<PAGE> 1
As filed with the Securities and Exchange Commission on August 21, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
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
Incorporation or Organization) Identification No.)
17911 Von Karman Avenue, Irvine, California 92714
(Address of Principal Executive Offices) (Zip Code)
FIDELITY NATIONAL FINANCIAL, INC.
1987 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
M'Liss Jones Kane (714) 622-4333
Senior Vice President (Telephone Number,
Corporate Counsel including Area Code,
17911 Von Karman Ave., #300 of Agent For Service)
Irvine, California 92714
(Name and Address of Agent For Service)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price aggregate registration
per share(2) offering price(2) fee
- --------------------------------------------------------------------------------------------
<S> <C>
Common Stock, 1,875,000 $12.625 $23,671,875 $8,612
par value $.0001
per share (Under the
Fidelity National
Financial, Inc.
1987 Employee
Stock Purchase
Plan)
- --------------------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1987
Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or any other similar transaction without
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of Fidelity National Financial,
Inc.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) of the Securities Act of 1933, based on
the Average of the high and low prices of a share of Common Stock of
the Registrant on the New York Stock Exchange on August 17, 1995.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Fidelity National Financial, Inc.
(the "Company"), are incorported herein by reference:
(a) The registration statement on Form S-8, File No. 33-15008, the
registration statement on Form S-8, File No. 33-15027, the
registration statement on Form S-8, File No. 33-45709,
and the registration statement on Form S-8, File No. 33-64836,
which were heretofore filed by the Registrant with the
Securities and Exchange Commission on June 5, 1987, December
29, 1989, February 13, 1992, and June 23, 1993 respectively,
pursuant to the Securities Act of 1933, as amended.
(b) The Company's Annual Report on Form 10-K, as amended, for the
fiscal year ended December 31, 1994, filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act").
All documents subsequently filed by the Company 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 securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such 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.
II-1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") provides for the indemnification of directors
and officers under certain circumstances, as therein set forth.
The Company's By-laws provide that the Company shall indemnify
its officers and directors in the manner and to the fullest extent permitted by
the Delaware Law.
The above discussion of the Company's Bylaws and of the
Delaware Law is not intended to be exhaustive and is respectively qualified in
its entirety by such Bylaws and the Delaware Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION OF EXHIBIT
NUMBER ----------------------
- -------
4(a) Certificate of Incorporation of the Company, with Amendments,
incorporated by reference from Form S-1, Registration
No. 33-11321.
4(b) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated February 2, 1989 and approved by the
Stockholders of the Company on March 24, 1989, incorporated by
reference from Form 10-K filed January 29, 1990.
4(c) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated June 10, 1992 and approved by the
stockholders of the Company on July 15, 1992, incorporated by
reference from Proxy Statement on Schedule 14A dated June 17,
1992.
4(d) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated June 15, 1993, and approved by the
stockholders of the Company on June 15, 1993, incorporated by
reference from Proxy Statement on Schedule 14A dated May 5,
1993.
4(e) ByLaws of Registrant with Amendments, incorporated by reference
from Form S-1, Registration No. 33-11321.
II-2
<PAGE> 4
4(f) Amendment to Article VII, Section 7 of the Bylaws of Registrant
dated April 22, 1988, incorporated by reference from Form 10-K
filed January 29, 1990.
4(g) Amendment to Article III, Section 3(d) of the Bylaws of
Registrant dated September 14, 1991, incorporated by
reference from Form 10-K filed March 29, 1993.
4(h) Amendment to Article II, Section 1(b) of the Bylaws of
Registrant dated October 29, 1991, incorporated by
reference from Form 10-K filed March 29, 1993.
4(i) Amendment to Article II, Section 1(b) of the Bylaws of
Registrant dated December 10, 1991, incorporated by
reference from Form 10-K filed March 29, 1993.
4(j) Amendment to Article IV, Sections 1(a) and (b) and Section 4 of
the Bylaws of Registrant dated June 9, 1992, incorporated by
reference from Form 10-K filed March 29, 1993.
*5 Opinion and consent of M'Liss Jones Kane as to the legality of
the securities being registered.
*23(a) Consent of M'Liss Jones Kane (included in her opinion filed as
Exhibit 5).
*23(b) Consent of KPMG Peat Marwick LLP.
*24 Power of Attormey. Reference is made to page II-6 of this
Registration Statement.
*99(a) Fidelity National Financial, Inc. 1987 Employee Stock Purchase
Plan.
- ----------------
*Filed herewith.
ITEM 9. UNDERTAKINGS.
The 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 1993, as amended (the "Act"),
II-3
<PAGE> 5
(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 (I) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 of Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
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.
(4) That, for the purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act and each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act 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.
(5) Insofar as indemnification for liabilities arising under the Act 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
indemnmification 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
II-4
<PAGE> 6
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.
