Exhibit 2
CONVERSION AGREEMENT
THIS CONVERSION AGREEMENT (this "AGREEMENT") is entered into as of
April 13, 2001 by and among Vista Information Solutions, Inc., a Delaware
corporation (the "COMPANY"), and the holders of the Company's Series A Preferred
Stock (the "SERIES A PREFERRED STOCK"), Series A-1 Preferred Stock (the "SERIES
A-1 PREFERRED STOCK") and Series A-2 Preferred Stock (the "SERIES A-2 PREFERRED
STOCK") (collectively, the "Preferred Stock") named in Schedule I attached
hereto (collectively, the "HOLDERS").
RECITALS
WHEREAS, the Holders currently own an aggregate of 102,564 shares of
the Series A Preferred Stock, 380,000 shares of the Series A-1 Preferred Stock
and 300,000 shares of the Series A-2 Preferred Stock, with such stock having
those rights, privileges and preferences set forth in the Company's Restated
Certificate of Incorporation, as amended, (the "CERTIFICATE");
WHEREAS, in order to facilitate a business combination between the
Company and certain business units of Fidelity National Financial, Inc., a
Delaware corporation ("FIDELITY"), pursuant to that certain Agreement and Plan
of Reorganization and Merger (the "MERGER AGREEMENT") by and among Fidelity,
Chicago Title and Trust Company, an Illinois corporation ("Chicago Title"), and
the Company, dated as of even date herewith, it is necessary that the Holders
agree to convert all of their shares of Preferred Stock into shares of the
Company's Common Stock, par value $0.001 (the "COMMON STOCK") at an agreed upon
Conversion Price of $2.20 per share (as the same may be adjusted from time to
time pursuant to the Certificate with respect to issuances of additional shares
or other events occurring before such conversion, the "NEW CONVERSION PRICE");
WHEREAS, the Company and the Holders contemplate that the Company
will obtain the approval of the Company's stockholders to establish the New
Conversion Price in connection with obtaining stockholder approval of the Merger
Agreement; and
WHEREAS, consummation of the transactions contemplated by the Merger
Agreement and establishment of the New Conversion Price are expected to be of
benefit to the Holders.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
representations hereinafter set forth, the parties hereto agree as follows:
1. Conversion of Series A Preferred Stock, Series A-1 Preferred
Stock and Series A-2 Preferred Stock for Common Stock. Subject to satisfaction
of the conditions set forth in Section 4, the parties hereto agree that,
immediately prior to the Closing, each share of the Series A Preferred Stock,
the Series A-1 Preferred Stock and Series A-2 Preferred Stock shall be converted
into such number of shares of Common Stock as is determined by dividing the
respective Original Purchase Price (as defined in the Certificate) for such
share by the New Conversion Price and otherwise pursuant to the terms set forth
in the Certificate. If the Closing does not occur as provided in the Merger
Agreement, such conversion shall be void ab initio and the shares of Preferred
Stock shall be deemed to continue to be outstanding for all purposes.
2. Related Matters.
a. Designation of Directors. As additional consideration for
the agreement of the Holders to convert their shares of Preferred Stock as
provided in Section 1, the Company shall nominate two (2) persons designated by
Holders owning a majority of the shares of Preferred Stock (the "Preferred
Directors") in the Vista Proxy Statement to serve as members of the Board of
Directors of the Company following the Effective Time and shall use its best
efforts to cause the Preferred Directors to be elected at the Vista Stockholders
Meeting.
b. Adjustment to Warrant. At the time of the conversion of the
Series A-2 Preferred Stock, the Company shall issue to Century Capital Partners
II, L.P., in exchange for the cancellation of the warrant now held by Century
Capital Partners II, L.P. to purchase 25,000 shares of Series A-2 Preferred
Stock at $25.00 per share, a warrant to purchase 250,000 shares of Common Stock
at an exercise price per share equal to the New Conversion Price and otherwise
on the terms provided in the form of warrant attached hereto as Exhibit A.
3. Holders' Representations. Each Holder individually represents and
warrants to the Company that:
a. No Encumbrances. All of the shares of Series A Preferred
Stock, Series A-1 Preferred Stock and Series A-2 Preferred Stock held by such
Holder are clear of all liens, encumbrances and claims of any nature.
b. Restricted Securities. Such Holder understands and
acknowledges that the issuance of the Common Stock pursuant to this Agreement
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act") on the grounds that the conversion of the Preferred Stock into
Common Stock contemplated by this Agreement is exempt from registration under
the Securities Act pursuant to Section 3(a)(9) thereof, and that the shares of
Common Stock issued upon such conversion shall be subject to the same
restrictions on resale, for the same remaining respective periods, as were the
shares of Preferred Stock surrendered for such exchange.
c. Authorization. Such Holder has full legal capacity, power
and authority to execute, deliver, and perform its obligations under this
Agreement.
d. Execution; Delivery. This Agreement has been duly executed
and delivered by such Holder and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency and other laws affecting the enforcement of
creditors' rights and by the availability of equitable remedies.
e. Access to Information. Such Holder (i) has the ability to
bear the economic risks of the transactions contemplated by this Agreement; (ii)
has been furnished with or has had access to such information as such Holder has
considered necessary to make a determination as to participate in such
transactions together with such additional information as is necessary to verify
the accuracy of the information supplied; and (iii) has had all questions asked
by such Holder satisfactorily answered by the Company.
