ASSET PURCHASE AGREEMENT
DATED JUNE 30, 2000
FOR THE ACQUISITION OF
CERTAIN ASSETS OF
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
BY
DIGITAL INSURANCE, INC.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into and
effective as of this 30th day of June, 2000 (the "Closing Date"), by and between
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. a Pennsylvania corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("HEALTHAXIS"), and DIGITAL INSURANCE,
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("DIGITAL").
RECITALS
WHEREAS, HEALTHAXIS is a leading web-based insurance retailer and
provider of fully-integrated, end-to-end, web-enabled solutions for health
insurance distribution and administration for the payer community, and DIGITAL
is a an internet small group and individual health insurance enabler; and
WHEREAS, DIGITAL desires to acquire certain assets utilized by
HEALTHAXIS in connection with the operation of the HEALTHAXIS retail web site
located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, including but not limited to, certain Retail
Presentation Layer Rights, primary hardware and ancillary computer equipment,
contract rights, and other tangible and intangible assets used in connection
therewith, and to also employ and retain the services of certain HEALTHAXIS
personnel who are involved in the operation of such web site, and to lease
certain space within the HEALTHAXIS East Norriton, PA facility; and
WHEREAS, DIGITAL also desires to obtain a non-exclusive software
license from HEALTHAXIS for various software owned and developed by HEALTHAXIS
and used in support of the interactive retail insurance website, and to obtain
certain services from HEALTHAXIS in connection therewith, all of which will
enable DIGITAL to effectively assume the HEALTHAXIS retail insurance web site
business upon closing of the transactions contemplated herein; and
WHEREAS, in consideration of the transfer of the assets as provided in
this Agreement and the software license to be granted by HEALTHAXIS to DIGITAL,
DIGITAL agrees to pay the purchase price therefor, and to transfer to HEALTHAXIS
the ownership of a certain amount of common stock in DIGITAL, together with
future sharing of certain revenues regarding the business transferred, all as
more particularly provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants, agreements and conditions set forth in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, DIGITAL and HEALTHAXIS, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Acquired Common Stock" means the Common Stock of DIGITAL to be acquired by
HEALTHAXIS hereunder.
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1.2 Advertising Service Fees. "Advertising Service Fees" means all advertising,
marketing and referral fees payable to Affinity Partners pursuant to the
Affinity Partner Agreements, and the advertising, marketing and referral fees
payable to Affiliate Partners pursuant to the Affiliate Partner Program.
1.3 Affiliate Partner. "Affiliate Partner" means any Person promoting HEALTHAXIS
via the placement of a link on such Person's website which connects a user
directly to the HEALTHAXIS retail website pursuant to the Affiliate Partner
Program.
1.4 Affiliate Partner Program. "Affiliate Partner Program" means the arrangement
described in Schedule 1.4 pursuant to which an Affiliate Partner becomes
entitled to Advertising Service Fees.
1.5 Affinity Partner. "Affinity Partner" means any Person which is a party to an
Affinity Partner Agreement with HEALTHAXIS as listed in Schedule 1.6 and who
promotes the sale of health insurance through that Person's website through a
co-branding or similar arrangement with HEALTHAXIS as provided in the applicable
Affinity Partner Agreement.
1.6 Affinity Partner Agreements. "Affinity Partner Agreements" means the
agreements between HEALTHAXIS and the Affinity Partners as set forth in Schedule
1.6 attached hereto.
1.7 Applicable Law. "Applicable Law" means any applicable constitution, treaty,
statute, rule, regulation, ordinance, order, directive, code, interpretation,
judgment, decree, injunction, writ, determination, award, permit, license,
authorization, directive, requirement or decision of or agreement with or by
Governmental Authorities.
1.8 Assets. "Assets" means and includes the following:
(i) the Physical Assets;
(ii) the Carrier Partner Agreements;
(iii) the Affinity Partner Agreements;
(iv) the Insurance Business;
(v) prepaid expenses identified in Schedule 2.4;
(vi) the Documentation;
(vii) the Assumed Contracts;
(viii) all goodwill associated with the Assets;
(ix) all of HEALTHAXIS' rights under manufacturers' and vendors'
warranties relating to items included in the Physical Assets and all similar
rights against third parties relating to items included in the Assets to
the extent contractually assignable; and
(x) the Retail Presentation Layer Rights (and all Proprietary
Rights thereto).
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1.9 Assumed Contracts. "Assumed Contracts" means the Carrier Partner Agreements,
Affinity Partner Agreements, Portal Agreements, agreements related to the
Affiliate Partner Program, service agreements, independent contractor agreements
and other agreements (including all material related documentation) between
HEALTHAXIS and any third party to the extent pertaining to the Assets and the
business operations being transferred pursuant to this Agreement which are
scheduled in Schedule 1.9 hereto and which are either (a) assignable by
HEALTHAXIS to DIGITAL as of the Closing Date, or (b) assignable by HEALTHAXIS to
DIGITAL after the Closing Date upon receipt of the requisite consent from the
applicable Third Party(ies) thereto (the "Contracts Requiring Post-Closing
Consents").
1.10 Carrier Partner Agreements. "Carrier Partner Agreements" means those
agreements listed in Schedule 1.10 by and between HEALTHAXIS and the insurance
companies named therein for the sale of such companies' individual and/or small
group health or ancillary insurance products through the HEALTHAXIS retail
website.
1.11 Carrier Partners. "Carrier Partners" means the insurance companies which
are parties to the Carrier Partner Agreements.
1.12 Claim. "Claim" means a written notice asserting a breach of a
representation, warranty or covenant specified in this Agreement, which shall
reasonably set forth, in light of the information then known to the party giving
such notice, a description of and an estimate (if then reasonable to make) of
the amount involved in such breach.
1.13 Closing. "Closing" means the closing of the transactions contemplated by
this Agreement.
1.14 Closing Date. "Closing Date" has the meaning set forth in Section 4.1.
1.15 Common Stock. "Common Stock" means DIGITAL's Common Stock, par value $.0001
per share.
1.16 Confidential Information. "Confidential Information" has the meaning set
forth in Section 13.1 hereof.
1.17 Consents. "Consents" means all of the consents or approvals of Governmental
Authorities and other third parties necessary to sell, transfer and assign the
Assets to DIGITAL and to otherwise consummate the transactions contemplated
hereby in compliance with all Applicable Law.
1.18 Damages. "Damages" means all claims, liabilities, demands, impositions,
causes of action, losses, investigations, proceedings, damages, penalties,
fines, assessments, deficiencies, interest, expenses and judgments, including
reasonable attorneys' fees and disbursements.
1.19 Digital. "DIGITAL" means DIGITAL INSURANCE, INC. and, as an Indemnified
Party for purposes of Article XVI only, shall include its officers, directors,
shareholders, subsidiaries, affiliates and agents.
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1.20 Documentation. "Documentation" means all documentation in HEALTHAXIS'
possession, custody or control pertaining to the Assets and the business being
transferred herein.
1.21 Governmental Authority. "Governmental Authority" means any government, any
governmental entity, department, commission, board, agency or instrumentality,
and any court, tribunal or judicial or arbitrational body, whether federal,
state or local.
1.22 Governmental Order. "Governmental Order" means any order, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
1.23 HealthAxis. "HEALTHAXIS" means ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., and as an Indemnified
Party for purposes of Article XVI only, shall include its officers, directors,
shareholders, subsidiaries, affiliates and agents.
1.24 Indemnified Party. "Indemnified Party" means the party who is entitled to
indemnification for, and to be held harmless with respect to, Damages, as
provided under the terms and subject to the conditions of this Agreement.
1.25 Indemnifying Party. "Indemnifying Party" means the party who is obligated
to indemnify, and to hold harmless, the other party hereto with respect to
Damages, as provided under the terms and subject to the conditions of this
Agreement.
1.26 Insurance Business. "Insurance Business" means all in-force insurance
contracts as set forth in Schedule 1.26 by and between the Carrier Partners
generated through the retail website as described in Section 2.5.
1.27 ISP. "ISP" means Internet Service Portals which are companies engaged in
the business of providing on-line access, content, direction and search engine
capability to Internet users, primarily for the purpose of directing traffic to
businesses' websites.
1.28 Lead Generation Fee. "Lead Generation Fee" means a fee payable to DIGITAL
by HEALTHAXIS in consideration of DIGITAL's introduction to HEALTHAXIS of a
prospective client, which as a result of DIGITAL's proactive involvement and
assistance leads to a contract between that client and HEALTHAXIS Application
Solutions Group's connectivity products and services, pursuant to the Schedule
of Lead Generation Fees to be set forth in the Technology Brokerage Agreement to
be entered into in accordance with Article X hereof.
1.29 Lien. "Lien" shall mean any mortgage, lien, security interest, financing
statement, pledge, encumbrance, restriction or transferability, defect in title,
charge, or any claim on any property or property interest.
1.30 Material Adverse Change or Material Adverse Effect. "Material Adverse
Change" or "Material Adverse Effect" means any change or effect that is
materially adverse to the Assets, the business operations related to the Assets
or the transactions contemplated by this Agreement.
1.31 Non-Assumed Contracts. "Non-Assumed Contracts" shall mean all agreements
related to the Assets that are not assigned to DIGITAL as Assumed Contracts
pursuant to this Agreement.
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1.32 Permitted Liens. "Permitted Liens" means inchoate materialmen's,
mechanics', carriers', warehousemen's, landlords', workmen's, repairmen's,
employees' or other like liens arising in the ordinary course of business for
periods commencing after the Closing Date, and for which payment is not overdue.
1.33 Person. "Person" shall mean a natural person, a corporation, a partnership,
a limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
1.34 Physical Assets. "Physical Assets" means certain call center equipment and
software, computer hardware and software including servers and other such
furniture, fixtures and equipment, which are used by or necessary to conduct the
retail website in connection with the business being transferred herein and
which are being transferred and assigned to DIGITAL pursuant to this Agreement,
all as more particularly set forth on Schedule 1.34 attached hereto; provided
however, that notwithstanding anything contained herein to the contrary,
Physical Assets shall not include any furniture, fixtures, equipment or other
facilities that are shared across the HEALTHAXIS campus (such as by way of
illustration and not of limitation, network and video conferencing equipment).
1.35 Portal Agreements. "Portal Agreements" means all of the existing agreements
by and between HEALTHAXIS and the ISPs which are set forth on Schedule 1.35,
attached hereto.
1.36 Proprietary Rights. "Proprietary Rights" means any trademarks, patents, and
registered or unregistered copyrights in or to any software and documentation
and all applications for registration thereof, and all know-how, trade secrets,
proprietary processes, formulae, business information, and other intellectual
and industrial property rights of a party.
1.37 Related Agreements. "Related Agreements" means the Software License and
Consulting Agreement and all other agreements contemplated to be executed and
delivered by the parties at the Closing.
1.38 Retail Presentation Layer Rights. "Retail Presentation Layer Rights" means
versions 1.0, 2.0 and 3.0 of the HEALTHAXIS user interface which has been
developed by HEALTHAXIS as provided below, which are included in the Assets. The
Retail Presentation Layer Rights consist of all intellectual property rights
developed by HEALTHAXIS specifically for support of an internet web site user
interface through which health insurance products may be reviewed, compared,
quoted, applied for and purchased by individuals and small groups, as well as
the co-branding interface designed to support affinity partnership arrangements,
and consist of the interface and graphic design, user interface information
architecture flow, data exclusive to the Retail Presentation Layer, reusable
template designs, and active server page templates. The version 3.0 Retail
Presentation Layer Rights are more specifically described in Part I of the
technical document attached hereto as Exhibit "F" and do not include the
"Non-Retail Presentation Layer Software and Other Common Modules" or any of the
"Non-Licensed Software".
1.39 Software Rights. "Software Rights" means the Retail Presentation Layer
Rights to be acquired by DIGITAL hereunder and the "Non-Retail Presentation
Layer Software and other Common Modules" (as defined in the Software License and
Consulting Agreement) to be licensed to DIGITAL pursuant to the Software License
and Consulting Agreement.