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<PAGE> 7
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 August 18, 1995.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
------------------------------
William P. Foley, II
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of William P. Foley, II and Frank P.
Willey his true and lawful attorney-in-fact and agent, each with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney-in-fact
and agent, full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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 and the foregoing Power of Attorney have been signed on
August , 1995, by the following persons in the capacities indicated.
SIGNATURES TITLE
/s/ WILLIAM P. FOLEY, II
- ------------------------- Chairman of the Board,
William P. Foley, II Chief Executive Officer
(Principal Executive Officer)
/s/ FRANK P. WILLEY
- ------------------------- President and Director
Frank P. Willey
II-6
<PAGE> 8
/s/ CARL A. STRUNK
- ------------------------ Executive Vice President and
Carl A. Strunk Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ WILLIAM A. IMPARATO
- ------------------------ Director
William A. Imparato
/s/ DONALD M. KOLL
- ------------------------ Director
Donald M. Koll
/s/ DANIEL D. (RON) LANE
- ------------------------ Director
Daniel D. (Ron) Lane
/s/ STEPHEN C. MAHOOD
- ------------------------ Director
Stephen C. Mahood
/s/ J. THOMAS TALBOT
- ------------------------ Director
J. Thomas Talbot
/s/ CARY H. THOMPSON
- ------------------------ Director
Cary H. Thompson
II-7
<PAGE> 9
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
NUMBER ----------------------
- -------
4(a) Certificate of Incorporation of the Company, with Amendments,
incorporated by reference from Form S-1, Registration
No. 33-11321.
4(b) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated February 2, 1989 and approved by the
Stockholders of the Company on March 24, 1989, incorporated by
reference from Form 10-K filed January 29, 1990.
4(c) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated June 10, 1992 and approved by the
stockholders of the Company on July 15, 1992, incorporated by
reference from Proxy Statement on Schedule 14A dated June 17,
1992.
4(d) Amendment to Article FOURTH of Certificate of Incorporation of
the Company dated June 15, 1993, and approved by the
stockholders of the Company on June 15, 1993, incorporated by
reference from Proxy Statement on Schedule 14A dated May 5,
1993.
4(e) ByLaws of Registrant with Amendments, incorporated by reference
from Form S-1, Registration No. 33-11321.
4(f) Amendment to Article VII, Section 7 of the Bylaws of Registrant
dated April 22, 1988, incorporated by reference from Form 10-K
filed January 29, 1990.
4(g) Amendment to Article III, Section 3(d) of the Bylaws of
Registrant dated September 14, 1991, incorporated by reference
from Form 10-K filed March 29, 1993.
4(h) Amendment to Article II, Section 1(b) of the Bylaws of
Registrant dated October 29, 1991, incorporated by reference
from Form 10-K filed March 29, 1993.
4(i) Amendment to Article II, Section 1(b) of the Bylaws of
Registrant dated December 10, 1991, incorporated by reference
from Form 10-K filed March 29, 1993.
4(j) Amendment to Article IV, Sections 1(a) and (b) and Section 4 of
the Bylaws of Registration dated June 9, 1992, incorporated by
reference from Form 10-K filed March 29, 1993.
<PAGE> 10
*5 Opinion and consent of M'Liss Jones Kane as to the legality of
the securities being registered.
*23(a) Consent of M'Liss Jones Kane (included in her opinion filed as
Exhibit 5).
*23(b) Consent of KPMG Peat Marwick LLP.
*24 Power of Attorney. Reference is made to page II-6 of this
Registration Statement.
*99(a) Fidelity National Financial, Inc. 1987 Employee Stock Purchase
Plan.
- ------------------
*Filed herewith.
<PAGE> 1
EXHIBIT 5
[FIDELITY NATIONAL FINANCIAL, INC. LETTERHEAD]
August 18, 1995
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 500
Irvine, CA 92714
RE: Fidelity National Financial, Inc.
Registration Statement on Form S-8
1987 Employee Stock Purchase Plan
----------------------------------
Gentlemen:
As counsel to Fidelity National Financial, Inc. (the "Company"), I participated
in the preparation and filing of the Registration Statement on Form S-8
relating to the issuance of an aggregate of 1,875,000 shares of common stock
that may be acquired by the employees of the Company under the Company's 1987
Employee Stock Purchase Plan (the "Plan").
I have examined such corporate records and other documents and certificates as
I have considered appropriate for the purposes of this opinion. Based on the
above, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware; and,
2. The shares of common stock of the Company registered pursuant to the
Registration Statement, when issued in accordance with the Plan, will
be legally issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
FIDELITY NATIONAL FINANCIAL, INC.
M'Liss Jones Kane
Senior Vice President
Corporate Counsel
Corporate Secretary
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Orange County, California
August 17, 1995
<PAGE> 1
EXHIBIT 99(a)
FIDELITY NATIONAL FINANCIAL INC.