4. Condition to the Obligations of the Holders. The obligation of
the Holders to convert their shares of Preferred Stock in the manner set forth
herein is subject to the following conditions:
a. that the Closing shall be occurring concurrently or
immediately after the conversion contemplated herein;
b. that there shall have been no material change in the terms
of the transactions described in the Merger Agreement;
c. that approval of the New Conversion Price shall have been
obtained from Vista's stockholders in connection with the Vista Shareholder
Approval;
d. that Fidelity and Chicago Title shall have executed and
delivered to the Holders a Stockholder Voting Agreement in the form of Exhibit B
hereto;
e. that the Preferred Directors shall have been elected to
serve as members of the Company's Board of Directors from and after the
Effective Time; and
f. that the Holders shall have received the opinion of Xxxx,
Xxxx, Xxxx & Friedenrich LLP to the effect that: (i) the issuance of the shares
of Common Stock upon conversion of the Preferred Stock has been duly authorized
by all necessary corporate action on the part of the Company, (ii) such shares
will, upon such issuance, be fully paid and nonassessable, and (iii) the shares
of Common Stock issuable upon conversion of the Preferred Stock (A) shall be
subject to no restrictions on resale other than those to which the respective
share of Preferred Stock surrendered for conversion is then subject, and (B)
shall be subject to such restrictions for no longer period than would have
applied to the respective share of Preferred Stock surrendered for conversion.
5. Miscellaneous.
a. Specific Performance. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity.
b. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the choice of law principles thereof.
c. Descriptive Headings; Defined Terms. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. Capitalized terms used but not defined herein have the same
respective meanings as in the Merger Agreement
d. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
e. Severability. The provisions of this Agreement shall be
deemed to be inseverable and dependent one upon the other. If any provision of
this Agreement, or the application thereof to any person or any circumstance, is
invalid or unenforceable, unless otherwise agreed by the parties hereto, the
entire agreement shall be null and void.
f. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
g. Notices. All notices, requests, instructions or other
documents to be given under this Agreement shall be in writing and shall be
deemed given, (i) five business days following sending by registered or
certified mail, postage prepaid, (ii) when sent if sent by facsimile; provided,
however, that receipt of the facsimile is promptly confirmed by telephone
confirmation thereof, (iii) when delivered, if delivered personally to the
intended recipient, and (iv) one business day following sending by overnight
delivery via a national courier service, and in each case to the address or the
facsimile number indicated for such party on the signature pages hereof, or such
other address of which such party gives notice hereunder.
h. Entire Agreement; Assignment. This Agreement constitutes
the entire agreement between the parties hereto in respect of the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties in respect of the subject matter hereof.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by operation of law (including, by merger or consolidation) or
otherwise. Any assignment in violation of the preceding sentence shall be void.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
COMPANY
VISTA INFORMATION SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
Address: Vista Information Solutions, Inc.
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
HOLDERS:
CENTURY CAPITAL PARTNERS II, L.P.
