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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
COMMISSION FILE NO. 1-9396
FIDELITY NATIONAL FINANCIAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 86-0498599
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
17911 VON KARMAN AVENUE 92614 (714) 622-5000
IRVINE, CALIFORNIA (ZIP CODE) (REGISTRANT'S TELEPHONE NUMBER,
(ADDRESS OF PRINCIPAL EXECUTIVE INCLUDING AREA CODE)
OFFICES)
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
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<S> <C>
Common Stock, $.0001 par value New York Stock Exchange
Liquid Yield Option Notes, due 2009,
zero coupon, convertible subordinated New York Stock Exchange
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K, or any amendment to
this Form 10-K. [ ]
As of March 25, 1997, 13,921,556 shares of Common Stock ($.0001 par value)
were outstanding, and the aggregate market value of the shares of the Common
Stock held by non-affiliates of the registrant was $125,516,000. The aggregate
market value was computed with reference to the closing price on the New York
Stock Exchange on such date.
LOCATION OF EXHIBIT INDEX: The index to exhibits is contained in Part IV
herein on page number 57.
The information in Part III hereof is incorporated herein by reference to
the Registrant's Proxy Statement on Schedule 14A for the fiscal year ended
December 31, 1996, to be filed within 120 days after the close of the fiscal
year that is the subject of this Report.
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TABLE OF CONTENTS
FORM 10-K
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PAGE NO.
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PART I
Item 1 Business................................................................. 1
Item 2 Properties............................................................... 10
Item 3 Legal Proceedings........................................................ 10
Item 4 Submission of Matters to a Vote of Security Holders...................... 10
PART II
Item 5 Market for Registrant's Common Stock and Related Stockholder Matters..... 11
Item 6 Selected Financial Data.................................................. 12
Item 7 Management's Discussion and Analysis of Financial Condition and Results
of Operations............................................................ 15
Item 8 Financial Statements and Supplementary Data.............................. 25
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure............................................................... 57
PART III
Item 10 Directors and Executive Officers of the Registrant....................... 57
Item 11 Executive Compensation................................................... 57
Item 12 Security Ownership of Certain Beneficial Owners and Management........... 57
Item 13 Certain Relationships and Related Transactions........................... 57
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports on Form 8-K.......... 57
</TABLE>
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PART I
ITEM 1. BUSINESS
Fidelity National Financial, Inc., through its principal subsidiaries
(collectively, the "Company"), is one of the largest national underwriters
engaged in the business of issuing title Insurance policies and performing other
title-related services such as escrow, collection and trust activities, real
estate information and technology services, trustee sale guarantees, foreclosure
publishing and posting services and exchange intermediary services in connection
with real estate transactions. Title insurance services are provided through the
Company's direct operations and otherwise through independent title insurance
agents who issue title policies on behalf of the underwriting subsidiaries.
Title insurance is generally accepted as the most efficient means of determining
title to, and the priority of interests in, real estate in nearly all parts of
the United States. Today, virtually all real property mortgage lenders require
their borrowers to obtain a title insurance policy at the time a mortgage loan
is made or to allow the sale of loans in the secondary market.
The Company's principal subsidiaries consist of Fidelity National Title
Insurance Company ("Fidelity Title"), which, in turn, is the parent company of
Fidelity National Title Insurance Company of California ("Fidelity California"),
Fidelity National Title Insurance Company of Tennessee ("Fidelity Tennessee")
and Nations Title Insurance Company ("Nations Title"); Fidelity National Title
Insurance Company of Pennsylvania ("Fidelity Pennsylvania"), which, in turn, was
the parent company of American Title Insurance Company ("ATIC"), which was
merged into Fidelity Pennsylvania as of November 21, 1996; Fidelity National
Title Insurance Company of New York ("Fidelity New York"), which, in turn, is
the parent company of Nations Title Insurance of New York Inc. ("Nations New
York") and National Title Insurance of New York Inc. ("National") (collectively,
the "Insurance Subsidiaries"); and its wholly-owned underwritten title companies
(collectively, the "UTCs").
Nations Title Insurance Company, Nations Title Insurance of New York Inc.
and National Title Insurance of New York Inc. were acquired, along with Nations
Title Inc. ("NTI," collectively, "Nations Title Inc.") in a transaction which
closed on April 1, 1996. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Recent Developments" and Note B of Notes
to Consolidated Financial Statements.
INDUSTRY OVERVIEW
Title Policies. Title insurance policies state the terms and conditions
upon which a title underwriter will insure title to real estate. The
beneficiaries of title insurance policies are generally buyers of real property
or mortgage lenders. Most mortgage lenders require title insurance as a
condition to making loans secured by real estate.
Title insurance is different from other types of insurance because it
relates to past events which affect title to property at the time of closing and
not unforeseen future events. Prior to issuing policies, underwriters can reduce
or eliminate future losses by accurately performing searches and examinations.
Title insurance policies are issued on the basis of a preliminary title report
or commitment. These reports are prepared after a search of public records, maps
and other relevant documents to ascertain title ownership and the existence of
easements, restrictions, rights of way, conditions, encumbrances or other
matters affecting the title to, or use of, real property. A visual inspection or
survey of the property may also be made prior to the issuance of certain title
insurance policies. To facilitate the preparation of preliminary reports without
the necessity of manually searching public records, copies of public records,
maps and other relevant historical documents are compiled and indexed in a
"title plant." Each title plant relates to a particular county and is kept
current on a daily or other periodic basis by the continual addition of copies
of recorded documents which affect real property in the particular county. Title
companies often subscribe to independent title information services to assist in
the updating of their title plants and the maintenance of title records.
The major expense of a title company is the search and examination function
in preparing preliminary title reports, commitments and title policies; and not
from claim losses associated with the issuance of said policies. The premium for
title insurance is due in full at the closing of the real estate transaction and
is based
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upon the purchase price of the property insured or the amount of the mortgage
loan. Coverage under the policy generally terminates upon resale or refinance of
the property. The terms of coverage have become relatively standardized in
accordance with forms approved by state or national trade associations.
The Title Policy Process. A brief description of the process of issuing a
title insurance policy, which usually occurs over a thirty to ninety day period,
is as follows:
(i) The customer, typically a real estate salesperson or broker,
escrow agent or lender, places an order for a title policy.
(ii)Sales personnel note the specifics of the order and place a
request with the title department for a preliminary report (a commitment in
the eastern United States).
(iii) After the relevant historical data on the property is compiled,
the title officer prepares a preliminary title report which documents (a)
the current status of title and conditions affecting the property, (b) any
exclusions, exceptions and/or limitations which the title underwriter might
include in the policy and (c) specific issues which need to be addressed
and resolved by the parties to the transaction before the title policy will
be issued. The preliminary report is circulated to all the parties for
satisfaction of any specific issues.
(iv) After the specific issues identified in the preliminary report
are satisfied, an escrow agent closes the transaction in accordance with
the instructions of the parties and the title underwriter's conditions.
(v) Once the transaction is closed and all monies have been released,
the title underwriter issues the policies (a) to the owner and the lender
on a new home sale or resale transaction or (b) to the lender only, on a
refinance transaction.
Losses and Reserves. The maximum amount of liability under a title
insurance policy is usually the face amount of the policy plus the cost of
defending the insured's title against an adverse claim. The reserve for claim
losses is based upon known claims, as well as losses the insurer expects to
incur based on historical experience and other factors, including industry
averages, claim loss history, legal environment, geographic considerations,
expected recoupments and the types of policies written. The title underwriter
establishes a reserve for each known claim based on a review and evaluation of
potential liability.
Economic Factors Affecting Industry. Title insurance revenue is closely
related to the level of real estate activity and the average price of real
estate sales. Real estate sales are directly affected by the availability of
funds to finance purchases. Other factors affecting real estate activity include
demand, mortgage interest rates, family income levels and general economic
conditions. While the level of sales activity was relatively depressed in
certain geographical areas during the period 1991 through mid-1993, lower
mortgage interest rates beginning in the latter part of 1991 triggered an
increase in refinancing activity which continued at record levels through 1993
and into the first quarter of 1994. During 1994 and early 1995, steady interest
rate increases caused by actions taken by the Federal Reserve Board, resulted in
a significant decline in refinancing transactions and a stagnation in
residential resales and new home sales. Since late 1995, decreases in mortgage
interest rates and the resulting improvement in the real estate market have had
a favorable effect on the level of real estate activity, including refinancing
transactions, new home sales and resales. It is impossible to predict in what
future direction interest rates and the real estate market may move or
fluctuate.
TITLE INSURANCE OPERATIONS
The Insurance Subsidiaries are currently licensed to issue title insurance
policies through direct operations and independent agents in all states (with
the exception of Iowa) and the District of Columbia, the Bahamas, the Virgin
Islands and Puerto Rico.
The Company maintains direct operations in Arizona, California, Florida,
Hawaii, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina,
Oregon, Pennsylvania, Tennessee, Texas and Washington. Direct operations are
divided into approximately 80 branches consisting of more than 330 offices. Each
branch processes title insurance transactions within its geographical area,
which is usually a county boundary. Each branch is operated as a separate profit
center.
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The Company also transacts title insurance business through a network of
approximately 2,000 agents, primarily in those areas in which agents are the
more accepted title insurance provider.
The following table sets forth for the years 1996, 1995 and 1994,
respectively, the approximate dollars and percentages of title insurance premium
revenue by state according to records maintained by the Company:
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<CAPTION>
YEARS ENDED DECEMBER 31,
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1996 1995 1994
------------------ ------------------ ------------------
AMOUNT % AMOUNT % AMOUNT %
-------- ----- -------- ----- -------- -----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
California................ $183,108 38.5% $124,407 43.6% $139,946 37.9%
New York.................. 45,938 9.7 17,436 6.1 26,683 7.2
Texas..................... 42,122 8.9 28,761 10.1 39,368 10.7
Florida................... 25,444 5.3 16,141 5.7 24,786 6.7
Pennsylvania.............. 25,441 5.3 13,751 4.8 20,326 5.5
Arizona................... 23,865 5.0 15,462 5.4 17,125 4.6
All others................ 130,043 27.3 69,594 24.3 101,041 27.4
-------- ----- -------- ----- -------- -----
Totals.......... $475,961 100.0% $285,552 100.0% $369,275 100.0%
======== ===== ======== ===== ======== =====
</TABLE>
For the entire title insurance industry, 12 states accounted for 72.0% of
title premiums written in the United States in 1995. California represented the
single largest state with 17.8%. The Company is licensed and has operations in
all 12 of these states.
Marketing. The Company attempts to increase the volume of its title
insurance business primarily through customer solicitation by sales personnel.
The Company actively encourages its personnel to develop new business
relationships with persons in the real estate community, such as real estate
sales agents and brokers, financial institutions, independent escrow companies
and title agents, real estate developers, mortgage brokers and attorneys. The
Company's marketing efforts are also assisted by general advertising. The
Company believes customer service is the most important factor in attracting and
retaining customers and measures customer service in terms of quality and
timeliness in the delivery of services.
Direct and Agency Operations. Preliminary title reports and commitments to
issue policies are prepared by title underwriters or wholly-owned underwritten
title companies (direct operations) or by independent agents on behalf of the
underwriters (agency operations). The terms and conditions upon which the real
property will be insured are determined in accordance with the underwriting
standards, policies and procedures of the title underwriter. In direct
operations, the title underwriter issues the title insurance policy and retains
the entire premium paid in connection with the transaction. In agency
operations, the search and examination function is performed by an independent
agent. The majority of the title premium collected is retained by the agent with
the balance remitted to the title underwriter. Independent agents may select
among several title underwriters based upon the amount of the premium "split"
offered by the underwriter, the overall terms and conditions of the agency
agreement and the scope of services offered to the agent. Premium splits vary by
geographic region. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Results of Operations -- Expenses and
Recent Developments."
Prior to the acquisition of the Nations group of companies, which was
completed on April 1, 1996, the Company generated the majority of its revenue
from its network of direct operations as opposed to agency relationships, the
latter being more common in the title industry. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Overview and Recent
Developments." The Company's direct operations generate higher margins than
agency operations because the Company retains the entire premium from each
transaction instead of paying commissions to agents and claim losses are less
than in agency based operations because the Company controls the issuance of the
title policy. Direct operations also provide additional sources of income, such
as escrow, document preparation fees, reconveyance fees, real estate information
and technology fees, trustee sale guarantee fees, foreclosure publishing and
posting fees and exchange intermediary fees.
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In 1996, 49.8% of the Company's title insurance premiums were generated by
direct operations. In 1995 and 1994, 62.1% and 53.2%, respectively, of title
insurance premiums were generated by direct operations. The percentage of title
insurance premiums generated by agency operations was 50.2%, 37.9% and 46.8% in
1996, 1995 and 1994, respectively. The average percentage of premiums generated
by agents and retained by the Company was 21.3%, 23.7% and 23.2% in 1996, 1995,
and 1994, respectively. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Results of Operations -- Overview,
Revenue and Expenses."
The relationship between the Company and each agent is governed by an
agency agreement which states the conditions under which the agent is authorized
to issue a title insurance policy on behalf of the Company. The agency agreement
also prescribes the circumstances under which the agent may be liable to the
Company if a policy loss is attributable to errors made by the agent. The agency
agreement typically is terminable upon 30 days' notice or immediately for cause.
In determining whether to engage or retain an independent agent the Company
considers the agent's experience, financial condition and loss history. Loss
history is an important consideration in the Company's decision to initiate or
continue agency relationships. The Company maintains financial and loss
experience records for each agent and conducts periodic audits of its agents.
On April 1, 1996, the Company completed its acquisition of one hundred
percent of Nations Title Inc. and its wholly-owned subsidiaries Nations Title
Insurance Company, Nations Title Insurance of New York Inc. and National Title
Insurance of New York Inc., from Nations Holding Group for an adjusted purchase
price of $19.3 million plus 193,600 shares, $2.1 million, of Fidelity National
Financial, Inc.'s Common Stock. The acquisition positioned the Company as the
nation's fourth largest title insurance underwriter. The Company believes that
the combination of its direct operations and Nations Title Inc.'s strong agency
network provides a balance to the Company's title premium revenue between direct
and agency, as well as a hedge against future market downturns. The acquisition
of Nations Title Inc. has also increased the Company's revenue and positively
impacted its balance sheet and margins due to the operating economies of the
combined companies. The acquisition has also increased market share in areas
where the Company has had a limited presence, particularly in those areas where
business is primarily agent driven, as well as in states where the Company has a
strong market position. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Overview, Revenue and Recent
Developments."
Escrow, Trust and Other Title-Related Services. The Company holds funds
and documents in real estate transactions for delivery upon closing pursuant to
the instructions of the respective parties to an escrow. The Company derives
revenue from other ancillary services generated from direct operations, such as
document preparation fees, reconveyance fees, recording fees, real estate
information and technology fees, trustee sale guarantee fees, foreclosure
publishing and posting fees and other title-related fees. In a few cases, the
Company leases its title plants to independent agents for their examination of
title records for a rental or usage fee.
Title Losses and Reserves. The Company believes that the level of risk
undertaken pursuant to its underwriting standards is consistent with that of the
industry. The maximum amount of liability under a title insurance policy is
usually the face amount of the policy plus the cost of defending the insured's
title against an adverse claim. The Company's reserve for claim losses includes
known claims as well as losses the Company expects to incur, net of recoupments.
Each known claim is reserved for on the basis of a review by the Company as to
the estimated amount of the claim and the costs required to settle the claim.
Reserves for claims which are incurred but not reported are provided for at the
time premium revenue is recognized based on historical loss experience and other
factors, including industry averages, claim loss history, legal environment,
geographic considerations and types of policies written. Claims greater than
$500,000 ("major claims") are reserved for as they become known because the
unique circumstances surrounding most major claims make it inherently
impractical to predict the incidence and amount of such claims. The occurrence
of a significant major claim in any given period could have a material adverse
effect on the Company's financial condition and results of operations for such
period. See "Reinsurance." Escrow losses are expensed as they become known.
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If a loss is related to a policy issued by an independent agent, the
Company may proceed against the independent agent pursuant to the terms of the
agency agreement. In any event, the Company may proceed against third parties
who are responsible for any loss sustained under the title insurance policy
under rights of subrogation.
The Company believes that its quality controls and continued focus on
residential resale and refinance transactions have helped minimize the net title
claims paid as a percentage of title insurance premiums ("net claims paid
ratio"). The Company further reduces its losses by following aggressive
recoupment procedures under rights of subrogation or warranties and by carefully
reviewing all claims. The Company paid title claims, net of recoupments, of
approximately $37.3 million, $26.2 million and $23.3 million in 1996, 1995 and
1994, respectively, representing 7.8%, 9.2% and 6.3% of title insurance premium
revenue during such periods. 1996 net claims paid include Nations Title Inc.
claims paid since April 1, 1996, totalling $9.3 million. Fluctuations in the net
claims paid ratio can be attributed to the development of claims and related
payments over time. As payments related to prior years are made, particularly
prior years in which premium volume was at higher levels than those generated in
the current market, the net claims paid ratio increases as a simple percentage.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Results of Operations -- Expenses." There can be no assurance that
the Company's current paid loss experience will continue at these levels.
Courts and juries sometimes award damages against insurance companies,
including title insurance companies, in excess of policy limits. Such awards are
typically based on allegations of fraud, misrepresentation, deceptive trade
practices or other wrongful acts commonly referred to as "bad faith." Although
the Company has not experienced damage awards materially in excess of policy
limits, the possibility of such bad faith damage awards may cause the Company to
experience increased costs and difficulty in settling title claims.
The Company generally pays losses in cash. In some instances claims are
settled by purchasing the interest of the insured in the real property or the
interest of the adverse claimant. Such interests are generally recorded as an
asset on the Company's books at the lower of cost or fair value less selling
costs and any related indebtedness is carried as a liability. At December 31,
1996, the amount of these interests was $10.2 million.
Reinsurance. In the ordinary course of business, the Company reinsures
certain risks with other title insurers for the purpose of limiting its maximum
loss exposure and also assumes reinsurance for certain risks of other title
insurers for the purpose of earning additional income. The Company cedes or
assumes a portion of certain policy liabilities under agent fidelity, excess of
loss and case-by-case reinsurance agreements. Reinsurance agreements provide
that the reinsurer is liable for loss and loss adjustment expense payments
exceeding the amount retained by the ceding company. However, the ceding company
remains primarily liable in the event the reinsurer does not meet its
contractual obligations. See Note A of Notes to Consolidated Financial
Statements.
Competition. The title insurance industry is highly competitive. The
number and size of competing companies varies in the different geographic areas
in which the Company conducts its business. In the Company's principal markets,
competitors include other major title underwriters such as Chicago Title
Insurance Company, Commonwealth Land Title Insurance Company, First American
Title Insurance Company, Lawyers Title Insurance Corporation, Old Republic Title
Insurance Company and Stewart Title Guaranty Company, as well as numerous
independent agency operations at the local level.
Competition is based primarily on the quality and timeliness of service,
since the parties to a real estate transaction are usually concerned with time
schedules and costs associated with delays in closing the transaction. In those
states where prices are not established by regulatory authorities the price of
the title insurance policy is also a competitive factor. The Company believes
that its competitive position is enhanced by its quality customer service and
pricing.
Regulation. Title insurance companies, including underwriters,
underwritten title companies and independent agents, are subject to extensive
regulation under applicable state laws. Each insurance underwriter is usually
subject to a holding company act in its state of domicile which regulates, among
other
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matters, the ability to pay dividends and investment policies. The laws of most
states in which the Company transacts business establish supervisory agencies
with broad administrative powers relating to issuing and revoking licenses to
transact business, regulating trade practices, licensing agents, approving
policy forms, accounting principles, financial practices, establishing reserve
and capital and surplus requirements, defining suitable investments for
reserves, capital and surplus and approving rate schedules. The Company has
analyzed its current Insurance Subsidiary structure and the regulatory
environments of the various states of domicile of the Insurance Subsidiaries.
Based on this analysis the Company has implemented a program to merge certain of
its Insurance Subsidiaries, ultimately resulting in two Insurance Subsidiaries
as opposed to the current eight. ATIC was merged into Fidelity Pennsylvania
effective November 21, 1996 and Fidelity Title was redomesticated to California
effective December 31, 1996.
Pursuant to statutory accounting requirements of the various states in
which the Insurance Subsidiaries are qualified, they must defer a portion of
premiums earned as an unearned premium reserve for the protection of
policyholders and must maintain qualified assets in an amount equal to the
statutory requirements. The level of unearned premium reserve required to be
maintained at any time is determined on a quarterly basis by statutory formula
based upon either the age and dollar amount of policy liabilities underwritten
or the age and dollar amount of statutory premiums written. As of December 31,
1996, the combined statutory unearned premium reserve required and reported for
the Insurance Subsidiaries was $173.5 million.
The Insurance Subsidiaries are regulated by the insurance commissioners of
their respective states of domicile. Regulatory examinations usually occur at
three year intervals. Examinations are currently in progress for Fidelity
Pennsylvania (1995), Fidelity Tennessee (1995), ATIC (1994) and Nations Title
(1995 and 1996). Examinations have been completed for Fidelity Title and
Fidelity California as of and for the three-year period ended December 31, 1993.
The Department of Commerce and Insurance of the State of Tennessee has
completed the field portion of their triennial examination of Fidelity Tennessee
as of and for the three-year period ended December 31, 1995. The Company has
recently received a preliminary report of examination. The preliminary report,
as forwarded to the Company by the Department of Commerce and Insurance of the
State of Tennessee, indicates that the examiners are proposing certain
immaterial adjustments. These adjustments have previously been included in the
1995 Fidelity Tennessee Statutory Annual Statement as amended and filed with
insurance regulatory authorities.
The Department of Insurance of the State of Florida has completed the field
portion of their triennial examination of ATIC, which was merged into Fidelity
Pennsylvania as of November 21, 1996, as of and for the three-year period ended
December 31, 1994. The Company has received a preliminary report of examination.
The preliminary report, as forwarded to the Company by the Department of
Insurance of the State of Florida, indicates that the examiners are proposing
adjustments that could materially impact the statutory capital and surplus of
ATIC, ultimately Fidelity Pennsylvania. Certain of these adjustments have not
been included in the 1996 Fidelity Pennsylvania Statutory Annual Statement as
filed with insurance regulatory authorities as the Company does not agree with
these findings and has requested support for the examination report. These same
adjustments have not been considered in the calculation of dividend capability,
statutory surplus and statutory income (loss) reported below.
The Kansas Department of Insurance has completed a triennial examination of
Nations Title as of and for the two-year period ended December 31, 1995 and is
currently performing an examination as of and for the year ended December 31,
1996. The Company received a report of examination as of and for the two-year
period ended December 31, 1995. The report, as forwarded to the Company by the
Kansas Department of Insurance, indicates that the examiners are proposing
adjustments that materially impact the statutory capital and surplus of Nations
Title. These adjustments have been included in the 1996 Statutory Annual
Statement as filed with insurance regulatory authorities and have been
considered in the calculation of dividend capability, statutory surplus and
statutory income (loss) reported below. Further, Nations Title has recently
entered into a voluntary consent order with the Kansas Department of Insurance
agreeing to cease writing all new insurance business and to certain other
conditions and restrictions. This is consistent with the Company's
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intent in acquiring Nations Title, which was to have all policies which formerly
would have been issued by Nations Title issued by one of the Fidelity National
Insurance Subsidiaries.
Statutorily calculated net worth determines the maximum insurable amount
under any single title insurance policy. As of January 1, 1997, the statutory
single policy maximum insurable amounts for Fidelity Title, Fidelity
Pennsylvania and Fidelity New York were $25.3 million, $30.5 million and $28.6
million, respectively. There are no statutory single risk limits prescribed for
Fidelity California or Fidelity Tennessee. The statutory single risk limits for
Nations Title, Nations New York and National are $2.4 million, $28.6 million and
$7.3 million, respectively. Upon acquisition, the Company took action to have
Nations Title business, as well as certain Nations New York and National
business, written by Fidelity National Insurance Subsidiaries.
The Insurance Subsidiaries are subject to regulations that restrict their
ability to pay dividends or make other distributions of cash or property to
their immediate parent company without prior approval from the Department of
Insurance of their respective states of domicile. In the case of Fidelity Title
and Fidelity Pennsylvania, the total amount of dividends made in any
twelve-month period may not exceed the greater of 10% of the surplus as regards
policyholders as of the last day of the preceding year or net income for the
twelve-month period ending the last day of the preceding year. In the case of
Fidelity New York, the total amount of dividends and distributions is limited to
surplus as regards policyholders, excluding capital stock, less fifty percent of
statutory premium reserve as of the last day of the preceding year and capital
contributions received in the latest five-year period. As of January 1, 1997,
Fidelity Title could pay dividends or make other distributions to the Company of
$5,621,000. Fidelity Pennsylvania and Fidelity New York do not have any dividend
paying capability as of January 1, 1997.
The combined statutory capital and surplus of the Insurance Subsidiaries
was $77,125,000, $67,525,000 and $90,153,000 as of December 31, 1996, 1995 and
1994, respectively. The December 31, 1996, combined capital and surplus includes
$11,189,000 of restricted surplus resulting from the aggregate excess of loss
reinsurance transaction entered effective December 31, 1996. The Company has
submitted the aggregate excess of loss reinsurance contract to the appropriate
Departments of Insurance for approval. See Note A of Notes to Consolidated
Financial Statements. The combined statutory income (loss) of the Insurance
Subsidiaries was $17,451,000, $(1,533,000) and $6,664,000 for the years ended
December 31, 1996, 1995 and 1994, respectively. Combined statutory income for
the year ended December 31, 1996, also includes a reinsurance gain of
$11,189,000 related to the aggregate excess of loss reinsurance transaction.
These amounts do not include certain of the proposed ATIC examination
adjustments previously discussed.
As a condition to continued authority to underwrite policies in the states
in which the Insurance Subsidiaries conduct their business, the Insurance
Subsidiaries are required to pay certain fees and file information regarding
their officers, directors and financial condition. In addition, the Company's
escrow and trust business is subject to regulation by various state banking
authorities.
Pursuant to statutory requirements of the various states in which the
Insurance Subsidiaries are domiciled, they must maintain certain levels of
minimum capital and surplus. Each of the Company's title underwriters have
complied with the minimum statutory requirements as of December 31, 1996. See
Note K of Notes to Consolidated Financial Statements.
In April 1996, the National Association of Insurance Commissioners ("NAIC")
published the Title Insurers Model Act (the "Act"). The purpose of the Act is to
provide guidance to the state insurance regulatory agencies relative to the
effective regulation and supervision of the title insurance industry and title
insurers. The Act addresses aspects of the title insurance industry from
corporate structure and financial and accounting information to market conduct
and legal standards. Certain provisions of the Act will be phased in over a
multi-year period. The Company has not determined the impact, if any, of the Act
on the financial condition or operations of the Insurance Subsidiaries.
The UTCs are also subject to certain regulation by insurance regulatory or
banking authorities, primarily relating to minimum net worth and dividend
capability. Minimum net worth of $7.5 million and $2.5 million is required for
Fidelity National Title Company ("FNTC") and Fidelity National Title Company of
California
7
<PAGE> 10
("FNCAL), respectively. In addition, the Company has agreed to notify the State
of California Department of Insurance of dividend payments by FNTC and FNCAL
greater than 30% of earnings before income taxes through 1998. See Note B of
Notes to Consolidated Financial Statements.
RATINGS
The Insurance Subsidiaries are regularly assigned ratings by independent
agencies designed to indicate their financial condition and/or claims paying
ability. Financial data and other information is supplied to the rating agencies
and subjected to quantitative and qualitative analyses from which the ratings
were derived. Ratings of the Company's principal Insurance Subsidiaries, as
assigned by Demotech, Inc. during 1996, are listed below.
<TABLE>
<CAPTION>
DEMOTECH, INC.
(FINANCIAL STABILITY
RATING)
---------------------------
<S> <C>
Fidelity Title................................................. A = Exceptional
Fidelity Pennsylvania.......................................... A = Exceptional
Fidelity New York.............................................. A = Exceptional
</TABLE>
INVESTMENT POLICIES AND INVESTMENT PORTFOLIO
The Company's investment policy is designed to maintain a high quality
portfolio, maximize income, minimize interest rate risk and match the duration
of the portfolio to the Company's liabilities. Most of the Company's investment
assets qualify as "admitted assets" and for purposes of capital and surplus and
unearned premium reserves as prescribed by various state insurance regulations.
These investments are restricted by the state insurance regulations of their
domiciliary states and are limited primarily to cash and cash equivalents,
federal and municipal governmental securities, mortgage loans, certain
investment grade debt securities, equity securities and real estate. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
As of December 31, 1996 and 1995, the carrying amount, which is equal to
the fair value, of total investments was $227.7 million and $180.1 million,
respectively.
It is the practice of the Company to purchase investment grade fixed
maturity securities, selected non-investment grade fixed maturity securities and
equity securities. The securities in the Company's portfolio are subject to
economic conditions and normal market risks and uncertainties.
The following table sets forth certain information regarding the investment
ratings of the Company's fixed maturity portfolio at December 31, 1996 and 1995:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------------------------------------------------------
1996 1995
----------------------------------------- -----------------------------------------
AMORTIZED % FAIR % AMORTIZED % FAIR %
RATINGS(1) COST OF TOTAL VALUE OF TOTAL VALUE OF TOTAL VALUE OF TOTAL
--------------- -------- -------- -------- -------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AAA............ $110,718 66.0% $109,956 66.1% $ 86,604 68.1% $ 87,577 67.8%
AA............. 10,485 6.3 10,572 6.3 7,753 6.1 7,963 6.1
A.............. 40,587 24.2 40,007 24.1 30,849 24.2 31,623 24.5
Other.......... 5,822 3.5 5,794 3.5 2,058 1.6 2,073 1.6
-------- ----- -------- ----- -------- ----- -------- -----
Total... $167,612 100.0% $166,329 100.0% $127,264 100.0% $129,236 100.0%
======== ===== ======== ===== ======== ===== ======== =====
</TABLE>
- ---------------
(1) Ratings as assigned by Standard & Poor's Corporation
The following table sets forth certain information regarding the Company's
fixed maturity securities at December 31, 1996. Expected maturities may differ
from contractual maturities because certain borrowers have the right to call or
prepay obligations with or without call or prepayment penalties. Fixed maturity
8
<PAGE> 11
securities with an amortized cost of $41,495,000 and a fair value of $41,280,000
were callable at December 31, 1996:
<TABLE>
<CAPTION>
AMORTIZED % FAIR %
MATURITY COST OF TOTAL VALUE OF TOTAL
------------------------------------------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
One year or less........................... $ 2,255 1.3% $ 2,263 1.3%
After one year through five years.......... 79,731 47.6 79,434 47.8
After five years through ten years......... 59,821 35.7 59,186 35.6
After ten years............................ 25,805 15.4 25,446 15.3
-------- ----- -------- -----
Total............................ $167,612 100.0% $166,329 100.0%
======== ===== ======== =====
</TABLE>
Equity securities at December 31, 1996 and 1995 consist of investments in
various industry groups as follows:
<TABLE>
<CAPTION>
1996 1995
------------------- -------------------
FAIR FAIR
COST VALUE COST VALUE
------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Banks, trust and insurance companies........ $ 800 $ 863 $12,038 $13,071
Industrial, miscellaneous and all other..... 20,589 42,715 12,430 18,341
------- ------- ------- -------
Total............................. $21,389 $43,578 $24,468 $31,412
======= ======= ======= =======
</TABLE>
The Company's investment results for the years ended December 31, 1996,
1995, and 1994 were as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Net investment income(1)(2)........................ $ 15,742 $ 15,014 $ 20,269
Average invested assets(1)......................... 266,480 233,831 303,615
Effective return on average invested assets(1)..... 5.9% 6.4% 6.7%
</TABLE>
- ---------------
(1) Excludes investments in real estate.