(A DELAWARE CORPORATION)
1987 EMPLOYEE STOCK PURCHASE PLAN
PURPOSE OF PLAN. The purpose of this 1987 Stock Purchase Plan (the
"Plan") is to encourage a sense of proprietorship on the part of employees of
Fidelity National Financial, Inc. (the "Company") and its subsidiary
corporations (as defined below) by assisting them in making regular purchases
of shares of stock of the Company, and thus to benefit the Company by
increasing such employees' interest in the growth of the Company and subsidiary
corporations and in such entities' financial success. Participation in the Plan
is entirely voluntary, and the Company makes no recommendation to its employees
as to whether they should participate.
1. DEFINITIONS.
1.1 "Base earnings" shall mean the Employee's regular
salary rate before deductions required by laws and deductions
authorized by the Employee. In the case of employees primarily
compensated on a commission basis, Base Earnings may include an amount
of commission earnings not to exceed $2,500.00 per month. Base Earnings
do not include: pay for overtime, extended workweek schedules, or any
other form of extra compensation; payments by the Company or
subsidiary corporations, unemployment compensation, any disability
payments or other payments required by statute; or contributions by the
Company or subsidiary corporations, as applicable, for insurance,
annuity, or other employee benefits plans.
1.2 "Board" shall mean the Board of Directors of the
Company.
1.3 "Broker" shall mean the financial institution
designated to act as Broker under the Plan pursuant to Paragraph 16
hereof.
1.4 "Brokerage Account" shall mean an account established
on behalf of each Participant pursuant to Paragraph 8.1 hereof.
1.5 "Committee" shall mean a Stock Purchase Committee
appointed by the Board.
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<PAGE> 2
1.6 "Common Stock" shall mean the Common Stock of the
Company.
1.7 "Company" shall mean Fidelity National Financial, Inc.,
a Delaware corporation, or any successor.
1.8 "Company Account" shall mean the account established in
the name of the Company pursuant to Paragraph 7.2 hereof.
1.9 "Employee" shall mean any person who is currently
employed by the Company or one of its subsidiary corporations
for at least __ hours per week and has been so employed continuously
during the preceding 90 days (provided that the Board or the Comnmittee
may in its discretion waive such 90-day requirement), excluding
non-employees and persons on leave of absence. An Employee may also
be referred to herein as a Participant.
1.10 "Enrollment Form" shall mean the Employee Stock
Purchase Plan Enrollment Form.
1.11 "Interested Party" shall mean the persons described in
Paragraph 16 hereof.
1.12 "Plan" shall mean this Employee Stock Purchase Plan.
1.13 "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are
held by the Company or a subsidiary corporation, whether or not such
corporation now exists or is hereafter organized or acquired by the
Company or a subsidiary corporation.
2. ADMINISTRATION. The Plan shall be administered by the Board
or, in the discretion of the Board, by the Committee which shall consist of not
less than two persons to be appointed by, and to serve at the pleasure of, the
Board. No member of the Board or Committee who is not an Employee shall be
eligible to participate in the Plan. An aggregate of 800,000 shares of Common
Stock shall be subject to the Plan, provided that such number shall be
automatically adjusted to reflect any stock split, reverse stock split, stock
dividend, recapitalization, merger, consolidation, combination,
reclassification or similar corporate change. The Board or the Committee shall
have full authority to construe, interpret, apply and administer the Plan and
to establish and amend such rules and procedures as its deems necessary or
appropriate from time to time for the proper administration of the Plan. In
addition, the Board or the Committee may engage or hire such persons, including
without limitation, the Broker, to provide administrative, record keeping and
other similar services in connection with its administration of the Plan, as it
may deem necessary or appropriate from time to time. The members of the Board
and the Committee and the officers of the Company shall be entitled to rely
upon all certificates and reports made by such persons, including the Broker,
and upon all opinions given by any legal counsel or investment adviser or
investment adviser selected or approved by the Board or the Committee. The
members
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<PAGE> 3
of the Board and the Committee and the officers of the Company shall be fully
protected in respect of any action taken or suffered to be taken by them in good
faith in reliance upon any such certificates, reports, opinions or other advice
of any such person, and all action so taken or suffered shall be conclusive
upon each of them and upon all Participants. The Company shall indemnify each
member of the Board and the Committee and any other officer or employee of the
Company who is designated to carry out any responsibilities under the Plan for
any liability arising out of or connected with his or her duties hereunder,
except such liability as may arise from such person's gross negligence or
willful misconduct.
3. ELIGIBILITY. Any Employee as defined in Paragraph 1.9 shall
be eligible to participate in the Plan. Any Employee partcipating in the Plan
who, after the commencement of a particular Offering Period, as defined in
Paragraph 4, shall for any reason fail to meet the standards of eligibility,
shall be considered to have withdrawn from the Plan, effective as of the date
upon which the Participant from the Plan shall include ineligibility as
described in this Paragraph 3.