By: CCP Capital II, LLC, its General
Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Managing Member
Address: Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
HCC INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Its: Assistant Vice-President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
XXXXX X. XXXXXXX, XXXXX XXXXXXXX
XXXXXXX AND X.X. XXXXXXXXXXXX, TRUSTEES
OF THE XXXXX X. XXXXXXX TRUST U/A DATED
NOVEMBER 18, 1985
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Xxxxx X. Xxxxxxx, Trustee
Address: 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412/338-3696
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST DATED
12/30/76 FOR CHILDREN OF: JULIET XXX
XXXXXXX XXXXXXX
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Trustee
By: /s/ X. X. Xxxxxxxxxxxx
-----------------------
X. X. Xxxxxxxxxxxx, Trustee
Address: 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412/338-3696
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST DATED
12/30/76 FOR CHILDREN OF: XXXXXX
XXXXXXX XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Trustee
By: /s/ X. X. Xxxxxxxxxxxx
-----------------------
X. X. Xxxxxxxxxxxx, Trustee
Address: 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412/338-3696
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST DATED
12/30/76 FOR CHILDREN OF: XXXXX XXX
XXXXXXX, XX.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Trustee
By: /s/ X. X. Xxxxxxxxxxxx
-----------------------
X. X. Xxxxxxxxxxxx, Trustee
Address: 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412/338-3696
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST DATED
12/30/76 FOR CHILDREN OF: XXXXXXX
XXXXXXX XXXXXXX
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Trustee
By: /s/ X. X. Xxxxxxxxxxxx
-----------------------
X. X. Xxxxxxxxxxxx, Trustee
Address: 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412/338-3696
WESTERN INTERNATIONAL INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: VP-Bankers Insurance Company
for Western International
Insurance Company
Address: 000 Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Phone: 000-000-0000 x0000
SCHEDULE I
Number of Shares currently held
-------------------------------
Series A Series A-1 Series A-2
Preferred Preferred Preferred
Holder Stock Stock Stock
------ ----- ----- -----
Century Capital Partners II, L.P. 102,564 100,000 300,000
HCC Investments, Inc. 0 125,000 0
Xxxxx X. Xxxxxxx, Xxxxx
Xxxxxxxx Xxxxxxx and X.X.
Xxxxxxxxxxxx, Trustees of The
Xxxxx X. Xxxxxxx Trust U/A
dated November 18, 1985 0 32,120 0
Xxxxxx X. Xxxxxx and X.X.
Xxxxxxxxxxxx, Trustees under
Agreement of Trust dated
December 30, 1976 for
children of Juliet Xxx
Xxxxxxx Xxxxxxx 0 10,720 0
Xxxxxx X. Xxxxxx and X.X.
Xxxxxxxxxxxx, Trustees under
Agreement of Trust dated
December 30, 1976 for
children of Xxxxxx Xxxxxxx
Xxxxxx 0 10,720 0
Xxxxxx X. Xxxxxx and X.X.
Xxxxxxxxxxxx, Trustees under
Agreement of Trust dated
December 30, 1976 for
children of Xxxxx Xxx
Xxxxxxx, Xx. 0 10,720 0
Xxxxxx X. Xxxxxx and X.X.
Xxxxxxxxxxxx, Trustees under
Agreement of Trust dated
December 30, 1976 for
children of Xxxxxxx Xxxxxxx
Xxxxxxx 0 10,720 0
Western Insurance Company 0 80,000 0
TOTAL 102,564 380,000 300,000
EXHIBIT B
IRREVOCABLE STOCKHOLDER VOTING AGREEMENT
THIS IRREVOCABLE STOCKHOLDER VOTING AGREEMENT (this "Agreement") is made
as of the ____ day of April, 2001, by and among Vista Information Solutions,
Inc., a Delaware corporation ("Vista"), the undersigned holders of shares of
Vista's Preferred Stock (the "Holders"), Chicago Title and Trust Company, an
Illinois corporation ("Chicago Title"), and Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity").
WHEREAS, pursuant to an Agreement and Plan of Reorganization and Merger
dated as of April ___, 2001 by and among Fidelity, Vista and Chicago Title (the
"Merger Agreement"), Fidelity and Chicago Title will become shareholders of
Vista; and
WHEREAS, Fidelity and Chicago Title have required that the Holders convert
their shares of Preferred Stock of Vista into shares of Common Stock of Vista as
a condition of the Closing under the Merger Agreement; and
WHEREAS, as a condition of, and in order to induce the Holders to convert
their Preferred Stock, Fidelity and Chicago Title are willing to enter into this
Agreement and make the commitments herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereto agree as follows:
1. Election of Preferred Directors.
(a) For a period of two (2) years after the Effective Time under the
Merger Agreement (the "Term"), Fidelity and Chicago Title shall, at all meetings
of stockholders of Vista and in all actions by written consent of stockholders
of Vista held or taken with respect to the election or removal, or the powers,
of members of the Board of Directors of Vista (the "Board"), except as provided
in the following sentence: (i) vote or cause to be voted as many of the Subject
Shares (as defined below) as is required to elect and maintain the election as
members of the Board of those two (2) individuals designated in writing from
time to time by the Holders of a majority of the shares of Vista Common Stock
held by all Holders (the "Preferred Directors"), (ii) not vote or cause to be
voted any of the Subject Shares for the removal of either of the Preferred
Directors as members of the Board or otherwise to diminish the powers of the
Preferred Directors as members of the Board, and (iii) take such other actions
as are necessary to effectuate the continuous and uninterrupted tenure of the
Preferred Directors as members of the Board. In the event that the Holders of a
majority of the shares of Vista Common Stock held by all Holders notify Fidelity
and Chicago Title that one or both of the Preferred Directors are to be removed,
with or without cause, and are to be replaced with new designees, Fidelity and
Chicago Title shall promptly vote or cause to be voted, by written consent or as
such Holders may otherwise specify, as many of the Subject Shares as is required
to effect such removal and replacement, consistent with the applicable
provisions of Vista's By-Laws. The initial Preferred Directors shall be Xxxxxxx
Xxxxxxx and Xxxx Xxxxxxxx.
