisdiction. The prevailing party shall be awarded its
costs, including attorneys' fees, from the non-prevailing party as part of
the arbitration award. Any party shall have the right to seek injunctive
relief from any court of competent jurisdiction in any case where such
relief is available. The prevailing party in such injunctive action shall
be awarded its costs, including attorney's fees, from the non-prevailing
party.
Section 15. Severability. If any provision of this Agreement
shall for any reason be held invalid or unenforceable, such invalidity or
unenforceablity shall not affect any other provision hereof and this
Agreement shall be construed as if such invalid or unenforceable provision
had never been contained herein. Terms not otherwise defined herein shall
be defined in accordance with the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on this 21st day of
July, 2000
CAVION TECHNOLOGIES, INC.
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President & CEO
MOTHLAKE INTERNATIONAL LIMITED
By: /s/Xxxx Xxxxxxx
Xxxx Xxxxxxx, Authorized Signatory