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1.40 Software License and Consulting Agreement. "Software License and Consulting
Agreement" means the Software License and Consulting Agreement by and between
HEALTHAXIS and DIGITAL to be executed and delivered as of the Closing Date, in
the form of Exhibit "A" attached hereto.
1.41 Taxes. "Taxes" means any federal, state, local or foreign taxes,
assessments, interest, penalties, deficiencies, fees and other governmental
charges or impositions (including without limitation, all income tax,
unemployment compensation, social security, payroll, sales and use, excise,
privilege, property, ad valorem, franchise, license, school and any other tax or
similar governmental charge or imposition).
1.42 Tax Code. "Tax Code" means the Internal Revenue Code of 1986, as amended.
1.43 Term Sheet.. "Term Sheet" means that non-binding agreement styled "Term
Sheet" which HEALTHAXIS and DIGITAL executed on May 27, 2000 and revised and
re-executed on June 2, 2000.
1.44 Third-Party Claim. "Third-Party Claim" means, in respect of the obligations
of each Indemnifying Party hereunder, a claim asserted against the Indemnified
Party by a third party.
1.45 Transferred Employees. "Transferred Employees" means the current HEALTHAXIS
employees to be offered employment by DIGITAL as provided in Section 5.1 hereof.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Transfer of Assets. Pursuant to the terms and subject to the conditions set
forth in this Agreement, HEALTHAXIS hereby agrees to sell, grant, transfer,
convey, assign and deliver to DIGITAL on the Closing Date, and DIGITAL agrees to
purchase and acquire from HEALTHAXIS on the Closing Date, good, valid and
merchantable title in and to the Assets free and clear of all Liens.
2.2 Assignment and Assumption of Assumed Contracts. Pursuant to the terms and
subject to the conditions set forth in this Agreement, including the obtaining
by HEALTHAXIS of the necessary Consents including the Carrier's consent and
agreement to DIGITAL's appointment in those states in which HEALTHAXIS held such
appointments at the Closing), effective upon Closing, HEALTHAXIS shall assign to
DIGITAL all of HEALTHAXIS' rights and obligations under the Assumed Contracts
(other than Contracts Requiring Post-Closing Consents) and DIGITAL shall accept
such assignment and shall assume (except for the Excluded Liabilities) all
responsibilities and obligations of HEALTHAXIS that accrue after the Closing
Date under such Assumed Contracts. Upon receipt of the requisite consent,
HEALTHAXIS shall (without further consideration) assign to DIGITAL all of
HEALTHAXIS' rights and obligations under, and DIGITAL shall accept such
assignment effective as of the Closing Date and shall assume (except for the
Excluded Liabilities) all responsibilities and obligations of HEALTHAXIS that
accrue after the Closing Date under the Contracts Requiring Post-Closing
Consents. For those Assumed Contracts Requiring Post-Closing Consents,
HEALTHAXIS will use best efforts to obtain consent to assignment of such Assumed
Contracts within thirty days following the Closing Date. If such
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Assumed Contracts Requiring Post-Closing Consent have not been assigned by the
end of this thirty day period, HEALTHAXIS will continue to remain broker of
record and obtain the commissions from Carrier Partners as delineated in Carrier
Partner Agreements. Such commissions will be irrevocably assigned to DIGITAL,
subject to the terms of Section 2.2.
2.3 Limitation on Assumption. DIGITAL shall not assume, pay or discharge or in
any respect be liable for any liability, obligation, commitment or expense of
HEALTHAXIS with respect to the Assumed Contracts other than those which accrue
(a) after the Closing Date with respect to Assumed Contracts assigned to DIGITAL
upon Closing, or (b) after the effective date of the assignment with respect to
any Assumed Contract Requiring Post-Closing Consents assigned to DIGITAL after
the Closing Date. Except as provided in Section 2.2 hereof with respect to the
Assumed Contracts, DIGITAL is assuming no obligations, debts or liabilities of
HEALTHAXIS (and HEALTHAXIS shall indemnify DIGITAL against any and all such
debts, obligations and liabilities) including, without limitation, the following
described debts, obligations or liabilities:
(1) any liability, indebtedness or obligation of HEALTHAXIS for
borrowed money, whether absolute or contingent, direct or indirect;
(2) liabilities and obligations of HEALTHAXIS, the existence of which
constitute a breach of any of the representations or warranties made by
HEALTHAXIS in this Agreement or in any Related Agreement or other document
delivered by HEALTHAXIS pursuant to this Agreement;
(3) any liabilities or obligations arising out of or in connection with
any litigation, claim, investigation or proceeding (including, without
limitation, losses, costs, expenses, attorneys' fees, and damages incurred in
connection therewith) which relate to HEALTHAXIS or relate to services performed
or products delivered prior to the Closing Date or which arise out of actions
taken by, or omissions of, HEALTHAXIS prior to the Closing Date;
(4) Taxes payable by HEALTHAXIS or any interest or penalties with
respect thereto or any Taxes with respect to the Assets due for all periods
prior to the Closing;
(5) any liability for any sales tax (or any interest or penalties with
respect thereto) payable as a result of the consummation of the transaction
contemplated hereby;
(6) any liability under any employee benefit or welfare plan or
regarding any compensation or withholding taxes owed to or with respect to any
employee or independent contractor of HEALTHAXIS;
(7) liabilities and obligations of HEALTHAXIS for payroll, wages,
salaries, bonuses, vacation, sick pay and severance pay and other like amounts
due to officers, directors, employees, contractors and agents of HEALTHAXIS;
(8) liabilities and obligations of HEALTHAXIS based upon tortious or
illegal conduct;
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(9) liabilities and obligations of HEALTHAXIS for any breach or
violation, prior to the Closing Date, of any contracts of HEALTHAXIS including,
without limitation, the Assumed Contracts;
(10) any liability or obligation of HEALTHAXIS for violations of Law;
(11) any liability of HEALTHAXIS arising under this Agreement or the
transactions contemplated hereby;
(12) any liability or obligation to any carrier (or any other third
party payer) as a result of set off of amounts previously paid by any such
carrier or payer to HEALTHAXIS or any overpayments made by such payer to
HEALTHAXIS or any credit owed to such carrier or payer disallowance of any claim
of HEALTHAXIS;
(13) any liability of HEALTHAXIS for its acts or omissions;
(14) liabilities and obligations of HEALTHAXIS incurred in connection
with the preparation of this Agreement and the consummation of the transaction
contemplated hereby, including, without limitation, legal and accounting fees;
and
(15) liability or responsibility for the issuance of any HEALTHAXIS or
DIGITAL stock or warrants pursuant to any Assumed Contracts.
All of the foregoing items described in clauses (1) through (15) above
are referred to herein collectively as the "Excluded Liabilities."
2.4 Pre-Paid Marketing and Other Prepaid Expenses. In connection with the
assignment and assumption of the Portal Agreements, DIGITAL shall be entitled to
the benefit of all pre-paid marketing and other prepaid expenses previously paid
by HEALTHAXIS thereunder as designated on Schedule 2.4.
2.5 Transfer of Retail Web Site Business. It is the intention of the parties
that upon consummation of the transactions contemplated herein, DIGITAL will
effectively acquire ownership and responsibility for the HEALTHAXIS retail
insurance web site business, including, but not limited to the assumption of the
Assumed Contracts. In that regard, the parties agree to cooperate in taking all
other action reasonably necessary or appropriate to achieve that end at or as
soon as possible following the Closing, including the agreements and actions
contemplated in Article VIII hereof regarding transfer of the Insurance
Business. In addition, following Closing, upon DIGITAL's request HEALTHAXIS will
assist and cooperate with DIGITAL in seeking to complete any Carrier Partner,
Affinity Partner, and other agreements that are listed as Assumed Contracts and
which are in progress of negotiation at Closing but unexecuted.
ARTICLE III
CONSIDERATION
3.1 Consideration. In consideration of the transfer and sale of the Assets and
business related thereto by HEALTHAXIS, and in further consideration of the
licenses and rights granted in the
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Software License and Consulting Agreement, DIGITAL agrees to pay and deliver the
following consideration to HEALTHAXIS, subject to the terms and provisions
hereof:
(a) Cash Payable at Closing. DIGITAL agrees to pay to HEALTHAXIS One
Million Dollars ($1,000,000.00) in cash at the Closing by wire transfer of
immediately available funds in accordance with the wire transfer instructions
delivered to DIGITAL by HEALTHAXIS no later than three (3) business days prior
to the Closing.
(b) Common Stock. At Closing, DIGITAL shall transfer to HEALTHAXIS
3,178,170 duly-authorized, validly issued, fully-paid and non-assessable shares
of DIGITAL's Common Stock, representing Eleven Percent (11%) of the
fully-diluted then outstanding shares of DIGITAL immediately after the Closing.
(c) Software License and Consulting Agreement Fees. DIGITAL shall pay
HEALTHAXIS the remaining $3,000,000 "License Fee" and the "Service Fees", in
accordance with the terms and conditions of the Software License and Consulting
Agreement.
3.2 Valuation of Common Stock. The parties agree that the Acquired Common Stock
shall have an aggregate value of $3,178,170.
3.3 Allocation. The parties agree that the consideration referred to in Section
3.1 hereof shall be allocated and reported for tax purposes under Section 1060
of the Tax Code as provided in Exhibit D hereto.
3.4 Commission Revenue. Following the Closing, DIGITAL shall pay HEALTHAXIS the
following payments for so long as DIGITAL is using any part of the Non-Retail
Presentation Layer and Other Common Modules to support DIGITAL's retail
insurance website business:
(a) Affiliate, Direct and Portal. DIGITAL shall pay HEALTHAXIS ten
percent (10%) of all of DIGITAL's net commission revenues received by DIGITAL
from insurance policy sales generated through DIGITAL's website using the
Software Rights except as otherwise provided in 3.4 (b) below. For purposes
hereof, "net commission revenues" shall mean all retail brokerage commissions
(excluding overrides) paid to DIGITAL after the Closing Date by existing or new
Carrier Partners less commissions or fees (including, without limitation,
advertising service fees) paid or owed by DIGITAL to associated third party
sites and less set-up fees not to exceed $5,000 paid or owed by DIGITAL for each
such third party site; and
(b) Affinity. DIGITAL shall pay HEALTHAXIS twenty percent (20%) of all
of DIGITAL's net commission revenues received by DIGITAL from insurance policy
sales generated through existing or new Affinity Partners accessing DIGITAL's
website via the Software Rights. For purposes hereof, "net commission revenues"
shall mean all retail brokerage commissions (excluding overrides) paid to
DIGITAL by existing or new Carrier Partners less commissions or fees (including
advertising service fees), paid or owed by DIGITAL to associated third party
sites and less set-up fees not to exceed $5,000 paid or owed by DIGITAL for each
such third party site; and
(c) Overrides. DIGITAL shall pay HEALTHAXIS ten percent (10%) of all of
DIGITAL's overrides received by DIGITAL from insurance policy sales generated
through DIGITAL's website using the Software Rights, including all those sales
arising out of existing or new Affinity Partners pursuant to 3.4 (b) above.
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(d) DIGITAL agrees and warrants that it shall not call, negotiate,
rename, or treat commission revenues paid to DIGITAL by Carrier Partners for the
sale of insurance products as any other type of revenue source for the purpose
of avoidance or lowering of commission revenue payments to HEALTHAXIS under this
Article.
The percentage payments in (a) and (b) and (c) above are mutually exclusive and
are not cumulative with respect to the commission to which they relate.
Additional terms, conditions and provisions regarding the payments required
above are set forth in Article IX below. DIGITAL is entitled to all advertising
and similar revenue received by DIGITAL for providing advertising and similar
services in connection with DIGITAL's website, and DIGITAL shall be entitled to
all other revenue it receives from any insurance carrier.