(2) Net investment income as reported in the Consolidated Statements of Earnings
has been adjusted to provide the tax equivalent yield on tax exempt
investments and to exclude realized capital gains and losses on the sale of
investments. Realized capital gains (losses) totalled $2,625,000, $5,213,000
and $(3,086,000) in 1996, 1995 and 1994, respectively.
REAL ESTATE AND PROPERTY MANAGEMENT OPERATIONS
The Company, principally through Manchester Development Corporation
("Manchester"), currently doing business as Orion Realty Group, a wholly-owned
subsidiary, previously invested in various real estate projects directly and
through partnerships. Some of these partnerships involve related parties. See
Notes D, E and N of Notes to Consolidated Financial Statements. Manchester
currently assists in the identification and leasing of space for operating
purposes and manages property owned by the Company. The Company's investments in
real estate and partnerships represented approximately 2.1% of the Company's
assets at December 31, 1996.
EMPLOYEES
As of December 31, 1996, the Company had approximately 4,500 full-time
equivalent employees. The Company believes that its relations with employees are
generally good.
9
<PAGE> 12
ITEM 2. PROPERTIES
During 1994, a subsidiary of the Company completed the purchase of a
corporate home office building in Irvine, California, which houses the Company's
corporate departments and various subsidiaries. The majority of the branch
offices of the Company are leased from third parties. The remainder are owned by
the Company, leased from partnerships in which the Company has an interest or
leased from affiliates.
As of December 31, 1996, the Company leased office and storage spaces as
follows:
<TABLE>
<CAPTION>
NUMBER OF
LOCATIONS
---------
<S> <C>
California................................................................ 196
Florida................................................................... 35
Arizona................................................................... 31
Texas..................................................................... 27
Oregon.................................................................... 16
New York and New Jersey................................................... 8
New Mexico and Pennsylvania............................................... 6
Michigan, North Carolina, Nevada and Washington........................... 5
Connecticut, Hawaii and Tennessee......................................... 2
One each in: Colorado, Georgia, Indiana, Massachusetts, Maryland,
Minnesota, Missouri, Ohio, Kansas, Rhode Island, Utah, Virginia and
Wisconsin
</TABLE>
See Note J of Notes to Consolidated Financial Statements.
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of business, the Company is involved in various
pending and threatened litigation matters related to its operations, some of
which include claims for punitive or exemplary damages.
In October 1992, Fidelity California filed an action for declaratory relief
in U.S. District Court (Eastern District-Fresno, California) to determine its
obligations and liabilities, if any, under a certain title insurance policy
issued to National Westminster Bank U.S.A. ("NatWest") (Fidelity National Title
Insurance Company of California v. National Westminster Bank U.S.A. and related
counterclaim). NatWest filed a counterclaim for damages and certain equitable
relief seeking compensatory damages of approximately $7,732,000, punitive
damages in an unspecified amount, attorneys' fees, interest and costs. The
Company has a reinsurance agreement in place that will reimburse the Company for
all amounts paid in excess of $2.0 million. Fidelity California previously
recorded a claim loss reserve related to this matter in the Consolidated
Financial Statements. The primary issues concern whether Fidelity California's
policy insured the priority of NatWest's deed of trust over certain mechanics'
lien claims and, whether Fidelity California had an obligation to defend and
indemnify NatWest against an action by a mechanic's lien claimant to enforce its
claim of lien. As part of a counterclaim lawsuit, NatWest has added allegations
of breach of the covenant of good faith and fair dealing. Fidelity California
believes that the policy and endorsements issued to the insured exclude coverage
for mechanics' liens. In September 1994, a three week trial was concluded. In
April 1996, the U.S. District Court ruled in favor of Fidelity California on all
counts. Thereafter, NatWest filed an appeal to the Ninth Circuit Court of
Appeals. Appellate briefs are in the process of preparation and filing. No
ruling has been received from the appellate court. Management believes that the
ruling will not have a material adverse effect on Fidelity National Title
Insurance Company of California or the Company.
Management believes that no other actions depart from customary litigation
incidental to the business of the Company and that resolution of all such
litigation will not have a material adverse effect on the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company did not submit any matters to a vote of security holders in the
fourth quarter of 1996.
10
<PAGE> 13
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The following table sets forth the range of high and low closing prices for
the Common Stock on the New York Stock Exchange. The high and low closing prices
and the amount of dividends declared for the periods indicated have been
retroactively adjusted for stock dividends and splits declared since the
Company's inception.
<TABLE>
<CAPTION>
DIVIDENDS
HIGH LOW DECLARED
----- ----- ---------
<S> <C> <C> <C>
Year ended December 31, 1996
First quarter............................................ $16 9/64 $13 1/64 $.064
Second quarter........................................... 14 13/64 11 23/64 .064
Third quarter............................................ 14 21/32 12 25/64 .064
Fourth quarter........................................... 15 3/8 13 55/64 .070
Year ended December 31, 1995
First quarter............................................ 9 7/16 8 19/64 .058
Second quarter........................................... 12 25/64 8 13/32 .058
Third quarter............................................ 12 17/64 9 57/64 .058
Fourth quarter........................................... 15 11/32 10 51/64 .064
</TABLE>
On March 25, 1997, the last reported sale price of the Common Stock on the
New York Stock Exchange Composite Tape was $12.125 per share. As of March 25,
1997, the Company had approximately 900 stockholders of record.
Dividend Policy and Restrictions On Dividend Payments. Since the last
quarter of 1987, the Company has consistently paid cash dividends on a quarterly
basis, which payments have been made at the discretion of the Company's Board of
Directors. On March 25, 1997, the Company's Board of Directors declared a cash
dividend of $.07 per share which will be payable on May 2, 1997 to stockholders
of record on April 11, 1997. The continued payment of dividends will depend upon
operating results, business requirements, contractual restrictions, regulatory
considerations and other factors. The Company anticipates the continued payment
of dividends. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources" and
"Business -- Regulation."
Contractual Restrictions on Dividend Payments. The Company's ability to
pay dividends on its Common Stock and make certain payments is restricted by
provisions contained in the Company's Credit Agreement dated as of September 21,
1995, as amended. The maximum amount available to pay dividends and make such
payments is $15,640,000. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources." See
Note G of Notes to Consolidated Financial Statements.
11
<PAGE> 14
ITEM 6. SELECTED FINANCIAL DATA
The historical operating results data, per share data and balance sheet
data set forth below are derived from the Consolidated Financial Statements of
the Company. Per share data has been retroactively adjusted for stock dividends
and splits since the Company's inception. The Consolidated Financial Statements
for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 have been
audited by KPMG Peat Marwick LLP, independent certified public accountants.
Audited Consolidated Balance Sheets at December 31, 1996 and 1995 and
Consolidated Statements of Earnings, Stockholders' Equity and Cash Flows for the
years ended December 31, 1996, 1995, and 1994, and Notes thereto are included
elsewhere herein and should be read in conjunction with "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included
elsewhere herein.
<TABLE>
<CAPTION>
YEARS ENDED
-----------------------------------------------------------------
DECEMBER 31,
-----------------------------------------------------------------
1996 1995 1994 1993 1992
--------------- -------- -------- -------- ----------
(1)(2)(3)(6)(7) (1)(2)(3) (1)(2)(3) (1)(2)(3) (1)(3)
--------------- -------- -------- -------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AND OTHER DATA)
(RESTATED)
<S> <C> <C> <C> <C> <C>
OPERATING RESULTS DATA:
Revenue:
Title insurance premiums.................................. $ 475,961 $285,552 $369,275 $429,772 $288,646
Escrow fees............................................... 66,927 49,723 52,260 69,982 56,038
Other fees and revenue.................................... 76,333 56,954 59,351 60,958 43,285
Interest and investment income, including realized gains
(losses)................................................ 17,692 17,616 11,918 14,671 4,308
-------- -------- -------- -------- --------
636,913 409,845 492,804 575,383 392,277
-------- -------- -------- -------- --------
Expenses:
Personnel costs........................................... 211,668 165,514 181,953 196,470 146,609
Other operating expenses.................................. 154,043 123,888 129,367 135,925 103,809
Agent commissions......................................... 187,901 82,713 132,713 147,427 82,217
Provision for claim losses................................ 33,302 19,031 27,838 39,220 31,894
Interest expense.......................................... 9,446 9,239 8,594 2,587 1,458
Minority interest expense................................. -- -- -- 1,200 629
-------- -------- -------- -------- --------
596,360 400,385 480,465 522,829 366,616
-------- -------- -------- -------- --------
Earnings before income taxes and extraordinary item......... 40,553 9,460 12,339 52,554 25,661
Income tax expense.......................................... 16,216 1,828 2,594 16,259 8,367
-------- -------- -------- -------- --------
Earnings before extraordinary item.......................... 24,337 7,632 9,745 36,295 17,294
Extraordinary item, net of income taxes(4)(5)............... -- (813) 2,400 -- --
-------- -------- -------- -------- --------
Net earnings.......................................... $ 24,337 $ 6,819 $ 12,145 $ 36,295 $ 17,294
======== ======== ======== ======== ========
PER SHARE DATA:
Earnings per share before extraordinary item................ $ 1.71 $ .53 $ .54 $ 1.96 $ 1.07
Extraordinary gain (loss), net of income taxes.............. -- (.05) .13 -- --
-------- -------- -------- -------- --------
Net earnings per share, primary basis................. $ 1.71 $ .48 $ .67 $ 1.96 $ 1.07
======== ======== ======== ======== ========
Dividends per share......................................... $ .26 $ .23 $ .23 $ .20 $ .15
Weighted average shares outstanding, primary basis (000s)... 14,265 14,267 18,124 18,514 16,089
OTHER DATA:
Direct operations market share(8)........................... 21.0% 20.3% 20.6% 18.3% 16.8%
Orders closed by direct operations.......................... 394,000 302,000 335,000 464,000 349,000
Average fee per file(9)..................................... $ 806 $ 790 $ 750 $ 710 $ 740
Provision for claim losses to title insurance premiums...... 7.0% 6.7% 7.5% 9.1% 11.0%
Net claims paid ratio(10)................................... 7.8% 9.2% 6.3% 4.2% 7.2%
Title-related revenue:
Percentage direct operations.............................. 60.0% 71.1% 62.6% 65.3% 72.6%
Percentage agency operations.............................. 40.0% 28.9% 37.4% 34.7% 27.4%
Employees at year end....................................... 4,500 4,100 3,500 4,700 4,000
Number of licensed states at year end....................... 49 49 49 48 48
Return on average equity before extraordinary
item(4)(5)(11)............................................ 25.9% 10.0% 10.3% 40.3% 33.2%
Return on average equity including extraordinary
item(4)(5)(11)............................................ 25.9% 9.0% 12.9% 40.3% 33.2%
BALANCE SHEET DATA:
Investments................................................. $ 227,674 $180,082 $217,648 $236,533 $107,215
Cash and cash equivalents................................... 63,971 47,431 34,689 42,731 48,375
Total assets................................................ 509,296 405,063 418,119 396,279 252,441
Notes payable............................................... 148,922 136,047 142,129 52,769 26,266
Reserve for claim losses.................................... 187,245 146,094 153,306 142,512 104,528
Minority interest........................................... 1,287 393 616 22,424 21,199
Stockholders' equity........................................ 110,251 77,947 73,954 114,926 65,277
</TABLE>
12
<PAGE> 15
- ---------------
(1) The Company acquired Fidelity Pennsylvania and ATIC on June 30, 1992. The
selected financial data above includes the balance sheet accounts of
Fidelity Pennsylvania and ATIC at December 31, 1996, 1995, 1994, 1993, 1992
and the results of their operations for the years ended December 31, 1996,
1995, 1994, 1993 and for the six months ended December 31, 1992.
(2) The Company acquired Fidelity New York on March 17, 1993. The selected
financial data above includes the balance sheet accounts of Fidelity New
York at December 31, 1996, 1995, 1994, 1993 and the results of its
operations for the years ended December 31, 1996, 1995, 1994 and for the
period from March 17, 1993 through December 31, 1993.
(3) The Company acquired Agency Sales and Posting, Pente Enterprises, Inc. and
Arizona Sales and Posting, Inc. (collectively, "ASAP") on December 7, 1993.
This acquisition was accounted for as a pooling of interests, and certain
selected financial data has therefore been restated. The selected financial
data above includes the balance sheet accounts of ASAP at December 31,
1996, 1995, 1994, 1993, and 1992, respectively, and the results of ASAP
operations for the years then ended.
(4) During 1994, the Company recognized a $2.4 million extraordinary gain, net
of related income taxes of $1.3 million, related to the early retirement of
$48 million maturity value of the Company's Liquid Yield Option Notes (the
"LYONs") issued in February 1994. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Extraordinary Item."
(5) During 1995, the Company recognized an $813,000 extraordinary loss, net of
related income taxes of $437,000, related to the early retirement of its
Senior Secured Notes. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Extraordinary Item."
(6) The Company acquired NTI and its wholly-owned subsidiaries Nations Title,
Nations New York and National on April 1, 1996. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Recent Developments" and Note B of Notes to Consolidated
Financial Statements. The selected financial data above includes the
balance sheet accounts of NTI and subsidiaries at December 31, 1996 and the
results of its operations for the nine-month period ended December 31,
1996.
(7) The Company acquired CRM, Inc. ("CRM") on November 1, 1996. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Recent Developments" and Note B of Notes to Consolidated
Financial Statements. The selected financial data above includes the
balance sheet accounts of CRM at December 31, 1996 and the results of its
operations for the two-month period ended December 31, 1996.
(8) This estimate of direct operations market share is based upon the number of
title recordings by the Company in the counties where the Company maintains
direct operations and excludes title recordings by the Company's agents and
excludes title recordings in eastern and southeastern states because such
information is not available. The direct operations market share percentage
has been weighted to give effect to the Company's related direct revenue in
the applicable counties.
(9) Average fee per file is based upon title insurance premiums, escrow fees
and certain other title-related fees from direct operations divided by
orders closed.
(10) The net claims paid ratio is the percentage resulting from total title
claims paid, net of recoupments, divided by title insurance premiums.
(11) Percentage return on average equity is net earnings for the period divided
by the simple average of total stockholders' equity as of the beginning and
end of each year presented.
13
<PAGE> 16
QUARTERLY FINANCIAL DATA
Selected quarterly financial data is as follows:
<TABLE>
<CAPTION>
QUARTERS ENDED
--------------------------------------------------
MARCH
31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
-------- -------- ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
1996
Revenue................................. $126,398 $171,628 $ 166,692 $172,195
Earnings before income taxes............ 8,300 11,757 10,623 9,873
Net earnings............................ 5,145 6,946 6,317 5,929
Primary earnings per share.............. 0.36 0.49 0.44 0.41
Fully diluted earnings per share........ 0.32 0.41 0.38 0.36
Dividends paid per share................ 0.06 0.06 0.06 0.06
1995
Revenue................................. $ 83,059 $ 95,494 $ 113,471 $117,821
Earnings (loss) before income taxes and
extraordinary item................... (4,737) 1,322 7,831 5,044
Earnings (loss) before extraordinary
item................................. (2,447) 1,021 5,873 3,185
Extraordinary item, net of income
taxes................................ (813) -- -- --
Net earnings (loss)..................... (3,260) 1,021 5,873 3,185
Earnings (loss) per share before
extraordinary item................... (.17) .07 .42 .22
Extraordinary item, net of income
taxes................................ (.05) -- -- --
Primary earnings (loss) per share....... (.22) .07 .42 .22
Fully diluted earnings (loss) per
share................................ (.22) .07 .36 .21
Dividends paid per share................ .06 .06 .06 .06
1994
Revenue................................. $143,619 $129,429 $ 113,319 $106,437
Earnings (loss) before income taxes and
extraordinary item................... 9,934 5,186 2,897 (5,678)
Earnings (loss) before extraordinary
item................................. 6,805 3,584 2,317 (2,961)
Extraordinary item, net of income
taxes................................ -- 579 -- 1,821
Net earnings (loss)..................... 6,805 4,163 2,317 (1,140)
Earnings (loss) per share before
extraordinary item................... .35 .19 .13 (.18)
Extraordinary item, net of income
taxes................................ -- .03 -- .11
Primary earnings (loss) per share....... .35 .22 .13 (.07)
Fully diluted earnings (loss) per
share................................ .33 .22 .13 (.07)
Dividends paid per share................ .06 .06 .06 .06
</TABLE>
14
<PAGE> 17
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion is intended to provide information to facilitate
the understanding and assessment of significant changes and trends related to
the financial condition and results of operations of the Company. This
discussion and analysis should be read in conjunction with the Company's
Consolidated Financial Statements and the Notes thereto appearing elsewhere
herein.
OVERVIEW
The following table sets forth certain financial and other data for the
years indicated:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Total revenue...................................... $636,913 $409,845 $492,804
======== ======== ========
Total expenses..................................... $596,360 $400,385 $480,465
======== ======== ========
Earnings before extraordinary item................. $ 24,337 $ 7,632 $ 9,745
Extraordinary item -- gain (loss) on early
retirement of debt, net of income taxes.......... -- (813) 2,400
-------- -------- --------
Net earnings............................. $ 24,337 $ 6,819 $ 12,145
======== ======== ========
Net claims paid ratio (1).......................... 7.8% 9.2% 6.3%
Return on average equity before extraordinary item
(2).............................................. 25.9% 10.0% 10.3%
Return on average equity including extraordinary
item (2)......................................... 25.9% 9.0% 12.9%
</TABLE>
- ---------------
(1) The net claims paid ratio is the percentage resulting from total title
claims paid, net of recoupments, divided by title insurance premiums.
(2) Percentage return on average equity is net earnings for the period divided
by the simple average of total stockholders' equity as of the beginning and
end of each year presented.
Title insurance revenue is closely related to the level of real estate
activity and the average price of real estate sales. Real estate sales are
directly affected by the availability of funds to finance purchases. Other
factors affecting real estate activity include demand, mortgage interest rates,
family income levels and general economic conditions. While the level of sales
activity was relatively depressed in certain geographical areas during the
period 1991 through mid-1993, lower mortgage interest rates beginning in the
latter part of 1991 triggered an increase in refinancing activity which
continued at record levels through 1993 and into the first quarter of 1994.
During 1994 and early 1995, steady interest rate increases caused by actions
taken by the Federal Reserve Board resulted in a significant decline in
refinancing transactions and a stagnation in residential resales and new home
sales. Since late 1995, decreases in mortgage interest rates and the resulting
improvement in the real estate market have had a favorable effect on the level
of real estate activity, including refinancing transactions, new home sales and
resales. It is impossible to predict in what future direction interest rates and
the real estate market may move or fluctuate.
15
<PAGE> 18
The following table sets forth information regarding title-related revenue
derived from direct operations and title-related revenue derived from agency
operations:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------------------
% % %
1996 OF TOTAL 1995 OF TOTAL 1994 OF TOTAL
-------- -------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Revenue from direct
operations:
Title insurance premiums.... $237,244 39.8% $177,202 47.3% $196,376 42.5%
Escrow fees................. 66,927 11.2 49,723 13.3 52,260 11.3
Other title-related fees and
revenue.................. 53,543 9.0 39,117 10.5 40,534 8.8
-------- ----- -------- ----- -------- -----
Total............... 357,714 60.0 266,042 71.1 289,170 62.6
Revenue from agency
operations:
Title insurance premiums.... 238,717 40.0 108,350 28.9 172,899 37.4
-------- ----- -------- ----- -------- -----
Total title-related
revenue........... $596,431 100.0% $374,392 100.0% $462,069 100.0%
======== ===== ======== ===== ======== =====
</TABLE>
On April 1, 1996, the Company completed its acquisition of the Nations
Title Inc. group of companies. See "Recent Developments." The acquisition
positioned Fidelity National Financial, Inc. as the nation's fourth largest
title insurance underwriter. Nations Title Inc. and its three wholly-owned
underwriting subsidiaries, Nations Title Insurance Company, Nations Title
Insurance of New York Inc. and National Title Insurance of New York Inc.,
expanded the Company's national agency network and increased its market share in
the more traditional agency driven states. The Nations Title Inc. acquisition
resulted in additional agency business and a shift in the mix of business from
direct to agency during 1996. The revenue and expense information presented in
Management's Discussion and Analysis of Financial Condition and Results of
Operations includes Nations Title Inc.'s results of operations for the
nine-month period ended December 31, 1996. In 1996, the total title-related
revenue (excluding interest and investment income and non-title-related other
fees and revenue) generated by agency operations increased to 40.0% from 28.9%
in 1995.
During 1995 and 1994, 71.1% and 62.6%, respectively, of total title-related
revenue was generated from direct operations. The Company traditionally focused
on direct operations because it retains the entire premium from each transaction
and is able to generate additional sources of revenue by providing other title-
related services. The fluctuation in the percentage of revenue generated by
direct operations versus the percentage of revenue generated by agency
operations between 1995 and 1994 is due to several factors. During 1995, the
Company terminated a number of agency relationships based on the Company's agent
retention criteria. The Company continually monitors agency relationships for
quality and productivity. Audits of agents are conducted on a periodic basis,
and agents which do not meet the Company's standards are not retained. In
addition, during 1995, the Company acquired certain former agents which were
converted to direct operations.
The Company's strategy of expanding into selected markets continued during
the last three years. The Company's strategy includes the restructuring of
acquired operations, expansion into the commercial market while maintaining its
level of focus on the residential resale and refinance markets, enhancing sales
and marketing efforts, minimizing net claim payments through stringent quality
controls and effectively managing overhead costs.
16
<PAGE> 19
RESULTS OF OPERATIONS
Revenue. The following table presents information regarding the components
of the Company's revenue:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------
1996 1995 1994
--------- ---------- ---------
(DOLLARS IN THOUSANDS, OTHER THAN FEE
PER FILE)
<S> <C> <C> <C>
Title insurance premiums....................... $ 475,961 $ 285,552 $ 369,275
Escrow fees.................................... 66,927 49,723 52,260
Other fees and revenue......................... 76,333 56,954 59,351
Interest and investment income, including 17,692 17,616 11,918
realized gains (losses)......................
-------- -------- --------
Total revenue........................ $ 636,913 $ 409,845 $ 492,804
======== ======== ========
Orders closed by direct operations............. 394,000 302,000 335,000
Average fee per file from direct operations.... $ 806 $ 790 $ 750
</TABLE>
Favorable mortgage interest rates in the latter part of 1991 through early
1994 triggered refinancing activity at record levels. Beginning in early 1994
through mid-1995, steady interest rate increases caused by actions taken by the
Federal Reserve Board resulted in a significant decline in refinancing
transactions and a stagnation in residential resales and new home sales. Title
orders and requests for title-related services followed the market trend as
expected. Since late 1995, decreases in mortgage interest rates and the
resulting improvement in the real estate market have had a positive impact on
the level of real estate activity. These factors and the Company's acquisition
of Nations Title Inc., which was completed on April 1, 1996, have resulted in
title premiums of $476.0 million, $285.6 million and $369.3 million, for 1996,
1995 and 1994, respectively. The difference in title insurance premiums between
1996 and 1995 of $190.4 million represents an increase of 66.7%. Title insurance
premiums decreased $83.7 million, or 22.7%, in 1995 from 1994.
The average fee per file increased to $806 in 1996 from $790 in 1995, which
had previously increased from $750 in 1994. The increase in fee per file in 1996
over 1995 is the result of increased fee revenue attributable to higher fees
charged per policy due to appreciated property values, an overall rate increase
and an expansion in the commercial business sector offset by an increase in
refinancing transactions. The increase in 1995 over 1994 can be attributed to
the change in the mix of business from refinance to resale. As mortgage interest
rates increased due to the actions taken by the Federal Reserve Board, the
refinancing trend ended. Thus, title business that was generated was primarily
related to new home sale or resale transactions, which typically charge higher
fees than refinancing transactions. Fees generated from refinancing transactions
are generally less than fees generated from resale transactions because the base
rate charged on such a policy is usually lower. Furthermore, one policy is
issued to a lender in a refinance transaction and two policies are issued in a
resale transaction (buyer and lender).
The Company's direct operations generate escrow fees from holding funds and
documents in connection with the closing of real estate transactions, as well as
other fees and revenue. Other fees and revenue primarily include document
preparation fees, reconveyance fees, real estate information and technology
fees, foreclosure publishing and posting fees and exchange intermediary fees
received.
The trends in escrow fees are primarily related to the title insurance
activity generated by the Company's direct operations. Escrow fees have
fluctuated during the 1996, 1995 and 1994 years in a pattern generally
consistent with the fluctuation in title insurance premiums. Escrow fees
increased $17.2 million to $66.9 million in 1996, a 34.6% increase from $49.7
million in 1995. The 1996 percentage increase in escrow fees is not as
significant as the percentage increase in title premiums due to the change in
the direct operation/agency business mix. See "Overview." Escrow fees decreased
$2.6 million, or 5.0%, in 1995 from 1994 to $49.7 million from $52.3 million.
The decrease in escrow fees in 1995 from 1994 is not as great as the decrease in
title insurance premiums due to the decrease in agency title insurance premiums
as a percentage of total title-related revenue. Agency title insurance premiums
do not generate escrow fees for the Company.
17
<PAGE> 20
Other fees and revenue trend closely with the level and mix of business, as
well as the performance of certain of the Company's title-related subsidiaries.
In 1996, other fees and revenue increased $19.3 million, or 33.9%, to $76.3
million from $57.0 million in 1995. The increase is primarily attributable to
the increase in title premiums and escrow fees generated by the Company's direct
operations. Direct operations generate other fees and income. Additionally, the
Company's foreclosure publishing and posting business, exchange intermediary
service and appraisal service have significantly expanded their market presence
and revenue, which are included in other fees and income. Other fees and revenue
were generated at comparable levels in 1995 and 1994, primarily as a result of
the type of business in 1995, which was primarily resale business, and the
direct operation/agency business mix. During 1995, other fees and revenue
decreased $2.4 million, or 4.0%, to $57.0 million from $59.4 million in 1994.
Thus, even in a year when overall title revenue may be down, the level of other
fees and revenue can be maintained, depending on the direct operation/agency
business mix. The consistency between the 1995 and 1994 years is primarily
attributable to the nature of the revenue included and the title insurance
market environment which shifted from a refinance to a resale oriented market.
In a resale transaction, other fees and revenue are greater than in a
refinancing transaction. See "Overview."
Interest and investment income levels are primarily a function of
securities markets, interest rates and the amount of cash available for
investment. During 1996, interest and investment income increased .6% to $17.7
million from $17.6 in 1995. As interest rates declined during 1996 from 1995,
which had previously declined from 1994 interest rates, the tax adjusted yield
decreased to 5.9% in 1996 compared to 6.4% in 1995. Average invested assets,
excluding real estate, increased $32.7 million, or 14.0%, to $266.5 million in
1996 from $233.8 million in 1995. The difference in investment results is
primarily attributable to increased interest income resulting from an increase
in average invested assets offset by a decrease in yield and in capital gains.
During 1996, the Company recognized $2.6 million of capital gains compared to
$5.2 million of capital gains recorded in 1995. In 1995, interest and investment
income increased $5.7 million, or 47.9%, to $17.6 million from $11.9 million in
1994. The tax adjusted yield decreased slightly, to 6.4% in 1995 compared to
6.7% in 1994, while average invested assets, excluding real estate, decreased
23.0%, or $69.8 million, to $233.8 million in 1995 from $303.6 million in 1994.
The difference in investment results is primarily attributable to the net
capital gains (losses) recorded in 1995 versus 1994. During 1995, the Company
recognized $5.2 million in capital gains compared to $3.1 million in capital
losses recognized in 1994. Included in the 1995 gain amount is a net $3.4
million gain realized upon the sale of the Company's common stock holdings in US
Facilities Corporation during the third quarter of 1995. During December 1994,
the Company sold certain investments, totalling approximately $38.2 million, in
order to reinvest the proceeds in higher yielding investment instruments and to
fund the early retirement of the Company's Liquid Yield Option Notes ("LYONs")
at favorable market prices. See "Extraordinary Item." See Note C of Notes to
Consolidated Financial Statements.
Extraordinary Item. During 1994, due to favorable market prices and the
Company's belief that the Company's Common Stock and LYONs represent excellent
investments, the board of directors authorized the Company to repurchase up to
6.1 million shares of its Common Stock or a comparable amount of its LYONs which
are convertible into 23.204 shares of Common Stock per $1,000 maturity value of
LYONs. In accordance with this authorization, the Company purchased $48.0
million principal amount of LYONs at an average purchase price of $366.51 per
$1,000 maturity value of LYONs. As a result of the LYONs purchase transactions,
the Company recorded an extraordinary gain on the early retirement of debt of
$2.4 million, net of the related income tax effect. In March 1995, the board of
directors authorized the repurchase of an additional 2.4 million shares of
Common Stock or the equivalent amount of LYONs increasing the total amount
authorized to 8.4 million shares or the equivalent amount of LYONs. See
"Liquidity and Capital Resources" and "Recent Developments."
18
<PAGE> 21
Expenses. The following table presents the components of the Company's
expenses:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------
1996 1995 1994
--------- ---------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Personnel costs................................ $211,668 $165,514 $181,953
Other operating expenses....................... 154,043 123,888 129,367
Agent commissions.............................. 187,901 82,713 132,713
Provision for claim losses..................... 33,302 19,031 27,838
Interest expense............................... 9,446 9,239 8,594
-------- -------- --------
Total expenses....................... $596,360 $400,385 $480,465
======== ======== ========
</TABLE>
The Company's operating expenses primarily consist of personnel costs and
other operating expenses which are incurred as title insurance orders are
received and processed. Direct title insurance premiums and escrow fee revenue
are recognized as income at the time the underlying real estate transaction
closes. As a result, revenue lags approximately 60-90 days behind expenses and
therefore gross margins may fluctuate.
