Exhibit 99.3
AGREEMENT FOR PURCHASE AND
SALE OF SECURITIES
THIS AGREEMENT FOR PURCHASE AND SALE OF SECURITIES (the "Agreement") is
entered into as of February __, 2001, by and between FIDELITY NATIONAL
FINANCIAL, INC., a Delaware corporation ("Fidelity"), and XXXXX NORTH AMERICA,
INC., a Delaware corporation (the "Seller").
A. Seller is the sole owner of Nine Hundred Fifty Thousand (950,000)
shares (the "Shares") of the outstanding Common Stock, par value $0.001 (the
"Common Stock") of Vista Information Systems, Inc., a Delaware corporation (the
"Company").
B. Seller is the holder of that certain Amended and Restated Secured
Convertible Note, dated May 3, 2000 (the "Note"), issued to the Seller jointly
and severally by the Company and Vista DMS, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company, in the original principal amount of
Eighteen Million Seven Hundred Thousand Dollars ($18,700,000).
C. Seller is obligated to make retention bonus payments to certain
Vista employees in an aggregate amount equal to $225,491.50 (such obligation,
the "Bonus Payment Obligation") pursuant to that certain Confidential Settlement
Agreement and Release, dated as of August __, 2000 (the "Settlement Agreement"),
by and among the Seller and, inter alia, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx
X. Xxxxx, Xx., and Xxxxxxx X. Xxxxxxx.
D. Seller and the Company have entered into various real property
leases and related agreements providing for, inter alia, lease payments to be
made or allocated between the Company and the Seller, and guaranties or similar
contingent lease payment obligations by the Seller on behalf of the Company, in
either case terminating on August 31, 2003 (collectively, the "Lease
Obligations").
E. Fidelity has entered into a letter of intent to enter into a
transaction with the Company whereby Fidelity will contribute certain of its
subsidiaries to the Company in return for a majority equity interest in the
Company (the "Transaction").
F. In order to facilitate the Transaction, Fidelity and Seller desire
by this Agreement to provide for (i) Seller to sell, and Fidelity to purchase,
all of Seller's right, title and interest in and to the Shares and the Note;
(ii) Fidelity to assume the Bonus Payment Obligation; and (iii) Seller to
release the Company from liability for certain matters, all as more particularly
specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and provisions set forth in this Agreement, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
Fidelity and Seller agree as follows.
1. PURCHASE AND SALE OF SECURITIES.
1.1 SALE AND PURCHASE OF SECURITIES. At the Closing, Seller shall
sell to Fidelity, and Fidelity shall purchase from Seller, all of Seller's
Shares and the Note (collectively, the "Securities").
1.2 ASSUMPTION OF BONUS PAYMENT OBLIGATION. Effective as of the
Closing, Seller assigns to Fidelity, and Fidelity assumes from the Seller, the
Bonus Payment Obligation.
1.3 PURCHASE PRICE. The total purchase price (the "Purchase Price")
for the Securities, the assumption of the Bonus Payment Obligation and the
release described in Section 2.1 below shall be Ten Million Dollars
($10,000,000).
1.4 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by
Fidelity to Seller at the Closing (as defined below in Section 3) in cash or
other immediately available funds in such manner as Seller shall reasonably
direct.
1.5 ASSIGNMENT OF CERTAIN RIGHTS. Effective upon, and only in the
event of the Closing, Seller assigns and transfers to Fidelity all of its right,
title and interest in and to that certain (i) Registration Rights Agreement
dated as of July 28, 1999, by and between Seller and the Company (the
"Registration Rights Agreement"), (ii) Security Agreement, dated as of December
17, 1999, by and between the Company and certain of its subsidiaries in favor of
Seller and its parent Xxxxx Corporation Limited ("MCL") (the "Security
Agreement"), and (iii) Pledge Agreement, dated as of December 17, 1999, by and
between the Company and certain of its subsidiaries in favor of Seller and MCL
(collectively, the "Related Agreements"). Effective upon such assignment,
Fidelity assumes all obligations arising under the Related Agreements.
1.6 FOLLOWING CLOSING. Xxxxx shall promptly cooperate with Fidelity
to assign all financing statements related to the Security Agreement to
Fidelity.