3.5 Sales or Use Taxes. All sales, use and other similar Taxes, charges and
fees, if any, arising out of or in connection with the transactions contemplated
by this Agreement (including any income, capital gains and other similar Taxes,
charges and fees imposed on, or imposed in respect of, the income or gain of
HEALTHAXIS), shall be paid by HEALTHAXIS. Each of the parties shall cooperate
with the other to the extent reasonably required and permitted by Applicable Law
in order to eliminate or minimize any such Tax. Without limiting the foregoing,
to the extent any such Tax is imposed, HEALTHAXIS shall prepare and file any
required Tax returns in connection therewith and HEALTHAXIS shall pay and
promptly discharge when due the entire amount of any such Tax.
ARTICLE IV
CLOSING; DELIVERIES
4.1 Closing. The Closing shall occur on or before June 30, 2000 and is
conditioned upon the satisfaction or waiver of the conditions precedent set
forth in Article VI (the "Closing Date") and shall be held at the offices of
HEALTHAXIS on of before Midnight local time, or at such other time and place as
HEALTHAXIS and DIGITAL may mutually agree. Notwithstanding the actual time the
deliveries of the parties hereto are made on the Closing Date, the parties
hereto agree that the Closing shall be effective and deemed for all purposes to
have occurred as of 12:01 a.m., local time, on the Closing Date.
4.2 Deliveries By HealthAxis. Prior to or on the Closing Date, HEALTHAXIS shall
deliver, or cause to be delivered, to DIGITAL the following, in form and
substance reasonably satisfactory to DIGITAL and its counsel:
(a) ▇▇▇▇ of Sale. A duly executed ▇▇▇▇ of sale regarding the Assets, in
a form mutually agreed by and between DIGITAL and HEALTHAXIS which shall be
sufficient to vest good, valid and merchantable title to the Assets in the name
of DIGITAL or its permitted assignees free and clear of all Liens other than
Permitted Liens;
(b) Assignments and Assumption Agreement. An assignment and assumption
agreement, in a form mutually agreed by and between DIGITAL and HEALTHAXIS,
assigning the Assumed Contracts to DIGITAL.
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(c) Software License and Consulting Agreement. The duly executed
Software License and Consulting Agreement.
(d) Lease Agreement. Duly executed Office Space Lease Agreement, in the
form of Exhibit B attached hereto between DIGITAL, as tenant, and HEALTHAXIS
Inc. (HEALTHAXIS' parent corporation), as landlord, (the "Lease").
(e) Assets and Documentation. Possession of the Physical Assets and the
Documentation.
(f) Secretary's Certificate. Certificate, dated as of the Closing Date,
executed by the Secretary or Assistant Secretary of HEALTHAXIS certifying that
the resolutions, as attached to such certificate, were duly adopted by the Board
of Directors of HEALTHAXIS, authorizing and approving the consummation of the
transactions contemplated hereby and that such resolutions remain in full force
and effect and as to the incumbency of the officers of HEALTHAXIS duly
authorized to execute and deliver this Agreement and the Related Agreements.
(g) Officer's Certificate. Certificate, dated as of the Closing Date,
executed by the President or Vice President of HEALTHAXIS, certifying that: (i)
the representations and warranties of HEALTHAXIS in this Agreement are true and
complete at and as of the Closing Date (except for representations and
warranties that by their terms are made as of a specified date and except for
changes that are contemplated by this Agreement or occur in the ordinary course
of business which do not singly or in the aggregate have a Material Adverse
Effect) and (ii) HEALTHAXIS has performed all of its obligations and has
complied in all material respects with all of its covenants set forth in this
Agreement to be performed or complied with on or prior to the Closing Date.
(h) Good Standing Certificate. A certificate as to the good standing of
HEALTHAXIS, issued by the Secretary of State of the Commonwealth of
Pennsylvania, dated no more than ten (10) days prior to the Closing.
(i) Addendum. A duly executed Addendum in the form attached hereto as
Exhibit E by which HEALTHAXIS shall become a party to DIGITAL's Stockholders'
Agreement.
(j) Closing Escrow Agreement. The duly executed Closing Escrow
Agreement attached hereto as Exhibit G (the "Closing Escrow Agreement").
(k) Other. Such other evidence of the performance of all covenants and
satisfaction of all conditions required of HEALTHAXIS by this Agreement, at or
prior to the Closing, as DIGITAL or its counsel may reasonably require.
4.3 Deliveries By Digital. Prior to or on the Closing Date, DIGITAL shall
deliver, or cause to be delivered, to HEALTHAXIS the following, in form and
substance reasonably satisfactory to HEALTHAXIS and its counsel:
(a) Purchase Price. The Cash Purchase Price in cash by wire transfer of
immediately available funds.
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(b) ▇▇▇▇ Of Sale. A duly executed ▇▇▇▇ of sale regarding the Assets, in
a form mutually agreed by and between DIGITAL and HEALTHAXIS.
(c) Software License and Consulting Agreement. The duly executed
Software License and Consulting Agreement.
(d) Common Stock Issuance. A Certificate for 3,178,170 shares of Common
Stock of DIGITAL (equal to an Eleven Percent (11%) interest in the fully-diluted
then outstanding shares of DIGITAL immediately following the Closing), together
with certification from the Secretary of DIGITAL attesting that such Certificate
represents an Eleven Percent (11%) interest in the fully-diluted then
outstanding shares of DIGITAL immediately following the Closing.
(e) Lease. A duly executed copy of the Lease.
(f) Secretary's Certificate. Certificate, dated as of the Closing Date,
executed by the Secretary or Assistant Secretary of DIGITAL certifying (i) as to
the Certificate of Incorporation of DIGITAL, (ii) as to the Bylaws of DIGITAL,
(iii) that the resolutions, as attached to such certificate, were duly adopted
by the Board of Directors of DIGITAL, authorizing and approving the execution of
this Agreement and the Related Agreements and the consummation of the
transactions contemplated hereby and thereby and that such resolutions remain in
full force and effect and (iv) as to the incumbency of the officers of DIGITAL
duly authorized to execute and deliver this Agreement and the Related
Agreements.
(g) Officer's Certificate. Certificate, dated as of the Closing Date,
executed by the President or Vice President of DIGITAL, certifying that (i) the
representations and warranties of DIGITAL in this Agreement are true and
complete at and as of the Closing Date (except for representations and
warranties that by their terms are made as of a specified date and except for
changes that are contemplated in this Agreement or occur in the ordinary course
of business which do not singly or in the aggregate have a Material Adverse
Effect) and (ii) DIGITAL has performed all of its obligations and has complied
in all material respects with all of its covenants set forth in this Agreement
to be performed or complied with on or prior to the Closing Date.
(h) Good Standing Certificate. A certificate as to the good standing of
DIGITAL, issued by the Secretary of State of the State of Delaware, dated not
more than ten (10) days prior to the Closing.
(i) Assignment and Assumption Agreement. An assignment and assumption
agreement, in a form mutually agreed by and between DIGITAL and HEALTHAXIS,
assigning the Assumed Contracts to DIGITAL.
(j) Closing Escrow Agreement. The duly executed Closing Escrow
Agreement attached hereto as Exhibit G.
(k) Other. Such other evidence of the performance of all covenants and
satisfaction of all conditions required of DIGITAL by this Agreement, at or
prior to the Closing, as HEALTHAXIS or its counsel may reasonably require.
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4.4 Effect of Failure to Close on Deliveries. In the event the parties hereto do
not close this Agreement, all duly executed agreements, certificates or other
documentation to be provided under this Article shall be null and void ab
initio, and neither party may assert any rights, titles or interests in any such
agreements, certificates or other documentation.
ARTICLE V
TRANSFER OF EMPLOYEES
5.1 Offer of Employment. All HEALTHAXIS employees identified on Schedule 5.1
shall have received written offers of employment with DIGITAL as "at-will
employees" for an undetermined period to be located initially at the East
Norriton, PA facility, to have been delivered by DIGITAL within forty (40) days
after the Closing Date, and will not be required to take drug tests or physical
examinations as a condition of such employment. All such offers shall be
contingent upon the Closing and shall be subject to acceptance or rejection by
such employees. Those employees who have accepted such offers from DIGITAL shall
be referred to herein as "Transferred Employees." Conditioned upon final
consummation of the Closing pursuant to the Escrow Closing Agreement (the
"Escrow Closing"), each of the Transferred Employees will cease their employment
with HEALTHAXIS and shall become employees of DIGITAL, and DIGITAL shall, within
thirty (30) days thereafter, reimburse HEALTHAXIS for the actual payroll and
benefits costs (including applicable payroll taxes and insurance) for such
Transferred Employees for the period commencing July 1, 2000 and ending on the
date of transfer.
5.2 Benefits Coverage. To the extent permitted by law or contract, DIGITAL's
benefit plans and programs offered to the Transferred Employees shall reflect
credit for service with HEALTHAXIS. No pre-existing limitations, waiting
periods, or proof of insurability will be imposed by DIGITAL or its benefits
plans with respect to initial benefits eligibility of the Transferred Employees.
To the extent legally permitted, HEALTHAXIS will distribute the amount in each
Transferred Employee's savings account in HEALTHAXIS' 401(K) plan, and DIGITAL
will allow each Transferred Employee to rollover the amount to DIGITAL's 401(K)
plan. HEALTHAXIS acknowledges and agrees that nothing in this Article V shall
require DIGITAL to undertake any modification of DIGITAL's existing compensation
and benefits practices or to take any action that would tend, in DIGITAL's good
faith judgment, to expose DIGITAL to any material liability under any law,
regulation, court order, ordinance or contract of any kind. The foregoing shall
be subject to policies adopted by the Board of Directors of DIGITAL and the
terms, conditions and restrictions of DIGITAL's benefit plans and policies.
5.3 Accrued Benefits. At or immediately following the Escrow Closing, HEALTHAXIS
shall pay to all Transferred Employees all accrued vacation, or other similar
accrued liability owed by HEALTHAXIS to the Transferred Employees as of the
Closing Date. DIGITAL shall provide each Transferred Employee with vacation time
subject to DIGITAL's policies and procedures. To the extent that vacation time
is determined based on length of service, Transferred Employees shall receive
credit for service with HEALTHAXIS. DIGITAL shall provide each Transferred
Employee who requests vacation time during the first 12 months after Escrow
Closing with newly-accrued vacation time, or if none has accrued, then up to two
(2) weeks unpaid vacation.
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5.4 Non-Solicitation By HealthAxis. HEALTHAXIS agrees, for itself and its
affiliates, not to re-hire, or directly or indirectly attempt to re-hire, for a
period of twelve (12) months from the Closing Date, any of the Transferred
Employees.
5.5 Non-Solicitation By Digital. The covenants and agreements of DIGITAL
regarding non-solicitation and hiring of HEALTHAXIS employees (other than the
Transferred Employees) shall be governed by the terms of the Software License
and Consulting Agreement.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of HealthAxis to Close. The obligations of
HEALTHAXIS to consummate the Closing shall be subject to the satisfaction, on or
before the Closing Date, of each and every one of the following conditions, all
or any of which may be waived in writing, in whole or in part, by HEALTHAXIS.
(a) Representations and Warranties; Covenants. The representations and
warranties of DIGITAL contained in this Agreement shall be true and correct in
all material respects as of the Closing, with the same force and effect as if
made as of the Closing; and the covenants and agreements contained in this
Agreement to be complied with by DIGITAL at or prior to the Closing shall have
been complied with in all material respects.
(b) No Order. No action or proceeding shall have been instituted
against HEALTHAXIS or any of its affiliates or any officer or director of
HEALTHAXIS or any of its Affiliates which seeks to, or would render it unlawful
as of the Closing to effect the transactions contemplated hereby in accordance
with the terms hereof or creates or poses a risk of creating a limitation on
HEALTHAXIS to own the DIGITAL Common Stock, and no such action shall seek
damages in a material amount by reason of the consummation of the transactions
contemplated hereby.
(c) Opinions of Counsel. HEALTHAXIS shall have received from the law
firm of Parker, Hudson, Rainer & ▇▇▇▇▇, LLP, counsel to DIGITAL, opinions dated
as of the Closing Date in form and substance reasonably satisfactory to
HEALTHAXIS.
(d) No Material Adverse Change. There shall not have occurred any
Material Adverse Change as to DIGITAL since the date of the Term Sheet.