Personnel costs include both base salaries and commissions (direct
operations) paid to employees and are the most significant operating expense
incurred by the Company. These costs generally fluctuate with the level of
orders opened and closed and with the mix of revenue between direct and agency
operations. Personnel costs totalled $211.7 million, $165.5 million and $182.0
million for the years ended December 31, 1996, 1995 and 1994, respectively. See
"Overview" and "Revenue." Personnel costs, as a percentage of total revenue,
have decreased to 33.2% in 1996 from 40.4% in 1995, which had previously
increased from 36.9% in 1994. These fluctuations in personnel costs as a
percentage of total revenue can be attributed to the varying market conditions
in the title insurance industry and the mix of agency versus direct business.
The Company has taken significant measures to maintain appropriate personnel
levels and costs relative to the volume and mix of business and revenues. The
Company will not, however, compromise its customer service standards or quality
controls in responding to market conditions. The Company continues to monitor
the prevailing market conditions and will respond as necessary.
Other operating expenses consist of facilities expenses, title plant
maintenance, premium taxes (which insurance underwriters are required to pay on
title premiums and title-related revenue in lieu of franchise and other state
taxes), escrow losses, courier services, computer services, professional
services, general insurance, trade and notes receivable allowances and
depreciation. Other operating expenses decreased as a percentage of total
revenue to 24.2% in 1996 from 30.2% in 1995, which had previously increased from
26.3% in 1994. In response to market conditions, the Company implemented
aggressive cost control programs in order to maintain operating expenses at
levels consistent with the levels of title-related revenue; however, certain
fixed costs are incurred regardless of revenue levels, resulting in the year
over year percentage fluctuations. The Company continues to be committed to
these cost control measures. Total other operating expenses totalled $154.0
million, $123.9 million and $129.4 million in 1996, 1995 and 1994, respectively.
See "Overview."
The period over period fluctuations in personnel costs and other operating
expenses are primarily the result of the fluctuations in total revenue, as well
as the changes in the direct operation and agency operation title premium mix.
The 1996 addition of Nations Title Inc. title premiums, which are primarily
agency related, has provided a balance between direct operation and agency
revenue. In previous periods the majority of title premiums and total revenue
were generated by direct operations, which resulted in higher personnel costs
and other operating expenses.
19
<PAGE> 22
Agent commissions represent the portion of premiums retained by agents
pursuant to the terms of their respective agency contracts. The following table
illustrates the relationship of agent premiums and agent commissions:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------------------
1996 1995 1994
---------------- ---------------- ----------------
AMOUNT % AMOUNT % AMOUNT %
-------- ----- -------- ----- -------- -----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Agent premiums.................... $238,717 100.0% $108,350 100.0% $172,899 100.0%
Agent commissions................. 187,901 78.7 82,713 76.3 132,713 76.8
-------- ----- -------- ----- -------- -----
Premiums retained by the
Company...................... $ 50,816 21.3% $ 25,637 23.7% $ 40,186 23.2%
======== ===== ======== ===== ======== =====
</TABLE>
Agent commissions and the resulting percentage of agent premiums retained
by the Company varies according to regional differences in real estate closing
practices and state regulations. The 1996 increase in agent commissions as a
percentage of agency premiums over 1995, resulting in a decrease in the
percentage of agency premiums retained by the Company, is attributable to the
fact that the average commissions paid to agents acquired in the Nations Title
Inc. acquisition exceed those paid to the former agent base. The combination of
higher agency commission rates and the significant agency revenue generated by
the Nations Title Inc. acquisition have resulted in higher overall commissions
in 1996. The percentage of agency premiums retained by the Company increased in
1995 over 1994 primarily due to the Company's expansion of operations outside of
California into states where underwriters' retained premiums are generally
greater.
The provision for claim losses includes an estimate of anticipated title
claims and major claims. The estimate of anticipated title claims is accrued as
a percentage of title premium revenue based on the Company's historical loss
experience and other relevant factors. The Company monitors its claims
experience on a continual basis and adjusts the provision for claim losses
accordingly. Based on Company loss development studies, the Company believes
that as a result of its underwriting and claims handling practices, as well as
the refinancing business of prior years, the Company will maintain the trend of
favorable claim loss experience. Based on this information, in 1996, 1995 and
1994, the Company recorded a provision for claim losses of 7.0% of title
insurance premiums prior to major claim expense, net of recoupments and the
impact of premium rates and Company loss experience in the state of Texas.
Premiums are generally higher in Texas for similar coverage than in other
states, while loss experience is comparable. As a result, losses as a percentage
of premiums are lower. These factors resulted in a net provision for claim
losses of 7.0%, 6.7% and 7.5% in 1996, 1995 and 1994, respectively.
A summary of the reserve for claim losses follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1995 1994
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Beginning balance...................................... $146,094 $153,306 $142,512
Reserves assumed with Nations Title Inc.............. 45,171 -- --
Reserves assumed with Fidelity Pennsylvania and
ATIC.............................................. -- -- 6,219
Title claim loss provision related to:
Current year...................................... 32,505 23,901 38,575
Prior years....................................... 797 (4,870) (10,737)
-------- -------- --------
Total title claim loss provision..................... 33,302 19,031 27,838
Title claims paid, net of recoupments related to:
Current year...................................... (2,430) (2,818) (1,742)
Prior years....................................... (34,892) (23,425) (21,521)
-------- -------- --------
Total title claims paid, net of recoupments.......... (37,322) (26,243) (23,263)
-------- -------- --------
Ending balance......................................... $187,245 $146,094 $153,306
======== ======== ========
Provision for title claim losses to title insurance
premiums............................................. 7.0% 6.7% 7.5%
Net claims paid ratio.................................. 7.8% 9.2% 6.3%
</TABLE>
20
<PAGE> 23
Interest expense is incurred by the Company in financing its capital asset
purchases and certain acquisitions. Interest expense consists of interest
related to the Company's outstanding debt and the amortization of original issue
discount and debt issuance costs related to the LYONs issued in February 1994.
Interest expense on non-LYONs debt totalled $4.2 million, $4.3 million and $3.8
million for the years 1996, 1995, and 1994, respectively. The LYONs-related
component of interest expense amounted to $5.2 million, $4.9 million and $4.8
million for 1996, 1995 and 1994, respectively. Interest expense in 1996 was
comparable to that of 1995 primarily as a result of slightly more favorable
interest rates related to outstanding non-LYONs debt, offset by an increase in
the LYONs component of interest expense. Interest expense increased in 1995 over
1994 primarily as a result of an increase in the average outstanding balance of
a certain subsidiary's equipment financing and increases in the prime interest
rate and LIBOR, to which certain of the interest rates paid by the Company are
indexed. See "Recent Developments."
Income tax expense for 1996, 1995 and 1994, as a percentage of earnings
before income taxes, including the extraordinary loss in 1995 and extraordinary
gain in 1994, was 40.0%, 16.9% and 24.2%, respectively. See "Extraordinary
Item." The fluctuations in income tax expense as a percentage of earnings before
income taxes, including the extraordinary item, are attributable to the effect
of state income taxes on the Company's wholly-owned underwritten title
companies; a change in the amount and characteristics of net income, operating
income versus investment income; and the tax treatment of certain items. See
Note H of Notes to Consolidated Financial Statements for additional information
regarding income taxes.
Extraordinary Item. In order to reduce interest expense incurred and
interest rates paid, the Company prepaid the Senior Secured Notes (the "Senior
Notes") issued in March 1993. Pursuant to the terms and conditions of the Senior
Note Agreement, the Company provided for the Make Whole Provision, as defined,
and related expenses in 1995. This amount, $1.25 million, before related income
taxes, has been reflected as an extraordinary item in the Consolidated
Statements of Earnings for the year ended December 31, 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash requirements include debt service, operating expenses,
taxes and dividends on its Common Stock. The Company believes that all
anticipated cash requirements for current operations will be met from internally
generated funds, through cash received from subsidiaries, cash generated by
investment securities and short-term bank borrowings through existing credit
facilities.
Two of the significant sources of the Company's funds are dividends and
distributions from its subsidiaries. As a holding company, the Company receives
cash from its subsidiaries in the form of dividends and as reimbursement for
operating and other administrative expenses it incurs. The reimbursements are
executed within the guidelines of various management agreements among the
Company and its subsidiaries. Fluctuations in operating cash flows are primarily
the result of increases or decreases in revenue. See "Overview." The Company's
Insurance Subsidiaries and UTCs collect premiums and pay claims and operating
expenses. The Insurance Subsidiaries also have cash flow sources derived from
investment income, repayments of principal and proceeds from sales and
maturities of investments and dividends from subsidiaries. Positive cash flow
from Insurance Subsidiaries is invested primarily in short-term investments and
medium-term bonds. Short-term investments held by the Company's Insurance
Subsidiaries provide liquidity for projected claims and operating expenses. The
Insurance Subsidiaries are restricted by state regulations in their ability to
pay dividends and make distributions. Each state of domicile regulates the
extent to which the Company's title underwriters can pay dividends or make other
distributions to the Company. The UTCs are also regulated by insurance
regulatory or banking authorities. Positive cash flow from the UTCs is invested
primarily in cash and cash equivalents.
The short- and long-term liquidity requirements of the Company, Insurance
Subsidiaries and UTCs are monitored regularly to match cash inflows with cash
requirements. The Company, Insurance Subsidiaries and UTCs forecast their daily
cash needs and periodically review their short- and long-term projected sources
and uses of funds, as well as the asset, liability, investment and cash flow
assumptions underlying these projections.
For purposes of satisfying insurance regulatory requirements, the Company
is required to maintain certain levels of readily marketable securities and
other liquid assets. At December 31, 1996, the fair value of the
21
<PAGE> 24
Company's total investment securities was $227.7 million. These investments
consist of securities which the Company believes are readily marketable and
could be liquidated if necessary. See "Business -- Investment Policies and
Investment Portfolio."
On September 21, 1995, the Company obtained a $35 million credit facility
with a banking syndicate led by Chase Manhattan Bank N.A. The facility includes
a $22 million term loan and a $13 million revolving credit facility. The $22
million term loan was used to refinance higher rate indebtedness and for general
corporate purposes. $5 million of the $13 million revolving credit facility was
used to fund a portion of the Nations Title Inc. acquisition and the remainder
is available for general corporate purposes. See Note G of Notes to Consolidated
Financial Statements.
In February 1994, the Company issued zero coupon, convertible subordinated
Liquid Yield Option Notes due February 2009 at an interest rate of 5.5% with a
principal amount at maturity of $235,750,000. Net proceeds to the Company were
approximately $101,000,000. The proceeds were used for investment and general
corporate purposes, including the repurchase of treasury shares. See Note G of
Notes to Consolidated Financial Statements.
In the normal course of business certain of the Company's subsidiaries
enter into off-balance sheet credit risk associated with certain aspects of its
title insurance policies and Manchester's real estate activities. This credit
risk is in the form of standby letters of credit and general partnership
guarantees. The Company believes that this credit risk is adequately secured by
either legal remedies associated with settlement procedures or the underlying
real estate assets. See Notes J and N of Notes to Consolidated Financial
Statements.
Recent Accounting Pronouncements. In March 1995, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No. 121
("Statement 121"), "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of." Statement 121 provides guidance for the
recognition and measurement of impairment of long-lived assets, certain
identifiable intangibles and goodwill related both to assets to be held and used
and assets to be disposed of. Statement 121 requires that under certain
conditions entities perform separate calculations for assets to be held and used
to determine whether recognition of an impairment loss is required and, if so,
to measure the impairment. If the sum of the expected future cash flows,
undiscounted and without interest charges, is less than the asset's carrying
amount, an impairment loss is considered; if the sum of the expected future cash
flows is more than the asset's carrying amount, an impairment loss cannot be
recognized. Measurement of an impairment loss is based on the fair value of the
asset. Statement 121 requires long-lived assets and certain identifiable
intangibles to be disposed of to be reported at the lower of carrying amount or
fair value less cost to sell, except for assets covered by the provisions of
Accounting Pronouncements Board Opinion No. 30. Statement 121 was effective for
financial statements issued for fiscal years beginning after December 15, 1995.
The adoption of Statement 121 did not have a material effect on the Consolidated
Financial Statements of the Company.
Statement of Financial Accounting Standards No. 123 ("Statement 123"),
"Accounting for Stock-Based Compensation", was issued by the Financial
Accounting Standards Board in October 1995. Statement 123 applies to all
transactions in which an entity acquires goods or services by issuing
instruments or by incurring liabilities where the payment amounts are based on
the entity's common stock price, except for employee stock ownership plans
("ESOPs"). Statement 123 covers transactions with employees and non-employees
and is applicable to both public and non-public entities. Statement 123
establishes a new method of accounting for stock-based compensation arrangements
with employees. The new method is a fair value method rather than the intrinsic
value method that is contained in Accounting Pronouncements Board Opinion No. 25
("Opinion 25"). However, the Statement does not require an entity to adopt the
new fair value based method for purposes of preparing its basic financial
statements. Entities are allowed (1) to continue to use the Opinion 25 method or
(2) to adopt the Statement 123 fair value based method. Once the fair value
based method is adopted, an entity cannot change back to the Opinion 25 method.
Also, the selected method applies to all of an entity's compensation plans and
transactions. The Statement 123 fair value based method will result in higher
compensation cost than the Opinion 25 intrinsic value based method for fixed
stock option compensation plans and will result in a different compensation cost
for variable stock option compensation plans. Sometimes the amount will be
higher and sometimes the amount will be lower. Also, many employee
22
<PAGE> 25
stock purchase plans that are considered noncompensatory under Opinion 25 will
be compensatory and result in the recognition of compensation costs under the
fair value based method. For entities not adopting the Statement 123 fair value
based method, the Statement creates a unique financial reporting situation. It
requires entities that retain the Opinion 25 method for preparing their basic
financial statements to display in the footnotes pro forma net income and
earnings per share information as if the fair value based method had been
adopted. Thus, these entities are required to account for employee compensation
arrangements by two different methods and must present two separate measures of
results of operations. Statement 123 was effective for fiscal years beginning
after December 15, 1995. The Company has chosen to continue using the Opinion 25
method when accounting for stock based compensation in its basic financial
statements.
Recent Developments. On March 9, 1995, the Company announced that its
board of directors authorized the additional repurchase, in the open market or
in privately negotiated transactions, of up to 2.4 million shares of its Common
Stock, or comparable amount of the Company's LYONs. This was in addition to the
6.0 million shares or comparable amount of LYONs previously authorized for
repurchase by the board of directors -- 1.2 million shares on March 31, 1994,
1.2 million shares on June 15, 1994, and an additional 3.6 million shares on
August 11, 1994. Any shares repurchased are held by the Company. A limited
number of shares may be used for various stock-based employee benefit programs,
and the remainder will be used for other general corporate purposes. As of
December 31, 1996, the Company had repurchased 5,685,738 shares of its Common
Stock for an aggregate price of $56.3 million, or $9.90 per share, 193,600
shares, cost basis of $1.9 million, of which were reissued in connection with
the acquisition of Nations Title Inc. Additionally, as of December 31, 1996, the
Company had purchased $48.0 million in maturity amount of LYONs for an aggregate
price of $17.6 million, all of which were purchased in 1994. The purchase of the
LYONs resulted in an extraordinary gain of $2.4 million which is net of related
income taxes, unamortized debt issuance costs and amortized original issue
discount, and is reflected in the 1994 Consolidated Statement of Earnings.
On September 21, 1995, the Company obtained a $35 million credit facility
with a banking syndicate led by Chase Manhattan Bank N.A. The facility includes
a $22 million term loan and a $13 million revolving credit facility. The $22
million term loan was used to refinance higher rate indebtedness and for general
corporate purposes. $5 million of the $13 million revolving credit facility was
used to fund a portion of the Nations Title Inc. acquisition. See Note G of
Notes to Consolidated Financial Statements.
In February of 1996, the Company proposed a merger with Giant Group, Ltd.
("Giant"). The Company had purchased 705,489 shares (or 14.8%) of Giant's
outstanding common stock. The Company's intent in acquiring Giant was to utilize
its liquid assets to take advantage of investment opportunities in non-interest
rate sensitive businesses. On April 26, 1996, the parties reached a settlement
agreement pursuant to which Giant repurchased its shares from Fidelity. In
addition, as part of the settlement, Fidelity acquired 767,807 shares of Rally's
Hamburger, Inc. ("Rally's") stock from Giant for $.83 per share, as well as an
option to purchase additional shares of Rally's common stock.
On April 1, 1996, the Company completed its acquisition of one hundred
percent of Nations Title Inc. and its wholly-owned subsidiaries Nations Title
Insurance Company, Nations Title Insurance of New York Inc. and National Title
Insurance of New York Inc. from Nations Holding Group for an adjusted purchase
price of $19.3 million plus 193,600 shares, $2.1 million, of the Company's
Common Stock. The acquisition positioned Fidelity National Financial, Inc. as
the nation's fourth largest title insurance underwriter. The Company believes
that the combination of its direct operations and Nations Title Inc.'s strong
agency network provides a balance to the Company's title premium revenue between
direct and agency, as well as a hedge against future market downturns. The
acquisition of Nations Title Inc. has also increased the Company's revenue and
positively impacted its balance sheet and margins due to the operating economies
of the combined companies. The acquisition has also increased market share in
areas where the Company has had a limited presence, particularly in those areas
where business is primarily agent driven, as well as in states where the Company
has a strong market position. This transaction has been accounted for as a
purchase. See Note B of Notes to Consolidated Financial Statements.
On April 4, 1996, the Company purchased 17% of the outstanding common stock
of National Alliance Marketing Group, Inc. ("National"), a California
corporation, for $566,667; together with a warrant to
23
<PAGE> 26
acquire an additional 14% of National common stock. In addition, the Company
loaned $1,200,000 to National at closing at a rate of prime plus one percent.
Subsequently, the Company agreed to increase the credit facility from $1,200,000
to $1,700,000. In consideration for the increase in the credit facility National
agreed to increase the warrant shares which the Company can purchase. If the
entire $1,700,000 is borrowed the Company may purchase an additional 34% of the
outstanding shares of National. After receiving approval of the transaction from
the California Department of Insurance, the transaction closed on July 12, 1996.
National is the parent company of Alliance Home Warranty Company, a California
insurance company. Alliance sells home warranty plans to buyers of resale homes,
primarily in the central and Southern California markets. A home warranty
contract generally promises the repair or replacement of major operating systems
and built-in appliances inside a home for a period of one year.
On May 16, 1996, the Company paid $3.1 million to acquire a first lien loan
of $3.4 million secured by a commercial office building owned by a real estate
partnership in which Manchester Development Corporation is the sole general
partner. During 1996, but prior to the Company's acquisition of the loan,
officers and directors of the Company assigned their ownership interests in the
real estate partnership to Manchester. The Company leases space in the
commercial office building.
On May 29, 1996, the Company acquired 19.8% of the outstanding common stock
of Smith/Norris Corporation ("Smith/Norris"), a California corporation, together
with a warrant to acquire an additional 20% of Smith/Norris common stock.
Smith/Norris is a privately held software development corporation which focuses
on a family of image-enabled records systems including imaging, indexing,
reporting, cashiering and accounting software for county and city government
departments. As an additional part of the transaction, the Company established a
credit facility in an amount up to $2,000,000 to finance future growth.
On September 30, 1996, the Company accepted the assignment from a real
estate partnership of the right to redeem a retail shopping center valued at
$4.5 million in exchange for a net payment of $434,000. Officers and directors
of the Company who held ownership interests in the real estate partnership
assigned their rights to redeem to the Company. On November 21, 1996, the
Company redeemed the retail property at a price of $2.8 million. The Company
continues to collect rent from the retail tenants while actively marketing the
property for sale. The property is carried at cost, which approximates fair
value.
On November 1, 1996, the Company acquired 80% of the outstanding stock of
CRM, Inc. ("CRM") for a purchase price of $3.5 million, $1.0 million in cash and
173,790 shares, $2.5 million, of the Company's Common Stock. CRM provides real
estate information services with a heavy concentration in the areas of tax
services and flood certification. The Company combined its existing tax service
business with that of CRM. Under certain circumstances the Company can purchase
the remaining 20% of the outstanding stock of CRM. CRM, Inc. now operates as
Fidelity National Tax Service, Inc. This transaction has been accounted for as a
purchase. See Note B of Notes to Consolidated Financial Statements.
On March 25, 1997, the Company's Board of Directors declared a cash
dividend of $.07 per share which will be payable on May 2, 1997, to stockholders
of record on April 11, 1997.
Seasonality. Historically, the greatest volume of residential resale
activity has occurred in the spring and summer months. However, events during
the past five years, including numerous actions taken by the Federal Reserve
Board, have caused unusual fluctuations in real estate activity, particularly in
the seasonal pattern of residential resale and refinance activity. The Company
cannot predict whether the historical pattern of residential resale and
refinance activity will continue to be affected by such outside factors.
Inflation. To the extent real estate prices or mortgage interest rates
increase due to inflationary factors, the Company's title insurance premium
revenue generally increases because premiums are determined in part by the value
of property or the amount of the mortgage loan. The Company's personnel costs
and other operating expenses are also sensitive to inflation.
24
<PAGE> 27
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
INDEX TO FINANCIAL INFORMATION
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
Independent Auditors' Report....................................................... 26
Consolidated Balance Sheets as of December 31, 1996 and 1995....................... 27
Consolidated Statements of Earnings for the years ended December 31, 1996, 1995 and
1994............................................................................. 28
Consolidated Statements of Stockholders' Equity for the years ended December 31,
1996, 1995 and 1994.............................................................. 29
Consolidated Statements of Cash Flows for the years ended December 31, 1996, 1995
and 1994......................................................................... 30
Notes to Consolidated Financial Statements......................................... 31
</TABLE>
25
<PAGE> 28
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Fidelity National Financial, Inc.:
We have audited the Consolidated Balance Sheets of Fidelity National
Financial, Inc. and subsidiaries as of December 31, 1996 and 1995 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, 1996. These
Consolidated Financial Statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these Consolidated
Financial Statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the Consolidated Financial Statements referred to above
present fairly, in all material respects, the consolidated financial position of
Fidelity National Financial, Inc. and subsidiaries as of December 31, 1996 and
1995, and the results of their operations and their cash flows for each of the
years in the three-year period ended December 31, 1996 in conformity with
generally accepted accounting principles.
KPMG PEAT MARWICK LLP
Orange County, California
February 24, 1997
26
<PAGE> 29
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
-------- --------
<S> <C> <C>
ASSETS
Investments:
Fixed maturities available for sale, at fair value................... $166,329 129,236
Equity securities, at fair value..................................... 43,578 31,412
Other long-term investments, at cost, which approximates fair
value............................................................. 5,542 2,627
Short-term investments, at cost, which approximates fair value....... 873 8,148
Investments in real estate and partnerships, net..................... 11,352 8,659
-------- --------
Total investments............................................ 227,674 180,082
Cash and cash equivalents (including certificates of deposit of $4,057
in 1996 and $3,173 in 1995).......................................... 63,971 47,431
Trade receivables (less allowance of $6,822 in 1996 and $3,471 in
1995)................................................................ 54,355 39,801
Notes receivable, net (including $1,996 in 1996 and $2,104 in 1995 with
affiliated parties).................................................. 11,317 15,926
Prepaid expenses and other assets...................................... 55,072 43,908
Title plants........................................................... 50,701 41,725
Property and equipment, net............................................ 38,617 33,740
Income taxes receivable................................................ 7,589 2,450
-------- --------
$509,296 $405,063
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued liabilities............................. $ 53,987 $ 44,549
Notes payable........................................................ 148,922 136,047
Reserve for claim losses............................................. 187,245 146,094
Deferred income taxes................................................ 7,604 33
-------- --------
397,758 326,723
Minority interest.................................................... 1,287 393
Stockholders' equity:
Preferred stock, $.0001 par value; authorized, 3,000,000 shares;
issued and outstanding, none...................................... -- --
Common stock, $.0001 par value; authorized, 50,000,000 shares in 1996
and 1995; issued, 19,412,694 in 1996 and 19,183,189 in 1995....... 2 2
Additional paid-in capital........................................... 61,271 58,098
Retained earnings.................................................... 91,019 70,273
-------- --------
152,292 128,373
Net unrealized gains on investments.................................. 12,334 5,866
Less treasury stock, 5,492,138 shares in 1996 and 5,685,738 shares in
1995, at cost..................................................... 54,375 56,292
-------- --------
110,251 77,947
Commitments and contingencies........................................
Subsequent events....................................................
-------- --------
$509,296 $405,063
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
27
<PAGE> 30
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
<S> <C> <C> <C>
REVENUE:
Title insurance premiums................................. $475,961 $285,552 $369,275
Escrow fees.............................................. 66,927 49,723 52,260
Other fees and revenue................................... 76,333 56,954 59,351
Interest and investment income, including realized gains
(losses).............................................. 17,692 17,616 11,918
-------- -------- --------
636,913 409,845 492,804
-------- -------- --------
EXPENSES:
Personnel costs.......................................... 211,668 165,514 181,953
Other operating expenses................................. 154,043 123,888 129,367
Agent commissions........................................ 187,901 82,713 132,713
Provision for claim losses............................... 33,302 19,031 27,838
Interest expense......................................... 9,446 9,239 8,594
-------- -------- --------
596,360 400,385 480,465
-------- -------- --------
Earnings before income taxes and extraordinary item...... 40,553 9,460 12,339
Income tax expense....................................... 16,216 1,828 2,594
-------- -------- --------
Earnings before extraordinary item.................... 24,337 7,632 9,745
Extraordinary item -- gain (loss) on early retirement of
debt, net of applicable income tax expense (benefit)
of $(437) in 1995 and $1,292 in 1994.................. -- (813) 2,400
-------- -------- --------
Net earnings..................................... $ 24,337 $ 6,819 $ 12,145
======== ======== ========
Primary earnings per share before extraordinary item..... $ 1.71 $ .53 $ .54
Extraordinary item -- gain (loss) on early retirement of
debt, net of applicable income tax expense
(benefit)............................................. -- (.05) .13
-------- -------- --------
Primary net earnings per share........................... $ 1.71 $ .48 $ .67
======== ======== ========
Weighted average shares outstanding, primary basis....... 14,265 14,267 18,124
======== ======== ========
Fully diluted earnings per share......................... $ 1.47 $ .48 $ .67
======== ======== ========
Weighted average shares outstanding, fully diluted
basis................................................. 18,682 14,267 22,604
======== ======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
28
<PAGE> 31
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL NET TREASURY STOCK
---------------- PAID-IN RETAINED UNREALIZED ------------------
SHARES AMOUNT CAPITAL EARNINGS GAINS (LOSSES) SHARES AMOUNT
------ ------ ---------- -------- -------------- ------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1993.......... 18,500 $2 $ 52,664 $ 58,438 $ 3,822 -- $ --
Exercise of stock options......... 283 -- 1,314 -- -- -- --
Net unrealized losses on
investments..................... -- -- -- -- (12,736) -- --
Purchase of ACS Systems, Inc. .... 181 -- 2,681 -- -- -- --
Purchase of treasury stock........ -- -- -- -- -- 3,996 (40,461)
ASAP purchase price adjustment.... (14) -- -- -- -- -- --
Cash dividends ($.23 per share)... -- -- -- (3,915) -- -- --
Net earnings...................... -- -- -- 12,145 -- -- --
--
------ ------- -------- -------- ----- --------
Balance, December 31, 1994.......... 18,950 2 56,659 66,668 (8,914) 3,996 (40,461)
--
------ ------- -------- -------- ----- --------
Exercise of stock options......... 185 -- 1,439 -- -- -- --
Net unrealized gains on
investments..................... -- -- -- -- 14,780 -- --
Purchase of treasury stock........ -- -- -- -- -- 1,690 (15,831)
ACS Systems, Inc. purchase price
adjustment...................... 48 -- -- -- -- -- --
Cash dividends ($.23 per share)... -- -- -- (3,214) -- -- --
Net earnings...................... -- -- -- 6,819 -- -- --
--
------ ------- -------- -------- ----- --------
Balance, December 31, 1995.......... 19,183 2 58,098 70,273 5,866 5,686 (56,292)
--
------ ------- -------- -------- ----- --------
Exercise of stock options......... 56 -- 440 -- -- -- --
Net unrealized gains on
investments..................... -- -- -- -- 6,468 -- --
Purchase of Nations Title Inc. ... -- -- 213 -- -- (194) 1,917
Purchase of CRM, Inc. ............ 174 -- 2,520 -- -- -- --
Cash dividends ($.26 per share)... -- -- -- (3,591) -- -- --
Net earnings...................... 24,337
--
------ ------- -------- -------- ----- --------
Balance, December 31, 1996.......... 19,413 $2 $ 61,271 $ 91,019 $ 12,334 5,492 $(54,375)
====== == ======= ======== ======== ===== ========
</TABLE>
See Notes to Consolidated Financial Statements.
29
<PAGE> 32
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings.............................................. $ 24,337 $ 6,819 $ 12,145
Adjustments to reconcile net earnings to net cash provided
by (used in) operating activities:
Depreciation and amortization.......................... 12,814 13,410 11,207
Net increase (decrease) in reserve for claim losses.... (4,020) (7,212) 4,575
Amortization of LYONs original issue discount and
issuance costs....................................... 5,295 4,916 4,701
Provision for losses on real estate and notes
receivable........................................... 775 158 (159)
Equity in (gains) losses of unconsolidated
partnerships......................................... 520 (72) 134
(Gain) loss on sales of investments.................... (3,713) (5,023) 2,307
(Gain) loss on sale of real estate and other assets.... 1,088 (190) 779
Changes in assets and liabilities, net of effects from
acquisitions:
Net increase in trade receivables...................... (7,030) (11,306) (7,086)
Net increase in prepaid expenses and other assets...... (5,434) (5,643) (3,143)
Net decrease in accounts payable and accrued
liabilities.......................................... (509) (3,547) (11,375)
Net increase (decrease) in income taxes................ 3,417 7,673 (7,860)
--------- --------- ---------
Net cash provided by (used in) operating
activities...................................... 27,540 (17) 6,225
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in real estate and partnerships............... -- (100) (151)
Proceeds from investment securities:
Held to maturity (principally maturities of
securities).......................................... -- 2,310 2,252
Available for sale..................................... 182,512 214,524 112,435
Proceeds from sales of other assets....................... 3,700 3,442 301
Proceeds from sales of real estate........................ 917 -- --
Collections of notes receivable........................... 14,645 3,035 2,465
Additions to title plants................................. (1,011) (1,719) (987)
Additions to property and equipment....................... (14,085) (9,655) (25,233)
Additions to notes receivable............................. (8,470) (5,980) (8,135)
Purchases of investment securities:
Held to maturity....................................... -- (1,941) (3,668)
Available for sale..................................... (183,788) (151,305) (115,748)
Distributions from partnerships........................... -- -- 30
Investment in ATIC preferred stock........................ -- -- (15,500)
Acquisitions of businesses, net of cash acquired.......... (10,138) (11,363) (1,130)
--------- --------- ---------
Net cash provided by (used in) investing
activities...................................... (15,718) 41,248 (53,069)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings................................................ 22,904 48,285 130,652
Debt service payments..................................... (17,066) (59,150) (27,287)
Retirement of LYONs....................................... -- -- (17,592)
Gain on early retirement of LYONs......................... -- -- (3,692)
Dividends paid............................................ (3,477) (3,232) (4,132)
Exercise of stock options................................. 440 1,439 1,314
Issuance (purchase) of treasury stock, net................ 1,917 (15,831) (40,461)
--------- --------- ---------
Net cash provided by (used in) financing
activities...................................... 4,718 (28,489) 38,802
--------- --------- ---------
Net increase (decrease) in cash and cash equivalents........ 16,540 12,742 (8,042)
Cash and cash equivalents at beginning of year............ 47,431 34,689 42,731
--------- --------- ---------
Cash and cash equivalents at end of year.................. $ 63,971 $ 47,431 $ 34,689
========= ========= =========
</TABLE>
See Notes to Consolidated Financial Statements.