(b) For purposes hereof, "Subject Shares" means any and all shares
of Vista's capital stock and any other securities of Vista having voting rights
beneficially owned or held by Fidelity or Chicago or over which Fidelity or
Chicago directly or indirectly has or controls the power to vote.
(c) The parties hereby agree that the foregoing agreement shall
constitute an exception to the obligation of each Holder under Section
3.2(a)(ii) of the Voting Agreement of even date herewith by and among the
parties hereto and certain other stockholders of Vista.
2. Irrevocable Agreement; Amendments; Waivers. As the voting commitments
herein are agreed to in order to induce the conversion of the shares of
Preferred Stock held by the Holders in order to permit the issuance of shares of
Common Stock to Fidelity and Chicago Title and the other transactions
contemplated in the Merger Agreement, such commitments are coupled with an
interest and may not be revoked or terminated, and no provision hereof shall be
waived, during the Term except by a writing signed by Holders holding a majority
of the shares of Common or Preferred Stock held by all Holders.
3. Specific Performance. In addition to any other remedy that may be
available in the event of any breach of the obligations of Fidelity and Chicago
Title hereunder, the Holders shall be entitled to specific performance of such
obligations hereunder without the necessity of proving the likelihood of harm or
of posting any bond or similar requirement.
4. Notices. All designations and other notices to be given hereunder shall
be deemed properly given if in writing and delivered personally or sent by
registered or certified mail, return receipt requested, to the addressee at the
address set forth below its name on the signature page hereto, or at such other
address of which notice has been given.
5. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective legal representatives and
assigns.
6. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
7. Entire Agreement. This Agreement constitutes the complete agreement of
the parties with respect to the subject matter hereof.
8. Severability. The provisions of this Agreement shall be severable so
that the invalidity or unenforceability of any one provision shall not affect
any other provision.
9. Counterparts. This Agreement may be executed in one or more
counterparts and, if in more than one, each counterpart shall be deemed original
and together but one instrument.
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed under seal by their respective authorized signatories as of the date
first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By:
-------------------------------
Name:
Title:
Address:
Facsimile:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------
Name:
Title:
Address:
Facsimile:
THE HOLDERS:
CENTURY CAPITAL PARTNERS II, L.P.
By: CCP Capital II, LLC, its General Partner
By:
-------------------------------
Name:
-----------------------------
Its: Managing Member
Address: Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
HCC INVESTMENTS, INC.
By:
------------------------------------
Name:
----------------------------------
Its:
----------------------------------
Address:
-----------------------------
-----------------------------
Facsimile:
-----------------------------
XXXXX X. XXXXXXX, XXXXX XXXXXXXX
XXXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES OF THE XXXXX X. XXXXXXX
TRUST U/A DATED NOVEMBER 18, 1985
By:
------------------------------------
X. X. Xxxxxxxxxxxx, Trustee
Address:
-----------------------------
-----------------------------
Facsimile:
-----------------------------
XXXXXX X. XXXXXX AND X.X.
XXXXXXXXXXXX, TRUSTEES UNDER AGREEMENT
OF TRUST DATED 12/30/76 FOR CHILDREN
OF: JULIET XXX XXXXXXX XXXXXXX
By:
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
By:
------------------------------------
X. X. Xxxxxxxxxxxx, Trustee
Address:
-----------------------------
-----------------------------
Facsimile: -----------------------------
XXXXXX X. XXXXXX AND X.X.
XXXXXXXXXXXX, TRUSTEES UNDER AGREEMENT
OF TRUST DATED 12/30/76 FOR CHILDREN
OF: XXXXX XXX XXXXXXX, XX.
By:
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
By:
------------------------------------
X. X. Xxxxxxxxxxxx, Trustee
Address:
-----------------------------
-----------------------------
Facsimile:
-----------------------------
XXXXXX X. XXXXXX AND X.X.
XXXXXXXXXXXX, TRUSTEES UNDER AGREEMENT
OF TRUST DATED 12/30/76 FOR CHILDREN
OF: XXXXXXX XXXXXXX XXXXXXX
By:
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
By:
------------------------------------
X. X. Xxxxxxxxxxxx, Trustee
Address:
-------------------------------
-------------------------------
Facsimile:
-----------------------------
WESTERN INSURANCE COMPANY
By:
------------------------------------
Name:
----------------------------------
Its:
----------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Phone:
-------------------------------