(e) Deliveries. DIGITAL shall have made or stand willing and able to
make all the deliveries to HEALTHAXIS set forth in Section 4.3.
6.2 Conditions to Obligations of Digital to Close. The obligations of DIGITAL to
consummate the Closing shall be subject to the satisfaction, on or before the
Closing Date, of each and every one of the following conditions, all or any of
which may be waived in writing, in whole or in part, by DIGITAL.
(a) Representations and Warranties; Covenants. The representations and
warranties of HEALTHAXIS contained in this Agreement shall be true and correct
in all material respects as
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of the Closing, with the same force and effect as if made as of the Closing; and
the covenants and agreements contained in this Agreement to be complied with by
HEALTHAXIS at or prior to the Closing shall have been complied with in all
material respects.
(b) No Order. No action or proceeding shall have been instituted
against DIGITAL or any of its affiliates or any officer or director of DIGITAL
or any of its affiliates which seeks to, or would, render it unlawful as of the
Closing to effect the transactions contemplated hereby in accordance with the
terms hereof or would restrain, prohibit or otherwise interfere with the
effective operation or enjoyment by DIGITAL of all or any material portion of
the Assets or with the effective transfer of the Transferred Employees as
contemplated hereby, and no such action shall seek damages in a material amount
by reason of the consummation of the transactions contemplated hereby.
(c) Consents and Approvals. Each of the Consents shall have been duly
obtained and delivered to DIGITAL with no material adverse conditions imposed by
any such Consent and no Material Adverse Change to the terms of any Assumed
Contract with respect to which any Consent is obtained.
(d) Employment of Transferred Employees. Those Transferred Employees
whose name on Schedule 5.1 bears an asterisk shall have accepted employment with
DIGITAL, conditioned upon the occurrence of the Closing, pursuant to an offer of
employment extended by DIGITAL in satisfaction of its obligations under Article
V.
(e) Opinions of Counsel. DIGITAL shall have received from ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq., Vice President, Secretary and General Counsel of HEALTHAXIS, an
opinion dated as of the Closing Date in form and substance reasonably
satisfactory to DIGITAL.
(f) No Material Adverse Change. There shall not have occurred any
Material Adverse Change since the date of the Term Sheet.
(g) Deliveries. HEALTHAXIS shall have made or stand willing and able to
make all the deliveries to DIGITAL set forth in Section 4.2.
ARTICLE VII
ADDITIONAL COVENANTS, PROVISIONS AND AGREEMENTS
REGARDING THE COMMON STOCK
7.1 Preemptive Rights. HEALTHAXIS shall be entitled to preemptive rights to
acquire and maintain its proportional Eleven Percent (11%) fully-diluted share
of any shares, options, warrants, or similar rights or agreements to subscribe
for or acquire shares, or securities carrying conversion rights or options,
warrants, or similar rights or agreements that may be issued by DIGITAL subject
to the following limitations:
HEALTHAXIS shall have preemptive rights only (1) to the extent that DIGITAL
issues additional shares of common stock to raise up to an additional Fifteen
Million Dollars ($15,000,000) in equity or convertible debt financing, or (2)
through Eighteen (18) months following the Closing Date, whichever (1) or (2)
occurs sooner. HEALTHAXIS' preemptive rights shall be subject to the same
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payment, terms and other terms and conditions imposed by the Board of Directors
with respect to the securities to which the preemptive rights shall apply and
shall not apply to options or shares issued or reserved under DIGITAL's existing
2000 Non-Qualified Stock Option Plan (not in excess of 3,714,285 shares),
securities issued in connection with acquisitions or mergers or similar
transactions, shares issued upon conversion of the outstanding Series A
Preferred Stock or shares issued in connection with an initial public offering
of DIGITAL's Common Stock.
7.2 Capital Structure. As of the date of this Agreement, the authorized capital
stock of DIGITAL consists of 50,000,000 shares of DIGITAL Common Stock and
20,000,000 shares of preferred stock. As of the date of this Agreement, there
were (i) 2,000,000 shares of DIGITAL Common Stock issued and outstanding and
(ii) 20,000,000 shares of preferred stock, par value $.0001 per share, issued
and outstanding of which (i) 20,000,000 outstanding shares have been designated
as Series A Preferred Stock. No shares of DIGITAL Common Stock or DIGITAL
Preferred Stock are held in treasury. All outstanding shares of DIGITAL Common
Stock and DIGITAL Preferred Stock are validly issued, fully paid and
non-assessable and are not subject to preemptive or similar rights in favor of
third parties. As of the date of this Agreement, 3,714,285 shares of DIGITAL
Common Stock are reserved for issuance under the DIGITAL 2000 Non-Qualified
Stock Option Plan, and no shares of DIGITAL are subject to issuance pursuant to
the exercise of outstanding warrants.
Except as set forth in this Section or in Schedule 7.2 attached hereto, there
are no outstanding securities, options, warrants, calls, right, commitments,
agreements, arrangements, or undertakings of any kind to which DIGITAL or any
DIGITAL subsidiary is a party or by which such entity is bound, obligating
DIGITAL or any DIGITAL subsidiary to issue, deliver to sell, or cause to be
issued, delivered or sold additional shares of capital stock, securities, or
other ownership interests of DIGITAL or any DIGITAL Subsidiary or obligating
DIGITAL or any DIGITAL Subsidiary to issue, grant, extend or enter into any such
security, option, warrant, call right, commitment, agreement, arrangement or
undertaking or obligating DIGITAL or any DIGITAL Subsidiary to repurchase,
redeem or otherwise acquire any outstanding shares of capital stock, securities
or other ownership interests of DIGITAL or any DIGITAL Subsidiary. Except as set
forth in Schedule 7.2 attached hereto, there are no commitments, agreements,
arrangements or undertakings of any kind to which DIGITAL or any DIGITAL
Subsidiary is party, or by which such entity is bound, obligating DIGITAL or any
DIGITAL Subsidiary to make any equity or similar investment in, or capital
contribution to, any Person. Except as set forth in the Schedule 7.2 attached
hereto, the execution, delivery and performance by DIGITAL of this Agreement and
the transactions contemplated hereby will not result in the acceleration of any
DIGITAL Option and DIGITAL will not take any action to cause any such
acceleration.
7.3 Subsidiaries. Schedule 7.3 sets forth for DIGITAL and each Subsidiary of
DIGITAL, its exact legal name, the jurisdiction of its incorporation or
organization, its federal employer identification number, its address, telephone
number any facsimile numbers, its directors and officers, and all fictitious,
assumed or other names of any type that are registered or used by it or under
which it has done business at any time since such company's date of
incorporation. Each Subsidiary is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
the power and authority and all necessary government approval to own, lease and
operate its properties and to carry on its business as now being conducted. Each
Subsidiary of DIGITAL is duly qualified or licensed and in good standing to do
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Asset Purchase Agreement - Page 17
business in each jurisdiction in which the property owned, leased or operated by
it or the or the nature of the business conducted by it makes such qualification
or licensing necessary.
7.4 Registration Rights. HEALTHAXIS shall have no registration rights with
respect to the Acquired Common Stock unless DIGITAL's Board of Directors shall
grant such rights to HEALTHAXIS and the other holders of Common Stock.
ARTICLE VIII
ADDITIONAL COVENANTS, PROVISIONS AND AGREEMENTS
REGARDING ASSIGNMENT OF INSURANCE BUSINESS AND LICENSING ISSUES
8.1 Licensing And Transition Period. DIGITAL shall acquire appropriate insurance
agency licensing in all states in which HEALTHAXIS transacts insurance business
sufficient to operate the retail web site in its own name. Until such time as
the retail web site has been revised to reflect DIGITAL as the legal agent of
record (the "Transition Period"), HEALTHAXIS shall be the agent of record. All
commissions paid to HEALTHAXIS during such Transition Period shall be payable to
DIGITAL by HEALTHAXIS. DIGITAL agrees to assume all liabilities which may arise
out of HEALTHAXIS' capacity and performance as agent of record during the
Transition Period, and DIGITAL will defend, indemnify, and hold harmless
HEALTHAXIS for all such liabilities consistent with the provision of the
Indemnification provisions of Article XVI of this Agreement.
8.2 HealthAxis Records. Ownership of all corporate records relating to the
post-Closing conduct of business of the Retail Website, including customer
policy files, including certificates, correspondence, and billing shall be
transferred to DIGITAL upon the Closing.
8.3 Commission. Notwithstanding the approval or effective date of a policy,
HEALTHAXIS shall receive all initial or first year (but not including residuals)
commissions payable on policy sales for which applications have been received by
HEALTHAXIS and approved by the Carrier prior to the Closing Date. Commissions
paid to HEALTHAXIS or to DIGITAL on all applications received by HEALTHAXIS as
agent of record or DIGITAL, respectively, after the Closing Date or approved by
the Carrier after the Closing Date, shall be credited and paid to DIGITAL. In
the event a policy is cancelled or terminated, and a return of commission is due
a Carrier Partner, then the party that received the commission with respect to
such policy shall be responsible for returning any unearned premium, commission
or other amount due to the Carrier.
ARTICLE IX
ADDITIONAL COVENANTS, PROVISIONS AND AGREEMENTS
REGARDING COMMISSION REVENUE SHARING
9.1 Right To Payments Based On Commission Revenue. DIGITAL acknowledges and
agrees that upon Closing and the transfer of the Insurance Business to DIGITAL,
HEALTHAXIS be paid a percentage of DIGITAL's net commission revenue, as provided
in Section 3.4 hereof; provided, that if legally required to do so, HEALTHAXIS
shall maintain all appropriate licenses to enable it to lawfully receive such
payments.
9.2 Recordkeeping. The Parties acknowledge that all accounting and data records
relating to revenue, premiums, commissions, bounty tracking and policy sales are
dependent upon the actions
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of various third parties including Carrier Partners to this agreement, and are
subject to correction, modification and reconciliation following the Closing.
9.3 Digital Records And Right To Audit. DIGITAL shall maintain all necessary
books, records, claim files and correspondence in sufficient and accurate detail
so as to show the amount of commissions due HEALTHAXIS under this Agreement.
HEALTHAXIS and its duly authorized representatives shall have the right at its
expense, to inspect, examine and audit the records applicable to this Agreement
at all reasonable times during normal business hours upon reasonable advance
notice to DIGITAL; provided this right shall not be exercised more frequently
than semi-annually.
9.4 Payment. The payments under Section 3.4 shall be due within twenty (20) days
after the end of each calendar quarter hereunder.
ARTICLE X
CONTRACT LEAD GENERATION
10.1 On the Closing Date, HEALTHAXIS and DIGITAL shall execute the Technology
Brokerage Agreement (herein so called) attached hereto as Exhibit C, pursuant to
which HEALTHAXIS agrees to pay DIGITAL a Lead Generation Fee.
ARTICLE XI
ADDITIONAL OBLIGATIONS; COVENANTS CONSENTS
11.1 Obtaining Consents. HEALTHAXIS will use its best efforts to obtain any
Consent required to assign all Assumed Contracts and complete all other
transfers and transactions contemplated by this Agreement at HEALTHAXIS' sole
expense. HEALTHAXIS will provide DIGITAL with prompt written notice of the
effective date of the assignment of any Assumed Contract assigned to DIGITAL
after the Closing Date and with a copy of each such Assumed Contract.
11.2 Alternative Arrangement. In the event and to the extent that HEALTHAXIS is
unable to obtain any such Consent, or if any attempted assignment or novation
would be ineffective or would restrain, prohibit or otherwise interfere with the
effective operation or enjoyment by DIGITAL of all or any material portion of
the Assets or with the effective transfer of the Transferred Employees as
contemplated hereby, HEALTHAXIS will reasonably cooperate with DIGITAL, to the
extent permitted by law, in a reasonable arrangement under which DIGITAL would,
to the fullest extent possible, obtain the benefits and assume the obligations
with respect to such Asset, in accordance with this Agreement, and nothing
contained herein or in any Related Agreements shall be construed to have
assigned any such non-assignable contract or agreement.