30
<PAGE> 33
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The following describes the significant accounting policies of Fidelity
National Financial, Inc. ("Fidelity Financial") and its subsidiaries
(collectively, the "Company") which have been followed in preparing the
accompanying Consolidated Financial Statements.
Description of business
Fidelity National Financial, Inc., through its principal subsidiaries is
one of the largest national underwriters engaged in the business of issuing
title insurance policies and performing other title-related services such as
escrow, collection and trust activities, real estate information and technology
services, trustee sale guarantees, foreclosure publishing and posting services
and exchange intermediary services in connection with real estate transactions.
Title insurance services are provided through the Company's direct operations
and otherwise through independent title insurance agents who issue title
policies on behalf of the underwriting subsidiaries. Title insurance is
generally accepted as the most efficient means of determining title to, and the
priority of interests in, real estate in nearly all parts of the United States.
Today, virtually all real property mortgage lenders require their borrowers to
obtain a title insurance policy at the time a mortgage loan is made or to allow
the sale of loans in the secondary market.
The Company's principal subsidiaries consist of Fidelity National Title
Insurance Company ("Fidelity Title"), which, in turn, is the parent company of
Fidelity National Title Insurance Company of California ("Fidelity California"),
Fidelity National Title Insurance Company of Tennessee ("Fidelity Tennessee")
and Nations Title Insurance Company ("Nations Title"); Fidelity National Title
Insurance Company of Pennsylvania ("Fidelity Pennsylvania"), which, in turn, was
the parent company of American Title Insurance Company ("ATIC"), which was
merged into Fidelity Pennsylvania as of November 21, 1996; Fidelity National
Title Insurance Company of New York ("Fidelity New York"), which, in turn, is
the parent company of Nations Title Insurance of New York Inc. ("Nations New
York) and National Title Insurance of New York Inc. ("National") (collectively,
the "Insurance Subsidiaries"); and its wholly-owned underwritten title companies
(collectively, the "UTCs").
Nations Title Insurance Company, Nations Title Insurance of New York Inc.
and National Title Insurance of New York Inc. were acquired, along with Nations
Title Inc. ("NTI," collectively, "Nations Title Inc.") in a transaction which
closed on April 1, 1996. See Note B.
Principles of consolidation and basis of presentation
The accompanying Consolidated Financial Statements include the accounts of
the Company and its wholly-owned and majority-owned subsidiaries. All material
intercompany profits, transactions and balances have been eliminated. The
Company's investments in non-majority-owned partnerships are accounted for on
the equity method.
Cash and cash equivalents
For purposes of reporting cash flows, highly liquid instruments purchased
with original maturities of three months or less are considered cash
equivalents. The carrying amounts reported in the Consolidated Balance Sheets
for these instruments approximate their fair value.
Investments
Fixed maturity securities are purchased to support the investment
strategies of the Company, which are developed based on many factors including
rate of return, maturity, credit risk, tax considerations and regulatory
requirements. Prior to a reassessment of the investment strategy and subsequent
reclassification of the held to maturity portfolio in 1995, the Company had the
ability and intent to hold those fixed maturity
31
<PAGE> 34
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
securities which it had on deposit with regulatory authorities and certain other
fixed maturity securities, to maturity and carried them at amortized cost. Those
fixed maturity securities which may be sold prior to maturity to support the
Company's investment strategies are carried at fair value and are classified as
available for sale as of the balance sheet dates. Fair values for fixed maturity
securities are principally a function of current interest rates and are based on
quoted market prices. Care should be used in evaluating the significance of
these estimated fair values.
Equity securities are considered to be available for sale and carried at
fair value as of the balance sheet dates. Fair values are based on quoted market
prices.
Other long-term investments, which consist of investments in a limited
partnership interest in an investment fund and certain other debt instruments,
are carried at cost, which approximates fair value.
Short-term investments, which consist primarily of securities purchased
under agreements to resell, commercial paper and money market instruments, which
have an original maturity of one year or less, are carried at amortized cost,
which approximates fair value.
Investments in real estate and partnerships are generally held for
investment purposes and are carried at cost in the absence of any other than
temporary impairment in value. Investments in real estate which are held for
sale, including real estate acquired through foreclosure of properties in
satisfaction of commercial and real estate loans, are carried at the lower of
cost or fair value less estimated costs to sell.
Realized gains and losses on the sale of investments are determined on the
basis of the cost of the specific investments sold and are credited or charged
to income on a trade date basis. Unrealized gains or losses on bonds and common
stocks which are classified as available for sale, net of applicable deferred
income taxes (benefits), are excluded from income and credited or charged
directly to a separate component of stockholders' equity. The carrying value for
investments considered available for sale is reduced to estimated realizable
value if the decline in fair value is deemed other than temporary. Such
reductions are recognized as realized losses.
Trade receivables
The carrying amounts reported in the Consolidated Balance Sheets for trade
receivables approximate their fair value.
Fair value of financial instruments
The fair values of financial instruments presented in the applicable notes
to the Company's Consolidated Financial Statements are estimates of the fair
values at a specific point in time using available market information and
appropriate valuation methodologies. These estimates are subjective in nature
and involve uncertainties and significant judgment in the interpretation of
current market data. Therefore, the fair values presented are not necessarily
indicative of amounts the Company could realize or settle currently. The Company
does not necessarily intend to dispose of or liquidate such instruments prior to
maturity. See Notes C, D, E and G.
Title plants
Title plants are recorded at the cost incurred to construct or obtain and
organize historical title information to the point it can be used to perform
title searches. Costs incurred to maintain, update and operate title plants are
expensed as incurred. Title plants are not amortized as they are considered to
have an indefinite life if maintained. Sales of title plants are reported at the
amount received net of the adjusted costs of the title plant sold. Sales of
title plant copies are reported at the amount received. No cost is allocated to
the sale of copies of title plants unless the value of the title plant is
diminished.
32
<PAGE> 35
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Property and equipment
Property and equipment are recorded at cost, less depreciation.
Depreciation is computed primarily using the straight-line method based on the
estimated useful lives of the related assets which range from three to fifty
years. Leasehold improvements are amortized on a straight-line basis over the
lesser of the term of the applicable lease or the estimated useful lives of such
assets.
Cost in excess of net assets acquired and other intangible assets
Intangible assets include cost in excess of net assets acquired,
capitalized licensing costs and capitalized software costs and are amortized on
a straight line basis over seven to forty years. Intangible assets at December
31, 1996 consist of cost in excess of net assets acquired of $8,349,000 less
accumulated amortization of $1,733,000, capitalized licensing costs of
$3,937,000 less accumulated amortization of $98,000, capitalized software of
$11,720,000 less accumulated amortization of $2,740,000 and capitalized debt
offering costs of $4,738,000 less accumulated amortization of $1,738,000. At
December 31, 1995, intangible assets consist of cost in excess of net assets
acquired of $5,303,000 less accumulated amortization of $1,378,000, capitalized
licensing costs of $2,458,000, capitalized software of $11,135,000 less
accumulated amortization of $1,105,000 and capitalized debt offering costs of
$4,738,000 less accumulated depreciation of $1,505,000.
Impairment of intangible assets is monitored on a continual basis, and is
assessed based on an analysis of the cash flows generated by the underlying
assets. No impairment of intangible assets has been noted.
Income taxes
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109 ("Statement 109"), "Accounting for Income
Taxes." Statement 109 provides that deferred tax assets and liabilities be
recognized for temporary differences between the financial reporting basis and
the tax basis of the Company's assets and liabilities and expected benefits of
utilizing net operating loss and credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. The impact on deferred taxes of changes in tax rates and
laws, if any, are applied to the years during which temporary differences are
expected to be settled and reflected in the financial statements in the period
enacted.
Reserve for claim losses
The Company's reserve for claim losses includes known claims as well as
losses the Company expects to incur, net of recoupments. Each known claim is
reserved for on the basis of a review by the Company as to the estimated amount
of the claim and the costs required to settle the claim. Reserves for claims
which are incurred but not reported are provided for at the time premium revenue
is recognized based on historical loss experience and other factors, including
industry averages, claim loss history, current legal environment, geographic
considerations and type of policy written. Major claims (greater than $500,000)
are evaluated and amounts greater than $500,000 are reserved for as they become
known because the unique circumstances surrounding most major claims make it
inherently impractical to predict the incidence and amount of such claims. The
occurrence of a significant major claim in any given period could have a
material adverse effect on the Company's financial condition and results of
operations for such period. Escrow losses are expensed when they become known
and are included in other operating expenses. See Note I.
If a loss is related to a policy issued by an independent agent, the
Company may proceed against the independent agent pursuant to the terms of the
agency agreement. In any event, the Company may proceed
33
<PAGE> 36
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
against third parties who are responsible for any loss under the title insurance
policy under rights of subrogation.
The terms of the Fidelity Pennsylvania (formerly Meridian Title Insurance
Company) acquisition provided $31 million of additional claim loss protection
for Fidelity Pennsylvania and ATIC policies issued on or before December 31,
1991. As part of the acquisition, Fidelity Pennsylvania paid its former parent
company, Meridian Bank, a cash dividend of $11 million and Meridian Bank
retained a $20 million investment in ATIC Redeemable Series A Preferred Stock
("ATIC Preferred Stock"). Under certain circumstances, Meridian Bank would be
required to repay the Company some or all of the dividend and relinquish some or
all of the redemption value of the ATIC Preferred Stock as reimbursement for
excess claims incurred by Fidelity Pennsylvania and ATIC over the reserves
established at December 31, 1991 for policies issued on or before December 31,
1991. On March 31, 1994, the Company purchased from Meridian Bank the ATIC
Preferred Stock for $15.5 million, which represented a discount of approximately
$6.2 million. As part of the agreement with Meridian Bank to purchase the ATIC
Preferred Stock, the Company released Meridian Bank from its obligations to
provide an additional $11 million in claims protection pursuant to the purchase
agreement for Fidelity Pennsylvania and ATIC. The Company believes that the loss
reserves for Fidelity Pennsylvania and ATIC, when combined with the $6.2 million
reduction in the purchase price of the ATIC Preferred Stock, which has been
added to reserves for claim losses, will be sufficient to meet pre-1992 policy
claims. This $11 million, in addition to the $20 million of ATIC Preferred
Stock, had been available as protection to offset claim losses on pre-1992
policies in excess of assumed reserves if necessary, and therefore any
development on the pre-1992 policies had not been reflected in the Company's
Consolidated Statements of Earnings. Subsequent to the Company's purchase of the
ATIC Preferred Stock, adverse or favorable loss development on these pre-1992
policies is reflected in the Consolidated Statements of Earnings.
Reinsurance
In the ordinary course of business, the Company reinsures certain risks
with other insurers for the purpose of limiting its maximum loss exposure and
also assumes reinsurance for certain risks of other insurers for the purpose of
earning additional revenue. The Company cedes or assumes a portion of certain
policy liabilities under agent fidelity, excess of loss and case-by-case
reinsurance agreements. Reinsurance agreements provide that in the event of a
loss (including costs, attorneys' fees and expenses) exceeding the retained
amounts, the reinsurer is liable for the excess amount assumed. However, the
ceding company remains primarily liable in the event the reinsurer does not meet
its contractual obligations.
Effective December 31, 1996, the Company entered into an aggregate excess
of loss reinsurance contract, which is deemed to be long duration and
retroactive. There is no impact on the 1996 Consolidated Financial Statements
related to this transaction. See Note K. There is no other significant
reinsurance activity.
Title, escrow, other fees and revenue and agent commissions
Title insurance premiums, escrow fees and other fees and revenue are
recognized as revenue at the time of closing of the related real estate
transaction. Title insurance commissions earned by the Company's agents are
recognized as an expense concurrently with premium recognition.
Share and per share restatement
On December 13, 1995, the Company declared a 10% stock dividend, to
shareholders of record on January 15, 1996, distributed February 2, 1996. The
par value of the additional shares of Common Stock issued in connection with the
stock dividend was credited to common stock and a like amount charged to
retained earnings as of December 31, 1995. Fractional shares were paid in cash.
34
<PAGE> 37
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On December 11, 1996, the Company declared a 10% stock dividend, to
shareholders of record on December 23, 1996, distributed January 7, 1997. The
par value of the additional shares of Common Stock issued in connection with the
stock dividend was credited to common stock and a like amount charged to
retained earnings as of December 31, 1996. Fractional shares were paid in cash.
All data with respect to earnings per share, dividends per share and share
information, including price per share where applicable, in the Consolidated
Financial Statements and Notes thereto have been retroactively adjusted to
reflect all stock dividends and splits.
Earnings per share
Earnings per share is computed by dividing net earnings by the weighted
average number of common and common equivalent shares outstanding during the
period. The Company has granted certain options and warrants which have been
treated as common share equivalents for purposes of calculating primary and
fully diluted earnings per share. The Liquid Yield Option Notes ("LYONs") are
considered other dilutive securities for purposes of calculating fully diluted
earnings per share to the extent that they are not antidilutive.
Management estimates
The preparation of these Consolidated Financial Statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the Consolidated Financial Statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
Certain reclassifications
Certain reclassifications have been made in the 1995 and 1994 Consolidated
Financial Statements to conform to the classifications used in 1996.
B. ACQUISITIONS
On March 8, 1995, the Company acquired the common stock of Western Title
Company of Washington, an underwritten title company with operations in King
County (Seattle) and Snohomish County (Everett) in the state of Washington.
Western Title Company of Washington was acquired from its selling shareholder
for $3.2 million in cash. In addition, the Company also has an option to
purchase a title plant in Pierce County (Tacoma), Washington. The acquired
company operates as a subsidiary of the Company in King and Snohomish counties
under the name Fidelity National Title Company of Washington. The acquisition
has been accounted for as a purchase.
The assets acquired, including cost in excess of net assets acquired, and
liabilities assumed in the acquisition of Fidelity National Title Company of
Washington were as follows (dollars in thousands):
<TABLE>
<S> <C>
Tangible assets acquired at fair value.............................. $3,330
Cost in excess of net assets acquired............................... 746
Liabilities assumed at fair value................................... (876)
------
Total purchase price.............................................. $3,200
======
</TABLE>
On May 2, 1995, the Company acquired the common stock of Butte County Title
Company, an underwritten title company with operations in Butte County in the
state of California. Butte County Title Company was acquired from its selling
shareholders for $400,000 in cash, which approximated book value.
35
<PAGE> 38
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The acquired company operates as a subsidiary of the Company and is now known as
Fidelity National Title Company of California. The acquisition has been
accounted for as a purchase. The Fidelity National Title Company of California
results of operations were not material to the 1995 Consolidated Financial
Statements.
On June 14, 1995, the Company acquired certain assets of World Title
Company ("World") for a purchase price to be determined based on the collection
of certain accounts. In the case of trade accounts receivable acquired, the
Company retained certain percentages of amounts collected subsequent to the
acquisition date and remitted the remaining amounts to the Department of
Insurance of the State of California ("Department"). The Company has also
acquired the open title orders of World as of the purchase date. The Company
retained certain percentages of amounts collected on open title orders
subsequent to the acquisition date and remits the remaining amounts to the
Department. The Company retained a total of $2.1 million in 1996. The amount
retained by the Company in 1995 was not material.
On June 22, 1995, the Company acquired 100% of the common stock of World
Tax Service ("World Tax"), now known as Fidelity Tax Service ("Fidelity Tax"),
from WTC Financial ("WTC"), the parent company of World Tax, for $1.8 million.
The Company had previously executed an Asset Option Agreement ("Agreement") with
WTC to acquire an option to purchase a 60% undivided interest in all of the
assets of World Tax for $3.0 million. In connection with the Agreement, WTC was
granted an option to purchase 121,000 shares of the Company's Common Stock at
$11.98 per share. The option to purchase shares was acquired from WTC as part of
the World Tax transaction. This transaction has been accounted for as a
purchase.
The assets acquired and liabilities assumed in the acquisition of Fidelity
Tax were as follows (dollars in thousands):
<TABLE>
<S> <C>
Tangible assets acquired at fair value............................. $ 437
Capitalized software............................................... 7,785
Liabilities assumed at fair value.................................. (3,422)
-------
Total purchase price............................................. $ 4,800
=======
</TABLE>
On August 19, 1995, the Company acquired the common stock of Southern
California Title Company, an underwritten title company with operations in Los
Angeles County in the state of California. Southern California Title Company was
acquired for $2.1 million in cash. The acquired company operates as a subsidiary
of the Company and is now known as Fidelity National Title Company. This
transaction has been accounted for as a purchase.
The assets acquired and liabilities assumed in the acquisition of Fidelity
National Title Company were as follows (dollars in thousands):
<TABLE>
<S> <C>
Tangible assets acquired at fair value............................. $ 935
Capitalized licensing costs........................................ 2,498
Liabilities assumed at fair value.................................. (1,296)
-------
Total purchase price............................................. $ 2,137
=======
</TABLE>
On April 1, 1996, the Company completed its acquisition of Nations Title
Inc. from Nations Holding Group for an adjusted purchase price of $19.3 million
plus 193,600 shares, $2.1 million, of the Company's Common Stock. The
acquisition positioned Fidelity National Financial, Inc. as the nation's fourth
largest title insurance underwriter. Nations Title Inc. and its three
wholly-owned underwriting subsidiaries, Nations Title Insurance Company, Nations
Title Insurance of New York Inc. and National Title Insurance of New York Inc.,
expanded the Company's national agency network and increased its market share in
the more traditional agency driven states. This transaction has been accounted
for as a purchase.
36
<PAGE> 39
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The assets acquired and liabilities assumed in the Nations Title Inc.
acquisition were as follows (dollars in thousands):
<TABLE>
<S> <C>
Assets acquired at fair value..................................... $ 74,177
Liabilities assumed at fair value................................. (52,777)
--------
Total purchase price............................................ $ 21,400
========
</TABLE>
On November 1, 1996, the Company acquired 80% of the outstanding stock of
CRM, Inc. ("CRM") for a purchase price of $3.5 million, $1.0 million in cash and
173,790 shares, $2.5 million, of the Company's Common Stock. CRM provides real
estate information services with a heavy concentration in the areas of tax
services and flood certification. The Company combined its existing tax service
business with that of CRM. Under certain circumstances the Company can purchase
the remaining 20% of the outstanding stock of CRM. CRM, Inc. operates as a
majority-owned subsidiary of the Company and is now known as Fidelity National
Tax Service, Inc. ("Fidelity National Tax"). This transaction has been accounted
for as a purchase. The CRM results of operations were not material to the 1996
Consolidated Financial Statements.
The assets acquired, including cost in excess of net assets acquired, and
liabilities assumed in the Fidelity National Tax acquisition were as follows
(dollars in thousands):
<TABLE>
<S> <C>
Tangible assets acquired at fair value............................. $ 2,073
Cost in excess of net assets acquired.............................. 2,590
Liabilities assumed at fair value.................................. (1,143)
-------
Total purchase price............................................. $ 3,520
=======
</TABLE>
Selected unaudited pro forma combined results of operations for the years
ended December 31, 1996, 1995 and 1994, assuming the Nations Title Inc.
acquisition occurred on January 1, 1996 and 1995, and assuming the Fidelity
National Title Company of Washington, Fidelity Tax and Fidelity National Title
Company acquisitions occurred on January 1, 1996, 1995 and 1994, are presented
as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
Total revenue.............................. $681,642 $596,184 $504,999
Earnings before extraordinary item......... 24,278 6,189 9,955
Net earnings............................... 24,278 5,376 12,355
Earnings per share......................... $ 1.70 $ .37 $ .68
</TABLE>
37
<PAGE> 40
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
C. INVESTMENTS
The carrying amounts and fair values of the Company's fixed maturity
securities at December 31, 1996 and 1995 are as follows:
<TABLE>
<CAPTION>
DECEMBER 31, 1996
--------------------------------------------------------
GROSS GROSS
CARRYING AMORTIZED UNREALIZED UNREALIZED FAIR
AMOUNT COST GAINS LOSSES VALUE
-------- -------- ---------- ---------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Fixed maturity investments
(available for sale):
U.S. government and agencies...... $ 87,765 $ 88,376 $ 106 $ (717) $ 87,765
States and political
subdivisions................... 16,534 16,282 270 (18) 16,534
Corporate securities.............. 46,354 47,058 241 (945) 46,354
Mortgage-backed securities........ 15,676 15,896 86 (306) 15,676
-------- -------- ---- ------- --------
$166,329 $167,612 $ 703 $ (1,986) $166,329
======== ======== ==== ======= ========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1995
--------------------------------------------------------
GROSS GROSS
CARRYING AMORTIZED UNREALIZED UNREALIZED FAIR
AMOUNT COST GAINS LOSSES VALUE
-------- -------- ---------- ---------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Fixed maturity investments
(available for sale):
U.S. government and agencies...... $ 77,523 $ 76,667 $ 959 $ (103) $ 77,523
States and political
subdivisions................... 20,717 20,240 486 (9) 20,717
Corporate securities.............. 27,753 27,114 664 (25) 27,753
Mortgage-backed securities........ 3,243 3,243 -- -- 3,243
-------- -------- ---- ------- --------
$129,236 $127,264 $2,109 $ (137) $129,236
======== ======== ==== ======= ========
</TABLE>
The change in unrealized gains (losses) on fixed maturities for the years
ended December 31, 1996, 1995, and 1994 was $(3,255,000), $13,025,000 and
$(16,574,000), respectively.
The amortized cost and estimated fair value of fixed maturity securities,
which are classified as available for sale at December 31, 1996, by contractual
maturity, are shown as follows. Expected maturities may differ from contractual
maturities because certain borrowers have the right to call or prepay
obligations with or without call or prepayment penalties:
<TABLE>
<CAPTION>
% %
AMORTIZED OF FAIR OF
MATURITY COST TOTAL VALUE TOTAL
---------------------------------------------- -------- ----- -------- -----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
One year or less.............................. $ 2,255 1.3% $ 2,263 1.3%
After one year through five years............. 79,731 47.6 79,434 47.8
After five years through ten years............ 59,821 35.7 59,186 35.6
After ten years............................... 25,805 15.4 25,446 15.3
-------- ----- -------- -----
Total....................................... $167,612 100.0% $166,329 100.0%
======== ===== ======== =====
Subject to call............................. $ 41,495 24.7% $ 41,280 24.8%
</TABLE>
Fixed maturity securities valued at approximately $17,670,000 and
$10,569,000 were on deposit with various governmental authorities at December
31, 1996 and 1995, respectively, as required by law.
38
<PAGE> 41
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Equity securities at December 31, 1996 and 1995 consist of investments in
various industry groups as follows:
<TABLE>
<CAPTION>
1996 1995
------------------- -------------------
FAIR FAIR
COST VALUE COST VALUE
------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Banks, trust and insurance companies........ $ 800 $ 863 $12,038 $13,071
Industrial, miscellaneous and all other..... 20,589 42,715 12,430 18,341
------- ------- ------- -------
Total..................................... $21,389 $43,578 $24,468 $31,412
======= ======= ======= =======
</TABLE>
The carrying value of the Company's investment in equity securities is fair
value. As of December 31, 1996, gross unrealized gains and gross unrealized
losses on equity securities were $22,912,000 and $723,000, respectively. Gross
unrealized gains and gross unrealized losses on equity securities were
$9,054,000 and $2,110,000, respectively, as of December 31, 1995.
Included in equity securities at December 31, 1996, is an investment in a
certain equity security with a cost of $3,366,000 and a fair value of
$17,892,000.
The change in unrealized gains (losses) on equity securities for the years
ended December 31, 1996, 1995 and 1994 was $15,245,000, $9,369,000 and
$(2,725,000), respectively.
Interest and investment income, including realized gains (losses), consists
of the following:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash and cash equivalents............................. $ 1,666 $ 1,571 $ 561
Fixed maturity securities............................. 9,431 8,254 9,569
Equity securities..................................... 4,823 5,091 688
Short-term investments................................ 165 155 429
Notes receivable...................................... 2,675 2,355 1,450
Other................................................. (1,068) 190 (779)
------- ------- -------
$17,692 $17,616 $11,918
======= ======= =======
</TABLE>
Total realized gains (losses) included in interest and investment income
amounted to $2,625,000, $5,213,000 and $(3,086,000) for the years ended December
31, 1996, 1995 and 1994, respectively.
During the years ended December 31, 1996, 1995, and 1994, gross realized
gains on sales of fixed maturity securities considered available for sale were
$452,000, $1,700,000 and $248,000, respectively; and gross realized losses were
$714,000, $1,331,000 and $3,057,000, respectively. Gross proceeds from the sale
of fixed maturity securities considered available for sale amounted to
$93,108,000, $188,902,000 and $101,323,000, during the years ended December 31,
1996, 1995, and 1994, respectively.
During the years ended December 31, 1996, 1995 and 1994, gross realized
gains on sales of equity securities considered available for sale were
$5,937,000, $5,111,000 and $634,000, respectively; and gross realized losses
were $1,962,000, $457,000 and $132,000, respectively. Gross proceeds from the
sale of equity securities amounted to $89,404,000, $25,622,000 and $11,112,000
during the years ended December 31, 1996, 1995 and 1994, respectively.
39
<PAGE> 42
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
D. NOTES RECEIVABLE
Notes receivable consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1996 1995
------- -------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Mortgage notes, secured by various deeds of trust, installments
due monthly including interest at rates ranging from 7.5% to
10%, due through 2016.......................................... $ 512 $ 1,484
Promissory notes, secured by various assets and unsecured,
installments due monthly including interest at rates ranging
from 8.25% to 13%, due through 2005............................ 11,463 13,002
Promissory notes due from unconsolidated real estate partnerships
at 12%, unsecured and secured by various deeds of trust, due
through 1997................................................... -- 2,277
Promissory note due from the Company's Chief Executive Officer,
secured by a deed of trust, in monthly installments including
interest at 9.5%, due through 2001............................. 471 587
Officer and employee secured and unsecured notes receivable at
rates ranging from 7.0% to 11.0%, due through 2001............. 1,525 1,517
------- -------
13,971 18,867
Allowance for doubtful receivables............................... (2,654) (2,941)
------- -------
$11,317 $15,926
======= =======
</TABLE>
The allowance for doubtful receivables is primarily related to promissory
notes at December 31, 1996, and notes receivable due from unconsolidated real
estate partnerships at December 31, 1995. Interest income is not recognized on
the Company's non-performing notes receivable.
The carrying amounts and estimated fair values of the Company's notes
receivable were as follows at December 31, 1996 and 1995 (dollars in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------------
1996 1995
------------------- -------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
------- ------- ------- -------
<S> <C> <C> <C> <C>
Mortgage notes.............................. $ 412 $ 412 $ 1,404 $ 1,404
Other promissory notes...................... 8,909 8,909 12,466 12,466
Affiliated notes............................ 1,996 1,996 2,056 2,056
------- ------- ------- -------
$11,317 $11,317 $15,926 $15,926
======= ======= ======= =======
</TABLE>
The fair values of significant notes receivable are established using
discounted cash flow analyses based on current market interest rates and
comparison of rates being received to interest rates currently being offered for
similar loans to borrowers with similar credit ratings. Loans with similar
characteristics are aggregated for purposes of the calculations. All other notes
receivable are not significant individually or in the aggregate, or are current
and at market rates, and their carrying value approximates fair value.
In September 1991, Manchester Development Corporation ("Manchester"), a
wholly-owned subsidiary, sold certain real estate investments and operating
properties to Folco Development Corporation ("Folco"), of which the Company's
Chief Executive Officer and spouse are sole shareholders, at the assets' net
book value of $2,211,000. This transaction resulted in a note receivable from
Folco to Manchester of approximately $1,492,000 secured by subordinated deeds of
trust on the 11 office buildings included in the sale to Folco; see Note E. In
connection with the sale, the existing leases of space by the Company were
amended thereby
40
<PAGE> 43
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
increasing rental rates approximately 20%. The terms of the agreement between
Manchester and Folco provide that each of the subordinated deeds of trust will
be released and reconveyed upon payment to Manchester of 15% of the net sales
proceeds from the sale of the property encumbered by the subordinated deeds of
trust. As of December 31, 1996 and 1995, the balance outstanding on the note
approximated $471,000 and $587,000, respectively, and one property remains
unsold.
E. INVESTMENTS IN REAL ESTATE AND PARTNERSHIPS
At December 31, 1996, the Company had financial interests ranging from 22%
to 50% in three real estate partnerships which are accounted for under the
equity method. The Company had financial interests ranging from 22% to 50% in
five real estate partnerships which were accounted for under the equity method
at December 31, 1995. These partnerships are involved in the ownership and
management of commercial office buildings, retail facilities and have acquired
specific parcels of real property for investment purposes. The Company, through
Manchester Development Corporation ("Manchester"), a wholly-owned subsidiary,
had a general partnership interest in one of the three real estate partnerships
at December 31, 1996, and general partnership interests in three of the five
real estate partnerships at December 31, 1995. See Note N.
Two of these partnerships, representing raw land investments, also have
officers and directors of the Company as partners with ownership interests that
are based on cash contributions. These two partnerships require that all of the
partners, including the Company, make pro-rata capital contributions should the
partnerships require additional funds to pay liabilities.
On May 16, 1996, the Company paid $3.1 million to acquire a first lien loan
of $3.4 million secured by a commercial office building owned by a real estate
partnership in which Manchester is the sole general partner. During 1996, but
prior to the Company's acquisition of the loan, officers and directors of the
Company assigned their ownership interests in the real estate partnership to
Manchester. The Company leases space in the commercial office building.
On September 30, 1996, the Company accepted the assignment from a real
estate partnership of the right to redeem a retail shopping center valued at
$4.5 million in exchange for a net payment of $434,000. Officers and directors
of the Company, who have ownership interests in the real estate partnership,
assigned their rights to redeem to the Company. On November 21, 1996, the
Company redeemed the retail property at a price of $2.8 million. The Company
continues to collect rent from the retail tenants while actively marketing the
property for sale. The property is carried at cost, which approximates fair
value.
