AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
This AMENDMENT No. 2 TO ASSET PURCHASE AGREEMENT (this "Amendment") is
executed as of the 31st day of May, 2001, by and between Digital Insurance,
Inc., a Delaware corporation ("Digital"), and XxxxxxXxxx.xxx, Inc., a
Pennsylvania corporation ("HealthAxis").
W I T N E S S E T H:
WHEREAS, Digital and HealthAxis have executed that certain Asset
Purchase Agreement dated June 30, 2000, as previously amended by that certain
Amendment to Asset Purchase Agreement dated September 15, 2000 (collectively,
the "Asset Purchase Agreement"); and
WHEREAS, the parties desire to further amend the Asset Purchase
Agreement as set forth herein.
NOW THEREFORE, in consideration of Ten Dollars ($10.00), and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Prepayment of Promissory Note by Digital. Notwithstanding Section 3.1(a) of
the Asset Purchase Agreement, and subject to the provisions of Section 4 of this
Amendment, Digital has paid, and HealthAxis has accepted, a total aggregate
payment of $2,000,000.00 as payment in full of (i) all remaining principal and
interest thereon due to HealthAxis pursuant to the Promissory Note dated June
30, 2000, as delivered to HealthAxis in accordance with Section 3.1(a) of the
Asset Purchase Agreement, and (ii) certain other amounts due to HealthAxis as
described in that certain Amendment No. 3 to Software License and Consulting
Agreement which is being entered into simultaneously herewith by Digital and
HealthAxis which relates to the Software License and Consulting Agreement dated
as of June 30, 2000 between Digital and HealthAxis, as amended by that certain
Amendment to Software License and Consulting Agreement dated as of September 15,
2000 and Amendment No. 2 to Software License and Consulting Agreement dated as
of March 31, 2001 (collectively, the "License and Consulting Agreement") . As a
result, and except as expressly provided in Section 4 of this Amendment, no
further amounts are due to HealthAxis pursuant to the Promissory Note or Section
3.1(a) of the Asset Purchase Agreement. HealthAxis acknowledges and agrees that,
except as otherwise provided in Section 4 below, said $2,000,000 represents full
and final payment for the "Assets" sold to Digital under the Asset Purchase
Agreement and full and final payment for the "License Fee" and previously
deferred "Service Fees", including interest on all such amounts, under the
License and Consulting Agreement.
2. Mutual Release for Certain Payment Obligations. Except for the continuing
obligations of both HealthAxis and Digital as provided in the Asset Purchase
Agreement, and except as expressly provided in Section 1 above and this Section
2, HealthAxis and Digital do hereby release and discharge the other from any and
all payment obligations whatsoever as contained in the Asset Purchase Agreement
arising prior to June 1, 2001. Notwithstanding the preceding sentence, (i)
HealthAxis acknowledges and agrees that it will remain responsible for payment
of any amounts due to Student Advantage arising out of the claim for $50,000.00
being made by Student Advantage for advertising service fees, and Digital shall
have no responsibility for any such payment or claims related thereto and (ii)
Digital acknowledges and agrees that it shall remain obligated to pay all
amounts due to HealthAxis based upon commission revenues pursuant to Section 3.4
of the Asset Purchase Agreement, including those arising prior to June 1, 2001.
In connection with the above, Digital agrees that it will cooperate with
HealthAxis in seeking to minimize the amounts HealthAxis actually pays to
Student Advantage to settle the claim. With regard to the commission revenue
payments pursuant to Section 3.4 of the Asset Purchase Agreement, HealthAxis and
Digital agree that they will treat all amounts previously paid as final and will
not contest the accuracy of such amounts. However, going forward Digital will
report, calculate and pay the commission revenue payments strictly in accordance
with the provisions of Section 3.4 of the Asset Purchase Agreement.
3. Financials. In connection with HealthAxis' ownership of Common Stock of
Digital, so long as HealthAxis owns at least 500,000 shares of Digital Common
Stock, Digital will provide quarterly financial reports to the Healthaxis Chief
Financial Officer within 30 days of the end of each quarter, which reports
HealthAxis shall keep confidential except for information that Digital has made
available to the public.
4. Additional Funding Requirement. HealthAxis has agreed to the terms and
conditions contained in this Amendment based upon Digital's representations that
the agreements contained herein would enhance Digital's ability to raise
additional funding. Accordingly, notwithstanding anything in this Amendment to
the contrary, in the event Digital has not completed an additional round of
funding by raising at least $4,000,000 on or before March 31, 2002 (the
"Additional Funding Requirement"), then HealthAxis shall be entitled to receive
any and all amounts (including accrued interest) which would have otherwise
become due under the Promissory Note as if this Amendment had never been entered
into. The Additional Funding Requirement shall also be deemed satisfied if
Digital enters into a merger or other business combination transaction which has
the net effect of increasing Digital's cash position by at least $4,000,000 (the
surviving entity in the merger or other transaction has cash equal to the cash
position of Digital immediately prior to the merger or other transaction plus at
least $4,000,000) on or before March 31, 2002. If Digital fails to satisfy the
Additional Funding Requirement, Digital would be entitled to credit for the
$2,000,000.00 paid herewith against such unpaid amounts that would otherwise
have become due under the Promissory Note and against any remaining License Fee
and previously deferred Service Fees that would otherwise have become due under
the License and Consulting Agreement (as applicable). Digital may, at any time,
give written notice to HealthAxis that Digital no longer utilizes the Non-Retail
Presentation Layer Software and Other Common Modules, and in such case, no
further payments shall be due under this Section regardless of whether an
Additional Funding Event occurs on or before March 31, 2002, and the license
granted to Digital in the License and Consulting Agreement shall be deemed
automatically terminated for all purposes.
5. Full Force and Effect. The Asset Purchase Agreement, as amended hereby, shall
remain in full force and effect, and all capitalized terms as used herein shall
have the meaning as defined in the Asset Purchase Agreement. To the extent there
are any inconsistencies between the terms of this Amendment and the terms of the
Asset Purchase Agreement, the terms of this Amendment shall prevail.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives effective as of the date first
above written.
DIGITAL INSURANCE, INC. XXXXXXXXXX.XXX, INC.
BY:___________________________ BY: ________________________
XXXXXX X. XXXXXXX XXXXX X. XXXXXX
PRESIDENT & CEO PRESIDENT & CEO