11.3 Further Assurances. HEALTHAXIS agrees that, at any time after the Closing
Date, upon the request of DIGITAL, it will do, execute, acknowledge and deliver,
or will cause to be done, executed, acknowledged and delivered, all such further
acknowledgments, assignments, bills of sale, transfers, conveyances,
instruments, consents and assurances as may reasonably be required for the
better assigning, transferring, granting, conveying, assuring and confirming to
DIGITAL, its
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successors and assigns, the transfers contemplated by this Agreement free and
clear of all Liens other than Permitted Liens.
11.4 Conduct of Business of HealthAxis Pending the Closing. HEALTHAXIS agrees
that, during the period from the Term Sheet to the Closing:
(a) Operation. HEALTHAXIS shall have (a) caused the business operations
related to the Assets to be conducted in the ordinary course consistent with
past practice, (b) used commercially reasonably efforts to preserve intact the
relevant business, properties and organization with respect thereto in all
material respects, (c) used commercially reasonable efforts to maintain the
Physical Assets in good operating condition and repair (ordinary wear and tear
excepted), and (d) used commercially reasonable efforts to preserve for the
benefit of DIGITAL the goodwill of customers, vendors and others having business
relations with it related to the Assets.
(b) Disposition of Assets. HEALTHAXIS shall: (a) not have sold or
disposed of any of the Assets, (b) have used commercially reasonable efforts to
prevent the occurrence of any event or condition which may have a Material
Adverse Effect or would restrain, prohibit or otherwise interfere with the
effective operation or enjoyment by DIGITAL of all or any material portion of
the Assets or with the effective transfer of the Transferred Employees as
contemplated hereby, and (c) not have entered into any agreement, in writing or
otherwise, that would result in a breach of either of the foregoing covenants.
(c) Updated Schedules. HEALTHAXIS shall have promptly disclosed in
writing to DIGITAL any information contained in its representations and
warranties or any of the Schedules hereto which, because of an event occurring
after the date hereof, is incomplete or is no longer correct as of all times
after the execution hereof and until the Closing Date. Any such disclosure shall
be in the form of an updated Schedule, marked to reflect the new or amended
information. In the event that HEALTHAXIS makes any such disclosure prior to the
Closing and the Closing occurs, such disclosure shall be deemed to amend and
supplement the representations and warranties and the applicable Schedule
hereto, and DIGITAL shall have the right to be indemnified with respect to such
representations and warranties, and the applicable Schedule thereto as so
amended and supplemented, but not with respect to any prior representation and
warranty which has been amended, deleted or superseded as a result of such new
or amended information. Nothing contained in this Section 11.4 shall be
construed as changing any party's right to terminate this Agreement as provided
in Article XVII.
(d) Notice of Certain Matters. HEALTHAXIS shall have given prompt
written notice to DIGITAL, and DIGITAL shall give prompt written notice to
HEALTHAXIS, of any failure of HEALTHAXIS or DIGITAL, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder.
(e) Access to Records. Each party agrees to allow representatives of
the other party after the Closing, upon reasonable written notice, access to any
books and records relating to the Assets or the Transferred Employees for the
purpose of filing and supporting Tax returns and Tax audits of such other party
or defending any Claim relating thereto or any Third Party Claim. Each party
shall preserve such books and records as necessary to support tax returns of the
other party relating to the Assets or the Transferred Employees and to notify
the other party prior to
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destruction of any such records relating to periods prior to the Closing if the
destruction thereof is scheduled to occur within five (5) years after the
Closing Date, and the other party shall be permitted, upon reasonable written
notice, to take possession of such records at its sole expense. Nothing herein
shall be deemed to constitute a waiver of any attorney-client, work-product or
joint-defense privilege.
ARTICLE XII
AGREEMENTS REGARDING THE ACQUIRED COMMON STOCK
12.1 Stockholders' Agreement. As a condition to receiving the Acquired Common
Stock, HEALTHAXIS shall become a party to that certain Stockholders' Agreement
by and among DIGITAL, and the Series A Preferred Stockholders and the Common
Stockholders listed therein dated on or about April, 2000 (the "Stockholders'
Agreement") by executing the Addendum thereto in the form attached hereto as
Exhibit E. Among other provisions thereof, Section 3 of the Stockholders'
Agreement sets forth certain rights of first refusal in favor of DIGITAL and
certain holders of DIGITAL's Series A Preferred Stock.
12.2 Securities Law Restrictions. DIGITAL at its discretion may impose
restrictions upon the sale, pledge or other transfer of the Acquired Common
Stock (including the placement of appropriate legends on stock certificates or
the imposition of stop-transfer instructions) if, in the judgment of DIGITAL,
such restrictions are necessary or desirable in order to achieve compliance with
the Securities Act of 1933, as amended (the "Securities Act"), the securities
laws of any state or any other law.
12.3 Market Stand-Off. In connection with any underwritten public offering by
DIGITAL of its equity securities pursuant to an effective registration statement
filed under the Securities Act, including DIGITAL's initial public offering,
HEALTHAXIS shall not directly or indirectly sell, make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any option or other contract for the
purchase of, purchase any option or other contract for the sale of, or otherwise
dispose of or transfer, or agree to engage in any of the foregoing transactions
with respect to, any Acquired Common Stock without the prior written consent of
DIGITAL or its underwriters. Such restriction (the "Market Stand-Off") shall be
in effect for such period of time following the date of the final prospectus for
the offering as may be requested by DIGITAL or such underwriters. In no event,
however, shall such period exceed 180 days. The Market Stand-Off shall in any
event terminate two years after the date of DIGITAL's initial public offering.
In the event of the declaration of a stock dividend, a spin-off, a stock split,
an adjustment in conversion ratio, a recapitalization or a similar transaction
affecting DIGITAL's outstanding securities without receipt of consideration, any
new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Acquired Common Stock subject to the
Market Stand-Off, or into which such Shares thereby become convertible, shall
immediately be subject to the Market Stand-Off. In order to enforce the Market
Stand-Off, DIGITAL may impose stop-transfer instructions with respect to the
Acquired Shares until the end of the applicable stand-off period. DIGITAL's
underwriters shall be beneficiaries of the agreement set forth in this
subsection. This subsection shall not apply to Acquired Common Stock registered
in the public offering under the Securities Act, and HEALTHAXIS shall be subject
to this subsection only if the directors and officers of DIGITAL are subject to
similar arrangements.
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12.4 Rights of Digital. DIGITAL shall not be required to (i) transfer on its
books any Acquired Common Stock that has been sold or transferred in
contravention of this Agreement or (ii) treat as the owner of Acquired Common
Stock, or otherwise to accord voting, dividend or liquidation rights to, any
transferee to whom Acquired Common Stock has been transferred in contravention
of this Article XII.
ARTICLE XIII
CONFIDENTIALITY
13.1 Confidential Information. In the course of the performance of this
Agreement, HEALTHAXIS and DIGITAL each recognizes that it will obtain, or has
prior to the Closing Date obtained, access to the confidential, proprietary,
technical, business and operational information of the other (the "Confidential
Information"). Confidential Information includes all terms of the transactions
contemplated by this Agreement and the Related Agreements.
13.2 Non-Confidential Information. The following information shall not
constitute Confidential Information:
(a) Previously Possessed. It is demonstrated to have been in the
possession of the receiving party or available to the receiving party prior to
the disclosure, without any breach of a duty of confidentiality owed by any
party to the disclosing party;
(b) Subsequently Obtained. The receiving party rightfully obtains the
Confidential Information without breach of this Agreement, or any Applicable
Laws, from a third party having no duty of confidentiality to the disclosing
party;
(c) Developed. It is independently developed by the receiving party
without use of the Confidential Information; or
(d) Authorized. The disclosing party authorizes in writing the
disclosure of the Confidential Information.
13.3 Digital Confidential Information. As of the Closing Date, all information
disclosed by HEALTHAXIS which becomes or is intended to become the property of
DIGITAL by virtue of the transactions contemplated herein constitutes
Confidential Information of DIGITAL, as if DIGITAL were the disclosing party
therefor.
13.4 Standard of Care. All Confidential Information shall remain the exclusive
property of the disclosing party, and the receiving party may not disclose any
Confidential Information of the disclosing party for any reason without the
prior written consent of the disclosing party or make any use of such
Confidential Information other than as expressly permitted by or necessary to
perform its obligations under this Agreement or the Related Agreements. The
receiving party shall use the same care and discretion, but no less than
reasonable care and discretion, to avoid disclosure, publication, or
dissemination of Confidential Information it has received, as the receiving
party employs for similar information of its own which it does not desire to
publish, disclose or disseminate, except to those employees, directors, agents
and/or permitted subcontractors of the receiving party who have a need to know
in order to exercise the rights granted or retained pursuant to this Agreement
and who have agreed in writing to be bound by the confidentiality terms of the
Agreement. The receiving party shall be responsible and liable for breaches of
confidentiality obligations by its employees, directors, agents and/or permitted
subcontractors.
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13.5 Required Disclosure. Notwithstanding any other provision of this Article
XIII, if the receiving party is required to disclose any Confidential
Information pursuant to legal, accounting or regulatory requirements, the
receiving party shall provide to the disclosing party written notice of such
required disclosure sufficiently in advance thereof to enable the disclosing
party to take reasonable actions to avoid the requirement of disclosure.
Notwithstanding the foregoing, and subject to the prior consent of the other
party (such consent not to be unreasonably withheld or delayed), either party
shall have the right to disclose the existence and material terms of this
Agreement to the extent such party reasonably determines is necessary to comply
with stock exchange, securities and other similar disclosure requirements. The
receiving party shall cooperate with all reasonable requests of the disclosing
party in connection therewith.
13.6 Survival of Covenant. Notwithstanding anything contained herein to the
contrary, the obligations of the parties under this Article XIII shall survive
for a period of five (5) years from the earlier of the Closing Date or the
termination of this Agreement.
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES OF HEALTHAXIS
HEALTHAXIS hereby represents and warrants to DIGITAL as of the date
hereof and as of the Closing Date as follows:
14.1 Organization and Standing. HEALTHAXIS is a corporation duly organized and
existing under, and by virtue of, the laws of the Commonwealth of Pennsylvania
and is in good standing under such laws. HEALTHAXIS has the requisite corporate
power to own and operate its properties and assets and to carry on its business
as currently and previously conducted and as proposed to be conducted.
HEALTHAXIS is duly qualified to transact business and is in good standing in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or properties. Schedule 14.1 lists HEALTHAXIS'
federal employer identification number, the location of its principal office,
and all fictitious, assumed or other names of any type that are registered or
used by it or under which it has done business or acquired Assets at any time
since its incorporation.
14.2 Corporate Power. HEALTHAXIS has all requisite corporate power to execute
and deliver this Agreement and the Related Agreements and to carry out and
perform its obligations under the terms hereof and thereof.
14.3 Authorization. All corporate action on the part of HEALTHAXIS, its
directors and its stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Related Agreements has been
taken. This Agreement and the Related Agreements, when executed and delivered by
HEALTHAXIS, will constitute valid and binding obligations of HEALTHAXIS,
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws from time to time
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in effect affecting the enforcement of creditors' rights generally and except as
enforcement of remedies may be limited by general equitable principles.
14.4 Compliance With Other Instruments, No Consents, Etc. The execution,
delivery and performance of and compliance with this Agreement and the Related
Agreements will not result in any violation of, or conflict with, or constitute
a default under HEALTHAXIS' Charter or Bylaws, under the Assumed Contracts, or
under any material agreement to which HEALTHAXIS is a party, or result in the
creation of, any mortgage, pledge, lien, encumbrance or charge upon the Assets.
Except as set forth in Schedule 14.4, no Consent is required to be obtained on
the part of HEALTHAXIS to permit the consummation of the transactions
contemplated by this Agreement including, without limitation, the assignment of
the Assumed Contracts. HEALTHAXIS is not in violation of any term of its Charter
or Bylaws, or in any material respect of any term or provision of any Assumed
Contract or any mortgage, indebtedness, indenture, contract, agreement,
instrument, judgment or decree, order, statute, rule or regulation applicable to
HEALTHAXIS.