Summarized combined financial information of the unconsolidated
partnerships is as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1995 1994
------ ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Total assets, primarily land, development and
improvement costs.................................... $3,960 $14,096 $16,123
Total liabilities, primarily notes and mortgages
payable.............................................. 841 12,664 13,784
------ ------- -------
Partners' equity....................................... $3,119 $ 1,432 $ 2,339
====== ======= =======
Revenue................................................ $ 378 $ 1,568 $ 1,609
====== ======= =======
Net loss............................................... $ (73) $ (515) $ (367)
====== ======= =======
</TABLE>
At December 31, 1996, the Company had a 92.5% and a 76% interest in real
estate partnerships which are consolidated with the Company. The Company also
had a 76% interest in a real estate partnership which was consolidated with the
Company at December 31, 1995.
41
<PAGE> 44
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Manchester is presently a partner with Sussex Holdings, Ltd. (an affiliate
of Folco) in Folco Mission Valley Partners Limited Partnership, a California
limited partnership. Manchester owns a 22% limited partnership interest and
Sussex Holdings, Ltd. owns a 78% general partnership interest. Fidelity Title is
the sole tenant in the building and received an approximate 30% decrease in its
annual rental rate based upon its lease with Folco Mission Valley.
Investments in real estate and partnerships consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1996 1995
------- -------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Investments in real estate:
Land........................................................... $ 7,476 $ 4,223
Commercial buildings, net of accumulated depreciation of $2,925
and $2,160.................................................. 6,537 5,924
Investments in unconsolidated partnerships....................... 1,806 1,979
------- -------
15,819 12,126
Valuation allowance.............................................. (4,467) (3,467)
------- -------
$11,352 $ 8,659
======= =======
</TABLE>
F. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
-------- --------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Land........................................................... $ 4,370 $ 1,757
Buildings...................................................... 14,700 12,839
Leasehold improvements......................................... 9,452 7,299
Furniture, fixtures and equipment.............................. 71,365 61,510
-------- --------
99,887 83,405
Accumulated depreciation and amortization...................... (61,270) (49,665)
-------- --------
$ 38,617 $ 33,740
======== ========
</TABLE>
42
<PAGE> 45
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
G. NOTES PAYABLE
Notes payable consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
-------- --------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Credit agreement, secured by common stock of certain Insurance
Subsidiaries, with principal due quarterly and interest due monthly at
LIBOR rate plus 2.0% (7.39% at December 31, 1996), due September
2001................................................................... $ 18,250 $ 21,250
Bank revolving credit facility, secured by common stock of certain
Insurance Subsidiaries, with interest due quarterly at prime rate
(8.25%) at December 31, 1996), principal due quarterly beginning
December 1997, due September 2001, unused portion of $8 million and $13
million at December 31, 1996 and 1995.................................. 5,000 --
Equipment line of credit, secured by equipment, with interest due monthly
at prime rate plus 1.00% (9.25% at December 31, 1996), principal, due
March 1997, unused portion of $414 and $212 at December 31, 1996 and
1995................................................................... 5,586 4,788
Bank promissory note, secured by equipment, with principal and interest
due monthly at LIBOR plus 1.77% (7.16% at December 31, 1996), due
October 1997........................................................... 2,760 6,156
Bank promissory note, secured by equipment, with principal and interest
due monthly at LIBOR plus 1.77% (7.16% at December 31, 1996), due
October 1998........................................................... 4,787 7,246
Bank promissory note, secured by equipment, with principal and interest
due monthly at LIBOR plus 2.10% (7.49% at December 31, 1996), due June
1999................................................................... 3,282 4,405
Bank promissory note, secured by equipment, with principal and interest
at 30 day commercial paper rate plus 2.44% (8.03% at December 31,
1996), due September 2000.............................................. 7,031 --
Promissory note, guaranteed by United States Small Business
Administration, with interest only at 7.59% due monthly and principal
due at maturity, September 2006........................................ 3,000 --
Promissory note, secured by real estate, with principal and interest due
monthly at 9.875%, due April 1998...................................... 1,723 --
Liquid Yield Option Notes, zero coupon, subordinated convertible notes
due 2009 with interest at 5.5%......................................... 97,013 91,951
Other promissory notes with various interest rates and maturities........ 490 251
-------- --------
$148,922 $136,047
======== ========
</TABLE>
Principal maturities, including accretion of original issue discount, are
as follows (dollars in thousands):
<TABLE>
<S> <C>
1997...................................................... $ 17,587
1998...................................................... 11,565
1999...................................................... 8,057
2000...................................................... 6,927
2001...................................................... 4,688
Thereafter................................................ 190,835
--------
$239,659
========
</TABLE>
The Company's Credit Agreement, dated as of September 21, 1995, which
includes a $22 million term loan and a $13 million revolving credit facility, is
collateralized by the common stock of certain Insurance Subsidiaries.
Additionally, the Company must comply with certain affirmative and negative
covenants related to the Credit Agreement which require, among other things,
that the Company maintain certain financial ratios related to liquidity, net
worth, capitalization, investments, restricted payments and certain dividend
restrictions. The Company is in compliance with these covenants. At December 31,
1996, the maximum
43
<PAGE> 46
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
amount available to make restricted payments and to pay dividends is $15,640,000
based on provisions contained in the Credit Agreement.
The Company has entered into an interest rate swap agreement concurrent
with the funding of the Credit Agreement, dated as of September 21, 1995, which
is principally used by the Company in the management of interest rate exposure.
The interest rate swap agreement is accounted for on the accrual basis. Income
and expense are recorded in the same category as that arising from the related
debt. Amounts to be paid or received under interest rate swap agreements are
recognized as interest income or expense in the period in which they accrue. The
interest rate swap agreement has not had a material impact on the Consolidated
Financial Statements. See Note N.
In February 1994, the Company issued zero coupon, convertible subordinated
LYONs due February 2009 at an interest rate of 5.5% with a principal amount at
maturity of $235,750,000. Net proceeds to the Company were approximately
$101,000,000. The proceeds were used for investment and general corporate
purposes, including the repurchase of treasury shares. See Note K.
The carrying amounts and estimated fair values of the Company's notes
payable were as follows at December 31, 1996 and 1995 (dollars in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------------------------
1996 1995
----------------------- -----------------------
CARRYING CARRYING
AMOUNT FAIR VALUE AMOUNT FAIR VALUE
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Short-term borrowings................... $ 5,710 $ 5,710 $ 4,908 $ 4,908
Long-term borrowings, variable rate..... 41,110 41,110 39,070 39,070
Long-term borrowings, fixed rate........ 102,102 93,214 92,069 86,132
-------- -------- -------- --------
$148,922 $ 140,034 $136,047 $ 130,110
======== ======== ======== ========
</TABLE>
Short-term borrowings approximate their fair value. The fair value of the
Company's fixed rate and variable rate notes payable is estimated using
discounted cash flow analyses based on current market interest rates and
comparison of interest rates being paid to the Company's current incremental
borrowing rates for similar types of borrowing arrangements. The LYONs fair
value is calculated based on quoted market prices.
H. INCOME TAXES
Income tax expense (benefit) consists of the following:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1995 1994
------- ------- ------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Current................................................ $ 2,405 $(2,729) $ (27)
Deferred............................................... 13,811 4,120 3,913
------- ------- ------
$16,216 $ 1,391 $3,886
======= ======= ======
</TABLE>
44
<PAGE> 47
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Total income tax expense (benefit) for the years ended December 31, 1996,
1995 and 1994 was allocated as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------
1996 1995 1994
------- ------ ------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Income from continuing operations....................... $16,216 $1,828 $2,594
Extraordinary gain (loss)............................... -- (437) 1,292
------- ------ ------
$16,216 $1,391 $3,886
======= ====== ======
</TABLE>
Deferred income tax expense (benefit) consists of the following:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1995 1994
------- ------ -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Provision for claim losses in excess of statutory
amounts.............................................. $ 5,108 $4,890 $(2,305)
Employee benefit accruals.............................. (1,847) 81 1,704
(Excess) deficit book over tax bad debt expense........ 304 (535) 618
Other acquisition accruals............................. 1,862 610 1,314
Statutory unearned premium reserve..................... 3,624 303 3,630
Investment securities.................................. 5,481 -- (496)
Accelerated depreciation............................... (1,068) -- 200
Investments in partnerships............................ (434) -- 250
Investments in real estate............................. 128 -- --
Change in valuation allowance.......................... -- -- (1,343)
Section 338(h)(10) gain deferral....................... (153) (504) --
Other.................................................. 806 (725) 341
------- ------ -------
$13,811 $4,120 $ 3,913
======= ====== =======
</TABLE>
The effective tax rate differs from the statutory income tax rate as
follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1996 1995 1994
---- ----- -----
<S> <C> <C> <C>
Statutory income tax rate.................................... 41.0% 34.0% 35.0%
Tax exempt interest income................................... (.8) (23.3) (10.9)
Exclusion of certain meal and entertainment expenses......... 2.0 6.5 1.2
Change in valuation allowance................................ -- -- (8.4)
Other........................................................ (2.2) (.3) 7.3
---- ----- -----
40.0% 16.9% 24.2%
==== ===== =====
</TABLE>
The 1996 statutory income tax rate includes the impact of state income
taxes incurred by the Company's wholly-owned underwritten title companies.
45
<PAGE> 48
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The deferred tax assets and liabilities at December 31, 1996 consist of the
following:
<TABLE>
<CAPTION>
DEFERRED DEFERRED
TAX TAX
ASSETS LIABILITIES
------- -------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Provision for claim losses in excess of statutory amounts........ $49,215 $ --
Employee benefit accruals........................................ 4,756 --
Excess book over tax provision for bad debts..................... 5,758 --
Other assets..................................................... 1,803 --
Statutory unearned premium reserve............................... -- 47,470
Accelerated depreciation......................................... -- 521
Investment securities............................................ -- 8,503
Investments in partnerships...................................... -- 460
Investments in real estate....................................... -- 778
Section 338(h)(10) gain deferral................................. -- 3,758
Other acquisition accruals....................................... -- 3,266
Other liabilities................................................ -- 4,380
Net operating loss available for carryover....................... 711 --
------- -------
62,243 69,136
Less: valuation allowance........................................ 711 --
------- -------
Total deferred taxes............................................. $61,532 $69,136
======= =======
</TABLE>
The deferred tax assets and liabilities at December 31, 1995 consist of the
following:
<TABLE>
<CAPTION>
DEFERRED DEFERRED
TAX TAX
ASSETS LIABILITIES
------- -------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Provision for claim losses in excess of statutory amounts........ $32,284 $ --
Employee benefit accruals........................................ 2,354 --
Excess book over tax provision for bad debts..................... 3,700 --
Other assets..................................................... 274 --
Statutory unearned premium reserve............................... -- 28,268
Accelerated depreciation......................................... -- 1,165
Investment securities............................................ -- 3,022
Investments in partnerships...................................... -- 1,313
Section 338 (h)(10) gain deferral................................ -- 3,324
Other acquisition accruals....................................... -- 278
Other liabilities................................................ -- 1,275
------- -------
Total deferred taxes............................................. $38,612 $38,645
======= =======
</TABLE>
Based upon the Company's current and historical pre-tax earnings,
management believes it is more likely than not that the Company will realize the
benefit of its existing deferred tax assets, net of the recorded valuation
allowance. Management believes the existing net deductible temporary differences
will reverse during periods in which the Company generates net taxable income.
However, there can be no assurance that the Company will generate any earnings
or any specific level of continuing earnings in future years. Certain tax
planning or other strategies could be implemented, if necessary, to supplement
income from operations to fully realize recorded tax benefits.
46
<PAGE> 49
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's 1990 through 1994 Federal income tax returns are currently
under examination by the Internal Revenue Service. Based on information
currently available, management does not believe the outcome of these
examinations will have a material impact on the financial condition or results
of operations of the Company.
I. SUMMARY OF RESERVE FOR CLAIM LOSSES
A summary of the reserve for claim losses follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Beginning balance.................................. $146,094 $153,306 $142,512
Reserves assumed with Nations Title Inc.......... 45,171 -- --
Reserves assumed with Fidelity Pennsylvania and
ATIC.......................................... -- -- 6,219
Title claim loss provision related to:
Current year.................................. 32,505 23,901 38,575
Prior years................................... 797 (4,870) (10,737)
-------- -------- --------
Total title claim loss provision................. 33,302 19,031 27,838
Title claims paid, net of recoupments related to:
Current year.................................. (2,430) (2,818) (1,742)
Prior years................................... (34,892) (23,425) (21,521)
-------- -------- --------
Total title claims paid, net of recoupments...... (37,322) (26,243) (23,263)
-------- -------- --------
Ending balance..................................... $187,245 $146,094 $153,306
======== ======== ========
Provision for title claim losses to title insurance
premiums......................................... 7.0% 6.7% 7.5%
Net claims paid ratio.............................. 7.8% 9.2% 6.3%
</TABLE>
The provision for claim losses includes an estimate of anticipated title
claims and major claims. The estimate of anticipated title claims is accrued as
a percentage of title premium revenue based on the Company's historical loss
experience and other relevant factors. The Company monitors its claims
experience on a continual basis and adjusts the provision for claim losses
accordingly.
J. COMMITMENTS AND CONTINGENCIES
The Company's title insurance underwriting subsidiaries are, in the
ordinary course of business, subject to claims made under, and from time-to-time
are named as defendants in legal proceedings relating to, policies of insurance
they have issued or other services performed on behalf of insured policyholders
and other customers. The Company believes that the reserves reflected in its
Consolidated Financial Statements are adequate to pay losses and loss adjustment
expenses which may result from such claims and proceedings; however, such
estimates may be more or less than the amount ultimately paid when the claims
are settled.
Effective January 1996, the Company extended the term of an employment
agreement with its Chief Executive Officer for an additional period of five
years through March 31, 2001. Under this extension, he is to receive a minimum
annual base salary and an annual bonus based on the Company's performance. In
addition, the Board of Directors may grant the Chief Executive Officer an annual
merit bonus in cash or Common Stock based on his individual performance during
each year of the extension.
47
<PAGE> 50
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Effective January 1, 1996, the Company entered into one year employment
agreements with four of its key executives, whereby each was to receive a
minimum annual base salary and an annual bonus based on the Company's
performance. Bonuses in the form of cash or Common Stock could be paid to the
executives at the discretion of the Compensation Committee of the Board of
Directors. The Compensation Committee of the Board of Directors is currently
negotiating new employment agreements with the four executives.
In the ordinary course of business, the Company is involved in various
pending and threatened litigation matters related to its operations, some of
which include claims for punitive or exemplary damages.
In October 1992, Fidelity California filed an action for declaratory relief
in U.S. District Court (Eastern District-Fresno, California) to determine its
obligations and liabilities, if any, under a certain title insurance policy
issued to National Westminster Bank U.S.A. ("NatWest") (Fidelity National Title
Insurance Company of California v. National Westminster Bank U.S.A. and related
counterclaim). NatWest filed a counterclaim for damages and certain equitable
relief seeking compensatory damages of approximately $7,732,000, punitive
damages in an unspecified amount, attorneys' fees, interest and costs. The
Company has a reinsurance agreement in place that will reimburse the Company for
all amounts paid in excess of $2.0 million. Fidelity California previously
recorded a claim loss reserve related to this matter in the Consolidated
Financial Statements. The primary issues concern whether Fidelity California's
policy insured the priority of NatWest's deed of trust over certain mechanics'
lien claims and whether Fidelity California had an obligation to defend and
indemnify NatWest against an action by a mechanic's lien claimant to enforce its
claim of lien. As part of a counterclaim lawsuit, NatWest has added allegations
of breach of the covenant of good faith and fair dealing. Fidelity California
believes that the policy and endorsements issued to the insured exclude coverage
for mechanics' liens. In September 1994, a three week trial was concluded. In
April 1996, the U.S. District Court ruled in favor of Fidelity California on all
counts. Thereafter, NatWest filed an appeal to the Ninth Circuit Court of
Appeals. Appellate briefs are in the process of preparation and filing. No
ruling has been received from the appellate court. Management believes that the
ruling will not have a material adverse effect on Fidelity National Title
Insurance Company of California or the Company.
Management believes that no other actions depart from customary litigation
incidental to the business of the Company and that resolution of all such
litigation will not have a material adverse effect on the Company.
In conducting its operations, the Company routinely holds customers' assets
in trust, pending completion of real estate transactions. Such amounts are
maintained in segregated bank accounts and have not been included in the
accompanying Consolidated Balance Sheets. The Company has a contingent liability
relating to proper disposition of these balances for its customers which
amounted to $329.4 million at December 31, 1996.
The Company leases certain of its premises and equipment under leases which
expire at various dates. Several of these agreements include escalation clauses
and provide for purchases and renewal options for periods ranging from one to
five years.
Future minimum operating lease payments are as follows (dollars in
thousands):
<TABLE>
<S> <C>
1997...................................................... $ 21,737
1998...................................................... 17,217
1999...................................................... 11,694
2000...................................................... 7,618
2001...................................................... 5,740
Thereafter................................................ 3,028
-------
Total future minimum operating lease payments............. $ 67,034
=======
</TABLE>
48
<PAGE> 51
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Rent expense incurred under operating leases during the years ended
December 31, 1996, 1995 and 1994 was $23,413,000, $21,388,000 and $24,795,000,
respectively. Included in rent expense for 1996, 1995 and 1994 is $523,000,
$523,000 and $772,000, respectively, paid to related parties.
K. STOCKHOLDERS' EQUITY
On March 31, 1994, the Company announced that its board of directors
authorized the repurchase in the open market of up to 1.2 million shares of the
Company's Common Stock, or a comparable amount of the Company's LYONs, which are
convertible into 23.204 shares of Common Stock per $1,000 maturity amount of
LYONs. On June 15, 1994, the Company's board of directors authorized the
additional repurchase of up to 1.2 million shares of the Company's Common Stock
or a comparable amount of the Company's LYONs. A third authorization to
repurchase an additional 3.6 million shares of the Company's Common Stock or a
comparable amount of the Company's LYONs was announced on August 11, 1994. On
March 9, 1995, the Company announced that the board of directors authorized the
additional repurchase of up to 2.4 million shares of the Company's Common Stock
or comparable amount of LYONs. As of December 31, 1996, the Company had
repurchased 5,685,738 shares of its Common Stock for an aggregate price of $56.3
million, or $9.90 per share, 193,600 shares, cost basis of $1.9 million, of
which were reissued in connection with the acquisition of Nations Title Inc.
Additionally, as of December 31, 1996, the Company had repurchased $48.0 million
in maturity amount of LYONs for an aggregate price of $17.6 million. The
repurchase of the LYONs resulted in an extraordinary gain of $2.4 million which
is net of related income taxes, unamortized debt issuance costs and amortized
original issue discount, and is reflected in the 1994 Consolidated Statement of
Earnings.
Title insurance companies, including underwriters, underwritten title
companies and independent agents, are subject to extensive regulation under
applicable state laws. Each insurance underwriter is usually subject to a
holding company act in its state of domicile which regulates, among other
matters, the ability to pay dividends and investment policies. The laws of most
states in which the Company transacts business establish supervisory agencies
with broad administrative powers relating to issuing and revoking licenses to
transact business, regulating trade practices, licensing agents, approving
policy forms, accounting principles, financial practices, establishing reserve
and capital and surplus requirements, defining suitable investments for
reserves, capital and surplus and approving rate schedules. The Company has
analyzed its current Insurance Subsidiary structure and the regulatory
environments of the various states of domicile of the Insurance Subsidiaries.
Based on this analysis the Company has implemented a program to merge certain of
its Insurance Subsidiaries, ultimately resulting in two Insurance Subsidiaries
as opposed to the current eight. ATIC was merged into Fidelity Pennsylvania
effective November 21, 1996 and Fidelity Title was redomesticated to California
effective December 31, 1996.
Pursuant to statutory accounting requirements of the various states in
which the Insurance Subsidiaries are qualified, they must defer a portion of
premiums earned as an unearned premium reserve for the protection of
policyholders and must maintain qualified assets in an amount equal to the
statutory requirements. The level of unearned premium reserve required to be
maintained at any time is determined on a quarterly basis by statutory formula
based upon either the age and dollar amount of policy liabilities underwritten
or the age and dollar amount of statutory premiums written. As of December 31,
1996, the combined statutory unearned premium reserve required and reported for
the Insurance Subsidiaries was $173.5 million.
The Insurance Subsidiaries are regulated by the insurance commissioners of
their respective states of domicile. Regulatory examinations usually occur at
three year intervals. Examinations are currently in progress for Fidelity
Pennsylvania (1995), Fidelity Tennessee (1995), ATIC (1994) and Nations Title
(1995 and 1996). Examinations have been completed for Fidelity Title and
Fidelity California as of and for the three-year period ended December 31, 1993.
49
<PAGE> 52
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Department of Commerce and Insurance of the State of Tennessee has
completed the field portion of their triennial examination of Fidelity Tennessee
as of and for the three-year period ended December 31, 1995. The Company has
recently received a preliminary report of examination. The preliminary report,
as forwarded to the Company by the Department of Commerce and Insurance of the
State of Tennessee, indicates that the examiners are proposing certain
immaterial adjustments. These adjustments have previously been included in the
1995 Fidelity Tennessee Statutory Annual Statement as amended and filed with
insurance regulatory authorities.
The Department of Insurance of the State of Florida has completed the field
portion of their triennial examination of ATIC, which was merged into Fidelity
Pennsylvania as of November 21, 1996, as of and for the three-year period ended
December 31, 1994. The Company has received a preliminary report of examination.
The preliminary report, as forwarded to the Company by the Department of
Insurance of the State of Florida, indicates that the examiners are proposing
adjustments that materially impact the statutory capital and surplus of ATIC,
ultimately Fidelity Pennsylvania. Certain of these adjustments have not been
included in the 1996 Fidelity Pennsylvania Statutory Annual Statement as filed
with insurance regulatory authorities as the Company does not agree with these
findings and has requested support for the examination report. These same
adjustments have not been considered in the calculation of dividend capability,
statutory surplus and statutory income (loss) reported below.
The Kansas Department of Insurance has completed a triennial examination of
Nations Title as of and for the two-year period ended December 31, 1995 and is
currently performing an examination as of and for the year ended December 31,
1996. The Company received a report of examination as of and for the two-year
period ended December 31, 1995. The report, as forwarded to the Company by the
Kansas Department of Insurance, indicates that the examiners are proposing
adjustments that materially impact the statutory capital and surplus of Nations
Title. These adjustments have been included in the 1996 Statutory Annual
Statement as filed with insurance regulatory authorities and have been
considered in the calculation of dividend capability, statutory surplus and
statutory income (loss) reported below. Further, Nations Title has recently
entered into a voluntary consent order with the Kansas Department of Insurance
agreeing to cease writing all new insurance business and to certain other
conditions and restrictions. This is consistent with the Company's intent in
acquiring Nations Title, which was to have all policies which formerly would
have been issued by Nations Title issued by one of the Fidelity National
Insurance Subsidiaries.
Statutorily calculated net worth determines the maximum insurable amount
under any single title insurance policy. As of January 1, 1997, the statutory
single policy maximum insurable amounts for Fidelity Title, Fidelity
Pennsylvania and Fidelity New York were $25.3 million, $30.5 million and $28.6
million, respectively. There are no statutory single risk limits prescribed for
Fidelity California or Fidelity Tennessee. The statutory single risk limits for
Nations Title, Nations New York and National are $2.4 million, $28.6 million and
$7.3 million, respectively. Upon acquisition, the Company took action to have
Nations Title business, as well as certain Nations New York and National
business, written by Fidelity National Insurance Subsidiaries.
The Insurance Subsidiaries are subject to regulations that restrict their
ability to pay dividends or make other distributions of cash or property to
their immediate parent company without prior approval from the Department of
Insurance of their respective states of domicile. In the case of Fidelity Title
and Fidelity Pennsylvania, the total amount of dividends made in any
twelve-month period may not exceed the greater of 10% of the surplus as regards
policyholders as of the last day of the preceding year or net income for the
twelve-month period ending the last day of the preceding year. In the case of
Fidelity New York, the total amount of dividends and distributions is limited to
surplus as regards policyholders, excluding capital stock, less fifty percent of
statutory premium reserve as of the last day of the preceding year and capital
contributions received in the latest five-year period. As of January 1, 1997,
Fidelity Title could pay dividends or make other
50
<PAGE> 53
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
distributions to the Company of $5,621,000. Fidelity Pennsylvania and Fidelity
New York do not have any dividend paying capability as of January 1, 1997.
The combined statutory capital and surplus of the Insurance Subsidiaries
was $77,125,000, $67,525,000 and $90,153,000 as of December 31, 1996, 1995 and
1994, respectively. The December 31, 1996, combined capital and surplus includes
$11,189,000 of restricted surplus resulting from the aggregate excess of loss
reinsurance transaction entered effective December 31, 1996. The Company has
submitted the aggregate excess of loss reinsurance contract to the appropriate
Departments of Insurance for approval. See Note A. The combined statutory income
(loss) of the Insurance Subsidiaries was $17,451,000, $(1,533,000) and
$6,664,000 for the years ended December 31, 1996, 1995 and 1994, respectively.
Combined statutory income for the year ended December 31, 1996, also includes a
reinsurance gain of $11,189,000 related to the aggregate excess of loss
reinsurance transaction. These amounts do not include certain of the proposed
ATIC examination adjustments previously discussed.
As a condition to continued authority to underwrite policies in the states
in which the Insurance Subsidiaries conduct their business, the Insurance
Subsidiaries are required to pay certain fees and file information regarding
their officers, directors and financial condition. In addition, the Company's
escrow and trust business is subject to regulation by various state banking
authorities.
Pursuant to statutory requirements of the various states in which the
Insurance Subsidiaries are domiciled, they must maintain certain levels of
minimum capital and surplus. Under California law, the minimum statutory
requirement is $500,000 for paid-in capital represented by shares of stock.
Under Tennessee law, minimum statutory requirements are $100,000 for capital,
and $500,000 for capital and surplus combined. Under Pennsylvania law, the
minimum statutory requirements are capital of not less than $250,000, and paid
in initial surplus at least equal to fifty percent of capital. Under New York
law, the minimum statutory requirement is $250,000 for capital and initial
surplus. Under Kansas law, minimum statutory requirements are $450,000 for
capital and $300,000 for initial surplus. Each of the Company's title
underwriters have complied with the minimum statutory requirements as of
December 31, 1996.
In April 1996, the National Association of Insurance Commissioners ("NAIC")
published the Title Insurers Model Act (the "Act"). The purpose of the Act is to
provide guidance to the state insurance regulatory agencies relative to the
effective regulation and supervision of the title insurance industry and title
insurers. The Act addresses aspects of the title insurance industry from
corporate structure and financial and accounting information to market conduct
and legal standards. Certain provisions of the Act will be phased in over a
multi-year period. The Company has not determined the impact, if any, of the Act
on the financial condition or operations of the Insurance Subsidiaries.
The UTCs are also subject to certain regulation by insurance regulatory or
banking authorities, primarily relating to minimum net worth and dividend
capability. Minimum net worth of $7.5 million and $2.5 million is required for
Fidelity National Title Company ("FNTC") and Fidelity National Title Company of
California ("FNCAL), respectively. In addition, the Company has agreed to notify
the State of California Department of Insurance of dividend payments by FNTC and
FNCAL greater than 30% of earnings before income taxes through 1998. See Note B.
L. EMPLOYEE BENEFIT PLANS
Employee benefits include an employee stock purchase plan, three stock
option plans and a 401(k) plan.
In 1987, stockholders approved the adoption of an Employee Stock Purchase
Plan ("ESPP"). Under the terms of the ESPP and subsequent amendments, there are
7,260,000 shares of the Company's Common Stock available for purchase at current
market prices by Company employees who meet certain vesting requirements.
Pursuant to the ESPP, Company employees may contribute an amount between 5% and
15% of their base salary and certain commissions. The Company contributes
varying amounts as specified in the ESPP.
51
<PAGE> 54
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
During the years ended December 31, 1996, 1995 and 1994, 307,315, 287,183 and
330,827 shares, respectively, were purchased and allocated to employees, based
upon their contributions, at an average price of $13.69, $10.75 and $11.97 per
share, respectively. The Company contributed $1.2 million or the equivalent of
88,610 shares for the year ended December 31, 1996, $1.4 million or the
equivalent of 130,508 shares for the year ended December 31, 1995 and $1.3
million or the equivalent of 113,403 shares for the year ended December 31, 1994
in accordance with the employer's matching contribution. A total of 5,537,617
shares have been purchased by both the ESPP and employees since the adoption of
the ESPP.
In 1987, stockholders also approved the adoption of a Stock Option Plan
("1987 Option Plan"). Under the terms of the 1987 Option Plan, the Company may
grant stock options to certain key employees and non-employee directors or
officers. The number of shares issuable under the 1987 Option Plan is 1,497,375
shares of Common Stock at not less than fair market value on the date of grant.
Employees are eligible to receive incentive stock options or non-qualified stock
options and non-employee directors are eligible to receive non-qualified stock
options. Options available to directors or officers may not exceed one-half of
the aggregate number of shares available for grant. All options granted become
exercisable at the discretion of the Board of Directors and expire five to
eleven years from the date of grant. Options that lapse or are canceled prior to
exercise are added to the shares authorized for future grants. The 1987 Option
Plan, which may be terminated at the discretion of the Board of Directors,
expires December 31, 1996 with respect to incentive stock options and December
31, 1997, with respect to non-qualified stock options. See table below.
In 1992, the stockholders approved the adoption of the 1991 Stock Option
Plan ("1991 Option Plan"). Under the terms of the 1991 Option Plan, options may
be granted to officers and key employees of the Company or any or all of its
present or future subsidiaries. The number of shares reserved for issuance under
the 1991 Option Plan and subsequent amendments is 2,147,750 shares of Common
Stock, which may be newly issued or treasury shares. The per share option price
is determined at the date of grant. The option price may be less than the fair
market value of the Common Stock at the date of grant to reflect the application
of the optionee's deferred bonus, if applicable. Options granted under the 1991
Option Plan shall be exercisable in such installments and for such periods as
may be fixed at the time of grant, but in no event shall any stock options
extend for a period in excess of 12 years from the date of grant.
In 1994, the stockholders approved the adoption of the 1993 Stock Plan
("1993 Plan"). Under the terms of the 1993 Plan, options may be granted to
officers, key employees and non-employee directors of the Company. The number of
shares of Common Stock reserved for issuance under the 1993 Plan is 907,500. The
per share option price is determined at the date of grant provided that the
price for incentive stock options shall not be less than 100% of their market
value or award stock shares. The 1993 Plan also contains an automatic grant of
non-qualified stock options to non-employee directors at an exercise price equal
to 100% of fair value at date of grant, and the right to exercise such options
shall vest equally over three years.