2. RELEASE OF CLAIMS BY SELLER; LEASE OBLIGATIONS.
2.1 RELEASE. Effective as of the Closing, and subject to Section 2.2
below, Seller hereby fully and irrevocably releases, acquits and discharges the
Company, as well as the officers, directors, employees, agents, administrators,
and any parent, subsidiary or affiliated entity, past, present or future of
Company (excluding the obligations of the Company under the Note to the holder
thereof and, to the extent applicable, the obligations of Fidelity under this
Agreement) (collectively, "Company Entities"), from any and all liabilities,
damages, obligations, rights, actions, claims, defenses, and causes of action,
whether known or unknown, existing or potential, which Seller had, now has, or
may hereafter claim to have against any of the Company Entities that arise out
of or in any way relate to Company and the business of Company, including
without limitation any claim to or for property (whether tangible or intangible)
of Company, and/or any matters relating to the Shares or Seller's other
relationships (if any) with Company (collectively, the "Claims"). The releases
contained in the preceding sentence cover Claims of which Seller does not know
or may not suspect to exist in Seller's favor at the time of executing this
Agreement which, if known, might have affected the settlement covered by this
Agreement. Seller expressly waives all rights and benefits that it may have
under California Civil Code Section 1542 or any other statute or common law
principle of similar effect. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
2.2 LEASE OBLIGATIONS. Notwithstanding anything in this Agreement to
the contrary, (a) the Claims being released by the Seller pursuant to Section
2.1 above do not include obligations of the Company to the Seller under the
Lease Obligations; and (b) Fidelity is not assuming the rights or obligations of
any party under the Lease Obligations.
3. CLOSING.
3.1 TIME AND PLACE OF CLOSING. The closing of the purchase and sale
of the Shares and the Note and the assumption of the Bonus Payment Obligations
(the "Closing") shall take place at the offices of Xxxxxxxxx Xxxxx Xxxxxxx &
Xxxxx, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 at
approximately 10:00 AM (Pacific Time) on February 15, 2001, or at such other
time and place as Company and Seller may agree in writing.
3.2 FIDELITY DELIVERIES. At the Closing, Fidelity shall deliver to
Seller (fully executed, completed and acknowledged if necessary) the following:
3.2.1 the Purchase Price;
3.2.2 all materials necessary to facilitate the sale and
transfer of the Note to Fidelity, including, without limitation, documentation
reasonably required by the Company to establish that Fidelity meets the investor
suitability standards set forth in the Note;
3.2.3 all materials necessary to evidence the assumption by
Fidelity of the Bonus Payment Obligations, including, without limitation, the
Assumption Agreement attached hereto as Exhibit A; and
3.2.4 all other documents required by this Agreement to be
delivered by Fidelity to Seller.
3.3 SELLER DELIVERIES. At the Closing, Seller shall deliver to
Fidelity (fully executed, completed and acknowledged if necessary) the
following:
3.3.1 all materials necessary to sell, transfer and convey the
Shares to Fidelity, including all stock certificates evidencing the Shares
endorsed or accompanied by documents of assignment, all free and clear of all
encumbrances, claims or liens of any kind;
3.3.2 the original Note, accompanied by all materials necessary
to transfer to Fidelity the benefits accruing to the holder of the Note under
the security documents and registration rights agreement referenced in Section
1.5 above;
3.3.3 a true and complete copy of the Settlement Agreement,
which shall describe the allocation of the Bonus Payment Obligations among the
parties thereto; and
3.3.4 all other documents required by this Agreement to be
delivered by Seller to Fidelity.
4. REPRESENTATIONS AND WARRANTIES.
4.1 BY FIDELITY. As a material inducement for Seller's entry into
and consummation of this Agreement, Fidelity represents and warrants to Seller
that the facts set forth in this Section 4.1 are true and correct as of the date
of this Agreement and shall be true and correct as of the Closing.
4.1.1 Fidelity is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
4.1.2 (i) Fidelity has the full right and authority to enter
into and perform this Agreement; (ii) Fidelity is authorized to execute this
Agreement; (iii) the execution, consent or acknowledgement of no other party is
necessary in order to validate Fidelity's entry into and performance of this
Agreement; (iv) Fidelity's entry into and performance of this Agreement do not
violate any agreement, contract or other arrangement binding on Fidelity; and
(v) this Agreement is a legal, valid, binding and enforceable obligation of
Fidelity.