14.5 Litigation, Etc. There are no actions, suits, proceedings, oppositions,
interferences, cancellation proceedings, challenges, or other legal or
governmental proceedings (nor, to the best of HEALTHAXIS' knowledge,
investigations pending against HEALTHAXIS or its officers or properties or the
Assets before any court, arbitrator or governmental agency) (the foregoing
collectively referred to as "Actions"), nor, to the best of HEALTHAXIS'
knowledge, is there any threat of any of the foregoing Actions. HEALTHAXIS is
not a party to or subject to the provisions of any Governmental Order that, in
any such case, questions the validity of this Agreement and/or any of the
Related Agreements and/or any of the Assumed Contracts or any action taken or to
be taken by HEALTHAXIS in connection herewith or therewith, or that challenges
the validity, enforceability or ownership by HEALTHAXIS of any of the Software
Rights or Assets. There is no action, suit, proceeding or investigation by
HEALTHAXIS currently pending or that HEALTHAXIS currently intends to initiate
that questions or has the potential to harm the validity of this Agreement
and/or any of the Related Agreements or any action taken or to be taken by
HEALTHAXIS in connection herewith or therewith, or the validity, enforceability,
use or ownership by HEALTHAXIS of any of the Assets, the Proprietary Rights or
the Assumed Contracts.
14.6 Ownership of Assets. HEALTHAXIS owns good, valid and merchantable title to
all of the Assets free and clear of all Liens, other than Permitted Liens. There
are no agreements or arrangements between HEALTHAXIS and any third party which
have any effect upon HEALTHAXIS' title to or other rights respecting the Assets,
including the right to transfer the same as contemplated by this Agreement and
the Related Agreements.
14.7 Disclosure. The representations and warranties of HEALTHAXIS contained in
this Agreement and the Related Agreements do not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made. HEALTHAXIS has no present intention to
transfer this Agreement or any of its rights or obligations hereunder or under
the Related Agreements to any third party or any of its affiliates.
14.8 Intellectual Property. HEALTHAXIS makes the following representations and
warranties with respect to the Software Rights:
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(a) The Software Rights shall perform in accordance with the
documentation and other written material used in connection with the Software
Rights and are to be free of material defects in programming and operation in
accordance with Exhibit A hereto and Schedule 4 to the Software License and
Consulting Agreement. The Software Rights shall be in machine-readable form,
contain all current revisions of such Software Rights and include all computer
programs, materials, tapes, know-how, object and source codes, if available,
other written materials, know-how and processes related to the Conveyed
Software. HEALTHAXIS has delivered to DIGITAL the Technical Document (Exhibit A
of the Software Licensing and Consulting Agreement) describing to the maximum
extent possible as of the Closing Date the complete and correct copies of all
user and technical documentation related to the Software Rights.
(b) Except for the person or entities listed on Schedule 14.8 hereto
(the "Outside Developers"), the Software Rights has been developed solely by W-2
employees of HEALTHAXIS or by Outside Developers as "work for hire", and as to
the work performed with respect to the Software Rights by Outside Developers,
all such work, and all Proprietary Rights therein have been lawfully conveyed
and assigned by the Outside Developers to HEALTHAXIS pursuant to valid
assignment and confidentiality agreements.
(c) No employee, contractor to, or agent of HEALTHAXIS has developed or
assisted in the enhancement of the Software Rights except for enhancements
included in the Software Rights.
(d) Neither HEALTHAXIS nor any of its agents or employees, is under
default of any agreement or restricted covenant relating to the Software Rights
or its developmental exploitation.
(e) No party or person other than HEALTHAXIS has any interest in the
Software Rights including without limitation any license, royalty rights, moral
rights, contingent interest, or otherwise.
(f) HEALTHAXIS does not have any obligation to compensate any person or
entity for the development, use, sale or exploitation of the Software Rights,
and HEALTHAXIS has not granted to any other person or entity any license, option
or other rights to develop, use, sell or exploit in any manner the Software
Rights, whether requiring the payment of royalties or not.
(g) HEALTHAXIS and its shareholders, affiliates, employees, directors,
customers and other persons having access to the Software Rights have kept
secret and have not disclosed the source code for the Software Rights to any
person or entity other than employees of HEALTHAXIS who are subject to
appropriate confidentiality agreements.
(h) There have been no patents applied for and no copyrights registered
for any part of the Software Rights.
(i) The Software Rights are not subject to any Liens.
(j) The Software Rights does not infringe the copyrights, trade marks,
or other Proprietary Rights of any third person.
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(k) HEALTHAXIS has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Proprietary Rights of
third parties relating to the Software Rights, and none of the HEALTHAXIS
directors and officers (and employees with responsibility for Proprietary Rights
matters) of HEALTHAXIS has ever received any charge, complaint, claim, demand,
or notice alleging any such interference, infringement, misappropriation, or
violation relating to the Software Rights (including any claim that HEALTHAXIS
must license or refrain from using any Proprietary Rights of any third party).
To the knowledge of any of the HEALTHAXIS directors and officers (and employees
with responsibility for Proprietary Rights matters), no third party has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Proprietary Rights of HEALTHAXIS relating to the Software
Rights.
14.9 Condition Of Physical Assets. The Physical Assets are in good operating
condition and repair (ordinary wear and tear excepted) and are available at the
locations specified in Schedule 1.34 for immediate use.
14.10 Assumed Contracts. Schedules 1.4, 1.6, 1.10 and 1.35 contain a complete
and correct list of all material contracts, instruments, commitments and
agreements relating to the Assets and the business to be transferred by
HEALTHAXIS to DIGITAL in accordance with this Agreement, including the Assumed
Contracts to be transferred to DIGITAL upon Closing. HEALTHAXIS has delivered to
DIGITAL correct and complete copies of all Assumed Contracts including any and
all amendments thereto. Except as provided in Schedule 14.10, all of the Assumed
Contracts are in full force and effect in accordance with their terms, and
HEALTHAXIS is not currently in material breach of any of the terms of the
Assumed Contracts, has performed its obligations thereunder, has not waived any
rights thereunder, or is not otherwise aware of any fact, issue or circumstance
which would materially impact such Assumed Contract. Except as specifically
identified in Schedule 14.10, none of the other parties to the Assumed Contracts
are not performing, or have provided HEALTHAXIS with written notice that it will
not be able to perform, the party's obligations under the Assumed Contract.
Except as specifically identified in Schedule 14.10, HEALTHAXIS can assign to
DIGITAL all of the Assumed Contracts which are assignable by HEALTHAXIS to
DIGITAL as of the Closing Date, and after Closing, DIGITAL shall have been
assigned all rights of HEALTHAXIS under such Assumed Contracts. Except as set
forth in Schedule 14.10, each Assumed Contract is valid, binding, and
enforceable in accordance with its terms, is in full force and effect, and
HEALTHAXIS is not in breach, violation or default under any such license or
agreement.
14.11 Current Use. The utilization of the Assets in the manner currently so done
by HEALTHAXIS does not (i) violate any license or agreement with any third party
or (ii) infringe on, or otherwise conflict with, the rights of any person, nor
has such violation or an infringement been alleged or noticed to HEALTHAXIS, and
to the best of HEALTHAXIS' knowledge, there is no valid basis for any such
allegation. HEALTHAXIS has not, in connection with the Assets or any portion
thereof, received notice, that it or any of its customers or distributors has
infringed any copyright, patent, trademark, trade name, or other intellectual
property right of any third party or misappropriated or misused any invention,
trade secret or other proprietary information entitled to legal protection.
HEALTHAXIS has not asserted any such claim of infringement, misappropriation or
misuses against any third party in connection with the Assets, except as
provided in Schedule 14.11.
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14.12 Securities Compliance Representations/Warranties. In connection with the
issuance and acquisition of the Acquired Common Stock under this Agreement,
HEALTHAXIS hereby represents and warrants to DIGITAL as follows:
(a) HEALTHAXIS is acquiring and will hold the Acquired Common Stock for
investment for its account only and not with a view to, or for resale in
connection with, any "distribution" thereof in violation of the Securities Act.
(b) HEALTHAXIS acknowledges and agrees that the Acquired Common Stock
have not been registered under the Securities Act, or the securities acts of any
state, by reason of a specific exemption from registration which are based in
part on the representations and warranties of HEALTHAXIS contained herein, and
that the Acquired Common Shares cannot be sold or otherwise transferred, unless
they are subsequently registered under the Securities Act and applicable state
securities laws or HEALTHAXIS obtains an opinion of counsel, in form and
substance reasonably satisfactory to DIGITAL, that such registration under the
Securities Act and applicable state securities laws is not required. HEALTHAXIS
further acknowledges and agrees that DIGITAL is under no obligation to register
the Acquired Common Stock.
(c) HEALTHAXIS is an "accredited investor" within the meaning of
Acquired Common Stock and Securities Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
(d) HEALTHAXIS acknowledges and agrees that the Acquired Common Shares
it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from DIGITAL in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act, only in certain limited circumstances. HEALTHAXIS is aware
of the adoption of Rule 144 by the Securities and Exchange Commission under the
Securities Act, which permits limited public resales of securities acquired in a
non-public offering, subject to the satisfaction of certain conditions,
including (without limitation) the availability of certain current public
information about the issuer, the resale occurring only after the holding period
required by Rule 144 has been satisfied, the sale occurring through an
unsolicited "broker's transaction," and the amount of securities being sold
during any three-month period not exceeding specified limitations. HEALTHAXIS
acknowledges and agrees that the conditions for resale set forth in Rule 144
have not been satisfied and that DIGITAL has no plans to satisfy these
conditions in the foreseeable future.
(e) HEALTHAXIS will not sell, transfer or otherwise dispose of the
Acquired Common Stock in violation of the Securities Act, the Securities
Exchange Act of 1934 as amended, or applicable state securities laws, or the
rules promulgated thereunder, including, without limitation, Rule 144 under the
Securities Act. HEALTHAXIS agrees that it will not dispose of the Acquired
Common Stock unless and until it has complied with the requirements of this
Agreement applicable to the disposition of Acquired Common Stock, and it has
provided DIGITAL with written assurances, in substance and form reasonably
satisfactory to DIGITAL, that (A) the proposed disposition does not require
registration of the Acquired Common Stock under the Securities Act or all
appropriate action necessary for compliance with the registration requirements
of the Securities Act or with any exemption from registration available under
the Securities Act (including Rule 144)
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has been taken and (B) the proposed disposition will not result in the
contravention of any transfer restrictions applicable to the Acquired Common
Stock under applicable state securities laws.
(f) HEALTHAXIS has been furnished with, and has had access to, such
information as it considers necessary or appropriate for deciding whether to
invest in the Acquired Common Stock , and HEALTHAXIS has had an opportunity to
ask questions and receive answers from DIGITAL regarding the terms and
conditions of the issuance of the Acquired Common Stock.
(g) HEALTHAXIS is aware that its investment in DIGITAL is a speculative
investment which has limited liquidity and is subject to the risk of complete
loss. HEALTHAXIS is able, without impairing its financial condition, to hold the
Acquired Common Stock for an indefinite period and to suffer a complete loss of
its investment in the Acquired Common Stock.
(h) HEALTHAXIS agrees that the Acquired Common Stock shall be legended
with a legend in substantially the following effects:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT THERETO UNDER SUCH FEDERAL ACT AND ANY
APPLICABLE STATE LAWS OR (ii) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THEREOF THAT SUCH REGISTRATION IS NOT
REQUIRED.
14.13 Employee Matters. HEALTHAXIS is in compliance with all Laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and is not engaged in any unfair labor practice; there is no
unfair labor practice or employment discrimination complained against
HEALTHAXIS; HEALTHAXIS does not know of any labor strike or other labor trouble
actually pending or threatened against or affecting HEALTHAXIS; HEALTHAXIS has
not made commitments to or connected negotiations with any labor unions or
employee association with respect to future collective bargaining agreements;
and HEALTHAXIS has no knowledge of any organizational effort presently being
made or threatened by or on behalf of any labor union with respect to any
employees of HEALTHAXIS. All accrued obligations of HEALTHAXIS for payment by a
trust or other fund or to any benefit of welfare plan or to any governmental
agency with respect to unemployment compensation benefits, or Social Security
benefits, or withholding taxes or benefits due under any employee benefit or
welfare plan, have been paid or will be paid when due and all accrued benefits
payable directly to employees of HEALTHAXIS have been paid or will be paid by
HEALTHAXIS when due.