52
<PAGE> 55
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following table sets forth activity in the 1987 and 1991 Stock Option
Plans and the 1993 Stock Plan from December 31, 1994 through December 31, 1996:
<TABLE>
<CAPTION>
1991 STOCK OPTION PLAN
1987 STOCK OPTION PLAN 1993 STOCK PLAN
--------------------------------------- ------------------------ -----------------------
INCENTIVE NON-QUALIFIED EXERCISE EXERCISE EXERCISE
OPTIONS OPTIONS PRICE SHARES PRICE(1) SHARES PRICE
--------- ------------- ----------- ---------- ----------- -------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Outstanding at December 31,
1994.......................... 3,989 505,175 $1.25-12.60 1,318,089 $ 1.34-8.82 77,440 $11.47-12.26
Granted in 1995............... -- 302,500 8.37-10.74 56,089 4.34 88,330 8.26-8.98
Exercised in 1995............. (1,995) -- 1.25 (213,159) .89-8.59 -- --
Expired or cancelled in
1995........................ -- -- -- -- -- (19,965) 10.42-12.26
------ --------- ----------- --------- ----------- --------- -----------
Outstanding at December 31,
1995.......................... 1,994 807,675 $1.25-12.60 1,161,019 $ .89-8.82 145,805 $ 8.26-12.26
Granted in 1996............... -- 294,250 11.59 95,181 6.82 27,500 11.72
Exercised in 1996............. -- -- -- (58,135) .72-8.19 -- --
Expired or cancelled in
1996........................ -- (63,525) 8.37-12.60 (25,722) 4.05-8.19 -- --
------ --------- ----------- --------- ----------- --------- -----------
Outstanding at December 31,
1996.......................... 1,994 1,038,400 $1.25-12.60 1,172,343 $ .72-8.19 173,305 $ 8.26-12.26
====== ========= =========== ========= =========== ========= ===========
Exercisable at December 31,
1996.......................... 1,994 744,150 $1.25-12.60 1,172,343 $ .72-8.19 139,775 $ 8.26-12.26
====== ========= =========== ========= =========== ========= ===========
Exercisable through............. July 1998 October 2005 April 2008 May 2005
</TABLE>
- ---------------
(1) There were 311,521 options granted in 1994. These options were granted at an
exercise price of $11.47 to key employees of the Company who applied
deferred bonuses expensed in 1993 amounting to $1,287,000 to the exercise
price reducing it to $7.34 per share if exercised within the first year of
grant. This is a non-variable plan that allows for exercise prices with a
fixed discount from the quoted market price. The exercise price of these
options decreases approximately 3.0% per year through 1999 and $.13 per
share from 2000 through 2005, at which time the exercise price will be
$5.45. 56,089 options were granted in 1995 at an exercise price of $8.47 to
key employees of the Company who applied deferred bonuses expensed in 1994
amounting to $236,773 to the exercise price, reducing it to $4.34 if
exercised within the first year of the grant. The exercise price of these
options decreases approximately 6.0% per year through 2000 and $.18 per
share from 2001 through 2006, at which time the exercise price will be
$1.77. In 1996, 95,181 options were granted at an exercise price of $11.36
to key employees of the company who applied deferred bonuses expensed in
1995 amounting to $432,640 to the exercise price, reducing it to $6.82 if
exercised within the first year of the grant. The exercise price of these
options decreases approximately 5% per year through 2001 and $.20 per share
from 2002 through 2007, at which time the exercise price will be $4.00.
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" ("Opinion 25") and related
Interpretations in accounting for its employee stock options. As discussed
below, in management's opinion, the alternative fair value accounting provided
for under Statement of Accounting Standards No. 123, "Accounting for Stock Based
Compensation" ("Statement 123") requires use of option valuation models that
were not developed for use in valuing employee stock options. Under Opinion 25,
because the exercise price of the Company's employee stock options equals the
market price of the underlying stock on the date of the grant, no compensation
expense is recognized.
Pro forma information regarding net earnings and earnings per share is
required by Statement 123, and has been determined as if the Company had
accounted for its employee stock options under the fair value method of that
Statement. The fair value for these options was estimated at the date of grant
using a Black-Scholes option pricing model with the following weighted-average
assumptions. The risk free interest rate used in the calculation is the rate on
the date the options were granted. The risk free interest rate used for options
granted during 1996 was 6.5% and for options granted during 1995 the risk free
interest rate used was 6.9%. A volatility factor for the expected market price
of the Common Stock of 50% was used for options granted in
53
<PAGE> 56
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
1996 and 1995. A weighted average expected life of seven years was used as the
Company has little history of options being exercised.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options that do not have vesting
restrictions and are fully transferable. In addition, option valuation models
require the input of highly subjective assumptions including the expected stock
price volatility. Because the Company's stock options have characteristics
significantly different from those of traded options and because changes in the
subjective input assumptions can materially affect the value of an estimate, in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
For purpose of pro forma disclosures, the estimated fair value of the
options is amortized into expense over the options' vesting period. The
Company's pro forma information follows (in thousands except for earnings per
share information):
<TABLE>
<CAPTION>
1996 1995
------- ------
<S> <C> <C>
Pro forma net earnings............................................ $22,390 $5,509
Pro forma earnings per share
Primary......................................................... $ 1.57 $ .39
Fully diluted................................................... $ 1.37 $ .39
</TABLE>
A summary of the Company's stock option activity, and related information
for the years ended December 31, follows:
<TABLE>
<CAPTION>
1996 1995
---------------------------- ----------------------------
NUMBER WEIGHTED-AVERAGE NUMBER WEIGHTED-AVERAGE
OF SHARES EXERCISE PRICE OF SHARES EXERCISE PRICE
--------- ---------------- --------- ----------------
<S> <C> <C> <C> <C>
Stock options outstanding beginning
of year........................... 2,116,493 $ 7.79 1,904,693 $ 7.51
Stock options granted............... 416,931 10.51 446,919 8.11
Stock options exercised............. (58,135) 4.78 (215,154) 5.16
Stock options canceled.............. (89,248) 10.00 (19,965) 11.95
--------- ------ --------- ------
Stock options outstanding, end of
year
2,386,041 $ 8.16 2,116,493 $ 7.79
========= ====== ========= ======
Exercisable at end of year.......... 2,056,268 -- 1,795,723 --
Weighted-average fair value of
options granted during the year... $ 11.57 -- $ 8.74 --
</TABLE>
The weighted average remaining contractual life of those options is 8
years.
54
<PAGE> 57
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
M. SUPPLEMENTARY CASH FLOW INFORMATION
The following supplemental cash flow information is provided with respect
to interest and tax payments, as well as certain non-cash investing and
financing activities.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash paid (refunded) during the year:
Interest............................................ $ 4,766 $ 5,818 $ 4,022
======= ======= =======
Income taxes........................................ $14,334 $(3,147) $12,286
======= ======= =======
Non-cash investing and financing activities:
======= ======= =======
Dividends declared and unpaid....................... $ 975 $ 860 $ 855
======= ======= =======
Discount on purchase of ATIC Preferred Stock,
increase in reserve for claim losses............. $ -- $ -- $ 6,219
======= ======= =======
Acquisition of ACS Systems, Inc. (See Note B.)...... $ -- $ -- $ 2,681
======= ======= =======
Acquisition of Nations Title Inc.................... $ 2,130 $ -- $ --
======= ======= =======
Acquisition of Fidelity National Tax................ $ 2,520 $ -- $ --
</TABLE>
N. FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISK AND CONCENTRATIONS OF RISK
The Company generates a significant amount of title insurance premiums in
California and Texas, 38.5% and 8.9% in 1996, 43.6% and 10.1% in 1995 and 37.9%
and 10.7% in 1994. respectively.
Financial instruments that potentially subject the Company to
concentrations of credit risk consist primarily of cash equivalents, short-term
investments, trade receivables, notes receivable and financial instruments used
in hedging activities.
The Company places its cash equivalents and short-term investments with
high credit quality financial institutions and, by policy, limits the amount of
credit exposure with any one financial institution. Investments in commercial
paper of industrial firms and financial institutions are rated A1, P1 or better.
Concentrations of credit risk with respect to trade receivables are limited
because a large number of geographically diverse customers make up the Company's
customer base, thus spreading the trade receivables credit risk. The Company
controls credit risk through monitoring procedures.
Concentrations of credit risk with respect to notes receivable are limited
because a number of diverse entities make up the Company's notes receivable
base, thus spreading the credit risk. The Company controls credit risk through
credit approvals, credit limits and monitoring procedures. The Company performs
in-depth credit evaluations for all notes and requires guarantees and/or
collateral, if deemed necessary.
The counterparty to the agreement relating to the Company's interest rate
swap instrument consists of a major high credit quality financial institution.
The Company does not believe that there is significant risk of nonperformance by
this counterparty because the Company continually monitors the credit rating of
such counterparties and limits the financial exposure and the amount of
agreements entered into with any one financial institution. While the notional
amounts of financial instruments are often used to express the volume of these
transactions, the potential accounting loss on these transactions if the
counterparty failed to perform is limited to the amounts, if any, by which the
counterparty's obligation under the contract exceeds the obligation of the
Company to the counterparty.
55
<PAGE> 58
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company has a significant concentration of credit risk in its real
estate operation which owns commercial real estate properties for its title
insurance related direct operations in California and Arizona. As of December
31, 1996 and 1995, the Company's investments in real estate and partnerships
totalled $11,352,000 and $8,659,000, respectively. Real estate related notes
receivable of $983,000 and $1,992,000, respectively, were outstanding at
December 31, 1996 and 1995, and were secured by either commercial real estate or
were due from real estate related partnerships. The balance at December 31,
1995, is net of reserves of $2,357,000. The Company feels that this
concentration of credit risk is adequately secured by either the underlying real
estate or the related assets available from the general partners guaranteeing
the loans. See Notes D and E.
56
<PAGE> 59
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. THROUGH 13.
Within 120 days after the close of its fiscal year, the Company intends to
file with the Securities and Exchange Commission a definitive proxy statement
pursuant to Regulation 14A of the Securities Exchange Act of 1934 as amended,
which will include the election of directors, the report of compensation
committee on annual compensation, certain relationships and related transactions
and other business.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) Financial Statements. The following is a list of the Consolidated
Financial Statements of Fidelity National Financial, Inc. and its subsidiaries
included in Item 8 of Part II.
Independent Auditors' Report.
Consolidated Balance Sheets as of December 31, 1996 and 1995.
Consolidated Statements of Earnings for the years ended December 31,
1996, 1995 and 1994.
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1996, 1995 and 1994.
Consolidated Statements of Cash Flows for the years ended December 31,
1996, 1995 and 1994.
Notes to Consolidated Financial Statements.
(a)(2) Financial Statement Schedules. The following is a list of financial
statement schedules filed as part of this annual report on Form 10-K.
Schedule I: Fidelity National Financial, Inc. (Parent Company Financial
Statements).
Schedule II: Valuation and Qualifying Accounts.
All other schedules are omitted because they are not applicable or not
required, or because the required information is included in the Consolidated
Financial Statements or notes thereto.
(a)(3) The following exhibits are incorporated by reference or are set
forth on pages to this Form 10-K:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
3 Charter and Bylaws of the Issuer.
3.1 Certificate of Incorporation of Registrant, with Amendments, incorporated by
reference from Form S-1, Registration No. 33-11321.
3.1.1 Amendment to Article FOURTH of Certificate of Incorporation of Registrant 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.
3.1.2 Amendment to Article FOURTH of Certificate of Incorporation of Registrant 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.
</TABLE>
57
<PAGE> 60
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
3.1.3 Amendment to Article FOURTH of Certificate of Incorporation of Registrant 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.
3.1.4 Amendment to Article FOURTH of Certificate of Incorporation of Registrant dated June
14, 1994 and approved by the stockholders of the Company on June 14, 1994,
incorporated by reference from Proxy Statement on Schedule 14A dated May 11, 1994.
3.2 Bylaws of Registrant with Amendments, incorporated by reference from Form S-1,
Registration No. 33-11321.
3.2.1 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.
3.2.2 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.
3.2.3 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.
3.2.4 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.
3.2.5 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.
4 Instruments Defining Rights of Security Holders.
4.1 Specimen Certificate, incorporated by reference from Form S-1, Registration No.
33-11321.
4.2 Articles FOURTH and EIGHTH of Certificate of Incorporation of Registrant, with
Amendments, incorporated by reference from Form S-1, Registration No. 33-11321.
4.2.1 Amendment to Article FOURTH of Certificate of Incorporation of Registrant 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.
4.2.2 Amendment to Article FOURTH of Certificate of Incorporation of Registrant 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.
4.2.3 Amendment to Article FOURTH of Certificate of Incorporation of Registrant dated June
14, 1994 and approved by the stockholders of the Company on June 14, 1994,
incorporated by reference from Proxy Statement on Schedule 14A dated May 11, 1994.
4.3 Articles II and IV of the Bylaws of the Registrant with Amendments, incorporated by
reference from Form S-1, Registration No. 33-11321.
4.4 Subscription Documents, incorporated by reference from Form S-1, Registration No.
33-11321.
10 Material Contracts.
10.1 Employment Agreement effective as of April 1, 1991, between William P. Foley, II and
Fidelity National Financial, Inc., incorporated by reference from Form 10-K filed
March 23, 1992.
10.1.1 First amendment to Employment Agreement between William P. Foley, II and Fidelity
National Financial, Inc., effective as of January 1, 1996.
10.1.2 Employment Agreements effective as of January 1, 1996 between four key executives
and Fidelity National Financial, Inc.
10.2 Sale Agreement with Exhibits dated August 23, 1991 between Fidelity National
Financial, Inc. and Meridian Bank, a Pennsylvania banking corporation, incorporated
by reference from Form 10-K filed March 23, 1992.
</TABLE>
58
<PAGE> 61
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
10.4 Fidelity National Financial, Inc. 1987 Stock Option Plan, incorporated by reference
from Form S-1, Registration No. 33-11321.
10.4.1 Amendments to Fidelity National Financial, Inc. 1987 Stock Option Plan approved by
the stockholders of the Company on March 24, 1989, incorporated by reference from
Form S-8, Registration No. 33-34300.
10.5 Fidelity National Financial, Inc. 1987 Employee Stock Purchase Plan, incorporated by
reference from Form S-1, Registration No. 33-11321.
10.5.1 Amendments to Fidelity National Financial, Inc. 1987 Employee Stock Purchase Plan
approved by the stockholders of the Company on March 24, 1989, incorporated by
reference from Form S-8, Registration No. 33-15027.
10.5.2 Amendments to Fidelity National Financial, Inc. 1987 Employee Stock Purchase Plan,
incorporated by reference from Form S-8, Registration No. 33-45709.
10.5.3 Amendments to Fidelity National Financial, Inc. 1987 Employee Stock Purchase Plan
approved by the stockholders of the Company on June 15, 1993, incorporated by
reference from Form S-8, Registration No. 33-64836.
10.5.4 Amendments to Fidelity National Financial, Inc. 1987 Stock Purchase Plan approved by
the stockholders of the Company on June 20, 1995, incorporated by reference from
Form S-8, Registration No. 33-61983.
10.6 Fidelity National Financial, Inc. 401(k) Profit Sharing Defined Contribution Plan
and Trust adopted January 1, 1990, incorporated by reference from Form 10-K filed
January 29, 1991.
10.6.1 Amendments to Fidelity National Financial, Inc. 401(k) Profit Sharing Plan,
incorporated by reference from Form S-8, Registration No. 33-56514.
10.7 Fidelity National Financial, Inc. 1991 Stock Option Plan, approved by the
stockholders of the Company on July 15, 1992, incorporated by reference from Form
S-8, Registration No. 33-45272.
10.7.1 Amendments to Fidelity National Financial, Inc. 1991 Stock Option Plan approved by
the stockholders of the Company on June 15, 1993, incorporated by reference from
Form S-8, Registration No. 33-64834.
10.7.2 Amendment to Fidelity National Financial, Inc. 1991 Stock Plan, approved by the
stockholders of the Company on June 14, 1994, incorporated by reference from Form
S-8, Registration No. 33-83026.
10.8.3 Credit Agreement dated as of September 21, 1995 between Fidelity National Financial
Inc. and The Chase Manhattan Bank, N.A., Sanwa Bank California, Imperial Bank and
First Interstate Bank, incorporated by reference from Form 8-K filed September 29,
1995.
10.8.3.1 Amendment No. 1, dated as of December 18, 1995, to the Fidelity National Financial,
Inc. Credit Agreement dated as of September 21, 1995, incorporated by reference from
Form 10-K filed March 26, 1996.
10.8.3.2 Amendment No. 2, dated as of March 15, 1996, to the Fidelity National Financial,
Inc. Credit Agreement dated as of September 21, 1995.
10.8.3.3 Amendment No. 3, dated as of July 15, 1996, to the Fidelity National Financial, Inc.
Credit Agreement dated as of September 21, 1995.
10.8.3.4 Amendment No. 4, dated as of February 24, 1997, to the Fidelity National Financial,
Inc. Credit Agreement dated as of September 21, 1995.
10.9 Agreement of Limited Partnership of Governor Park Partners, L.P., a California
limited partnership, dated June 6, 1988 by and among Manchester Development
Corporation, William W. Gerrity, and Jeffrey D. Sterk, incorporated by reference
from Form 10-K filed January 29, 1989.
</TABLE>
59
<PAGE> 62
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
10.9.4 Modification Agreement dated November 30, 1992 between Manchester Development
Corporation and Governor Park Partners, L.P., incorporated by reference from Form
10-K filed March 29, 1993.
10.10 Agreement of Limited Partnership of Folco Mission Valley Partners Limited
Partnership, a California limited partnership, dated August 8, 1991, by Folco
Development Corporation, an Arizona corporation, as general partner, and Fidelity
National Title Insurance Company, an Arizona corporation, as limited partner,
incorporated by reference from Form 10-K filed March 23, 1992.
10.10.2 Office Building Lease dated October 1, 1991 between Folco Mission Valley Partners
Limited Partnership, a California limited partnership, as Landlord, and Fidelity
National Title Insurance Company, an Arizona corporation, as Tenant, incorporated by
reference from Form 10-K filed March 23, 1992.
10.12 Form of First Amendment to Office Building Lease between Folco Development
Corporation, an Arizona corporation, as Landlord, and Fidelity National Title
Insurance Company, an Arizona corporation, as Tenant, with respect to nine office
buildings, and the schedule of such buildings, incorporated by reference from Form
10-K filed March 23, 1992.
10.14 Goodyear Investors Number II Partnership Agreement dated October 7, 1986 among
Manchester Development Corporation, Folco Development Corporation Defined Benefit
Pension Plan, Enfield Construction Company, et al., incorporated by reference from
Form S-1, Registration No. 33-11321.
10.16 Agreement of Limited Partnership of Prospect Office Partners, a California limited
partnership, dated September 1, 1988 by and among William P. Foley, II, Frank P.
Willey, Max F. Hickman, Manchester Development Corporation, and James G. Watt
Partnership, incorporated by reference from Form 10-K filed January 29, 1989.
10.16.1 Promissory Note dated October 1, 1988 in the original principal amount of $850,000
to Manchester Development Corporation by Prospect Office Partners, incorporated by
reference from Form 10-K filed March 29, 1993.
10.16.2 Modification Agreement dated November 30, 1992 between Manchester Development
Corporation and Prospect Office Partners, incorporated by reference from Form 10-K
filed March 29, 1993.
10.18 Wilmac III Limited Partnership Certificate and Agreement of Limited Partnership,
dated December 31, 1987 by and among Manchester Development Corporation, Stephen L.
McCartney, Frank P. Willey and Robert P. Coluccio, incorporated by reference from
Form 10-K filed January 29, 1989.
10.19 Agreement of Limited Partnership of Tustin Retail, a California limited partnership,
dated April 1988 by and among Manchester Development Corporation and Vistar
Financial Inc., incorporated by reference from Form 10-K filed January 29, 1989.
10.19.1 Amendment to Agreement of Limited Partnership of Tustin Retail by and among
Manchester Development Corporation, Vistar Financial, Inc., William P. Foley, II,
Frank P. Willey, John E. Hock, Robert A. Diemer, Gerald S. Misurek and Stuart R.
Boesche, incorporated by reference from Form 10-K filed March 29, 1993.
10.19.2 Promissory Note dated May 1, 1988 in the original principal amount of $700,000 to
Manchester Development Corporation by Tustin Retail, incorporated by reference from
Form 10-K filed March 29, 1993.
10.19.3 Fixed Rate Promissory Note dated March 1, 1992 in the original principal amount of
$303,500 to Manchester Development Corporation by Tustin Retail, incorporated by
reference from Form 10-K filed March 29, 1993.
</TABLE>
60
<PAGE> 63
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
10.19.4 Modification Agreement dated November 30, 1992 between Manchester Development
Corporation and Tustin Retail, incorporated by reference from Form 10-K filed March
29, 1993.
10.24 New York Stock Exchange, Inc. Listing Agreement dated February 7, 1992 by Fidelity
National Financial, Inc., incorporated by reference from Form 10-K filed March 29,
1993.
10.24.1 New York Stock Exchange, Inc. Listing Agreement dated December 7, 1993 by Fidelity
National Financial, Inc., incorporated by reference from Form 10-K filed March 18,
1994, formerly Exhibit 10.33.
10.24.2 New York Stock Exchange, Inc. Listing Agreement dated May 28, 1996 by Fidelity
National Financial, Inc.
10.24.3 New York Stock Exchange, Inc. Listing Agreement dated November 4, 1996 by Fidelity
National Financial, Inc.
10.25 Stock Purchase Agreement dated November 23, 1992 by and among Fidelity National
Financial, Inc., Fidelity National Title Insurance Company of Pennsylvania, Security
Title and Guaranty Company, and Helmsley Enterprises, Inc., incorporated by
reference from Form 10-K filed March 29, 1993.
10.32 Asset Purchase Agreement dated December 31, 1993 by and between American Title
Insurance Company ("Seller") and Fidelity National Title Insurance Company of New
York ("Purchaser"), incorporated by reference from Form 10-K filed March 18, 1994.
10.33 Asset Purchase Agreement dated December 31, 1993, by and between American Title
Insurance Company ("Seller") and Fidelity National Title Insurance Company of
Pennsylvania ("Buyer"), incorporated by reference from Form 10-K filed March 18,
1994.
10.35 Fidelity National Financial, Inc. 1993 Stock Plan, approved by stockholders of the
Company on June 14, 1994, incorporated by reference from Form S-8, Registration No.
33-83026.
10.36 Agreement to Purchase Option to Purchase an Undivided 60% Interest in Assets of
World Tax Service, by and between Fidelity Participations, Inc. and World Tax
Service, Inc., incorporated by reference from Form 10-K filed March 30, 1995.
10.36.1 Stock Purchase Agreement dated June 9, 1995 between Fidelity National Financial,
Inc., WTC Financial and World Tax Service to acquire World Tax Service and certain
assets of WTC Financial, incorporated by reference from Form 10-K filed March 25,
1996.
10.38 Variable Rate Promissory Note dated August 24, 1994 in the principal amount of
$10,127,141 to Fleet Credit Corporation by Fidelity Asset Management, Inc.,
incorporated by reference from Form 10-K filed March 30, 1995.
10.39 Variable Rate Promissory Note dated August 24, 1994 in the principal amount of
$10,134,939.93 to Fleet Credit Corporation by Fidelity Asset Management, Inc.,
incorporated by reference from Form 10-K filed March 30, 1995.
10.39.1 Variable Rate Promissory Note dated June 22, 1995 in the principal amount of
$4,938,337 to Fleet Credit Corporation by Fidelity Asset Management, Inc.,
incorporated by reference from Form 10-K filed March 25, 1996.
10.39.2 Variable Rate Promissory Note dated September 12, 1996 in the principal amount of
$7,500,000 to MetLife Capital Corporation by Fidelity Asset Management, Inc.
10.40 Agreement of Purchase and Sale of Real Estate and Joint Escrow Instructions dated
May 25, 1994 by and between Fidelity National Title Insurance Company and 17911 Von
Karman Partners, incorporated by reference from Form 10-K filed March 30, 1995.
10.41 Stock Purchase Agreement dated February 14, 1995 by and among Fidelity National
Financial, Inc., Raul Costelo, Jeff A. Sanderson and Mark J. Attaway to acquire
outstanding capital stock of ACS Systems, Inc., incorporated by reference from Form
10-K filed March 30, 1995.
</TABLE>
61
<PAGE> 64
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<C> <S>
10.42 Stock Purchase Agreement by and among Ronald G. Bridge (selling shareholder);
Western Title Co. of Washington, Inc. and Fidelity National Financial, Inc. to
acquire Western Title Co. of Washington, Inc., incorporated by reference from Form
10-K filed March 30, 1995.
10.43 Stock Purchase Agreement dated as of August 18, 1995 by and among William D.
Rothenberg, Marshall D. Wexler, Southern California Title Company and Fidelity
National Financial, Inc., incorporate by reference from Form 10-K filed March 25,
1996.
10.44 Acquisition Agreement dated September 13, 1995 by and among Fidelity National
Financial, Inc. and Nations Holding Group, Inc. and its wholly-owned subsidiary
Nations Title Inc. to acquire all of the issued and outstanding shares of Nations
Title Inc., incorporated by reference from Form 10-K filed March 25, 1996.
10.45 Agreement for purchase and sale of stock dated November 4, 1996 by and between
Fidelity National Financial, Inc. and the stockholders of CRM, Inc.
11 Computation of Primary and Fully Diluted Earnings per Share
21 List of Subsidiaries
23.1 Independent Auditors' Consent
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K. The Company filed reports on Form 8-K during the
fourth quarter ending December 31, 1996 as follows:
None.
62
<PAGE> 65
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Act
of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
------------------------------------
William P. Foley, II
Chief Executive Officer
Date: March 25, 1997
------------------------------------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ---------------
<S> <C> <C>
/s/ WILLIAM P. FOLEY, II Chairman of the Board and Chief March 25, 1997
- ------------------------------------------ Executive Officer (Principal
William P. Foley, II Executive Officer)
/s/ FRANK P. WILLEY President and Director March 25, 1997
- ------------------------------------------
Frank P. Willey
/s/ CARL A. STRUNK Executive Vice President and March 25, 1997
- ------------------------------------------ Chief Financial Officer
Carl A. Strunk (Principal Financial and
Accounting Officer)
/s/ DANIEL D. (RON) LANE Director March 25, 1997
- ------------------------------------------
Daniel D. (Ron) Lane
/s/ J. THOMAS TALBOT Director March 25, 1997
- ------------------------------------------
J. Thomas Talbot
/s/ STEPHEN C. MAHOOD Director March 25, 1997
- ------------------------------------------
Stephen C. Mahood
Director March , 1997
- ------------------------------------------
Donald M. Koll
/s/ WILLIAM A. IMPARATO Director March 25, 1997
- ------------------------------------------
William A. Imparato
/s/ CARY H. THOMPSON Director March 25, 1997
- ------------------------------------------
Cary H. Thompson
</TABLE>
63
<PAGE> 66
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Fidelity National Financial, Inc.:
Under date of February 24, 1997, we reported on the Consolidated Balance
Sheets of Fidelity National Financial, Inc. and subsidiaries as of December 31,
1996 and 1995, 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, 1996 which are included in the Annual Report on Form
10-K. In connection with our audits of the aforementioned Consolidated Financial
Statements, we also audited the related financial statement schedules in the
Annual Report on Form 10-K. These financial statement schedules are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statement schedules based on our audits.
In our opinion, such schedules, when considered in relation to the basic
Consolidated Financial Statements taken as a whole, present fairly, in all
material respects, the information set forth therein.
KPMG PEAT MARWICK LLP
Orange County, California
February 24, 1997
64
<PAGE> 67
SCHEDULE I
FIDELITY NATIONAL FINANCIAL, INC.
(PARENT COMPANY)
BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
-------- --------
<S> <C> <C>
ASSETS
Cash................................................................... $ 2,922 $ 244
Investment securities available for sale, at fair value................ 31,569 16,463
Trade receivables, net................................................. 20 22
Notes receivable, net.................................................. 4,535 1,883
Investment in subsidiaries............................................. 215,253 168,438
Investments in real estate and partnerships, net....................... 1,435 1,435
Property and equipment, net............................................ -- 90
Income taxes receivable................................................ 7,589 2,450
Prepaid expenses and other assets...................................... 6,083 4,751
-------- --------
$269,406 $195,776
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued liabilities............................. $ 2,935 $ 4,108
Notes payable........................................................ 120,263 113,201
Accounts payable to subsidiaries..................................... 28,353 487
Deferred income taxes................................................ 7,604 33
-------- --------
159,155 117,829
-------- --------
Stockholders' Equity:
Preferred stock, $.0001 par value; authorized 3,000,000 shares;
issued and outstanding, none...................................... -- --
Common stock, $.0001 par value; authorized, 50,000,000 shares in 1996
and 1995; issued 19,412,694 in 1996 and 19,183,189 in 1995........ 2 2
Additional paid-in capital........................................... 61,271 58,098
Retained earnings.................................................... 91,019 70,273
-------- --------
152,292 128,373
Net unrealized gains on investments.................................. 12,334 5,866
Less treasury stock, 5,492,138 shares in 1996 and 5,685,738 shares in
1995, at cost..................................................... 54,375 56,292
-------- --------
110,251 77,947
Commitments and contingencies........................................
Subsequent events....................................................
-------- --------
$269,406 $195,776
======== ========
</TABLE>
See accompanying Notes to Financial Statements.
(Schedule continued on following page)
65
<PAGE> 68
SCHEDULE I
(CONTINUED)
FIDELITY NATIONAL FINANCIAL, INC.
(PARENT COMPANY)
STATEMENTS OF EARNINGS AND RETAINED EARNINGS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
------- ------- -------
<S> <C> <C> <C>
REVENUE:
Other fees and revenue...................................... $ 1,617 $ 583 $ 1,114
Interest and investment income.............................. 227 2,563 1,778
------- ------- -------
1,844 3,146 2,892
------- ------- -------
EXPENSES:
Other operating expenses.................................... 2,288 204 1,268
Interest expense............................................ 7,177 8,427 7,130
------- ------- -------
9,465 8,631 8,398
------- ------- -------
Losses before income tax benefit, equity in earnings of
subsidiaries and extraordinary item......................... (7,621) (5,485) (5,506)
Income tax benefit............................................ 3,048 899 1,033
------- ------- -------
Losses before equity in earnings of subsidiaries and
extraordinary item.......................................... (4,573) (4,586) (4,473)
Equity in earnings of subsidiaries............................ 28,910 12,218 14,218
------- ------- -------
Earnings before extraordinary item............................ 24,337 7,632 9,745
Extraordinary item -- gain (loss) on early retirement of debt,
net of applicable income tax expense (benefit) of $(437) in
1995 and $1,292 in 1994..................................... -- (813) 2,400
------- ------- -------
Net earnings.................................................. $24,337 $ 6,819 $12,145
======= ======= =======
Primary earnings per share before extraordinary item.......... $ 1.71 $ .53 $ .54
Extraordinary item -- gain (loss) on early retirement of debt,
net of applicable income tax expense (benefit).............. -- (.05) .13
------- ------- -------
Primary net earnings per share................................ $ 1.71 $ .48 $ .67
======= ======= =======
Weighted average shares outstanding, primary basis............ 14,265 14,267 18,124
======= ======= =======
Fully diluted earnings per share.............................. $ 1.47 $ .48 $ .67
======= ======= =======
Weighted average shares outstanding, fully diluted basis...... 18,682 14,267 22,604
======= ======= =======
Dividends per share........................................... $ .26 $ .23 $ .23
======= ======= =======
Retained earnings, beginning of year.......................... $70,273 $66,668 $58,438
Dividends declared.......................................... (3,591) (3,214) (3,915)
Net earnings................................................ 24,337 6,819 12,145
------- ------- -------
Retained earnings, end of year................................ $91,019 $70,273 $66,668
======= ======= =======
</TABLE>
See accompanying Notes to Financial Statements.
