this Agreement and (iii) has determined to recommend that the
stockholders of HealthAxis vote to approve this Agreement and the transactions
and other matters contemplated by this Agreement.
D.
The Board of Directors of Merger Sub:
(i) has determined that this Agreement and the Merger are advisable and in the
best interests of Merger Sub and its sole stockholder, (ii) has approved this
Agreement, the Merger, and the other actions contemplated by this Agreement,
(iii) has adopted this Agreement and (iv) has determined to recommend that the
stockholder of Merger Sub vote to adopt this Agreement and to approve the Merger
and such other actions as are contemplated by this Agreement.
E.
The Board of Directors of BPOMS: (i) has
determined that the proposed Merger is advisable and is in the best interests of
BPOMS and its stockholders, (ii) has approved this Agreement, the Merger, the
BPOMS Pre-Merger Steps (as hereinafter defined) and the other actions
contemplated by this Agreement, (iii) has adopted this Agreement and (iv) has
determined to recommend that the stockholders of BPOMS vote to adopt this
Agreement and to approve the Merger and such other transactions as are
contemplated by this Agreement.
F.
As a condition and inducement to the
Parties entering into this Agreement and incurring the obligations set forth
herein, concurrently with the execution and delivery of this Agreement
(i) certain HealthAxis stockholders are entering into the HealthAxis Voting
Agreement in the form attached as Exhibit A and certain BPOMS stockholders are
entering into the BPOMS Voting Agreement in the form attached as Exhibit B with
respect to the voting of their shares of HealthAxis and BPOMS, respectively, in
connection with the transactions contemplated by this Agreement, and
(ii) certain HealthAxis security holders are entering into the agreements
referenced in Section 2.2(a) below in connection with the HealthAxis Pre-Merger
Steps and BPOMS has entered into certain agreements and taken other steps, as
referenced in Section 2.1(a) below in connection with the BPOMS Pre-Merger
Steps.
1
AGREEMENT
In consideration of the foregoing, and of the representations, warranties,
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS, SCHEDULES AND EXHIBITS
1.1
Definitions
In this Agreement, the following terms shall have the meanings set out in the
paragraphs indicated below:
"Additional Financing"
7.10(a)
"Affiliate"
5.17(a)(i)
"BPOMS Cap Table"
2.1(b)
"BPOMS Common Share" and collectively "BPOMS Common Shares"
3.2(a)
"BPOMS Common Stock"
3.2(a)
"BPOMS Contracts"
5.16(a)
"BPOMS Convertible Preferred Stock"
3.6(d)
"BPOMS Designees
7.12
"BPOMS Disclosure Letter"
Article 5
"BPOMS Forecast"
5.23
"BPOMS Intellectual Property"
5.18(a)(ii)
"BPOMS Investor Warrants
3.4
"BPOMS Material Adverse Effect"
5.1(a)
"BPOMS Meeting"
7.2(a)
"BPOMS Non-Investor Warrants"
3.5(a)
"BPOMS Option"
3.5(a)
"BPOMS Outstanding Investor Warrants"
3.4(c)
"BPOMS Penny Warrants
4.2(a)
"BPOMS Pre-Merger Steps
2.1(a)
"BPOMS Products"
5.18(e)
"BPOMS Proxy Statement"
7.2(b)
"BPOMS Registered Intellectual Property"
5.18(a)(iii)
"BPOMS SEC Documents"
5.7(a)
"BPOMS Series A Preferred Shares"
5.3(a)
2
"BPOMS Series B Preferred Shares"
5.3(a)
"BPOMS Series C Preferred Shares"
5.3(a)
"BPOMS Series D Preferred Shares"
5.3(a)
"BPOMS