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EXHIBIT 99.5
AGREEMENT REGARDING XXXXX NOTE
April 12, 2001
Reference is made to that certain Amended and Restated Secured
Convertible Note, dated May 3, 2000 (the "Xxxxx Note"), issued to Xxxxx North
America, Inc., a Delaware corporation ("Xxxxx"), jointly and severally by VISTA
Information Solutions, Inc., a Delaware corporation ("Vista"), and VISTA DMS,
Inc., a Delaware corporation and a wholly-owned subsidiary of Vista ("DMS" and,
collectively with Vista, the "Makers"), in the original principal amount of
Eighteen Million Seven Hundred Thousand Dollars ($18,700,000). Capitalized terms
used herein without definition shall have the meanings given them in the Xxxxx
Note.
Recitals
A. The Xxxxx Note was acquired by Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity"), on February 15, 2001.
B. In connection with the execution and delivery of that certain
Agreement and Plan of Reorganization and Merger, dated even date herewith (the
"Merger Agreement"), by and among Fidelity, Vista and Chicago Title and Trust
Company, an Illinois corporation and a wholly-owned subsidiary of Fidelity,
Fidelity and the Makers have agreed as follows with respect to the Xxxxx Note.
Agreement
A. Amendments to Xxxxx Note. Effective upon the closing of the
transactions contemplated by the Merger Agreement (the "Closing"), the Xxxxx
Note is amended as follows.
1. The last sentence on the first page on the Xxxxx Note, wherein
the Maturity Date is defined, is amended and restated in its entirety to read as
follows:
The entire principal amount outstanding hereunder, all accrued
and unpaid interest thereon and any other amounts payable to the
Holder in respect of this Convertible Note not theretofore paid
shall be paid on the earlier of (i) subject to paragraph 2.4
below, the seventh anniversary of the date hereof (the "Stated
Maturity Date") and (ii) acceleration of the maturity of this
Convertible Note by the Holder on the occurrence of an Event of
Default (defined below) (the earliest of such dates, the
"Maturity Date").
2. The definition of Conversion Price set forth on page two of
the Xxxxx Note is amended and restated in its entirety to read as follows:
"Conversion Price" shall mean, at the time of any
determination thereof (a) if no adjustments have theretofore been
made pursuant to the provisions of paragraph 6 hereof, $3.72, and
(b) if any one or more such adjustments have been so made, the
amount to which the initial Conversion Price as set forth in (a)
shall have been so adjusted pursuant to the terms of this
Convertible Note.
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3. The following definitions are added to Section 1.1 of the
Xxxxx Note:
"Fidelity" means Fidelity National Financial, Inc., a Delaware
corporation.
"Merger Agreement" means that certain Agreement and Plan of
Merger, dated even date herewith, by and among Fidelity, Chicago
Title and Trust Company, an Illinois corporation and a
wholly-owned subsidiary of Fidelity, and Vista.
4. Section 3.1(i) of the Xxxxx Note is amended and restated in
its entirety to read as follows:
(A) the Parent shall cease to own 100% of the issued and
outstanding capital stock of the Purchaser or the Purchaser shall
cease to own 100% of the issued and outstanding capital stock of
VISTA Canada, (B) any person or group of persons acting in
concert (other than Fidelity and its affiliates) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of
the voting stock of the Parent; (C) the Parent shall be a party
to a merger or consolidation, except a merger or consolidation
where the stockholders of the Parent prior to such event control
a majority of the voting stock of the surviving entity after such
event and except for the transactions contemplated by the Merger
Agreement; or (D) as of any date a majority of the Board of
Directors of the Parent consists of individuals who were not any
one of the following (1) directors of the Parent as of the
corresponding date of the previous year, (2) selected or
nominated to become directors by the Board of Directors of the
Parent of which a majority consisted of individuals described in
clause (1), (3) selected or nominated to become directors by the
Board of Directors of the Parent of which a majority consisted of
individuals described in clause (1) and individuals described in
clause (2), or (4) appointed in accordance with the Merger
Agreement; or
Except as expressly amended above, the provisions of the Xxxxx Note
shall remain unchanged and in full force and effect.
B. Agreements Regarding the Xxxxx Note.
1. Effective the date hereof, compliance by the Parent with the
covenant contained in Section 2A.4 of the Xxxxx Note is hereby suspended until
the earlier to occur of the date of the Closing and September 30, 2001.
Following such date, Parent shall deliver a compliance certificate pursuant to
Section 2A.6 of the Xxxxx Note, which compliance certificate shall demonstrate
compliance with the covenants contained in Article 2A, as amended hereby and by
that certain First Amendment to Revolving Credit and Security Agreement and
Limited Consent and
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Waiver among Vista and its affiliates identified therein and PNC Bank, National
Association ("PNC") of even date herewith, as the same may be amended from time
to time.
2. Effective as of the date hereof, Fidelity hereby extends the
Stated Maturity Date of the Xxxxx Note to July 1, 2002. The Maker hereby
acknowledges and agrees that such extension is made in compliance with Section
2.4 of the Xxxxx Note.
3. Effective as of the date hereof, Fidelity hereby agrees that
it will not exercise its right to convert a portion of the outstanding principal
of this Note into the Common Stock of the Parent pursuant to Section 4(a) of the
Xxxxx Note, if at all, until the earliest to occur of (a) the Event of Default
described in Section 3.1(i) of the Xxxxx Note; (b) the second anniversary of the
date of the Closing; and (c) the date on which the average of the last sale
price of Vista's common stock for the trailing 30 trading day period, as
reported on the NASDAQ system, equals or exceeds $3.72; provided, however, that,
in the event the Merger Agreement is terminated pursuant to Article IX thereof,
this provision shall be void and of no further effect as of the effective date
of such termination.
In witness whereof, the parties hereto have executed this agreement as
of the date first written above.
FIDELITY NATIONAL FINANCIAL, INC. VISTA INFORMATION SOLUTIONS, INC.
By: By:
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Senior Vice President, Corporate Finance
VISTA DMS, INC.
By:
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