(Schedule continued on following page)
66
<PAGE> 69
SCHEDULE I
(CONTINUED)
FIDELITY NATIONAL FINANCIAL, INC.
(PARENT COMPANY)
STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
1996 1995 1994
-------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings............................................. $ 24,337 $ 6,819 $ 12,145
Adjustments to reconcile net earnings to net cash
provided by (used in) operating activities:
Depreciation and amortization......................... 90 98 310
Amortization of LYONs original issue discount and
issuance costs ..................................... 5,202 4,916 4,701
Provision for losses on notes receivable.............. 240 (80) --
Net equity in earnings of subsidiaries................ (28,910) (12,218) (14,218)
(Gain) loss on sale of investments.................... 1,625 (639) 727
Net increase (decrease) in income taxes............... 3,417 7,673 (7,860)
Net (increase) decrease in prepaid expenses and other
assets.............................................. (1,470) 4,397 (3,063)
Net increase (decrease) in accounts payable and
accrued liabilities................................. (1,287) (1,334) 1,591
-------- -------- --------
Net cash provided by (used in) operating
activities..................................... 3,244 9,632 (5,667)
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of investments....................... 8,699 25,112 29,082
Purchase of investments.................................. (8,814) (7,471) (53,320)
Additions to notes receivable............................ (4,350) -- (274)
Collections on notes receivable.......................... 393 106 448
Additions to investment in subsidiaries.................. (10,699) (7,034) (6,215)
Investment in real estate and partnerships, net.......... -- (53) (62)
-------- -------- --------
Net cash provided by (used in) investing
activities..................................... (14,771) 10,660 (30,341)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings............................................... 5,000 33,772 101,336
Debt service payments.................................... (3,000) (46,814) (208)
Retirement of LYONs...................................... -- -- (17,592)
Gain on early retirement of LYONs........................ -- -- (3,692)
Dividends paid........................................... (3,477) (3,232) (4,132)
Issuance (acquisition) of treasury stock, net............ 1,917 (15,831) (40,461)
Exercise of stock options................................ 440 1,439 1,314
Net borrowings from (payments to) subsidiaries........... 13,325 10,618 (1,839)
-------- -------- --------
Net cash provided by financing activities........ 14,205 (20,048) 34,726
-------- -------- --------
Net increase (decrease) in cash and cash equivalents....... 2,678 244 (1,282)
Cash and cash equivalents at beginning of year............. 244 -- 1,282
-------- -------- --------
Cash and cash equivalents at end of year................... $ 2,922 $ 244 $ --
======== ======== ========
</TABLE>
See accompanying Notes to Financial Statements.
(Schedule continued on following page)
67
<PAGE> 70
SCHEDULE I
(CONTINUED)
FIDELITY NATIONAL FINANCIAL, INC.
(PARENT COMPANY)
NOTES TO FINANCIAL STATEMENTS
A. Fidelity National Financial, Inc. (the "Company") transacts substantially all
of its business through its subsidiaries. The Parent Company Financial
Statements should be read in connection with the aforementioned Consolidated
Financial Statements and Notes thereto included elsewhere herein.
B. Notes payable consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
-------- --------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Credit agreement, secured by common stock of certain Insurance
Subsidiaries, with principal due quarterly and interest due
monthly at LIBOR rate plus 2.0% (7.39% at December 31, 1996),
due September 2001........................................... $ 18,250 $ 21,250
Bank revolving credit facility, secured by common stock of
certain Insurance Subsidiaries, with interest due quarterly
at prime rate (8.25% at December 31, 1996) principal due
quarterly beginning December 1997, due September 2001, unused
portion of $8 million and $13 million at December 31, 1996
and 1995..................................................... 5,000 --
Liquid Yield Option Notes, zero coupon, subordinated
convertible notes due 2009 with interest at 5.5%............. 97,013 91,951
-------- --------
$120,263 $113,201
======== ========
</TABLE>
Principal maturities, including accretion of original issue discount, are
as follows (dollars in thousands):
<TABLE>
<S> <C>
1997...................................................... $ 3,312
1998...................................................... 4,500
1999...................................................... 5,250
2000...................................................... 5,500
2001...................................................... 4,688
Thereafter................................................ 187,750
--------
$211,000
========
</TABLE>
68
<PAGE> 71
C. Supplementary cash flow information:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash paid (refunded) during the year:
Interest............................................ $ 1,953 $ 4,376 $ 2,214
======= ======= =======
Income taxes........................................ $14,334 $(3,147) $12,286
======= ======= =======
Non-cash investing and financing activities:
Dividends declared and unpaid....................... $ 975 $ 860 $ 855
======= ======= =======
Discount on purchase of ATIC Preferred Stock,
increase in reserve for claim losses............. $ -- $ -- $ 6,219
======= ======= =======
Acquisition of ACS Systems, Inc..................... $ -- $ -- $ 2,681
======= ======= =======
Acquisition of Nations Title Inc.................... $ 2,130 $ -- $ --
======= ======= =======
Acquisition of Fidelity National Tax................ $ 2,520 $ -- $ --
======= ======= =======
</TABLE>
69
<PAGE> 72
SCHEDULE II
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COL. C
------------------------
COL. B ADDITIONS COL. E
---------- ------------------------ COL. D ---------
COL. A BALANCE AT CHARGED TO ---------- BALANCE
- ------------------------------------ BEGINNING COSTS AND OTHER DEDUCTIONS AT END
DESCRIPTION OF PERIOD EXPENSES (DESCRIBE) (DESCRIBE) OF PERIOD
- ------------------------------------ ---------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1996:
Reserve for claim losses.......... $ 146,094 $ 33,302 $ 45,171(3) $ 37,322(1) $ 187,245
Allowance on:
Trade Receivables.............. 3,471 2,644 3,091(3) 2,384(2) 6,822
Notes Receivable............... 2,941 775 153(3) 1,215(2) 2,654
Real estate allowance............. 3,467 -- 1,000(3) -- 4,467
Amortization of cost in excess of
net assets acquired and other
intangible assets.............. 3,988 2,321 -- -- 6,309
Year ended December 31, 1995:
Reserve for claim losses.......... $ 153,306 $ 19,031 $ -- $ 26,243(1) $ 146,094
Allowance on:
Trade receivables.............. 2,029 1,701 -- 259(2) 3,471
Notes receivable............... 2,783 612 -- 454(2) 2,941
Real estate allowance............. 3,296 171 -- -- 3,467
Amortization of cost in excess of
net assets acquired and other
intangible assets.............. 1,503 2,485 -- -- 3,988
Year ended December 31, 1994:
Reserve for claim losses.......... $ 142,512 $ 27,838 $ 6,219(5) $ 23,263(1) $ 153,306
Allowance on:
Trade receivables.............. 2,353 813 -- 1,137(2) 2,029
Notes receivable............... 3,083 (159) -- 141(2) 2,783
Real estate allowance............. 4,369 -- -- 1,073(4) 3,296
Amortization of cost in excess of
net assets acquired and other
intangible assets.............. 1,088 415 -- -- 1,503
</TABLE>
- ---------------
(1) Represents payments of claim losses, net of recoupments.
(2) Represents uncollectible accounts written off.
(3) Represents reserve for claim losses and other allowances assumed in the
acquisition of Nations Title Inc.
(4) Represents reduction in the reserve balance due to the sale of a real estate
property.
(5) Reserves assumed with purchase of ATIC Preferred Stock.
70
<PAGE> 1
Exhibit 10.1.1
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT, effective as of January
1, 1996, is entered into by and between FIDELITY NATIONAL FINANCIAL, INC., a
Delaware corporation (the "Company"), and WILLIAM P. FOLEY, II (the
"Employee"), and amends the current Employment Agreement between the Company
and Employee, which current Employment Agreement was effective April 1, 1991.
WHEREAS, the Company and Employee are parties to an Employment
Agreement effective April 1, 1991 with a five year term which expires March 31,
1996, and
WHEREAS, the Company and Employee wish to amend such Employment
Agreement to extend the term for an additional five (5) years and in other
respects,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties agree as follows:
1. Section 1 of the Employment Agreement, entitled "Employment
and Duties," is hereby amended to delete the word "President" from such
section.
2. Section 3 of the Employment Agreement, entitled "Salary," is
hereby amended to increase the "minimum base annual salary, before deducting
all applicable withholdings" from "$394,000.00" to "$600,000.00" effective
January 1, 1996. In addition, there shall be a new sentence added to the end
of Section 3 stating as follows: "The Board shall review Employee's minimum
base annual salary in March of 1998 and may, in its sole discretion, increase
(but not decrease) such minimum base annual salary for the remainder of the
term of this Agreement based upon Employee's performance during the first two
years of this Agreement."
3. Section 4(f) of the Employment Agreement, entitled "Other
Compensation and Fringe Benefits," is hereby amended to delete the current
Section 4(f) and replacing it with the following:
(f) An annual bonus equal to $50,000 for each full
percentage point the Company's return on equity
exceeds 10% (based on equity as of the beginning of
the year being measured). Return on equity shall be
determined by dividing net income before
extraordinary items by stockholders' equity as of
the beginning of the year being measured. Any
fractional percentage point increase shall be applied
to $50,000 to determine the amount of such bonus (
for example, an 11.5% return on equity would result
in a $75,000 bonus). Said bonus shall be paid no
later than March 31st of each year and is fully
vested in the event of a non-
<PAGE> 2
renewal of this agreement or is vested pro-rata in
the event of a termination of this Agreement other
than for cause. The Board may additionally, in its
sole discretion, grant to Employee an annual merit
bonus based upon Employee's performance during the
preceding year and any other factors the Board
considers relevant.
4. Subsections (b),(c) & (d) of Section 7 of the Employment
Agreement, entitled "Termination," are amended to change the language "as,
otherwise directed by the Company" to read "as otherwise directed by Employee."
5. There is hereby added to the Agreement Paragraph 7A, which
shall read in its entirety as follows:
"7A. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
<PAGE> 3
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments to
the Employee for periods subsequent to the date of termination, the Company
shall pay as severance pay to the Employee an amount equal to the product of
(A) the Employee's annual salary rate in effect as of the date of termination
plus the total bonus paid or payable to the Employee for the most recently
ended calendar year, multiplied by (B) the greater of the number of years
(including partial years) remaining in the term of employment hereunder or the
number 3, such payment to be made in a lump sum on or before the fifth day
following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 3, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 7A or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 7A or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 7A would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
5. Section 10 of the Employment Agreement, entitled
"Non-Competition During Employment Term," is hereby amended to add a sentence
at the end of such Section which shall read as follows: "The Company
acknowledges that Employee is the Chairman of the Board and Chief Executive
Officer of CKE Restaurants, Inc. and will devote a reasonable portion of his
time to fulfilling his duties as a director and an officer of CKE Restaurants,
Inc."
<PAGE> 4
6. Section 19 of the Employment Agreement, entitled "Notices," is
hereby amended to substitute the following addresses for the parties:
"To the Company:
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92714
Attention: Andrew F. Puzder
Executive Vice President and
General Counsel
To Employee:
William P. Foley II
4181 Creciente Drive
Santa Barbara, California 93110
7. Effect on Employment Agreement. Except as herein amended, all
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF the parties have executed this First Amendment to
Employment Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
/s/ Andrew F. Puzder
------------------------------
By: Andrew F. Puzder
Its: Executive Vice President and
General Counsel
WILLIAM P. FOLEY, II
/s/ William P. Foley, II
------------------------------
<PAGE> 1
Exhibit 10.1.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and FRANK P. WILLEY (the "Employee"), and supersedes any prior
employment agreement entered into between the parties. In consideration of the
mutual covenants and agreements set forth herein, the parties agree as follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the President of the Company, and the Employee accepts
such employment and agrees to perform such reasonable responsibilities and
duties commensurate with aforesaid position, as directed by the Chief Executive
Officer and as set forth in the Articles of Incorporation and the Bylaws of the
Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $250.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
<PAGE> 2
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $15,000 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $15,000 to determine the amount
of such bonus ( for example, an 11.5% return on equity would result in a
$22,500 bonus). Said bonus shall be paid no later than March 31st of each year
and is fully vested event of a non-renewal of this agreement or is vested
pro-rata in the event of a termination of this Agreement other than for cause.
The Board may additionally, in its sole discretion, grant to Employee an annual
merit bonus based upon Employee's performance during the preceding year and any
other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
<PAGE> 3
terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
Employee the minimum base salary without offset for the remainder of the term
of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
<PAGE> 4
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. Non-Delegation of Employee's Rights. The obligations, rights
and benefits of Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that
<PAGE> 5
relates to purchasing, sales, customers, marketing, the Company's financial
position and financing arrangements. Employee agrees that all such information
is proprietary or confidential or constitutes trade secrets and is the sole
property of the Company. Employee will keep confidential, and will not
reproduce, copy or disclose to any other person or firm, any such information
or any documents or information relating to the Company's methods, processes,
customers, accounts, analyses, systems, charts, programs, procedures,
correspondence, or records, or any other documents used or owned by the
Company, nor will Employee advise, discuss with or in any way assist any other
person or firm in obtaining or learning about any of the items described in
this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company to disclose any such information, nor
will he utilize any such information, either alone or with others, outside the
scope of his duties and responsibilities with the Company.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he will
undertake no planning for or organization of any business activity competitive
with the work he performs as an employee of the Company, and Employee will not
combine or conspire with any other employee of the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much knowledge and information
concerning the business of the Company and its affiliates as a result of his
employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
<PAGE> 6
(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. Actions. The parties agree and acknowledge that the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel Employee to
perform as agreed herein. Employee agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. Severability. If any section, subsection or provision hereof
is found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the
force and validity of any other provision of this Agreement. If any covenant
herein is determined by a court to be overly broad thereby making the covenant
<PAGE> 7
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants in this
Agreement.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92714
Attention: Andrew F. Puzder
Executive Vice President and
General Counsel
To Employee:
Frank P. Willey
18 Pelican Point
Newport Coast, California 92660
21. Waiver of Breach. The waiver by any party of any provisions
of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
<PAGE> 8
IN WITNESS WHEREOF the parties have executed this Employment Agreement
as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ William P. Foley, II
------------------------------------
Its. Chairman and Chief Executive Officer
FRANK P. WILLEY
/s/ Frank P. Willey
-------------------
<PAGE> 9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and PATRICK F. STONE (the "Employee"), and supersedes any
prior employment agreement entered into between the parties. In consideration
of the mutual covenants and agreements set forth herein, the parties agree as
follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the Executive Vice President of the Company, and the
Employee accepts such employment and agrees to perform such reasonable
responsibilities and duties commensurate with aforesaid position, as directed
by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $300,000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
<PAGE> 10
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $15,000 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $15,000 to determine the amount
of such bonus ( for example, an 11.5% return on equity would result in a
$22,500 bonus). Said bonus shall be paid no later than March 31st of each year
and is fully vested event of a non-renewal of this agreement or is vested
pro-rata in the event of a termination of this Agreement other than for cause.
The Board may additionally, in its sole discretion, grant to Employee an annual
merit bonus based upon Employee's performance during the preceding year and any
other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the
<PAGE> 11
right upon written notice to the Employee to terminate this Agreement without
further obligation by paying Employee the minimum base salary without offset
for the remainder of the term of this Agreement in a lump sum or as otherwise
directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
<PAGE> 12
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. Non-Delegation of Employee's Rights. The obligations, rights
and benefits of Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that relates to purchasing, sales, customers, marketing, the Company's
financial position and financing arrangements. Employee agrees that all such
information is proprietary or confidential or constitutes trade secrets and is
the sole property of the Company. Employee will keep confidential, and will
not reproduce, copy or disclose to any other person or firm, any such
information or any documents or information relating to the Company's methods,
processes, customers, accounts, analyses, systems, charts, programs,
procedures, correspondence, or records, or any other documents used or owned by
the Company, nor will Employee advise, discuss with or in any way assist any
other person or firm
<PAGE> 13
in obtaining or learning about any of the items described in this section.
Accordingly, Employee agrees that during the term of this Agreement, or
afterwards, he will not disclose, or permit or encourage anyone who is not an
employee of the Company to disclose any such information, nor will he utilize
any such information, either alone or with others, outside the scope of his
duties and responsibilities with the Company.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he will
undertake no planning for or organization of any business activity competitive
with the work he performs as an employee of the Company, and Employee will not
combine or conspire with any other employee of the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
13. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
14. Actions. The parties agree and acknowledge that the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel Employee to
perform as agreed herein. Employee agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
15. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
<PAGE> 14
16. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
17. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
18. Severability. If any section, subsection or provision hereof
is found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the
force and validity of any other provision of this Agreement. If any covenant
herein is determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants in this
Agreement.
19. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92714
Attention: Andrew F. Puzder
Executive Vice President and
General Counsel
To Employee:
Patrick F. Stone
1020 Via Tranquila
Santa Barbara, California 93110
20. Waiver of Breach. The waiver by any party of any provisions
of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
<PAGE> 15
IN WITNESS WHEREOF the parties have executed this Employment
Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ William P. Foley, II
------------------------------------
Its: Chairman and Chief Executive Officer
PATRICK F. STONE
/s/ Patrick F. Stone
--------------------
<PAGE> 16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and ANDREW F. PUZDER (the "Employee"), and supersedes any
prior employment agreement entered into between the parties. In consideration
of the mutual covenants and agreements set forth herein, the parties agree as
follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the General Counsel and Executive Vice President of the
Company, and the Employee accepts such employment and agrees to perform such
reasonable responsibilities and duties commensurate with aforesaid position, as
directed by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $240.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
<PAGE> 17
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $7,500 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $7,500 to determine the amount of
such bonus ( for example, an 11.5% return on equity would result in a $11,250
bonus). Said bonus shall be paid no later than March 31st of each year and is
fully vested event of a non-renewal of this agreement or is vested pro-rata in
the event of a termination of this Agreement other than for cause. The Board
may additionally, in its sole discretion, grant to Employee an annual merit
bonus based upon Employee's performance during the preceding year and any other
factors the Board considers relevant.
(f) Options. Executive and the Company executed a letter
entitled "Terms of Employment" under which Executive received certain options
and the right to earn certain options (the "Letter "). A copy of the Letter is
attached hereto as exhibit "A". Executive shall retain the right to the
options and future grants of options as referenced in paragraphs 2, 3, 4, and 6
of the Letter, as such rights are expressed in the Letter. Executive shall
also continue to have the right to represent Carl N. Karcher as set forth in
paragraph 5 of the Letter.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall
<PAGE> 18
continue to pay to the Employee the minimum base salary for the unexpired term
of this Agreement and a prorated bonus in a lump sum or as otherwise directed
by Employee. If the Employee terminates hereunder, the Company shall be
obligated to pay the Employee the minimum base compensation set forth in
Section 3 due him through the date of termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
Employee the minimum base salary without offset for the remainder of the term
of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
<PAGE> 19
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. Non-Delegation of Employee's Rights. The obligations, rights
and benefits of Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that
<PAGE> 20
relates to purchasing, sales, customers, marketing, the Company's financial
position and financing arrangements. Employee agrees that all such information
is proprietary or confidential or constitutes trade secrets and is the sole
property of the Company. Employee will keep confidential, and will not
reproduce, copy or disclose to any other person or firm, any such information
or any documents or information relating to the Company's methods, processes,
customers, accounts, analyses, systems, charts, programs, procedures,
correspondence, or records, or any other documents used or owned by the
Company, nor will Employee advise, discuss with or in any way assist any other
person or firm in obtaining or learning about any of the items described in
this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company to disclose any such information, nor
will he utilize any such information, either alone or with others, outside the
scope of his duties and responsibilities with the Company.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he will
undertake no planning for or organization of any business activity competitive
with the work he performs as an employee of the Company, and Employee will not
combine or conspire with any other employee of the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much knowledge and information
concerning the business of the Company and its affiliates as a result of his
employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
<PAGE> 21
(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. Actions. The parties agree and acknowledge that the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel Employee to
perform as agreed herein. Employee agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. Severability. If any section, subsection or provision hereof
is found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the
force and validity of any other provision of this Agreement. If any covenant
herein is determined by a court to be overly broad thereby making the covenant
<PAGE> 22
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants in this
Agreement.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92714
Attention: Frank P. Willey
President
To Employee:
Andrew F. Puzder
25761 Pecos Road
Laguna Hills, California 92653
21. Waiver of Breach. The waiver by any party of any provisions
of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
<PAGE> 23
IN WITNESS WHEREOF the parties have executed this Employment
Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Frank P. Willey
-------------------
Its: President
ANDREW F. PUZDER
/s/ Andrew F. Puzder
--------------------
<PAGE> 24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and CARL A. STRUNK (the "Employee"), and supersedes any prior
employment agreement entered into between the parties. In consideration of the
mutual covenants and agreements set forth herein, the parties agree as follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the Chief Financial Officer of the Company, and the
Employee accepts such employment and agrees to perform such reasonable
responsibilities and duties commensurate with aforesaid position, as directed
by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $240.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the Company's
other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
<PAGE> 25
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $7,500 for each full
percentage point the Company's return on equity before extraordinary items
exceeds 10% (based on equity as of the beginning of the year being measured).
Any fractional percentage point increase shall be applied to $7,500 to
determine the amount of such bonus ( for example, an 11.5% return on equity
would result in a $11,250 bonus). Said bonus shall be paid no later than March
31st of each year. The Board may additionally, in its sole discretion, grant
to Employee an annual merit bonus based upon Employee's performance during the
preceding year and any other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by
<PAGE> 26
paying Employee the minimum base salary without offset for the remainder of the
term of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement, individuals who at the beginning of such period
constitute the board cease for any reason to constitute at least a majority
thereof, unless the election of each director who was not a director at the
beginning of such period has been approved in advance by directors representing
at least two-thirds of the directors then in office who were directors at the
beginning of the period. Employee may only terminate this Agreement due to a
change in control of the Company during the period commencing 60 days and
expiring 365 days after such change in control.
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
<PAGE> 27
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. Non-Delegation of Employee's Rights. The obligations, rights
and benefits of Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that relates to purchasing, sales, customers, marketing, the Company's
financial position and financing arrangements. Employee agrees that all such
information is proprietary or confidential or constitutes trade secrets and is
the sole property of the Company. Employee will keep confidential, and will
not reproduce, copy or disclose to any other person or firm, any such
information or any documents or information relating to the Company's methods,
processes, customers, accounts, analyses, systems, charts, programs,
procedures, correspondence, or records, or any other documents used or owned
<PAGE> 28
by the Company, nor will Employee advise, discuss with or in any way assist any
other person or firm in obtaining or learning about any of the items described
in this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company to disclose any such information, nor
will he utilize any such information, either alone or with others, outside the
scope of his duties and responsibilities with the Company.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he will
undertake no planning for or organization of any business activity competitive
with the work he performs as an employee of the Company, and Employee will not
combine or conspire with any other employee of the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much knowledge and information
concerning the business of the Company and its affiliates as a result of his
employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
<PAGE> 29
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. Actions. The parties agree and acknowledge that the rights
conveyed by this Agreement are of a unique and special nature and that the
Company will not have an adequate remedy at law in the event of failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel Employee to
perform as agreed herein. Employee agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. Severability. If any section, subsection or provision hereof
is found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the
force and validity of any other provision of this Agreement. If any covenant
herein is determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee against the
Company, whether predicated on this Agreement or
<PAGE> 30
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants in this Agreement.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92714
Attention: Andrew F. Puzder
Executive Vice President and
General Counsel
To Employee:
Carl A. Strunk
563 Promontory Drive East
Newport Beach, California 92660
21. Waiver of Breach. The waiver by any party of any provisions
of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
<PAGE> 31
IN WITNESS WHEREOF the parties have executed this Employment Agreement
as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ William P Foley, II
-----------------------
Its. Chairman and Chief Exective
Officer
CARL A. STRUNK
/s/ Carl A. Strunk
------------------
<PAGE> 1
Exhibit 10.8.3.2
AMENDMENT NO. 2
AMENDMENT NO. 2 dated as of March 15, 1996, between FIDELITY
NATIONAL FINANCIAL, INC., a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company"); each of the lenders
that is a signatory hereto (individually, a "Bank" and, collectively, the
"Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as administrative agent for the Banks (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
The Company, the Banks and the Administrative Agent are
parties to a Credit Agreement dated as of September 21, 1995 (as heretofore
modified and supplemented and in effect on the date hereof, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for loans
to be made by said Banks to the Company in an aggregate principal amount not
exceeding $35,000,000. The Company, the Banks and the Administrative Agent
wish to amend the Credit Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 8.08(d) of the Credit Agreement shall be
amended by replacing the word "by" with the word "to" in the fifth line
thereof.
2.03. Section 8.08(i) of the Credit Agreement shall be
deleted in its entirety and each of the clauses (j), (k) and (l) shall be
relettered accordingly.
2.04. Section 8.08(k) of the Credit Agreement (to be
relettered 8.08(j) as contemplated above) shall be amended in its entirety to
read as follows:
Amendment No. 2
<PAGE> 2
- 2 -
"Investments (other than notes receivable and Investments of
the type described in clause (d) above) up to but not
exceeding $5,000,000 in any one Person and Investments in the
capital stock, bonds, notes or debentures of one other Person
up to but not exceeding the sum of (i) $15,000,000 plus (ii)
50% of the amount, if any, by which the retained earnings of
the Company as of the date of the most recent such Investment
exceeds the retained earnings of the Company as of June 30,
1995; provided that Investments permitted under this Section
8.08(j) shall not exceed $70,000,000 in the aggregate; and"
2.05. Section 8.17 of the Credit Agreement shall be amended
(i) by adding the words "including, without limitation, Investments permitted
by Section 8.08(k) (notwithstanding that the entities in which such Investments
are made are Affiliates)" immediately after the word "Agreement" and
immediately before the comma in the second line thereof and (ii) by adding, in
the parenthetical contained in clause (y) of the proviso therein, the words
"and other than transactions with CKE Restaurants Inc., a Delaware corporation"
immediately after the words "to an Affiliate".
Section 3. Representations and Warranties. The Company
represents and warrants to the Banks that the representations and warranties
set forth in Section 7 of the Credit Agreement are true and complete on the
date hereof as if made on and as of the date hereof and as if each reference in
said Section 7 to "this Agreement" included reference to this Amendment No. 2.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of the date hereof, upon the satisfaction of the following
conditions precedent:
4.01. Execution by All Parties. This Amendment No. 2 shall
have been executed and delivered by the Company and the Banks constituting
Majority Banks.
4.02. Documents. The Administrative Agent shall have
received the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(1) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of the Company (or, in the
alternative, a certification to the effect that
Amendment No. 2
<PAGE> 3
- 3 -
none of such documents has been modified since delivery thereof on the
Closing Date pursuant to the Credit Agreement) and of all corporate
authority for the Company (including, without limitation, board of
director resolutions and evidence of the incumbency of officers for
the Company) with respect to the execution, delivery and performance
of this Amendment No. 2 and the Credit Agreement as amended hereby and
the loans under the Credit Agreement as amended hereby and each other
document to be delivered by the Company from time to time in
connection with the Credit Agreement as amended hereby (and the
Administrative Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from the Company to
the contrary).
(2) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel to Chase
may reasonably request.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 2 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 2
<PAGE> 4
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed and delivered as of the day and year first
above written.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ Carl A. Strunk
---------------------------------
Title: Executive Vice President,
Chief Financial Officer
Amendment No. 2
<PAGE> 5
- 5 -
BANKS
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Robert A. Foster
--------------------------
Title: Vice President
IMPERIAL BANK
By /s/ Jeff Thomas
-------------------------
Title: Vice President
SANWA BANK CALIFORNIA
By /s/ John C. Hyche
--------------------------
Title: Vice President
FIRST INTERSTATE BANK
OF CALIFORNIA
By /s/ Marla W. Johnson
--------------------------
Title: Vice President
Amendment No. 2
<PAGE> 6
- 6 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ Robert A. Foster
-------------------------
Title: Vice President
Amendment No. 2
<PAGE> 1
Exhibit 10.8.3.3
AMENDMENT NO. 3
AMENDMENT NO. 3 dated as of July 15, 1996, between FIDELITY
NATIONAL FINANCIAL, INC., a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company"); each of the lenders
that is a signatory hereto (individually, a "Bank" and, collectively, the
"Banks"); and THE CHASE MANHATTAN BANK, a New York state-chartered banking
corporation, as administrative agent for the Banks (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
The Company, the Banks and the Administrative Agent are
parties to a Credit Agreement dated as of September 21, 1995 (as heretofore
modified and supplemented and in effect on the date hereof, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for loans
to be made by said Banks to the Company in an aggregate principal amount not
exceeding $35,000,000. The Company, the Banks and the Administrative Agent
wish to amend the Credit Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 3, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of March
31, 1996, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 8.10(d) of the Credit Agreement shall be amended
in its entirety to read as follows:
"(d) Minimum Surplus. The Company will cause
Fidelity National Title Insurance Company, Fidelity National
Title Insurance Company of Pennsylvania and Fidelity National
Title Insurance Company of New York to maintain an aggregate
Surplus of $60,000,000 plus the Recoupment Amount, as at the
last day of each fiscal quarter of the Company."