4. OFFERING PERIODS. Shares shall be offered pursuant to this
Plan in consecutive periods ("Offering Periods") of three months duration each,
commencing on the effective date of the Plan pursuant to Paragraph 21 and
continuing thereafter until terminated in accordance with Paragraph 14. The
Board shall have the power to change the duration of Offering Periods if such
change is announced at least 10 days prior to the scheduled beginning of the
first Offering Period to be affected.
5. PARTICIPATION. Participation in the Plan is optional. An
eligible Employee may apply to participate in the Plan by submitting to the
Company's payroll office an Enrollment Form authorizing a payroll deduction and
purchase of shares. The Enrollment Form shall be on a form provided by the
Company and may be submitted to the Company at any time. Participation shall
not be effective until the Enrollment Form is reviewed and accepted by
the Company by written notice to the Employee. Once the Enrollment Form has been
reviewed and accepted by the Company, participation in the Plan shall commence
immediately.
6. PAYROLL DEDUCTIONS.
6.1 ELECTION. At the time a Participant submits an
Enrollment Form, the Participant shall elect to have payroll
deductions made on each payday during the Offering Period at a whole
percentage from 5% to 15% of the Base Earnings which the Participant is
to receive on such payday. In the case of Participants primarily
compensated on a commission basis, a Participant can elect to have
payroll deductions made on each payday during the Offering Period at a
whole percentage from 5% to 15% on the commission portion of said
Participant's Base Earnings, not to exceed $2,500.00 per month.
6.2 HOLDING OF FUNDS. All payroll deductions authorized
by each Participant shall be held in an interest-bearing account with
the Broker in the name of the Fidelity
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<PAGE> 4
National Financial, Inc. Employee Stock Purchase Plan (the
"Company Account") until used to purchase Common Stock and shall not
be used for any other purpose. The Company shall maintain records
reflecting the amount in the Company Account for each Participant.
Interest accruing on the payroll deductions credited to the Company
Account shall be used to defray costs associated with the engagement of
the Broker and will not be available to purchase shares of Common Stock
under Paragraph 8. All withholding taxes in connection with a
Participant's payroll deduction shall be deducted from the remainder of
the Base Earnings paid to the Participant and not from the amount to be
placed in the Company Account. A participant may not make any
additional payments into the Company Account except as provided in
Paragraph 17. All amounts in the Company Account derived from payroll
deductions shall be referred to as the "Participant Contribution".
6.3 CHANGES IN ELECTION. Participation in the Plan will
continue until the Participant withdraws from the Plan, is no longer
eligible to participate or the Plan is terminated. Such participation
shall be on the basis of the payroll deduction election submitted by
such Employee to the Company and then currently in effect. Each such
election shall remain in effect until the effective date of any change
in the amount of payroll deduction as requested by the Participant and
accepted by the Company. To be effective in any Offering Period, a
change in the amount of payroll deduction must be requested in writing
and submitted to the Company. A Participant may change his withholding
percentage at any time during an Offering Period but only one time
during any one Offering Period. If a Participant's Base Earnings
change during an Offering Period, the amount of the payroll deduction
will be changed to the figure reflecting the Participant's previously
elected deduction percentage applied to his or her new Base Earnings
(but will not in any event be in excess of 15% of the Participant's
Base Earnings).
7. CONTRIBUTION BY THE COMPANY OR A SUBSIDIARY. The Company or a
subsidiary shall make matching contributions (the "Matching Contribution") as
follows:
7.1 OFFICERS AND DIRECTORS AS PARTICIPANTS. For each officer
or director of the Company or a Subsidiary who participates in the Plan
and remains an Employee of the Company or a Subsidiary for at least one
year after the termination of a particular Offering Period, the Company
or subsidiary shall make upon the one year anniversary date after such
Offering Period a Matching Contribution equal to one-half of the number
of shares purchased on behalf of such Participant during such one year
earlier Offering Period subject to Paragraph 7.3. Withholding taxes as
and when required in connection with such Matching Contribution shall
be withheld based upon the person's existing withholding percentages or
as otherwise required by law from the Participant's Base Earnings.
"Officer" shall mean president, secretary, vice president, treasurer or
assistant vice president and shall be determined as of the end of an
Offering Period.
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<PAGE> 5
7.2 OTHER PARTICIPANTS. For each Participant in the Plan
(other than an officer or director) who remains an Employee of the
Company or a Subsidiary for at least one year after the termination of
a particular Offering Period, the Company or Subsidiary shall make upon
the one year anniversary date after such Offering Period a Matching
Contribution equal to one-third of the number of shares purchased on
behalf of such Participant during such one year earlier Offering Period
subject to Paragraph 7.3. Notwithstanding the foregoing, for each
Participant in the Plan (other than an officer or director) who has
remained an Employee of the Company or a Subsidiary for at least ten
years prior to the beginning of a particular Offering Period and who
remains an Employee of the company or a Subsidiary for at least one
year after the termination of such Offering Period, the Company or
Subsidiary shall make upon the one year anniversary date after such
Offering Period a Matching Contribution equal to one-half of the number
of shares purchased on behalf of such Participant during such one year
earlier Offering Period subject to Paragraph 7.3. Withholding taxes as
and when required in connection with such Matching Contribution shall
be withheld based upon the person's existing withholding percentages or
as otherwise required by law from the Participant's Base Earnings.
7.3 FRACTIONAL SHARE CALCULATIONS. Fractional shares shall
not be issued regarding the Matching Contribution. If the above
calculation results in an incremental share calculation which is .5 or
greater, an additional whole share shall be issued. If the above
calculation results in an incremental share calculation which is
less than .5 no share shall be issued regarding such fraction.
7.4 TIMING OF WITHHOLDING. The Company shall withhold taxes
in two subsequent pay periods or as otherwise required by law.
8. PURCHASE OF SHARES REGARDING PARTICIPANT'S CONTRIBUTION.
8.1 OFFICERS AND DIRECTORS AS PARTICIPANTS. For each officer
or director of the Company or a Subsidiary who participates in the Plan
and remains an Employee of the Company or a Subsidiary for at least one
year after the termination of a particular Offering Period, the Company
or Subsidiary shall make upon the one year anniversary date after such
Offering Period a Matching Contribution equal to one-half of the
amopunt contributed on behalf of such Participant during such one year
earlier Offering Period subject to Paragraph 7.3. Withholding taxes as
and when required in connection with such Matching Contribution shall
be withheld based upon the person's existing withholding percentages or
as otherwise required by law from the Participant's Base Earnings.
"Officer" shall mean president, secretary, vice president, treasurer or
assistant vice president and shall be determined as of the end of an
Offering Period.
8.2 OTHER PARTICIPANTS. For each Participant in the Plan
(other than an officer or director) who remains an Employee of the
Company or a Subsidiary for at least one year after the termination of
a particular Offering Period, the Company or Subsidiary shall
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<PAGE> 6
make upon the one year anniversary date after such Offering
Period a Matching Contribution equal to one-third of the amount
contributed on behalf of such Participant during such one year earlier
Offering Period subect to Paragraph 7.3. Notwithstanding the foregoing,
for each Participant in the Plan (other than an officer or director)
who has remained an Employee of the Company or a Subsidiary for at
least ten years prior to the beginning of a particular Offering Period,
and who remains an Employee of the Company or Subsidiary of such
Offering Period, the Company or Subsidiary shall make upon the one year
anniversary date after such Offering Period a Matching Contribution
equal to one-half of the amount contributed on behalf of such
Participant during such one year earlier Offering Period subject to
Paragraph 7.3. Withholding taxes as and when required in connection
with such Matching Contribution shall be withheld based upon the
person's existing withholding percentages or as otherwise required by
law from the Participant's Base Earnings.
8.3 BROKER'S PURCHASE OF SHARES. From time to time, the
Broker, as agent for the Participants, shall purchase as many full
shares or fractional shares of Common Stock as such Contributions will
permit. The shares to be purchased shall be purchased at the then
current fair market value and may, at the election of the Company, be
either treasury shares, shares authorized but unissued, or shares
purchased on the open market. The amount of Common Stock so Purchased
by the Broker pursuant to this Paragraph 8.3 shall be allocated to the
respective Brokerage Account of each Participant on the basis of the
average cost of the Common Stock so Purchased, in proportion to the
amount allocable to each Participant. At the end of each Offering
Period under the Plan, each Participant. At the end of each Offering
Period under the Plan, each Participant shall acquire full ownership of
all full shares and fractional shares of Common Stock purchased for his
Brokerage Account. Unless otherwise requested by the Participant, all
such full shares and fractional shares so purchased shall be registered
in the name of the Broker and will remain so registered until delivery
is requested in accordance with Paragraph 8.5.
8.4 FEES AND COMMISSIONS. The Company shall pay the
Broker's administrative charges for opening and maintaining the
Brokerage Accounts for active Participants and the brokerage
commissions on purchases made for such Brokerage Accounts which are
attributable to Participant Contributions and Matching Contributions
under the Plan. Such Brokerage Accounts may be utilized for other
transactions as described in Paragraph 8.5 below, but any fees,
commissions or other charges by the Broker in connection with such
other transactions shall, in certain circumstances described in
Paragraph 8.5, be payable directly to the Broker by the Participant.
8.5 PARTICIPANT ACCOUNTS WITH BROKER. Each Participant's
Brokerage Account shall be credited with all cash dividends paid with
respect to full shares and fractional shares of Common Stock purchased
pursuant to Paragraphs 8.3 and 9 unless such shares are registered in
the Participant's name. Unless otherwise instructed by the Participant,
dividends on such Common Stock shall automatically be reinvested in
Common Stock as
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soon as practicable following receipt of such dividends by the
Broker. Applicable fees and brokerage commissions on the reinvestment
of such dividends will be payable by the Participant. Any stock
dividends or stock splits which are made with respect to shares of
Common Stock purchased pursuant to Paragraphs 8.3 and 9 shall be
credited to the Participant's Brokerage Account without charge. Any
Participant may request that a certificate for any or all of the full
shares of Common Stock credited to his Brokerage Account be delivered
to him at any time, provided, however, the Participant shall be charged
by the Broker for any fees applicable to such requests. A Participant
may request the Broker at any time to sell any or all of the full
shares or fractional shares of Common Stock credited to his Brokerage
account. Unless otherwise instructed by the Participant, upon such
sale, the Broker will mail to the Participant a check for the proceeds,
less any applicable fees and brokerage commissions and any transfer
taxes, registration fees or other normal charges which shall be payable
by the Participant. Except as provided in Paragraph 12, a request by
the Participant to the Broker to sell shares of Common Stock or for
delivery of certificates shall not affect an Employee's status as a
Participant. A Participant who has a Brokerage Account with the Broker
may purchase additional shares of Common Stock of the Company for his
Brokerage Account at any time by separate purchases arranged through
the Broker. When any such purchases are made the Participant will be
charged by the Broker for any and all fees and brokerage commissions
applicable to such transactions. In addition, any subsequent
transactions with respect to such shares acquired including, but not
limited to, purchases, sales, reinvestment of dividends, requests for
certificates and crediting of stock dividends or stock splits, shall
be at the expense of the Participant and the Broker shall charge the
Participant directly for any and all fees and brokerage commissions
applicable to such transactions.
9. ISSUANCE OF SHARES REGARDING MATCHING CONTRIBUTION. Subject
to Paragraph 14, on the 10th day after the first anniversary of an Offering
Period, each Participant's direct employer shall make the Matching Contribution
for each qualified Participant in an amount described in Paragraph 7 by
delivering to the Broker an amount equal to the total funds necessary to make
the Matching Contributions described in Paragraph 7 together with a list of the
number of shares allocable to the Brokerage Account of each Participant. As
soon as practicable therafter, the Broker shall purchase the number of shares
of Common Stock required in order to make the Matching Contributions. The
shares to be purchased shall be purchased at the then current fair market value
and may, at the election of the company, be either treasury shares, shares
authorized but unissued, or shares purchased on the open market. At the
time of such purchases, each Participant shall immediately acquire full
ownership of all full shares of Common Stock purchased. Unless otherwise
requested by the Participant, all such shares so purchased shall be registered
in the name of the Broker and will remain so registered until delivery is
requested in accordance with Paragraph 8.5.
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10. VOTING AND SHARES. All voting rights with respect to the full
shares of Common Stock held in the Brokerage Account of each Participant may be
exercised by each Participant and the Broker shall exercise such voting rights
in accordance with the Participant's signed proxy instruction duly delivered to
the Broker. Fractional shares cannot be voted.
11. STATEMENT OF ACCOUNT. As soon as practicable after the end of
each Offering Period, the Broker shall deliver to each Participant a statement
regarding all activity in his or her Brokerage Account, including his or her
participation in the plan for such Offering Period. Such statement will show
the number of shares acquired or sold, the price per share, the transaction
date, stock splits, dividends paid, dividends reinvested and the total number
of shares held in the Brokerage Account. The Broker shall also deliver to each
Participant as promptly as practicable, by mail or otherwise, all notices of
meetings, proxy statements and other material distributed by the Company to its
stockholders, including the Company's annual report to its stockholders
containing audited financial statements.
12. WITHDRAWAL FROM THE PLAN. A Participant may withdraw from the
Plan, effective as of the end of any Offering Period, by giving written notice
to the Company not later than the 15th day prior to the end of such Offering
Period. Upon any such withdrawal, the Participant shall be entitled to receive
as promptly as possible from the Company all the participant's payroll
deductions credited to the Company Account in his or her name during the
applicable Offering Period, but shall not be entitled to the benefit of any
Matching Contributions. In the event a Participant withdraws from the Plan
pursuant to this Paragraph 12, the company shall notify the Broker as soon as
practicable and the Broker shall maintain or close the Participant's Brokerage
Account in accordance with the procedures set forth in Paragraph 15. A
Participant who withdraws from the Plan may not reenter the Plan except by
execution and delivery of a new Enrollment Form and payroll deduction election,
and his or her participation shall be effective upon acceptance of the
Enrollment Form by the Company by written notice to the Employee not sooner
than 30 days after receipt of the Enrollment Form, provided that the company
may in its discretion accept an Enrollment Form prior to the expiration of such
30 days.