4.1.3 ACCESS TO INFORMATION. Fidelity acknowledges that it is
entering into this Agreement and the transactions contemplated hereby without
reliance on any representations or warranties of Seller or its affiliates,
express or implied, except as expressly set forth herein. Fidelity has had the
ability to make a full review of the Company.
4.1.4 SUBORDINATION. Fidelity acknowledges the provisions in
Section 4.2.3 as to the Subordination Agreement and assumes the Subordination
Agreement and agrees to be bound thereby.
4.1.5 INVESTMENT REPRESENTATION. Fidelity is acquiring the
Securities for its own account for investment and not with a view to
distribution and acknowledges that the Securities are not being registered under
the Securities Act or applicable state laws and may have to be held indefinitely
unless they are subsequently registered or qualified under such laws. Fidelity
has the business and financial experience to protect its own interests in the
transaction contemplated hereby. Fidelity is an "Accredited Investor" as defined
in Regulation D of the Securities Act of 1933, as amended. Fidelity has provided
documentation acceptable to the Company confirming the accuracy of this
representation.
4.2 BY SELLER. As a material inducement for the entry into and
consummation of this Agreement by Fidelity, Seller represents and warrants to
Fidelity that the facts set forth in this Section 4.2 are true and correct as of
the date of this Agreement, and shall be true and correct as of the Closing.
4.2.1 Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
4.2.2 (i) Seller has the full right and authority to enter into
and perform this Agreement; (ii) Seller is authorized to execute this Agreement;
(iii) the execution, consent or acknowledgement of no other party is necessary
in order to validate Seller's entry into and performance of this Agreement; (iv)
Seller's entry into and performance of this Agreement do not violate any
agreement, contract or other arrangement binding on Seller; and (v) this
Agreement is a legal, valid, binding and enforceable obligation of Seller.
4.2.3 (i) Seller is the sole owner and has good and valid title
to all of the Shares, free and clear of all encumbrances, claims, or liens of
any type; and (ii) all of the Shares are fully paid for.
4.2.4 (i) Seller is the sole owner and has good and valid title
to the Note, free and clear of all encumbrances, claims, or liens of any type;
(ii) the Note is fully paid for; (iii) the security documents and registration
rights agreement referenced in the Note are in full force and effect; and (iv)
the outstanding principal balance of the Note is $18,700,000. The Note is
subject to that certain Subordination Agreement, dated as of May 3, 2000, among
PNC Bank, National Association, the Company and certain of its subsidiaries,
Seller and MCL (the "Subordination Agreement"). Under the terms of the
Subordination Agreement, Fidelity must expressly assume in writing and agree to
be bound by the provisions contained therein.
4.2.5 The total aggregate payments required to be made by Seller
pursuant to the Settlement Agreement equal $225,491.50.
4.2.6 Other than the rights, preferences and privileges
represented by the Shares with respect to the Company, the obligations of the
Company to the holder of the Note described or referenced therein, the Bonus
Payment Obligation and the Lease Obligations, and except for obligations and
interests arising from service by Seller's affiliates on the Company's Board of
Directors, as of the date hereof the Seller is owed no other obligations by the
Company nor has any material interest in the Company.
5. GENERAL PROVISIONS.
5.1 FURTHER ASSURANCES. Each of the parties to this Agreement shall
execute and deliver any and all additional papers, documents and other
assurances, and shall do any and all things and acts reasonably necessary in
connection with the performance of their obligations under this Agreement and to
carry out the intent and agreements of the parties to this Agreement.
5.2 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
5.3 GOVERNING LAW. This Agreement is made and entered into in the
State of California and shall in all respects be interpreted, enforced and
governed under the laws of the State of California. Venue for any disputes shall
be in the applicable court in Orange County, California.
5.4 INTERPRETATION. Each party (and each such party's counsel if
such party so desired) has reviewed and revised this Agreement and any rule of
contract interpretation to the effect that ambiguities or uncertainties are to
be interpreted against the drafting party or the party who caused it to exist
shall not be employed in the interpretation of this Agreement or any document
executed in connection herewith.
5.5 COST RECOVERY. In any action or proceeding involving Fidelity
and Seller arising out of or otherwise in connection with this Agreement, the
prevailing party shall recover from the other party, in addition to any damages,
injunctive or other relief; all costs (whether or not allowable as "cost" items
by law) reasonably incurred at, before and after trial or on appeal, or in any
arbitration or bankruptcy proceeding, including without limitation attorneys'
fees, deposition costs, copying charges and other expenses.