14.14 Compliance with Laws. HEALTHAXIS is in compliance with all laws insofar as
they relate to the Assets and the business to be conveyed to DIGITAL hereunder.
HEALTHAXIS has no knowledge of any governmental investigation or claim of
noncompliance by any governmental authority relating to any of the Assets.
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14.15 Licenses; Agents. Attached hereto is a list of all insurance agency
licenses maintained by HEALTHAXIS or its employees and a list of all contracts
between HEALTHAXIS and any insurance agent or agency. HEALTHAXIS has all current
and valid licenses and contracts required to operate the business conveyed to
DIGITAL hereunder, and all payments and other arrangements between HEALTHAXIS
and insurance agents or agencies and all payments under the Carrier Partner
Agreements, the Affinity Agreements and the Affiliate Agreements comply with all
Laws.
14.16 Schedules. The information in the Schedules is true, complete and accurate
in all material respects.
14.17 No Other Representations or Warranties. Except for the representations and
warranties contained in this Agreement, in the Exhibits and Schedules hereto,
the agreements specified herein and in the certificates required to be delivered
pursuant to or in connection herewith, neither HEALTHAXIS nor any other Person
acting for HEALTHAXIS makes any representation or warranty, express or implied,
and HEALTHAXIS and DIGITAL hereby disclaim any such representation or warranty,
whether by HEALTHAXIS or any of its officers, directors, employees, agents,
representatives or any other Person, with respect to the execution, delivery or
performance by HEALTHAXIS of this Agreement or the agreements specified herein
or with respect to the transactions contemplated hereby or thereby, including
any implied warranties of merchantability and fitness for a particular purpose.
ARTICLE XV
REPRESENTATIONS AND WARRANTIES OF DIGITAL
DIGITAL hereby represents and warrants to HEALTHAXIS as of the date hereof and
the Closing Date as follows:
15.1 Organization And Standing; Certificate And Bylaws. DIGITAL is a corporation
duly organized and existing under, and by virtue of, the laws of the state of
Delaware and is in good standing under such laws. DIGITAL has the requisite
corporate power to own and operate its properties and assets and to carry on its
business as currently and previously conducted and as proposed to be conducted.
DIGITAL is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business or properties.
15.2 Capital Structure. The Capital Structure of DIGITAL is consistent with the
provisions outlined in Article VII, paragraph 7.3 of this Agreement.
15.3 Corporate Power. DIGITAL has all requisite corporate power to execute and
deliver this Agreement and the Related Agreements and to carry out and perform
its obligations under the terms of this Agreement and such other agreements.
15.4 Authorization. All corporate action on the part of DIGITAL, its directors
and its stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Related Agreements has been taken. This
Agreement and the Related Agreements, when executed and delivered by DIGITAL,
will constitute valid and binding obligations of DIGITAL enforceable in
accordance with their respective terms.
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15.5 Compliance With Other Instruments, No Conflicts, Etc. The execution,
delivery and performance of, and compliance with, this Agreement and the Related
Agreements will not result in any violation of, or conflict with, or constitute
a default under DIGITAL's Certificate of Incorporation or Bylaws, or under any
agreement to which DIGITAL is a party, or result in the creation of, any
mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of DIGITAL or the DIGITAL Common Stock. No Consent is required to be
obtained on the part of DIGITAL to permit the consummation of the transactions
contemplated by this Agreement, except those Consents expressly identified in
this Agreement. DIGITAL is not in violation of any term of its Certificate of
Incorporation or Bylaws, or in any material respect of any term or provision of
any mortgage, indebtedness, indenture, contract, agreement, instrument, judgment
or decree, order, statute, rule or regulation applicable to DIGITAL.
15.6 Litigation, Etc. Except as otherwise disclosed in Schedule 15.6, there are
no actions, suits, proceedings, oppositions, challenges or investigations
pending against DIGITAL or its officers or properties before any Governmental
Authority (or, to the best of DIGITAL's knowledge, is there any threat thereof),
and DIGITAL is not a party to or subject to the provisions of any Governmental
Order that, in any such case, questions or has the potential to harm the
validity of this Agreement and/or any of the Related Agreements or any action
taken or to be taken in connection or herewith or therewith. There is no action,
suit, proceeding or investigation by DIGITAL currently pending or that DIGITAL
currently intends to initiate that questions or has the potential to harm the
validity of this Agreement and/or any of the Related Agreements or any action
taken or to be taken in connection or herewith or therewith.
15.7 Disclosure. The representations and warranties of DIGITAL contained in this
Agreement or the Related Agreements do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made. DIGITAL has no present intention to
transfer this Agreement or any of its rights or obligations hereunder or under
the Related Agreements to any third party.
15.8 Adequacy of Property. DIGITAL has, and will have had at Closing, an
opportunity to review and examine all of the Assets and related information it
deems appropriate in connection with the transactions contemplated herein, but
no such review or examination shall be deemed to diminish or impair any of
HEALTHAXIS' obligations, responsibilities or warranties hereunder.
15.9 Financial Information. All financial statements provided by DIGITAL to
HEALTHAXIS are true, correct and complete in all material respects.
15.10 No Other Representations or Warranties. Except for the representations and
warranties contained in this Agreement, in the Exhibits and Schedules hereto,
the agreements specified herein and in the certificates required to be delivered
pursuant to or in connection herewith, neither DIGITAL nor any other Person
acting for DIGITAL makes any representation or warranty, express or implied, and
HEALTHAXIS and DIGITAL hereby disclaim any such representation or warranty,
whether by DIGITAL or any of its officers, directors, employees, agents,
representatives or any other Person, with respect to the execution, delivery or
performance by DIGITAL of this Agreement or the agreements specified herein or
with respect to the transactions contemplated hereby or thereby.
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ARTICLE XVI
INDEMNIFICATION
16.1 Indemnification by HealthAxis. HEALTHAXIS hereby agrees to indemnify,
defend and hold harmless DIGITAL from and against all Damages asserted against,
imposed upon or incurred by DIGITAL, directly or indirectly, by reason of or
resulting from (i) any breach or inaccuracy of any representation, warranty or
covenant of HEALTHAXIS set forth in this Agreement or in the Software License
and Consulting Agreement, in the Exhibits and Schedules hereto, or in any
closing deliveries or certificates required to be provided by HEALTHAXIS
pursuant to this Agreement, or any breach of any other agreement or obligation
of HEALTHAXIS contained in or made pursuant to this Agreement or any of the
Related Agreements; (ii) the conduct and operation of HEALTHAXIS' business on or
before the Closing Date; (iii) the sale, license, use or operation of the Assets
on or before the Closing Date; (iv) the employment of the Transferred Employees
on or before the Closing Date or the termination of any retained employee's
employment by HEALTHAXIS as a result of the consummation of the transactions
contemplated hereby; (v) occurrences relating to the Assumed Contracts which
arise prior to the Closing Date; (vi) except as otherwise provided in Section
3.6, liabilities of HEALTHAXIS for any Taxes, including without limitation
arising as a result of the transactions contemplated by this Agreement or the
Software License and Consulting Agreement or the conduct or operation of
HEALTHAXIS' business on or prior to the Closing Date; and (vii) any Excluded
Liabilities.
16.2 Indemnification by Digital. DIGITAL hereby agrees to indemnify, defend and
hold harmless HEALTHAXIS from and against all Damages asserted against, imposed
upon or incurred by HEALTHAXIS, directly or indirectly, by reason of or
resulting from (i) any breach or inaccuracy of any representation, warranty or
covenant of DIGITAL set forth in this Agreement, any certificates required to be
provided by DIGITAL pursuant to this Agreement, or any other agreement or
obligation of DIGITAL contained in or made pursuant to this Agreement or any of
the Related Agreements; (ii) the Assumed Contracts from and after the Closing
Date to the extent assigned on the Closing Date and from and after the effective
date of any such Assumed Contract if assigned to DIGITAL after the Closing Date;
(iii) the sale, license, use or operation of the Assets from and after the
Closing Date; (iv) the performance of HEALTHAXIS as the agent of record during
the Transition Period pursuant to Section 8.1 of Article VIII herein (except
arising out of the negligent, willful, or criminal acts or omissions of
HEALTHAXIS); (v) the assistance and cooperation of HEALTHAXIS in the transfer of
the Retail Web Site pursuant to Section 2.5 herein; and (vi) the employment or
termination of employment of the Transferred Employees from and after the Escrow
Closing; provided, that no indemnification shall be afforded by DIGITAL to the
extent caused by any breach by HEALTHAXIS of any warranty, agreement or covenant
contained in this Agreement or the Related Agreements.
16.3 Third-Party Claims. The obligations and liabilities of each party to this
Agreement under Article XVI related to Third-Party Claims shall be subject to
the following terms and conditions:
(a) Participation By Indemnifying and Indemnified Party. Upon receipt
of written notice of any Third-Party Claim asserted against, imposed upon or
incurred by an Indemnified Party, the Indemnified Party shall notify the
Indemnifying Party thereof in writing. The Indemnifying Party shall be entitled,
at its own expense, to participate in and, upon notice to the Indemnified Party,
to undertake the defense thereof in good faith by counsel of the Indemnifying
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Party's own choosing, which counsel shall be reasonably satisfactory to
the Indemnified Party, provided that (i) the Indemnified Party shall at all
times have the option, at its own expense, to participate fully therein (without
controlling such action) and (ii) if in the Indemnified Party's reasonable
judgment (as evidenced and supported by an opinion of its legal counsel who will
not be the same counsel who will represent the Indemnified Party in the
underlying case) a conflict of interest exists between such Indemnified Party
and the Indemnifying Party in respect of such Third-Party Claim, such
Indemnified Party shall be entitled to select counsel of its own choosing,
reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party
shall be obligated to pay the reasonable fees and expenses of such counsel.
(b) Failure by Indemnifying Party to Defend. If within thirty (30) days
after written notice to the Indemnified Party of the Indemnifying Party's
intention to undertake the defense of any Third-Party Claim the Indemnifying
Party shall fail to defend the Indemnified Party against such Third-Party Claim,
the Indemnified Party will have the right (but not the obligation) to undertake
the defense, compromise or settlement of such Third-Party Claim on behalf of,
and for the account and at the risk of, the Indemnifying Party.
(c) Right of Indemnified Party to Defend and Settle. Notwithstanding
anything in this Section 16.3 to the contrary, if a Third-Party Claim is
asserted against an Indemnified Party and there is a reasonable probability in
the Indemnified Party's reasonable good faith judgment that a Third-Party Claim
may materially and adversely effect the Indemnified Party, other than as a
result of the imposition of money damages or other money payments, (i) the
Indemnified Party shall have the right, at its sole option, to take over the
defense of such Third-Party Claim (in which case the Indemnifying Party and the
Indemnified Party shall share equally the cost and expense of such defense) or
to co-defend such Third-Party Claim (in which case the Indemnified Party shall
incur the cost and expense of the additional counsel) and no compromise or
settlement of such Third-Party Claim shall be permitted without the consent of
both the Indemnified Party and the Indemnifying Party, and (ii) the Indemnifying
Party and the Indemnified Party shall not, without the prior written consent of
the other party, settle or compromise any Third-Party Claim or consent to the
entry of any judgment relating to any such Third-Party Claim, unless such
settlement, compromise or judgment includes as an unconditional term thereof
that the Indemnified Party shall be released from all liabilities in respect of
such Third-Party Claim.
