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EXHIBIT 99.2
AGREEMENT FOR PURCHASE AND
SALE OF PREFERRED STOCK
THIS AGREEMENT FOR PURCHASE AND SALE OF PREFERRED STOCK (the
"Agreement") is entered into as of February 9, 2001, by and among FIDELITY
NATIONAL FINANCIAL, INC., a Delaware corporation ("Fidelity"); FINOVA CAPITAL
CORPORATION, a Delaware corporation (the "Seller"), and VISTA INFORMATION
SOLUTIONS, INC., a Delaware corporation (the "Company").
A. Seller is the sole owner of Two Thousand Five Hundred (2,500) shares
(the "Shares") of the outstanding Series F Convertible Preferred Stock, par
value $0.001 (the "Series F Preferred") of the Company.
B. 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").
C. In order to facilitate the Transaction, Fidelity, Seller and the
Company 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 Series F
Preferred Shares; (ii) Seller to release the Company from liability for certain
matters, and (iii) the Company to release Seller 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, Seller and the Company agree as follows.
1. PURCHASE AND SALE OF PREFERRED SHARES.
1.1 SALE AND PURCHASE. Seller shall sell to Fidelity, and
Fidelity shall purchase from Seller, all of the Shares.
1.2 PURCHASE PRICE. The total purchase price (the "Purchase
Price") for the Shares and the release described in Section 2.1 below shall be
One Million Seven Hundred Fifty Thousand Dollars ($1,750,000).
1.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid
by Fidelity to Seller at the Closing (as defined below in Section 4) in cash or
other immediately available funds in such manner as Seller shall reasonably
direct.
2. RELEASE OF CLAIMS BY SELLER.
2.1 RELEASE. Effective as of the Closing, 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,
to the extent applicable, the obligations of Fidelity under this Agreement)
(collectively, "Company Entities"), from any and all liabilities, damages,
obligations, rights, actions, claims,
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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 the Company and the
business of the 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 the 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."
Notwithstanding the foregoing, the present and future rights of Seller as a
common shareholder of the Company are not impaired by this Agreement.
3. RELEASE OF CLAIMS BY THE COMPANY.
3.1 RELEASE. Effective as of the Closing, the Company hereby
fully and irrevocably releases, acquits and discharges the Seller, as well as
the officers, directors, employees, agents, administrators, and any parent,
subsidiary or affiliated entity, past, present or future of the Seller
(excluding, to the extent applicable, the obligations of Seller under this
Agreement) (collectively, "Seller Entities"), from any and all liabilities,
damages, obligations, rights, actions, claims, defenses, and causes of action,
whether known or unknown, existing or potential, which the Company had, now has,
or may hereafter claim to have against any of the Seller Entities that arise out
of or in any way relate to the Company and the business of the Company,
including without limitation any claim to or for property (whether tangible or
intangible) of Seller, and/or any matters relating to the Shares or Seller's
other relationships (if any) with Seller (collectively, the "Claims"). The
releases contained in the preceding sentence cover Claims of which the Company
does not know or may not suspect to exist in the Company's favor at the time of
executing this Agreement which, if known, might have affected the settlement
covered by this Agreement. The Company 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."
4. CLOSING.
4.1 TIME AND PLACE OF CLOSING. The closing of the purchase and
sale of the Shares (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
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(Pacific Time) on the date of the execution and delivery by Fidelity and the
Company of the definitive Transaction agreement; provided, however, that, at
Fidelity's sole option, the Closing may occur at such earlier date as Fidelity
desires upon one business day's written notice to Seller. Seller may, at its
election, terminate this Agreement by written notice to Fidelity and the Company
if the Closing does not occur on or before March 15, 2001.
4.2 FIDELITY DELIVERIES. At the Closing, Fidelity shall deliver
to Seller (fully executed, completed and acknowledged if necessary) the
following:
4.2.1 the Purchase Price; and
4.2.2 all other documents required by this Agreement to be
delivered by Fidelity to Seller.
4.3 SELLER DELIVERIES. At the Closing, Seller shall deliver to
Fidelity (fully executed, completed and acknowledged if necessary) the
following:
4.3.1 all materials necessary to sell, transfer, convey
and return 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; and
4.3.2 all other documents required by this Agreement to be
delivered by Seller to Fidelity.
5. REPRESENTATIONS AND WARRANTIES.
5.1 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 5.1 are true and correct as of the date
of this Agreement and shall be true and correct as of the Closing.
5.1.1 Fidelity is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
5.1.2 (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.
5.1.3 In purchasing the Shares, Fidelity is not relying
upon any representation or warranty whatsoever by Seller other than those
expressly set forth in this Agreement. Fidelity has performed such diligence as
it deems appropriate with respect to the terms and conditions of the Shares and
the business and prospects of the Company.
5.1.4 Fidelity is aware that the Shares have not been
registered under the Securities Act of 1933, as amended, or any state securities
laws and, accordingly, will be "restricted
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securities" which cannot be resold unless they are registered under the
Securities Act of 1933, as amended, and any other applicable securities laws,
unless exemptions from such laws are available and the exemptions are
established through procedures satisfactory to the Company.
5.1.5 Fidelity is acquiring the Shares for investment for
its own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution thereof. Upon Fidelity's acquisition
of the Shares, no other person will be a beneficial owner thereof.
5.1.6 Fidelity is an "accredited investor," as such term
is defined in Rule 501(a) issued by the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended.
5.2 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 5.2 are true and correct as of
the date of this Agreement, and shall be true and correct as of the Closing.
5.2.1 Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
5.2.2 (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.
5.2.3 (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.
Other than the rights, preferences and privileges
represented by the Shares with respect to the Company and the ownership of
common stock of the Company, as of the date hereof the Seller is owed no other
obligations by the Company nor has any other material interest in the Company.
6. GENERAL PROVISIONS.
6.1 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.
6.2 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
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6.3 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.
6.4 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.
6.5 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.
6.6 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.
6.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one instrument.
6.8 HEADINGS. Section headings are for reference purposes only
and do not affect this Agreement.
6.9 ADDITIONAL BENEFICIARIES; JOINDER OF THE COMPANY. 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. The Company joins in
the execution hereof only to issue the release set forth in Section 3 hereof,
which is an additional inducement for Seller to enter into this Agreement.
6.10 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.
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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. FINOVA CAPITAL CORPORATION,
a Delaware corporation a Delaware corporation
By: By:
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Name: Name:
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Title: Title:
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"COMPANY"
VISTA INFORMATION SOLUTIONS, INC.
a Delaware corporation
By:
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Name:
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Title:
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