5.6 NO WAIVER. A waiver by any party to this Agreement of a default
by any other party or a waiver of any right under this Agreement shall be
effective only if it is in a writing signed by the waiving party and shall not
be construed as a waiver of any other default or right, whether similar or
dissimilar.
5.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one instrument.
5.8 HEADINGS. Section headings are for reference purposes only and
do not affect this Agreement.
5.9 ADDITIONAL BENEFICIARIES. No parties other than Fidelity, the
Company (solely with respect to the release granted in Section 2 above), and
Seller and their successors and assigns shall have any rights or remedies under
or by reason of this Agreement.
5.10 ENTIRE AGREEMENT; BINDING EFFECT; AMENDMENTS. This Agreement:
(i) is intended by the parties hereto as the final expression and the complete
and exclusive statement of their agreement with respect to the terms included in
this Agreement and any prior or contemporaneous agreements or understandings,
oral or written, which may contradict, explain or supplement these terms shall
not be admissible or effective for any purpose; (ii) shall be binding upon and
inure to the benefit of such parties and their permitted successors-in-interest;
and (iii) may not be amended or modified except through a writing signed by the
parties hereto which expressly states that it amends this Agreement.
5.11 SPECIFIC PERFORMANCE. Each of the parties acknowledges and
agrees that the other party would be damaged irreparably in the event any of the
provisions of this Agreement is not performed in accordance with its specific
terms or otherwise is breached. Accordingly, each of the parties agrees that the
other party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of jurisdiction, in addition to any other remedy to which they may be
entitled, at law of in equity.
5.12 EXPENSES, LEGAL FEES. Each party to this Agreement shall pay
its own costs and expenses in connection with the transactions contemplated
hereby. The prevailing party in any dispute shall be entitled to collect
reasonable attorneys' fees and expenses from the non-prevailing party.
[signature page to follow]
IN WITNESS WHEREOF, Fidelity and Seller have executed this Agreement as
of the date first set forth above.
"FIDELITY" "SELLER"
-------- ------
FIDELITY NATIONAL FINANCIAL, INC. XXXXX NORTH AMERICA, INC.
a Delaware corporation a Delaware corporation
By: _____________________________ By: _____________________________
Name: ___________________________ Name: ___________________________
Title: __________________________ Title: __________________________
Exhibit 99.3
Exhibit A
Form of Assumption Agreement
THIS ASSUMPTION AGREEMENT (the "Agreement"), dated ___________________,
is made by and between Xxxxx North America, Inc., a Delaware corporation (the
"Xxxxx") and Fidelity National Financial, Inc., a Delaware corporation
("Fidelity").
X. Xxxxx is obligated to make retention bonus payments to certain
former employees of Xxxxx DMS, a Delaware corporation ("DMS"), in an amount
equal to $225,491.50 (such obligation, the "Bonus Payment Obligation") pursuant
to that certain Settlement and Release Agreement, by and between Vista and
Xxxxx.
B. In connection with the closing of the transactions contemplated in
that certain Agreement for the Purchase and Sale of Securities, dated February
__, 2001 (the "Purchase Agreement"), by and between Xxxxx and Fidelity, Xxxxx
and Fidelity desire to provide for the assumption by Fidelity of the Bonus
Payment Obligation.
In consideration of the mutual covenants, conditions and provisions set
forth in this Agreement, and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), Xxxxx and Fidelity
agree as follows.
1. Liabilities Assumed. Upon the terms and subject to all of the
conditions contained in the Purchase Agreement, Xxxxx does transfer to, and
Fidelity hereby assumes at and as of the date hereof, and agrees to satisfy,
pay, perform, or otherwise discharge when due, the Bonus Payment Obligation.
2. Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of California, without reference to its conflicts of
law rules.
3. Assignment; No Third Party Beneficiaries. Neither this Agreement nor
any part thereof shall be assignable by operation of law or otherwise by either
party without the prior written consent of the other party. Nothing contained in
this Agreement, express or implied, is intended to confer upon any Person or
entity other than the parties hereto, their affiliates and their successors in
interest and permitted assignees, any rights or remedies under or by reason of
this Agreement unless expressly so stated.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first written above.
XXXXX NORTH AMERICA, INC., FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware corporation a Delaware corporation
_________________________________ __________________________________
By: By:
Its: Its:
