-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LPkxYO7nV45Gay4EyQT92xZd2TWjK7YJBellfc+1G0obo7Uvwqv2Lnt11/qF6ozx wBU7NGfCqpvAi6XQuRyLmA== 0000892569-98-002649.txt : 19980928 0000892569-98-002649.hdr.sgml : 19980928 ACCESSION NUMBER: 0000892569-98-002649 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980925 EFFECTIVENESS DATE: 19980925 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY NATIONAL FINANCIAL INC /DE/ CENTRAL INDEX KEY: 0000809398 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 860498599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64229 FILM NUMBER: 98714573 BUSINESS ADDRESS: STREET 1: 17911 VON KARMAN AVE STREET 2: STE 300 CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 9496225000 MAIL ADDRESS: STREET 1: MLISS JONES KANE STREET 2: 17911 VON KARMAN AVE STE 300 CITY: IRVINE STATE: CA ZIP: 92614 S-8 1 FORM S-8 1 As Filed With the Securities and Exchange Commission on September 25, 1998 Registration No. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON. D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- FIDELITY NATIONAL FINANCIAL, INC. (Exact name of registrant as specified in its charter) Delaware 86-0498599 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 17911 Von Karman Avenue, Irvine, CA 92614 (Address of Principal Executive Offices) (Zip Code) TWO STOCK OPTION AGREEMENTS AND AMENDED STOCK AWARD AGREEMENT (ALAMO) (Full titles of the plans) ---------- M'Liss Jones Kane Senior Vice President and General Counsel Fidelity National Financial, Inc. 17911 Von Karman Avenue, Irvine, CA 92614 (Name and address of agent for service) (714) 622-5000 (Telephone number, including area code, of agent for service) Copies to: J. Michael Vaughn, Esq. Stradling Yocca Carlson & Rauth, a Professional Corporation 660 Newport Center Drive, Suite 1600, Newport Beach, California 92660 (714) 725-4000 CALCULATION OF REGISTRATION FEE
=============================================================================================== Proposed Maximum Proposed Maximum Title of Securities Amount To Be Offering Aggregate Amount of To Be Registered Registered(1) Price Per Share Offering Price Registration Fee - ----------------------------------------------------------------------------------------------- Common Stock, $0.0001 par value 82,978 shares $33.94(2) $1,638,108(2) $483.24 ===============================================================================================
(1) Includes 39,959 shares issuable upon the exercise of options granted to Robert T. Rork and Alan L. Stinson by Alamo Title Holding Company ("Alamo") pursuant to Stock Option Agreements and 38,169 shares issuable upon the exercise of options and 4,850 shares to be awarded to Paul Holladay pursuant to an Amended Stock Award Agreement. The options and award were assumed by the Registrant in connection with its acquisition of Alamo on August 20, 1998. Also includes additional shares of Common Stock that may become issuable pursuant to the anti-dilution adjustment provisions of the foregoing agreements. (2) In accordance with Rule 457(h), the aggregate offering price of the 78,128 shares of Common Stock registered hereby which would be issued upon exercise of options granted is based upon the per share exercise price of such options, the weighted average of which is approximately $18.87 per share. The offering price of the 4,850 shares issuable pursuant to the Amended Stock Award Agreement is estimated solely for purposes of calculating the registration fee on the basis of the average of the high and low sales prices of the Common Stock ($33.78) on the New York Stock Exchange on September 21, 1998. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. - ------------------------------------------------- The following documents filed by Fidelity National Financial, Inc. (the "Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K, as amended, for the fiscal year ended December 31, 1997; (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998; (c) The Company's Current Reports on Form 8-K dated February 26, 1998 (as amended), March 19, 1998, March 25, 1998, April 23, 1998, May 6, 1998, June 24, 1998 and August 20, 1998; and (d) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all of such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document that is not deemed filed under such provisions. For the purposes of this Registration Statement, any statement in a document incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in this Registration Statement modifies or supersedes a statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. - ----------------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. - ------------------------------------------------ Not applicable. Item 6. Indemnification of Directors and Officers. - --------------------------------------------------- The Company's Certificate of Incorporation provides that to the fullest extent permitted by Delaware law, a director will not be liable for monetary damages for breach of the director's fiduciary duty of care to the Company and its stockholders. This provision in the Certificate of Incorporation does not eliminate a director's fiduciary duty of care, and, in appropriate circumstances, equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. Each director will continue to be subject to liability for (i) breach of the director's duty of loyalty to the Company or its stockholders for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, (ii) acts or omissions that the director believes to be contrary to the best interests of the Company or its stockholders, (iii) any transaction from which the director derives an improper personal benefit, (iv) acts or omissions involving reckless disregard for the director's duty to the Company or its stockholders when the director was aware or should have been aware of the risk of serious injury to the Company or its stockholders, (v) acts or omissions that constitute an unexpected pattern of inattention that amounts to an abdication of the director's duty to the Company or its stockholders, (vi) improper transactions between a director and the Company, II-1 3 and (vii) improper distributions and loans to directors and officers. This provision does not affect a director's responsibilities under any laws, such as the federal securities laws or state or federal environmental laws. In addition, the Company's Bylaws provide that the Company will indemnify its directors and executive officers and may indemnify its other officers, employees and other agents to the fullest extent permitted by Delaware law. The Company is also empowered under its Bylaws to enter into indemnification contracts with its directors and officers and to purchase insurance on behalf of any person whom the Company is required or permitted to indemnify. The Company has entered into agreements with its directors and executive officers, which requires the Company to indemnify them to the fullest extent permitted by law against certain losses they may incur in legal proceedings arising in connection with their services to the Company. Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. The above discussion of the Registrant's Bylaws and Certificate of Incorporation and of the Delaware Law is not intended to be exhaustive and is respectively qualified in its entirety by such Bylaws and Certificate of Incorporation and the Delaware Law. Item 7. Exemption from Registration Claimed. - --------------------------------------------- Not applicable. Item 8. Exhibits. - ------------------ The following exhibits are filed as part of this Registration Statement:
Number Description ------ ----------- 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation, Counsel to the Registrant. 23.1 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of the Registrant. 23.2 Consent of Ehrhardt Keefe Steiner & Hottman, PC, independent auditors, with respect to the consolidated financial statements of Granite Financial, Inc. 23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in the Opinion filed as Exhibit 5.1). 24.1 Power of Attorney (included on signature page).
II-2 4 Item 9. Undertakings. - ---------------------- (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by these paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on the 23rd day of September, 1998. FIDELITY NATIONAL FINANCIAL, INC. By: /s/ WILLIAM P. FOLEY, II ---------------------------------------- William P. Foley, II Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY We, the undersigned directors and officers of Fidelity National Financial, Inc., do hereby make, constitute and appoint William P. Foley, II, Andrew F. Puzder and Allen D. Meadows, and each of them acting individually, our true and lawful attorneys-in-fact and agents, with power to act without any other and with full power of substitution, to do any and all acts and things in our name and behalf in our capacities as directors and officers, to sign any and all amendments (including post-effective amendments) to this Registration Statement, or any related Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date --------- ----- ---- /s/ WILLIAM P. FOLEY, II Chairman of the Board and - ------------------------------- Chief Executive Officer September 23, 1998 William P. Foley, II (Principal Executive Officer) Executive Vice President and - ------------------------------- Chief Financial Officer September ___, 1998 Allen D. Meadows (Principal Financial Officer and Accounting Officer) /s/ FRANK P. WILLEY - ------------------------------- President and Director September 23, 1998 Frank P. Willey
II-4 6
Signature Title Date --------- ----- ---- /s/ William A. Imparato - --------------------------------- Director September 23, 1998 William A. Imparato - --------------------------------- Director September ___, 1998 Donald M. Koll /s/ Daniel D. Lane - --------------------------------- Director September 23, 1998 Daniel D. Lane /s/ General William Lyon - --------------------------------- Director September 23, 1998 General William Lyon /s/ Stephen C. Mahood - --------------------------------- Director September 21, 1998 Stephen C. Mahood - --------------------------------- Director September ___, 1998 J. Thomas Talbot /s/ Cary H. Thompson - --------------------------------- Director September 23, 1998 Cary H. Thompson /s/ William W. Wehner - --------------------------------- Director September 21, 1998 William W. Wehner
II-5 7 EXHIBIT INDEX
Exhibit Sequential Number Description Page Number - ------ ----------- ----------- 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation, Counsel to the Registrant. 23.1 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of the Registrant. 23.2 Consent of Ehrhardt Keefe Steiner & Hottman, PC, independent auditors, with respect to the consolidated financial statements of Granite Financial, Inc. 23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in the Opinion filed as Exhibit 5.1). 24.1 Power of Attorney (included on signature page).
EX-5.1 2 OPINION OF STRADLING YOCCA CARLSON & RAUTH 1 EXHIBIT 5.1 STRADLING YOCCA CARLSON & RAUTH A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 660 NEWPORT CENTER DRIVE, SUITE 1600 NEWPORT BEACH, CALIFORNIA 92660-6441 TELEPHONE (949) 725-4000 FACSIMILE (949) 725-4100 SAN FRANCISCO OFFICE 44 MONTGOMERY STREET, SUITE 2950 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE (415) 765-9180 FACSIMILE (415) 765-9187 September 21, 1998 Fidelity National Financial, Inc. 17911 Von Karman Avenue Suite 300 Irvine, California 92614 RE: Registration Statement on Form S-8 Ladies and Gentlemen: At your request, we have examined the form of Registration Statement on Form S-8 (the "Registration Statement") being filed by Fidelity National Financial, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 82,978 shares of the Company's common stock, $.0001 par value ("Common Stock"), issuable under the Stock Option Agreements and Amended Stock Award Agreement described in the Registration Statement. We have examined the proceedings heretofore taken and are familiar with the additional proceedings proposed to be taken by the Company in connection with the authorization, issuance and sale of the securities referred to above. Based on the foregoing, it is our opinion that the 82,978 shares of Common Stock, when issued under the Plans and against full payment therefor in accordance with the respective terms and conditions of the Plans, will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, STRADLING YOCCA CARLSON & RAUTH EX-23.1 3 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Fidelity National Financial, Inc.: We consent to the inclusion of our report dated June 19, 1998, with respect to the consolidated balance sheets of Fidelity National Financial, Inc. and subsidiaries as of December 31, 1997 and 1996, and the related consolidated statements of earnings, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1997, which report appears in the Form 8-K of Fidelity National Financial, Inc. dated June 24, 1998. /s/ KPMG PEAT MARWICK LLP Los Angeles, California September 23, 1998 EX-23.2 4 CONSENT OF EHRHARD KEEFE STEINER & HOTTMAN PC 1 Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference, in the Registration Statement on Form S-8, of our report dated August 20, 1997, on our audit of the consolidated financial statements of Granite Financial, Inc. and Subsidiaries. /s/ Ehrhardt Keefe Steiner & Hottman PC ---------------------------------------- Ehrhardt Keefe Steiner & Hottman PC September 22, 1998 Denver, Colorado -----END PRIVACY-ENHANCED MESSAGE-----