13. TERMINATION OF EMPLOYEE. In the event of the termination of a
Participant's employment with the Company or a Subsidiary for any reason during
an Offering Period, including but not limited to the death of a Participant,
participation in the Plan shall terminate as well as any rights to Matching
Contributions. The Participant or the personal representative of the
Participant shall be entitled to receive an amount of cash determined in the
same manner and payable at the same time as if the Participant had withdrawn
from the Plan by giving notice of withdrawal effective as of the date such
termination occurs. Notwithstanding the foregoing, termination of employment by
one employer for the purpose of being re-employed immediately by the Company or
one of its Subsidiaries shall not be considered termination under this
Paragraph 13. Any reference in this Plan to withdrawal by a Participant from
the Plan shall include termination as described in this Paragraph 13. In the
event of the termination of a Participant's employment pursuant to this
Paragraph 13, the Company shall notify the Broker as soon as practicable and
the Broker shall maintain or close the Participant's Brokerage Account in
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accordance with the procedures set forth in Paragraph 15.
14. AMENDMENT, SUSPENSION AND TERMINATION OF PLAN. This Plan may be
amended or terminated by the Board at any time and such amendment or
termination shall be communicated in writing to all Participants as soon as
practicable after the date of such Board actions. If the Plan is terminated,
each Participant shall be entitled to receive as promptly as possible from the
Company all payroll deductions attributable to him or her which have not been
used to purchase Common Stock pursuant to Paragraph 8, together with the
accrued interest on the Participant's funds held in the Company Account
(collectively, the "Account Balance"), but he or she shall not be entitled to
the benefit of any Matching Contributions with respect to such deductions or
interest or otherwise for any past or present Offering Periods. In any event
this Plan shall terminate 20 years from the date the Plan is adopted or the
date the Plan is approved by the stockholder, whichever is earlier. In the
event that the Company terminates the Plan pursuant to this Paragraph 14, the
Broker shall maintain or close the Participant's Brokerage Accounts in
accordance with the procedures set forth in Paragraph 15. Notwithstanding any
other provision to the contrary, any provision of this Plan may be amended by
the Board or the Committee as required to obtain necessary approvals of
governmental agencies if such change does not materially alter the rights and
interests of stockholders of the Company. If there are any changes in the
capitalization of the Company, such as through mergers, consolidations,
reorganizations, recapitalizations, stock splits or stock dividends,
appropriate adjustments will be made by the Company in the number of shares of
its Common Stock subject to purchase under the Plan.
15. DISPOSITION OF BROKERAGE ACCOUNT FOLLOWING WITHDRAWAL, DEATH,
TERMINATION OF EMPLOYMENT OR TERMINATION OF PLAN. As soon as practicable
following the notification of the withdrawal of a Participant from the Plan,
the notification of the termination of a Participant's employment with the
Company or a Subsidiary (which include the death of the participant) or of the
notification that the Plan is terminated pursuant to Paragraph 14 hereof, the
Broker shall notify the former Participant, or in the event of his death, his
designated beneficiary, if any, or if no designated beneficiary the estate of
the deceased Participant (collectively, an "Interested Party"), regarding the
disposition of the former Participant's or deceased Participant's Brokerage
Account. As soon as practicable following receipt of the notification set forth
in the preceding sentence, the Interested Party may request the Broker to
dispose of the former Participant's or deceased Participant's Brokerage
Account, at the Interested Party's expense, by any one of the following means:
(a) The Interested Party may request the Broker to maintain the
former Participant's or deceased Participant's Brokerage Account for
the Benefit of the Interested Party or any other person. The Interested
Party shall be charged by the Broker for all maintenance fees and any
and all other fees in connection with the Brokerage Account.
(b) The Interested Party may request the Broker to sell all of
the full shares and fractional shares of Common Stock, if any, held in
the former Participant's or deceased
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Participant's Brokerage Account. Upon such sale, the Broker will
mail to the Interested Party a check for the proceeds, less any
applicable fees and brokerage commissions and any transfer taxes,
registration fees or other charges which shall be payable by the
Interested Party.
(c) The Interested Party may request the Broker to provide a
certificate for all of the full shares of Common Stock, if any,
together with a check in any amount equal to the proceeds of the sale
of any fractional shares of Common Stock held in the former
Participant's or deceased Participant's Brokerage Account less any
applicable fees and brokerage commissions and any transfer taxes,
registration fees or other charges which are payable by the
participant. Maintenance of the former Participant's or deceased
Participant's Brokerage commissions and any transfer taxes,
registration fees or other charges which are payable by the Participant.
