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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
FIDELITY NATIONAL FINANCIAL, INC.
- -------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
316326-10-7
------------------------------
(CUSIP Number)
Frank P. Willey, Esq., President, Fidelity National Financial, Inc.
17911 Von Karman Ave., Suite 500, Irvine, California 92714 (714) 622-5000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 5, 1996
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Page 1 of 12 Pages
Exhibit Index on Page 7
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SCHEDULE 13D
CUSIP NO. 316326-10-7
-----------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Frank P. Willey
###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
NOT APPLICABLE
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
NOT APPLICABLE
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
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NUMBER OF 7 SOLE VOTING POWER
SHARES 392,800 as of January 5, 1996
BENEFICIALLY ---------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH NONE
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 392,800 as of January 5, 1996
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
NONE
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
392,800 shares plus 100,837 shares in exercisable stock options
as of January 5, 1996
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
NOT APPLICABLE
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.5% (excludes stock options) as of January 5, 1996
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14 TYPE OF REPORTING PERSON*
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Page 2 of 12 Pages
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Item 1. (a) Title of Class of Securities:
Common Stock $.0001 Par Value
(b) Name of Issuer:
FIDELITY NATIONAL FINANCIAL, INC.
(c) Address of Issuer's Principal Executive Offices:
17911 Von Karman Avenue
Suite 500
Irvine, CA 92714
Item 2. (a) Identity and Background of Reporting Person:
Frank P. Willey
(b) Business Address:
17911 Von Karman Avenue
Suite 500
Irvine, CA 92714
(c) Principal Occupation and Business Address:
President
FIDELITY NATIONAL FINANCIAL, INC.
17911 Von Karman Avenue
Suite 500
Irvine, CA 92714
(d) Reporting Person has never been convicted in any criminal
proceeding, excluding traffic violations.
(e) Reporting Person has never been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction
wherein such a proceeding resulted in or was subject to a
judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any
Page 3 of 12 Pages
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violation with respect to such laws.
(f) Citizenship:
United States
Item 3. Source and Amount of Funds or Other Consideration: The transaction
which subjected Reporting Person to this filing requirement occurred
on January 5, 1996 wherein Reporting Person's ownership interest
in Issuer was decreased to 3.5% of the issued and outstanding common
stock of Issuer based on 11,138,575 shares outstanding as of November
10, 1995 as reported in the third quarter 10-Q filed on November 13,
1995, as a result of the sale to The William P. Foley, II and Carol J.
Foley Irrevocable Trust dated June 3, 1992 by Reporting Person of
178,271 shares held by Reporting Person. Reporting Person sold
178,271 shares at $16.20 per share totaling $2,887,990.
Item 4. Purpose of Transaction:
Reporting Person sold such shares as described above on January 5,
1996 to The William P. Foley, II and Carol J. Foley Irrevocable Trust
dated June 3, 1992, and now owns 3.5% of the outstanding Common
Stock of Fidelity National Financial, Inc.
Page 4 of 12 Pages
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Item 5. Interest in Securities of the Issuer:
(a) Amount Beneficially Owned:
392,800 plus 100,837 shares in
exercisable stock options as of
January 5, 1996
Percent of Class:
Approx. 3.5% (excludes stock options)
as of January 5, 1996
(b) Number of Shares as to which such person has:
(i) Sole power to vote or to direct the vote:
392,800 shares
(ii) Shared power to vote or to direct the vote:
NONE
(iii) Sole power to dispose or to direct the disposition:
392,800
(iv) Shared power to dispose or to direct the disposition of:
NONE
(c) None, other than regularly reported purchases through the Fidelity
National Financial, Inc. Employee Stock Purchase Plan.
(d) NOT APPLICABLE
(e) NOT APPLICABLE
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of Issuer:
A copy of the Purchase Agreement, Promissory Note and Stock Pledge
Agreement associated with and in support of the transaction which
Page 5 of 12 Pages
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prompted this filing, were filed with the initial 13D as
Exhibits "A", "B" and "C".
Item 7. Material filed as Exhibits in support of transaction prompting
filing:
Exhibit 99.1: Stock Purchase Agreement Dated January 5, 1996.
Signature:
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
January 26, 1996
-----------------------------------
Date
FRANK P. WILLEY
-----------------------------------
Signature
Frank P. Willey
President
-----------------------------------
Name/Title
Page 6 of 12 Pages
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EXHIBIT INDEX
<TABLE>
<S> <C> <C>
99.1 Stock Purchase Agreement Page 8
</TABLE>
Page 7 of 12 Pages
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EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT ("Purchase Agreement") is effective the
5th day of January 1996, by and among FRANK P. WILLEY ("Stockholder"), having
its principal place of business located at 17911 Von Karman Avenue, Suite 500,
Irvine, California 92714 and WILLIAM P. FOLEY, II and CAROL J. FOLEY,
individually and as Trustees of the Foley Revocable Trust dated June 3, 1992,
having their principal place of business located at 17911 Von Karman Avenue,
Suite 500, Irvine, California 92714 (collectively "Purchaser"). Stockholder and
Purchaser are collectively referred to as "Parties".
