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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 15, 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 [*] in an aggregate amount equal to [*]
(such obligation, the "[*]") pursuant to that certain [*], dated as of August
14, 2000 (the "[*]"), by and among the Seller and, inter alia, [*].
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.
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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;
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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.
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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.
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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dispute shall be entitled to collect reasonable attorneys' fees and expenses
from the non-prevailing party.
[signature page to follow]
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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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:
----------------------------- -----------------------------
* Portions omitted pursuant to request for confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