16. BROKER. The Broker shall be Merrill Lynch, Pierce, Fenner &
Smith Incorporated which has agreed to act as Broker for such period as is
determined by the company. Either the Company or the Broker may terminate such
designation at any time upon 30 days' written notice. In the event of such
termination of the Broker, the Company may administer the Plan without the use
of a Broker or may appoint a successor Broker. Any successor Broker shall be
vested with all the powers, rights, duties and immunities of the Broker
hereunder to the same extent as if originally named as the Broker hereunder.
The relationship between the Broker and the Participant will be the normal
relationship of a broker and its client, and the Company assumes no
responsibility in this respect.
17. INITIAL CONTRIBUTION. Any Participant who files an Enrollment
Form prior to the first Offering Period may elect to make an initial
contribution ("Initial Contribution") to be allocated to him or her in the
Company Account, by check payable to the Company, in any amount up to 15% of
his or her Base Earnings for the period between November 1, 1986 and the
commencement of the first Offering Period. The amount of the Initial
Contribution shall be matched as provided in Paragraph 7, and withholding taxes
in connection with such Matching Contribution shall be deducted in the same
manner as provided in Paragraph 7.
17.1 LUMP SUM CONTRIBUTION. The Board and/or the Committee
may from time to time in its discretion allow any Participant in the
Plan to make a lump sum contribution ("Lump Sum Contribution") to be
credited to him or her in the Company account, by check payable to the
Company, in any amount up to 15% of his or her Base Earnings,
including commissions as set forth in Paragraph 6.1, for a period
prescribed by the Board and/or the Committee. The amount of the Lump
Sum Contribution shall be matched as provided in Paragraph 7, and
withholding taxes in connection with such Matching Contribution shall
be deducted in the same manner as provided in Paragraph 7.
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18. CONDITIONS TO ISSUANCE OF SHARES. Shares shall not be issued
under the Plan unless issuance and delivery of such shares pursuant to the Plan
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, the securities laws of the state in which any Employee
resides, NASD requirements and the requirements of any stock exchange upon
which the Common Stock may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. By
execution of the Enrollment Form, the Participant covenants and agrees that
all shares are being pruchased only for investment and without any present
intention to sell or distribute such shares.
19. NOTICE.
19.1 TO COMPANY OR SUBSIDIARIES. Any notice hereunder to
the Company or to its Subsidiaries shall be in writing and such notice
shall be deemed made only when delivered or three days after being
mailed by certified mail return receipt requested to the Company's
principal office at 17911 Von Karman Avenue, Suite 300, Irvine,
California 92714 or to such other address as the Company may designate
by notice to the Participants.
19.2 TO PARTICIPANT. Any notice to a Participant hereunder
shall be in writing and any such communication and any delivery to a
Participant shall be deemed made if mailed or delivered to the
Participant at such address as the Participant may have on file with
the Company.
20. MISCELLANEOUS.
20.1 NO LIMITATION ON TERMINATION OF EMPLOYMENT. Nothing
in the Plan shall in any manner be construed to limit in any way the
right of the Company or any of its Subsidiaries to terminate an
Employee's employment at any time, without regard to the effect of such
termination on any right such Employee would otherwise have under the
Plan, or give any right to an Employee to remain employed by the
company in any particular position or at any particular rate of
remuneration.
20.2 LIABILITY. The Company, its Subsidiaries, any member
of the Board or Committee and any other person participating in any
determination of any question under the Plan, or in the interpretation,
administration or application of the Plan, shall have no liability to
any party for any action taken in good faith under the Plan, or based
on or arising out of a determination of any questions under the Plan or
an interpretation, administration or application of the Plan made in
good faith.
20.3 CAPTIONS. The captions of the paragraphs of this Plan
are for convenience
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only and shall not control or affect the meaning or construction of
any of its provisions.
20.4 ASSIGNMENT. Any rights of Employees hereunder shall be
nonforfeitable, and no Account Balance or contribution made by any
employer may revert or inure to the benefit of the Company or any
Subsidiary, provided that no Participant shall be entitled to sell,
assign, pledge or hypothecate any right or interest in his or her
Account Balance.
20.5 GOVERNING LAW. Delaware law governs this Plan.
20.6 SEVERABILITY. In case any provision of this Plan shall
be held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof, but this Plan
shall be construed and enforced as if such illegal and invalid
provision had never been inserted herein.
20.7 SUCCESSORS. The provisions of this Plan shall bind and
inure to the Benefit of the Company and its successors and assigns. The
term "successors" as used herein shall include any corporate or other
business entity which shall by merger, consolidation, purchase or
otherwise acquire all or substantially all of the business and assets
of the Company, and successors of any such corporation or other
business entity.
21. EFFECTIVE DATE OF PLAN. The Plan shall become effective upon the
first day of the month after which the Board approves the Plan, subject to
ratification by the stockholders of the Company, and all necessary approval of
governmental agencies have been received.
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