1.0 RECITALS.
1.1 Stockholder owns one hundred seventy-eight thousand two
hundred seventy-one (178,271) shares ("Shares") of common voting stock of
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation ("Corporation").
1.2 Stockholder owns other shares of common voting stock of
Corporation that are not being sold to Purchaser.
1.3 Purchaser is currently a stockholder of the Corporation.
1.4 The Parties represented that the Shares are considered
restricted stock under Rule 144 of the Securities Act of 1933, and as such,
resales of the Shares are restricted.
1.5 The January 4, 1996, closing price of the unrestricted
shares of stock of the Corporation, traded on the New York Stock Exchange was
EIGHTEEN and 00/100 DOLLARS ($18.00) per share.
1.6 Purchaser and Seller have utilized the valuation discount
as determined by an independent third party appraiser, Houlihan, Lokey, Howard
& Zukin to determine the fair market value of the Shares, taking into account
the Shares' status as restricted stock, and both parties agree to be bound by
their findings.
1.7 Stockholder is desirous of selling the Shares to Purchaser
and Purchaser desires to buy the Shares from Stockholder pursuant to the terms
set forth herein.
1.8 Stockholder and Purchaser intend to enter into the Pledge
Agreement to secure Purchaser's payment of the purchase price for the Shares to
Stockholder.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for such good and valuable consideration, the
receipt and adequacy of which is hereby admitted and acknowledged, the parties
hereto agree as follows:
2.0 DEFINITIONS. As used herein, the following capitalized terms
shall have the following meanings:
Page 8 of 12 Pages
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2.1 "Corporation" shall mean FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation.
2.2 "Note" means the Secured Promissory Note for the
principal amount of TWO MILLION EIGHT HUNDRED EIGHTY-SEVEN THOUSAND NINE
HUNDRED NINETY AND 20/100 DOLLARS (2,887,990.20).
2.3 "Parties" shall mean the Stockholder and Purchaser.
2.4 "Pledge Agreement" means the Pledge Agreement dated
January 5, 1996, setting forth the Lender's security interest in the Shares.
2.5 "Purchase Agreement" shall mean this Purchase Agreement,
dated January 5, 1996.
2.6 "Purchase Documents" shall collectively refer to this
Purchase Agreement, Note, and Pledge Agreement.
2.7 "Purchaser" shall mean WILLIAM P. FOLEY, II and CAROL J.
FOLEY, individually and as trustees of the Foley Revocable Trust dated June 3,
1992.
2.8 "Shares" shall mean one hundred seventy-eight thousand
two hundred seventy-one and (178,271) shares of common voting stock of
Corporation.
2.9 "Stockholder" means FRANK P. WILLEY.
3.0 STOCK PURCHASE. Purchaser does hereby purchase and Stockholder
does hereby sell, transfer and assign to Purchaser the Shares.
4.0 PURCHASE PRICE. The total purchase price for the Shares shall
be SIXTEEN and 20/100 DOLLARS ($16.20) per share determined by the January 4,
1996 closing price of the New York Stock Exchange for unrestricted shares at
EIGHTEEN DOLLARS ($18.00) per share less the ten percent (10%) discount from
the fair market value of restricted shares determined by the independent
appraisal of Houlihan, Lokey, Howard & Zukin.
5.0 PAYMENT. Purchaser hereby delivers the Note to Stockholder in
the form and substance attached hereto and incorporated herein by reference.
6.0 PLEDGE.
6.1 As security for payment by the Purchaser of all amounts
due under the Note, the Purchaser agrees to enter into the Pledge Agreement,
whereby Purchaser pledges, mortgages, assigns and transfers, sets over, grants
and delivers to Stockholder a continuing security interest in and to all of the
Purchaser's respective right, title and interest in and to the Shares subject to
the full and timely performance of the terms and conditions of this Purchase
Agreement and the Note.
Page 9 of 12 Pages
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6.2 A default under the terms and conditions of the Note, this
Purchase Agreement or the Pledge Agreement shall be considered a default under
the terms of all of the Purchase Documents, and the Stockholder, or any
assignee, shall have the right to pursue all remedies against the Purchaser
which are allowed pursuant to the Purchase Documents.
7.0 ATTORNEY'S FEES AND COSTS. In the event of any action brought
by either party against the other arising out of this Purchase Agreement, or
for the purpose of enforcing the Purchase Agreement or collecting any damages
alleged to have resulted to one of the parties by reason of the breach or
failure of performance of the other, the party prevailing in any such action
shall be entitled to recover reasonable attorneys' fees and costs of suit as
may be determined by the Court.
8.0 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
8.1 Purchaser represents and warrants that WILLIAM P. FOLEY, II
has been serving as a director and key management employee of the Corporation.
In Purchaser's capacity as such, Purchaser has full knowledge of the condition
of the Corporation. Purchaser has had the opportunity to investigate the
condition of the Corporation, including any and all financial information
pertaining thereto, has done so and has made an independent evaluation of the
Shares.
8.2 Purchaser hereby represents and warrants and agrees that any
dividends received in connection with the Shares or proceeds from the sale of
the Shares shall be used to make principal and interest payments on amounts due
under the Note with and any excess due under the to be used for re-payment of
the Note.
9.0 HEIRS AND ASSIGNS. All the covenants, representations,
warranties and indemnifications of the Parties under this Purchase Agreement
shall survive the effective date of this transaction. The rights created by
this Purchase Agreement shall inure to the benefit of and the obligations
created by this Purchase Agreement shall be binding upon heirs, administrators,
personal representatives, successors and assigns of the Parties.
10.0 ARBITRATION OF DISPUTES. Any controversy or claim arising out
of this Purchase Agreement, or the breach thereof, shall be settled by
arbitration at Irvine, California, in accordance with the then current rules of
the American Arbitration Association (the "Association"), the award from which
arbitration shall be binding upon both parties and their successors, regardless
of whether one of said parties fails or refuses to participate therein, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. All demands for arbitration shall be in writing
and made by actual delivery or by certified or registered mail, return receipt
requested, with a copy to the Association. In addition to the rules governing
such arbitration, the parties shall have at their disposal the broadest
pretrial discovery rights as are then available under the laws and judicial
rules of the jurisdiction in which the arbitration is to be held (including but
not limited to those set forth in Section 1283.05 of the California Code of
Civil Procedure; provided, that any dispute between the parties relating to
discovery shall be submitted to the arbitration panel for resolution.
Page 10 of 12 Pages
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Disputes regarding interim or ancillary relief pending final decision of the
arbitration panel in a matter hereunder shall also be submitted to the
arbitration panel for resolution.
11.0 GOVERNING LAW/VENUE. It is the intent of the Parties hereto
that all questions with respect to the construction of this Purchase Agreement
and the rights and liabilities of the parties hereto, shall be determined in
accordance with the provisions of the laws of the State of California, in such
case made and provided. Venue, for the purposes of the Purchase Agreement,
shall be considered the City of Irvine, County of Orange and State of
California.
12.0 PARAGRAPH HEADINGS. The subject headings of the paragraphs of
this Purchase Agreement are included for purposes of convenience only and shall
not affect the construction or interpretation of any of its provisions.
13.0 RECITALS. The Recitals contained in this Purchase Agreement
are hereby incorporated by reference within the terms and conditions of this
Purchase Agreement and are to have full force and effect. To the extent that
the terms and conditions of the Purchase Agreement differ from the Recitals,
then the terms and conditions of this Purchase Agreement shall control.
14.0 SEVERABILITY. In the event that any of the terms of this
Purchase Agreement are held to be partially or wholly invalid or unenforceable
for any reason whatsoever, such holding shall not affect, alter, modify or
impair in any manner whatsoever, any of the other terms, or the remaining
portion of any term, held to be partially invalid or unenforceable.
15.0 AMENDMENTS. The parties hereto may at any time amend this
Purchase Agreement in any particular, by mutual consent expressed in writing.
16.0 GENDER. Whenever required by the context, the singular number
shall include the plural number, the plural number shall include the singular
number, the masculine gender shall include the neuter and feminine genders and
vice versa.
17.0 NOTICE. Any notice or notices required under the provisions of
this Purchase Agreement shall only be valid when sent by certified mail, return
receipt requested, to the addresses set forth herein, or as otherwise notified
to the other party in writing. The notice shall be considered delivered as of
the date deposited with the U.S. Post Office.
18.0 WAIVER. No amendment or waiver of any of the provisions of
this Purchase Agreement shall be effective unless same shall be in writing and
signed by the Parties hereto. Any such written waiver or amendment shall be
effective only for the specific instance and for the specific purpose for which
it was given. One or more waivers of any covenant, term or condition of this
Purchase Agreement by the Parties shall not be construed by either party as a
waiver of a subsequent breach of the same covenant, term or condition. The
consent or approval of either party to or of any act by the other party of a
nature requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent similar act.
Page 11 of 12 Pages
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19.0 COOPERATION AND FURTHER ACTIONS. The Parties agree to perform
any and all acts to execute and deliver any and all documents necessary or
convenient to carry out the terms of this Purchase Agreement.
20.0 COUNTERPARTS. This Purchase Agreement may be executed in one
or more counterparts, each of which when executed and delivered shall be an
original, and all of which when executed shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the Parties hereto have has caused
this Purchase Agreement to be executed as of the Effective Date.
WITNESS/ATTEST:
- ------------------------------ ----------------------------------
FRANK P. WILLEY
- ------------------------------ "Stockholder"
FOLEY REVOCABLE TRUST dated
June 3, 1992
- ------------------------------ By:
------------------------------
WILLIAM P. FOLEY, II
- ------------------------------ Its: Trustee
- ------------------------------ By:
------------------------------
CAROL J. FOLEY
- ------------------------------ Its: Trustee
- ------------------------------ ----------------------------------
WILLIAM P. FOLEY, II, Individually
- ------------------------------
- ------------------------------ ----------------------------------
CAROL J. FOLEY, Individually
- ------------------------------ "Purchaser"
Prepared by:
The Busch Firm
2532 Dupont Drive
Irvine, California 92715
(714) 474-7368
2802-12.1
Page 12 of 12 Pages