16.4 Limitation On Indemnification Obligations. Notwithstanding anything
contained in this Article XVI or otherwise to the contrary, no party shall
assert a Claim against the other party for indemnification hereunder or under
the Software License and Consulting Agreement, unless and until the amount of
all Damages determined to have been incurred or suffered at the time by the
Indemnified Party exceeds, in the aggregate, $150,000, and then only for the
excess of such amount. The parties hereto further acknowledge and agree that the
total indemnification obligations of each party hereto under this Agreement and
the Software License and Consulting Agreement shall not exceed, in the aggregate
for such party, $15,000,000. The foregoing limitations shall not apply to Claims
made by a party with respect to fraud on the part of the other party or a breach
by the other party of any representation or warranty in this Agreement or under
the Software License and Consulting Agreement, of which such breaching party had
knowledge on or prior to the Closing. No party hereto shall have any liability
under any provision of this Agreement for any special, indirect, incidental or
consequential Damages or lost profits.
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ARTICLE XVII
TERMINATION
17.1 Methods of Termination. The transactions contemplated herein may be
terminated and/or abandoned at any time prior to the Escrow Closing as follows:
(a) Mutual Consent. By the mutual written consent of HEALTHAXIS and
DIGITAL;
(b) Failure To Close. By either HEALTHAXIS or DIGITAL, if the Escrow
Closing shall not have occurred prior to September 15, 2000, provided, however,
that the right to terminate this Agreement under this Section 17.1(b) shall not
be available to any party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted in, the failure
of the Escrow Closing to occur prior to such date;
(c) Non-Fulfillment of HealthAxis' Conditions. By HEALTHAXIS, if any of
the conditions set forth in Section 6.1 becomes incapable of fulfillment and is
not waived by HEALTHAXIS;
(d) Non-Fulfillment of Digital's Conditions. By DIGITAL, if any of the
conditions set forth in Section 6.2 becomes incapable of fulfillment and is not
waived by DIGITAL;
(e) Governmental Order. By either HEALTHAXIS or DIGITAL, if any
Governmental Authority with jurisdiction over such matters shall have issued a
Governmental Order restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby and such order, decree,
ruling or other action shall have become final and unappealable, provided,
however, that the provisions of this Section 17.1(e) shall not be available to
any party unless such party shall have used its reasonable best efforts to
oppose any such Governmental Order or to have such Governmental Order vacated or
made inapplicable to the transactions contemplated by this Agreement;
(f) Change In Control. By either party at any time prior to the Closing
upon a change of control of the other party.
17.2 Procedure Upon Termination Prior to Closing. In the event of termination or
abandonment pursuant to Section 17.1 hereof, written notice thereof shall be
given to the other party hereto and the transactions contemplated by this
Agreement shall be terminated and/or abandoned, without further action by
DIGITAL or HEALTHAXIS. If the transactions contemplated by this Agreement are
terminated and/or abandoned as provided herein, each party will redeliver all
documents, work papers, Confidential Information and other material of the other
party relating to the transactions contemplated hereby, whether obtained before
or after the execution of this Agreement, to the party furnishing the same. A
party hereto who shall have satisfied in full all of the obligations of such
party under this Agreement which were to have been satisfied by such party prior
to the Closing and who shall have not breached any representation, warranty,
covenant or agreement of such party contained in this Agreement shall not have
any liability or further obligation to the other party to this Agreement.
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ARTICLE XVIII
MISCELLANEOUS
18.1 Publicity. Each of the parties acknowledges the importance of appropriate
disclosures in positioning the relationship between the two companies to the
press, customers and others. Within one business day following the Closing,
DIGITAL and HEALTHAXIS will jointly issue a press release regarding the
execution of this Agreement in a form mutually agreed to by and between DIGITAL
and HEALTHAXIS. Thereafter, each of the parties agrees that until six (6) months
following the Closing, no press release or other disclosures by company
representatives shall conflict with the initial press releases approved by the
parties pursuant to this Section 18.1 without the prior written consent of the
other party, such consent not to be unreasonably withheld or delayed. Approval
shall be deemed to have been given if there is a written response to a proposed
release or disclosure is not delivered to the requesting party within two (2)
business days after delivery of a request for such approval.
18.2 Notices. All notices, requests, demands and other communications which are
required or may be given pursuant to the terms of this Agreement shall be in
written or electronic form and shall be deemed delivered (i) on the date of
delivery when delivered by hand, (ii) on the date of transmission when sent by
facsimile transmission during normal business hours with written confirmation of
receipt, (iii) one day after dispatch when sent by overnight courier maintaining
records of receipt, or (iv) three days after dispatch when sent by certified
mail, postage prepaid, return-receipt requested; provided that, in any such
case, such communication is addressed as follows:
If to HEALTHAXIS , then to:
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President & CEO
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Vice President, Secretary and General Counsel
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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And to:
▇▇▇ ▇▇▇▇▇▇
Vice President of Finance
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to DIGITAL, then to:
Digital Insurance, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President & CEO
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇, ext. 403
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Parker, Hudson, Rainer & ▇▇▇▇▇ LLP
1500 Marquis Two Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 404-522-8409
and to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Digital Insurance, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
18.3 Relationship of the Parties. It is understood and agreed that each of the
parties hereto is an independent contractor, and that neither party is, or shall
be considered to be, by virtue of this Agreement, an agent or representative of
the other party for any purpose.
18.4 Assignment. Neither party may assign this Agreement except in
connection with a share exchange, stock purchase, merger, consolidation, or
similar transaction or as part of a sale of all or
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substantially all of the assigning party's relevant business or assets, or a
transaction in which DIGITAL's internet insurance agency business is sold or
transferred, with the prior written consent of the other party.
18.5 Binding Effect. This Agreement shall be binding on all parties hereto, and
shall be binding upon and inure to the benefit of each party and its respective
permitted successors and assigns.
18.6 Waiver; Modification; Amendment. No term or provision hereof will be
considered waived by either party, and no breach excused by either party, unless
such waiver or consent is in writing duly signed on behalf of the party against
whom the waiver is asserted. No consent by either party to, or waiver of, a
breach by either party, whether express or implied, will constitute a consent
to, waiver of, or excuse of any other different, or subsequent, breach by either
party. This Agreement, including the Schedules and Exhibits attached hereto may
not be modified or amended except by an instrument in writing duly signed by or
on behalf of the parties hereto.
18.7 Force Majeure. Each of the parties hereto shall exert diligence in
performing its obligations under this Agreement, but neither shall be liable in
any manner whatsoever for failure to perform or delay in performing such
obligations, if and to the extent and for so long as such failure or delay in
performance or breach is due to natural disasters, strikes or labor disputes,
natural forces, or other acts of God or cause reasonably beyond the control of
such party. Any party desiring to invoke this Section 18.7 shall notify the
other in writing of such desire and shall use reasonable efforts and due
diligence to resume performance of its obligations.
18.8 Severability. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly as possible the
same economic and practical effect as the original provision and the remainder
of this Agreement will remain in full force and effect.
18.9 No Interpretation Against Drafter. The terms and provisions of this
Agreement shall not be construed against the drafter or drafters hereof. All
parties hereto agree that the language of this Agreement shall be construed as a
whole according to its fair meaning and not strictly for or against any of the
parties hereto.
18.10 Governing Law This Agreement shall be governed and enforced in accordance
with the substantive laws of the Commonwealth of Pennsylvania, without regard to
any such laws or regulations that may direct the application of the law of any
other jurisdiction.
18.11 Dispute Resolution and Arbitration. Any issue or dispute between the
parties arising out of or related to this Agreement or its alleged breach that
is not resolved between the parties shall be referred to arbitration in
accordance with the provisions of this Section. Any such unresolved issue,
dispute or claim shall be resolved exclusively by final and binding arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Demand for arbitration must be made within one year after the party
asserting the claim has given written notice of the claim to the other party. If
the claiming party fails to demand arbitration within such one year period, the
claim shall be deemed to be waived and shall be barred from either arbitration
or litigation. Either party may invoke arbitration of an issue by serving on the
other party a written notice of arbitration, which shall specify with reasonable
detail (1) the issue in dispute, (2) the claims asserted, and (3) the remedy
sought by the party invoking arbitration. Each party shall appoint one
arbitrator to arbitrate
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the subject issue. The arbitrators shall be appointed within fifteen (15) days
of the date of the foregoing described notice. If one party fails or refuses to
appoint an arbitrator, then the first arbitrator appointed shall appoint a
second arbitrator. Within thirty (30) days of the last of those appointments,
the two arbitrators shall appoint a third arbitrator. If the two arbitrators
fail to select a third arbitrator, the third arbitrator shall be selected by the
American Arbitrator Association. If the dispute involves intellectual property
rights, the arbitrators shall be selected from panels selected by the American
Arbitration Association containing experts in intellectual property. Each party
appointing an arbitrator or for whom an arbitrator is appointed shall bear all
costs and expenses associated with that arbitrator, and the cost and expenses
associated with the third arbitrator shall be shared equally by the parties. If
HEALTHAXIS makes demand for arbitration as provided herein, then the arbitration
hearing shall be held in the Atlanta, Georgia area, or at another location
designated by DIGITAL, unless such claim relates to improper use or disclosure
of the software licensed hereunder by DIGITAL, in which event the arbitration
hearing shall be held at a location specified by HEALTHAXIS. If DIGITAL makes
demand for arbitration, then the arbitration herein shall be held in the Dallas,
Texas area or at another location specified by HEALTHAXIS. Within ten (10) days
after the conclusion of the arbitration proceeding, the arbitrators shall render
a written decision of the arbitration and state the reasons for the award and
decision. The arbitrators may award costs, including attorney's fees, to the
prevailing party. The decision of the arbitrators is binding on the parties, and
after the completion of the arbitration, a party to the arbitration may not
institute litigation to reverse the decision of the arbitrators. It may,
however, institute litigation in any court of competent jurisdiction to enforce
the claim or issue determined by the arbitration proceeding.
18.11 Entire Agreement. This Agreement, together with the Schedules and Exhibits
attached hereto, and the Related Agreement, constitute the entire agreement
between the parties relating to this subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and agreements with
respect thereto, whether written or oral. Without limiting the foregoing, this
Agreement expressly supersedes the Term Sheet between DIGITAL and HEALTHAXIS
executed on May 27, 2000, and as revised and re-executed on June 2, 2000.
18.12 Survival. The representations, warranties, covenants and agreements set
forth in this Agreement and any Related Agreement shall survive the Closing
Date, and the consummation of the transactions contemplated by this Agreement,
subject to the Indemnification Provisions of Article XVI herein.
18.13 Counterparts. This Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
18.14 Terms Generally. Whenever the context requires, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references to "party" and "parties" shall be deemed references
to the parties to this Agreement unless the context shall otherwise require. The
terms "this Agreement", "hereof", "hereunder", and similar expressions refer to
this Agreement and not to any particular Section or other portion hereof and
include any agreement supplemental hereto. All references to Sections,
paragraphs, Schedules and Exhibits shall
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be deemed references to Sections of, paragraphs of, and Schedules and Exhibits
to, this Agreement unless the context shall otherwise require. The term "or" is
used in its inclusive sense ("and/or").
18.15 Expenses. Except as otherwise expressly provided herein, all costs and
expenses, including fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement such costs and the
transactions contemplated hereby shall be paid by the party incurring expenses,
whether or not the Closing shall have occurred.
18.16 Remedies Cumulative; Specific Performance. All remedies, afforded to the
parties under this Agreement or any Related Agreement, Applicable Law or
otherwise, shall be cumulative and not alternative. Each of the parties agrees
that in the event of any breach or threatened breach by a party of any provision
of this Agreement or any Related Agreement, the other party shall be entitled,
in addition to any other rights or remedies it may have, to a decree or order of
specific performance or mandamus to enforce the observance and performance of
such provision and an injunction restraining such breach or threatened breach.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives, effective as of the date first above
written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President & CEO
DIGITAL INSURANCE, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President & CEO
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Asset Purchase Agreement - Page 39
EXHIBITS
Exhibit A Software Licensing And Consulting Agreement
Exhibit B Lease For ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
Exhibit C Technology Brokerage Agreement
Exhibit D Allocation Schedule
Exhibit E Addendum to Digital's Stockholders' Agreement
Exhibit F Description of Retail Presentation Layer Rights
Exhibit G Closing Escrow Agreement
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