Amendment No. 3
<PAGE> 2
- 2 -
Section 3. Representations and Warranties. The Company
represents and warrants to the Banks that the representations and warranties
set forth in Section 7 of the Credit Agreement are true and complete on the
date hereof as if made on and as of the date hereof and as if each reference in
said Section 7 to "this Agreement" included reference to this Amendment No. 3.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of March 31, 1996, upon receipt by the Administrative
Agent of duly executed counterparts of this Amendment No. 3 by the Company and
the Banks constituting Majority Banks.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 3 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 3 by signing any such
counterpart. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be duly executed and delivered as of the day and year first
above written.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ Carl A. Strunk
-------------------------------
Title: Executive Vice President
and Chief Financial
Officer
Amendment No. 3
<PAGE> 3
- 3 -
BANKS
THE CHASE MANHATTAN BANK
By /s/ Robert A. Foster
-------------------------------
Title:
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
Amendment No. 3
<PAGE> 4
- 3 -
BANKS
THE CHASE MANHATTAN BANK
By
-------------------------------
Title:
IMPERIAL BANK
By /s/ Jeff Thomas
-------------------------------
Title: VP
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
Amendment No. 3
<PAGE> 5
- 3 -
BANKS
THE CHASE MANHATTAN BANK
By
-------------------------------
Title:
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By /s/ John C. Hyche
-------------------------------
Title: Vice President
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
Amendment No. 3
<PAGE> 6
- 3 -
BANKS
THE CHASE MANHATTAN BANK
By
-------------------------------
Title:
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By /s/ Sandra Martin
-------------------------------
Title:
Amendment No. 3
<PAGE> 1
Exhibit 10.8.3.4
AMENDMENT NO. 4
AMENDMENT NO. 4 dated as of February 24, 1997, between
FIDELITY NATIONAL FINANCIAL, INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Company"); each of the
lenders that is a signatory hereto (individually, a "Bank" and, collectively,
the "Banks"); and THE CHASE MANHATTAN BANK, a New York state-chartered banking
corporation, as administrative agent for the Banks (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
The Company, the Banks and the Administrative Agent are
parties to a Credit Agreement dated as of September 21, 1995 (as heretofore
modified and supplemented and in effect on the date hereof, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for loans
to be made by said Banks to the Company in an aggregate principal amount not
exceeding $35,000,000. The Company, the Banks and the Administrative Agent
wish to amend the Credit Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 4, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of December
31, 1996, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement shall be amended
by inserting the following new defined term in the appropriate alphabetical
order:
"Arbitrage Loans" shall mean loans in an aggregate
outstanding amount not exceeding $175,000,000 at any one time
made by any financial institution (a "lender") which is, at
the time of the making of such loan, a depository (whether on
its own behalf or as escrow agent) of the Company or any
Subsidiary of the Company, to the Company or any such
Subsidiary in an amount not exceeding the amount of the
deposits of the Company or any such Subsidiary held by such
depository, the
Amendment No. 4
<PAGE> 2
- 2 -
proceeds of which are invested in U.S. Government securities
and/or certificates of deposit rated A-1 or P-1 and having a
term not exceeding the maturity date of such loan (but in no
event longer than 92 days), provided that (i) the relevant
borrower shall have a right of offset against such investment
(in the case of certificates of deposit) and (ii) all such
loans must be off the balance sheet of the Company and its
Subsidiaries at the last day of any quarterly fiscal period.
2.03. Section 8.07 of the Credit Agreement shall be amended
by (i) deleting the word "and" at the end of clause (d) thereof, (ii) replacing
the period at the end of clause (e) thereof with a semicolon and (iii) adding
the following new clauses (f), (g) and (h) thereto:
"(f) Indebtedness of FNF Ventures, Inc. to the Small Business
Administration in an aggregate outstanding amount not exceeding
$20,000,000 at any one time;
(g) Indebtedness of Western American Exchange Corporation
("WestAmex"), or any other Wholly Owned Subsidiary of the Company
primarily engaged in the same business as WestAmex, incurred in
connection with exchanges of property with respect to which no gain or
loss is recognized pursuant to Section 1031 of the United States
Internal Revenue Code, provided that (i) such exchange is entered into
in the ordinary course of business of WestAmex, (ii) such Indebtedness
is recourse only to the property subject to the exchange and (iii) the
aggregate amount of all such Indebtedness shall not exceed $25,000,000
at any time; and
(h) Arbitrage Loans."
2.04. Section 8.08(c) of the Credit Agreement shall be
amended by adding the words ", provided that the aggregate amount of all
Investments in the restaurant business or businesses related thereto made under
Section 8.05 does not exceed 10% of the Consolidated Investment Portfolio"
immediately preceding the semicolon therein.
2.05. Section 8.08 of the Credit Agreement shall be amended by
adding the following clause (l) thereto:
"(l) Arbitrage Loans."
Amendment No. 4
<PAGE> 3
- 3 -
2.06. Section 8.12 of the Credit Agreement shall be amended
by replacing "$15,000,000" with "$25,000,000".
Section 3. Representations and Warranties. The Company
represents and warrants to the Banks that the representations and warranties
set forth in Section 7 of the Credit Agreement are true and complete on the
date hereof as if made on and as of the date hereof and as if each reference in
said Section 7 to "this Agreement" included reference to this Amendment No. 4.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of December 31, 1996, upon receipt by the Administrative
Agent of duly executed counterparts of this Amendment No. 4 by the Company and
the Banks constituting Majority Banks.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 4 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 4 by signing any such
counterpart. This Amendment No. 4 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to be duly executed and delivered as of the day and year first
above written.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ Carl A. Strunk
--------------------------------
Title: Executive Vice President
and Chief Financial
Officer
BANKS
THE CHASE MANHATTAN BANK
By
--------------------------------
Title:
Amendment No. 4
<PAGE> 4
- 3 -
2.06. Section 8.12 of the Credit Agreement shall be amended
by replacing "$15,000,000" with "$25,000,000".
Section 3. Representations and Warranties. The Company
represents and warrants to the Banks that the representations and warranties
set forth in Section 7 of the Credit Agreement are true and complete on the
date hereof as if made on and as of the date hereof and as if each reference in
said Section 7 to "this Agreement" included reference to this Amendment No. 4.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of December 31, 1996, upon receipt by the Administrative
Agent of duly executed counterparts of this Amendment No. 4 by the Company and
the Banks constituting Majority Banks.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 4 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 4 by signing any such
counterpart. This Amendment No. 4 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to be duly executed and delivered as of the day and year first
above written.
FIDELITY NATIONAL FINANCIAL, INC.
By
--------------------------------
Title:
BANKS
THE CHASE MANHATTAN BANK
By /s/ Robert A. Foster
--------------------------------
Title: Vice President
Amendment No. 4
<PAGE> 5
- 4 -
IMPERIAL BANK
By /s/ Jeff Thomas
-------------------------------
Title: Vice President
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-------------------------------
Title:
Amendment No. 4
<PAGE> 6
- 4 -
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By /s/ John C. Hyche
-------------------------------
Title: Vice President
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-------------------------------
Title:
Amendment No. 4
<PAGE> 7
- 4 -
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By /s/ Michael Sullivan
-------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-------------------------------
Title:
Amendment No. 4
<PAGE> 8
- 4 -
IMPERIAL BANK
By
-------------------------------
Title:
SANWA BANK CALIFORNIA
By
-------------------------------
Title:
WELLS FARGO BANK, N.A.
By
-------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Robert A. Foster
-------------------------------
Title: Vice President
Amendment No. 4
<PAGE> 1
Exhibit 10.24.2
LISTING APPLICATION TO
NEW YORK STOCK EXCHANGE, INC.
FIDELITY NATIONAL FINANCIAL, INC.
1,875,000 Additional Shares of Common Stock
to be issued pursuant to the 1987
Employee Stock Purchase Plan
2,921,638 Additional Shares of Common Stock
to be Issued in Connection with a 10% Stock Dividend
<TABLE>
<S> <C>
Securities Presently Issued and Outstanding 11,154,918
Securities Held in Treasury 4,698,957
Securities Issued Pursuant 1,585,388
Pursuant to this Application
Securities Reserved for Issuance
Prior to this Application 11,487,500
Securities Reserved for Issuance
Pursuant to this Application 3,211,250
Securities Authorized for Listing
Giving Effect to this Application 32,138,013
</TABLE>
All requisite approvals and authorizations will have been received, and
required supporting documents relating to this transaction will have been filed
with the New York Stock Exchange.
Fidelity National Financial, Inc.
By: /s/ M'Liss Jones Kane
---------------------
M'Liss Jones Kane
Senior Vice President
The New York Stock Exchange, Inc. hereby authorizes, upon official notice of
issuance, the listing of 4,796,638 additional shares of Common Stock.
<PAGE> 2
The New York Stock Exchange, Inc.
By: /s/ Thomas E. Veit
------------------
Thomas E. Veit
Vice President, Client Service
<PAGE> 1
Exhibit 10.24.3
LISTING APPLICATION TO
NEW YORK STOCK EXCHANGE, INC.
FIDELITY NATIONAL FINANCIAL, INC. (FNF)
157,993 Additional Shares of Common Stock
to be issued pursuant to
an Agreement for Purchase and Sale of Stock
of CRM, Inc.
<TABLE>
<S> <C>
Securities Presently Issued and Outstanding: 12,472,810
Securities Held in Treasury: 5,168,853
Securities Issued Pursuant
to this Application: 157,993
Securities Reserved for Issuance 14,698,750
Prior to this Application
Securities Authorized for Listing 32,498,406
Giving Effect to this Application
</TABLE>
All requisite approvals and authorizations will have been received, and
required supporting documents relating to this transaction will have been filed
with the New York Stock Exchange.
Fidelity National Financial, Inc.
By: /s/ M' Liss Jones Kane
----------------------
M'Liss Jones Kane
Senior Vice President
The New York Stock Exchange, Inc. hereby authorizes, upon official notice of
issuance, the listing of 157,993 additional shares of Common Stock.
By: /s/ Thomas E. Veit
-------------------------------
Thomas E. Veit
Vice President - Client Service
<PAGE> 1
EXHIBIT 10.39.2
<TABLE>
<S> <C> <C> <C>
Secured Party: MetLife Capital Corporation Debtor: Fidelity Asset Management, Inc.
Address: 10900 NE 4th Street, Suite 500 Address: 17911 Von Karman Avenue
Bellevue, WA 98004-5853 Irvine, CA 91714
Telephone: (206) 451-0090 Telephone: (714) 622-4553
</TABLE>
1. Secured Party and Debtor have entered into a Master Security
Agreement dated as of September 12, 1996, (the "Security Agreement"). To secure
payment of the indebtedness set forth below, including the Principal Amount set
forth below, and the performance of all obligations contained herein, Debtor
hereby grants to Secured Party, its successors and assigns, a security interest
in the property set forth in Schedule A hereto, together with all attachments,
accessories, additions and accessions thereto, whether now existing or
hereafter acquired, all replacements and substitutions therefor, and all
proceeds thereof (all hereinafter referred to collectively as the "Equipment").
2. Principal Amount. The original Principal Amount of this Note
is: $7,500,000.00
3. a. Term. The Term of this Note is forty-eight (48) months
commencing on the Term Commencement Date as set forth in the Acceptance
Certificate of this Note plus any partial period between the Acceptance Date of
the Equipment as set forth in the Acceptance Certificate and the Term
Commencement Date.
b. Payments. Debtor hereby promises to pay the Principal Amount to
Secured Party and interest thereon as follows:
(1) Interest only on the Term Commencement Date in an amount equal
to $N/A multiplied by the number of days between the Acceptance Date up to and
including the Term Commencement Date.
(2) Thereafter the principal sum of Seven Million Five Hundred
Thousand Dollars ($7,500,000.00), together with interest on unpaid principal
from the Term Commencement Date until payment in full at a rate of 30-Day
Commercial Paper in effect from time to time, as published in Federal Reserve
Statistical Release H.15[519], plus two and forty-four one hundredths percent
(2.44%) per annum ("Variable Rate") computed on the basis of a 360 day year of
twelve consecutive thirty day months in forty-eight (48) installments of
principal, each in the amount of $156,250.00, plus interest as defined above,
payable commencing October 13, 1996, and monthly thereafter until September 13,
2000, on which date the entire balance of principal and interest unpaid shall
be due and payable. It is agreed that each installment, when paid, shall be
applied by the holder hereof, first so much as shall be required to the payment
of interest accrued as specified hereto, and the balance thereof to the
repayment of the principal sum.
In the event that the Payments set forth in any Acceptance Certificate hereto
differ from those set forth in this Section 3 (b), the Payments shall be as set
forth in the Acceptance Certificate.
c. Debtor agrees to pay Secured Party, in advance, the first NA
Installment Payments.
d. Secured Party acknowledges receipt from Debtor of a payment in
the amount of $NA to be held by Secured Party as a deposit to secure Debtor's
performance hereunder.
e. Rate Fix Option. On any payment date during the term of this
Note, after 90 days from Term Commencement Date, (the "Rate Fix Date"),
provided that no event of Default, or event which with the passage of time or
giving of notice would constitute an Event of Default, has occurred and is
continuing, Debtor shall have the option, upon at least thirty (30) days prior
written notice to Secured Party, to fix the interest rate per annum applicable
to this Note for the entire remaining Term at a rate equal to (A) the Treasury
Constant Maturities Rate (defined below) applicable to the number of years
closest to the number of years (and any partial year) remaining in the term of
the Note plus (B) 3.04%.
The Treasury Constant Maturities Rate as set forth above shall be such the
weekly average of the U.S. Treasury Constant Maturities as published in the
Federal Reserve Statistical Release H.15 (519) for the week immediately
preceding the Rate Fix Date.
In the event that the Debtor elects to exercise the Rate Fix Option set forth
above, the Debtor shall pay to the Secured party on the applicable Rate Fix
Date, in immediately available funds, a fee of $3,000.00.
The Rate Fix Option shall be exercisable only once during the term of the Note.
f. Reamortization of Note upon Adjustment. Upon the adjustment of
the interest rate applicable to this Note pursuant to subsection e. hereof, the
Installment Payments due throughout the remaining Term of this Note and the
allocation of such payments to principal and interest shall be amended and
recalculated by reamortizing the Principal Amount of this Note as of the Rate
Fix Date at the then applicable interest rate over the remaining term.
<PAGE> 2
4. Debtor waiver any right of exemption and waives presentment,
protest and demand and notice of protest, demand and of dishonor and nonpayment
of this Note, and consents that any holder hereof shall have the right, without
notice, to grant any extension or extensions of time for payment of this Note
or any part thereof or any other indulgences or forbearances whatsoever, or may
release any of the security for this Note without in any way affecting the
liability of any other party for the payment of this Note.
5. The Equipment will be located at the locations specified in
Schedule A hereto.
6. The Installment Payments may change for Equipment accepted
after N/A.
7. This Note is secured by the Equipment, as set forth in Schedule
A hereto and as further defined in the Security Agreement, the terms and
conditions of which are incorporated herein by reference. This Note is one of
the "Notes" referred to in the Security Agreement.
Dated as of September 12, 1996 By execution hereof, the signer
certifies that he has read,
accepted and duly executed this
Note to the Master Security
Agreement on behalf of Debtor.
SECURED PARTY: DEBTOR:
METLIFE CAPITAL CORPORATION FIDELITY ASSET MANAGEMENT, INC.
By: VINCE IACI By: CARL A. STRUNK
------------------------ -----------------------------
Title: Vice President Title: President
------------------------ -----------------------------
<PAGE> 1
Exhibit 10.45
AGREEMENT FOR PURCHASE AND SALE OF STOCK
This Agreement for Purchase and Sale of Stock ("Agreement") is made
and entered into this 4th day of November, 1996, by and between William F.
McCreary, Sr., Trustee of The McCreary Family Trust, Christopher M. McCreary,
William F. McCreary, Jr., Dean P. McCreary, Mark R. Johnson, and Alan H.
Martin (individually referred to herein as a "Stockholder" and collectively
referred to herein as the "Stockholders") and Fidelity National Financial,
Inc., a Delaware corporation (referred to herein as "Buyer").
WHEREAS, the Stockholders are the owners of all of the issued and
outstanding shares of common stock and preferred stock of CRM Inc., a
California corporation (the "Company"); and each Stockholder is willing to
transfer all of such Stockholder's shares of preferred stock of the Company
(the "Shares") to Buyer upon the terms and conditions set forth herein;
WHEREAS, Buyer is willing, subject to the terms and conditions set
forth herein, to acquire all of the Shares;
WHEREAS, the parties are entering into this Agreement, in part, with
the intention to consolidate the tax service business of the Company and
Fidelity National Tax Service, a California corporation which is an affiliate
of Buyer;
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants, agreements, representations and warranties hereinafter set forth,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Stock Sale by the Stockholders. Subject to the terms and
conditions set forth in this Agreement, the Stockholders will transfer to Buyer
all of the Shares, the exact number of Shares to be transferred by each of the
Stockholders to be as follows:
<TABLE>
<CAPTION>
Stockholder No. of Shares
----------- --------------
<S> <C>
McCreary Family Trust 44,000
</TABLE>
1
<PAGE> 2
<TABLE>
<S> <C>
Christopher M. McCreary 25,000
William F. McCreary, Jr. 25,000
Dean P. McCreary 25,000
Alan H. Martin 25,000
Mark R. Johnson 16,000
------
TOTAL 160,000
</TABLE>
2. Purchase Price. In consideration for the sale and transfer of
the Shares by the Stockholders, Buyer shall pay to the Stockholders, Twenty Two
Dollars ($22) per Share, or an aggregate consideration of Three Million Five
Hundred Twenty Thousand ($3,520,000) for all of the Shares, as follows: (a)
Buyer shall pay to the Stockholders, pro rata, an aggregate of One Million
Dollars ($1,000,000) of cash consideration, and (b) Buyer shall issue and
deliver to the Stockholders, pro rata, share certificates of Buyer valued at an
aggregate of Two Million Five Hundred Twenty Thousand Dollars ($2,520,000)
evidencing the Stockholders' ownership of Buyer's common stock (the shares of
Buyer's common stock transferred to the Stockholders are referred to herein as
the "Buyer Stock"). The exact number of shares of the Buyer Stock to be issued
and delivered to the Stockholders shall be determined based on the average
closing price of Buyer Stock on the New York Stock Exchange for the five (5) to
fifteen (15) days prior to the Closing Date (as defined in Section 3 hereof),
and said number of shares of Buyer's Stock shall be inserted in the space
provided below on the Closing Date and initialed by the Buyer and the
appropriate Stockholder. In lieu of issuing fractional shares of Buyer Stock
to the Stockholders, Buyer shall pay cash equal to such fraction multiplied by
the value of one share of Buyer Stock, as determined hereinabove.
<TABLE>
<CAPTION>
Value of
Cash Shares of Fractional
Shareholder Consideration Buyer Stock Shares
- ----------- ------------- ----------- ----------
<S> <C> <C> <C>
McCreary Family Trust $275,000 43,448 $4.47
Christopher M. McCreary $156,250 24,686 $8.29
William F. McCreary, Jr. $156,250 24,686 $8.29
Dean P. McCreary $156,250 24,686 $8.29
Alan Martin $156,250 24,686 $8.29
Mark R. Johnson $100,000 15,799 $5.90
-------- ------ -----
TOTAL $1,000,000 157,991 $43.54
</TABLE>
2
<PAGE> 3
3. Closing. The closing of the sale of the Shares, the payment
of the cash consideration to the Stockholders, and the issuance and delivery of
the Buyer Stock to the Stockholders ("Closing") will take place at 10:00 a.m.
on November 4, 1996, at the offices of Citron & Deutsch, 10866 Wilshire
Boulevard, Suite 970, Los Angeles, California, or at such date, time and place
as the parties all agree in writing ("Closing Date"). At the Closing, (a) the
Stockholders shall deliver to Buyer stock certificates evidencing the Shares
duly endorsed for transfer or accompanied by duly executed stock powers, in
either case executed in favor of Buyer, (b) Buyer shall deliver the cash
consideration to the Stockholders payable by cashiers check to the Stockholders
in the amounts set forth in Section 2 hereof, (c) Buyer shall deliver stock
certificates to the Stockholders evidencing the shares of Buyer Stock to be
issued to the Stockholders under this Agreement, in the amounts set forth in
Section 2 hereof, duly registered in the name of the respective Stockholders,
and (d) Buyer shall deliver to the Stockholders a cashiers check for the value
of the fractional shares of Buyer Stock, if applicable, as provided in Section
2 hereof. Buyer and the Stockholders hereby covenant and agree to use their
best efforts to negotiate, execute and deliver those agreements identified in
Subsections (e), (f), (g), and (h) of Section 7 of this Agreement prior to or
on the Closing Date.
4. Representations and Warranties of the Stockholders. The
Stockholders jointly and severally represent and warrant, as of the date hereof
and as of the Closing Date, as follows:
(a) Organization, Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of California, has all necessary corporate powers to own its
properties and to carry on its business as now owned and operated by it, and is
duly qualified to transact intrastate business and is in good standing in all
jurisdictions in which the nature of its business or its properties makes such
qualification necessary. The Company has one wholly-owned subsidiary, namely,
Environmental Research, Inc. Environmental Research, Inc. is not actively
conducting business, and does not have any assets, liabilities or obligations
which would have a material effect on the transaction contemplated by this
Agreement or the business or operations of the Company.
(b) Capital Structure. Upon amendment of the Company's
articles of incorporation, the authorized number of shares of the Company will
be 300,000 shares of Common Stock, and 160,000 shares of Series A Preferred
Stock, of which 40,000 shares of Common Stock will be issued and outstanding
and 160,000 shares of Series A Preferred Stock
3
<PAGE> 4
will be issued and outstanding. All of the issued and outstanding shares of
Common Stock and Series A Preferred Stock will be owned of record and
beneficially by the Stockholders, free and clear of any pledges, liens,
encumbrances or charges. All of the Shares are validly issued, fully paid and
non-assessable. There are no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
the Company to issue or to transfer from treasury any additional shares or
requiring any of the Stockholders to sell or transfer any Shares or giving any
person the right or option to purchase any of the Shares.
(c) Authority and Consent. The Company has full
corporate power and authority and each of the Stockholders have the power and
authority to execute and deliver this Agreement and any other agreements and
instruments contemplated hereby. Upon execution by the Stockholders, this
Agreement will be valid and binding upon the Stockholders in accordance with
its terms.
(d) Title to Assets. The Company has good and marketable
title to all of its assets free and clear of any mortgage, pledge, lien,
encumbrance or charge except as set forth on Schedule "4 (d)" to this
Agreement. All assets are in good operating condition and repair and are
suitable for the purposes for which they are presently used or proposed to be
used.
(e) Financial Statements. Schedule "4 (e)" to this
Agreement sets forth the balance sheet of the Company as of September 30, 1996
and the related statement of income and retained earnings for the fiscal year
then ended (collectively, the "Financial Statements"). The Financial
Statements have been compiled in accordance with generally accepted accounting
principles, except with respect to those certain departures from generally
accepted accounting principles as are described in that certain letter dated
October 10, 1996 from Brian W. Polchow, the Company's accountant who prepared
the Financial Statements, to the Board of Directors of the Company. The
Financial Statements are true and correct and fairly present in all material
respects the financial condition of the Company as of the dates and for the
periods reflected therein. No more recent Financial Statements have been
prepared. There are no other liabilities or obligations of the Company not
reflected on the Financial Statements which, either individually or in the
aggregate, would be material.
(f) Adverse Changes. Since the date of the Financial
Statements, there has not been (i) any adverse change in the Company's
financial condition, business or prospects, nor
4
<PAGE> 5
have the Stockholders any reason to believe there will be; (ii) any transaction
by the Company except in the ordinary course of business; (iii) any sale or
transfer of any asset of the Company except in the ordinary course of business;
(iv) any loan by the Company to any person or entity, or any guarantee by the
Company of any loan; provided, however, since the date of the Financial
Statements, the Company has paid the loan of $60,057.65 to William McCreary,
Sr. reflected on the Company's balance sheet as a Long-Term Debt; and provided
further, that since the date of the Financial Statements, the Company has
reduced to zero the value of the Company's investment in 400,000 shares of
common stock of CDS, Inc. reflected on the Company's balance sheet as an
Investment of $75,459.
(g) Taxes. The Company has timely filed all federal,
state and local tax returns for income taxes, franchise taxes, sales taxes,
withholding and payroll taxes, property taxes, and all other taxes of every
kind whatsoever required by law to have been filed, and all such tax returns
are complete and accurate. The Company has paid or caused to be paid all taxes
which have become due and there is no further liability for any such taxes, and
no interest or penalties accrued or accruing with respect thereto. The Company
is not the subject of any audit by any federal, state, or local taxing
authority, nor do any facts exist, to the best knowledge of the Stockholders,
that would establish the basis for an audit. The Company is not the
beneficiary of any extension of time for the filing of any tax return or with
respect to any statute of limitations.
(h) Real Property. The Company does not own any real
property. The Company leases its offices at 468 N. Rosemead Blvd., Pasadena,
CA 91107. There does not exist any default or event of default that with
notice or lapse of time, or both, would constitute a default under the
Company's lease of its offices.
(i) Accounts Receivable. Schedule "4 (i)" to this
Agreement is a full and complete list of the accounts receivable of the
Company, showing the ageing of all such accounts receivable. Said accounts
receivable are valid and genuine and arose from bona fide sales and deliveries
of goods, performance of services or other transactions in the ordinary course
of the Company's business, and are fully collectable, without any rights or
claims to offset, except for doubtful accounts as set forth on Schedule "4(i)"
to this Agreement, and other rights or claims of offset which are not,
individually or in the aggregate, material.
(j) Accounts Payable. Schedule "4 (j)" to this Agreement
is a full and
5
<PAGE> 6
complete list of the accounts payable of the Company as of the date set forth
thereon. There are no other accounts payable not reflected on Schedule "4 (j)"
hereof which, either individually or in the aggregate, would be material,
excluding accounts payable incurred in the ordinary course of business or
consistent with past practices.
(k) Trade Names, Trademarks, Copyrights and Patents.
Schedule "4 (k)" to this Agreement is a full and complete list of the Company's
trade names, trademarks, service marks, logos, copyrights and patents. The
Company is a sole owner of each such trade name, trademark, service mark, logo,
copyright and patent, and has not licensed or otherwise granted any other party
the right to use or exploit any such trade name, trademark, service mark, logo,
copyright or patent, including, but not limited to, computer software used by
the Company. The Company has not received any notice from any party that the
Company is infringing upon any trade names, trademarks, service marks, logos,
copyrights and patents. No third party has, to the best knowledge of the
Stockholders, interfered with, infringed upon or misappropriated any
intellectual property rights of the Company, and, to the best knowledge of the
Stockholders, neither the Company nor the Stockholders have taken any action
which infringes upon or misappropriates any intellectual property rights of
third parties. The Stockholders have no interest in, or claim to any trade
name, trademark, service mark, logo, copyright or patent used in the business
or operations of the Company.
(l) Labor Matters. The Company has not entered into any
agreement with any labor union. To the best knowledge of the Stockholders, the
Company has not committed or been charged with any unresolved unfair labor
practices, has no currently pending labor negotiation or demands for
representation, has no unresolved grievances presently pending pursuant to any
collective bargaining agreement, and the Stockholders are not aware of any
organizing activities among the employees of the Company or any other facts
which may lead to a work stoppage, slow down or strike by the employees of the
Company.
(m) Compliance with Laws. The Company is in compliance
with all material applicable laws, rules, regulations and ordinances which are
or have been applicable to the business of the Company and which any such
noncompliance would have a material adverse effect on the Company. The Company
has all material licenses, certificates, and permits that are necessary for the
conduct of the Company's business as currently conducted and such licenses,
certificates and permits are in full force and effect.
6
<PAGE> 7
(n) Employees. Schedule "4 (n)" to this Agreement
contains a full and complete list of the names of all employees of the Company,
stating the rates of compensation payable to each. No other person, except
accountants, auditors, computer programmers, and attorneys, regularly performs
compensable services for the Company.
(o) Litigation. There is no litigation, proceeding,
judgment, order, writ or decree pending or, to the best knowledge of the
Stockholders, threatened against the Company, and there are no facts or
circumstances known to the Stockholders which would give any of them reason to
suspect any of the foregoing. The Company is not in default with respect to
any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality.
(p) Insurance Policies. Schedule "4 (p)" to this
Agreement is a summary of each insurance policy held by the Company, including
without limitation, fire and casualty insurance, property damage and public
liability insurance, product liability insurance, workers compensation
insurance, life insurance and hospitalization insurance. The Company has
maintained and now maintains, with no gap in coverage, (i) insurance on all of
its assets of a type customarily insured, covering property damage and loss of
income by fire or other casualty, and (ii) adequate insurance protection
against all liabilities, claims and risks against which it is customary to
insure. To the best knowledge of the Stockholders, each policy is legal,
valid, binding and enforceable following consummation of the transactions
contemplated by this Agreement. The Company is not in default, and no event
has occurred which with notice or the lapse of time, would constitute a breach
or default under any such policy.
(q) Other Contracts. Schedule "4 (q)" to this Agreement
is a full and complete list of all material contracts and agreements binding
upon and enforceable by the Company, except as such enforceability may be
limited by existing and future bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and except as such enforceability may be limited by equitable principles of
enforcement. There is no default or event that with notice or lapse of time,
or both, would constitute default by any party to any of the agreements set
forth on Schedule "4 (q)" to this Agreement. The Company has not received
notice that any party to any of the agreements set forth in Schedule "4 (q)" to
this Agreement intends to cancel or terminate any agreement or to exercise or
not exercise any option
7
<PAGE> 8
under any of these agreements. Each such contract shall continue to be binding
upon and enforceable by the Company, except as set forth herein, following
consummation of the transaction contemplated by this Agreement.
(r) Agreement Will Not Cause Breach or Violation.
Neither the entry into this Agreement nor the consummation of the transactions
contemplated hereby will result in or constitute any of the following: (i) a
material default or any event that, with notice or lapse of time, or both,
would be a default, breach or violation of the Articles of Incorporation or
Bylaws of the Company or any lease, license, promissory note, conditional sales
contract, commitment, indenture, mortgage, deed of trust or other agreement,
instrument or arrangement to which the Company is a party or by which the
Company is bound; (ii) an event that would permit any party to terminate any
agreement or to accelerate the maturity of any indebtedness or other material
obligation of the Company; (iii) the creation or imposition of any material
lien, charge or encumbrance on any of the assets of the Company; or (iv) the
violation of any law, regulation, ordinance, judgment, order, or decree
applicable to or affecting the Company, which violation would have a material
effect on the Company.
(s) Material Disclosures. There is no fact known to the
Stockholders which adversely affects, or in the future may adversely affect the
condition, assets, liabilities, business, operations or process of the Company
that has not been previously communicated to Buyer.
(t) Investment Intent. Each Stockholder understands that
Buyer, in issuing the Buyer Stock to Stockholders pursuant to this Agreement,
is relying upon the exemption contained in Section 4 (2) of the Securities Act
of 1933, as amended (the "Act"). Each Stockholder acknowledges and represents
that the Buyer Stock has not been registered under the Act and will be acquired
by each Stockholder with the intent and purpose of retaining the same for
personal investment and not for the purpose of or with the view to distributing
said shares or any of them by sale or otherwise. Each Stockholder further
acknowledges that he understands that future sale or transfer of the Buyer
Stock will be restricted as a result of their unregistered status, and that the
Buyer Stock must be held indefinitely unless subsequently registered under the
Act or an exemption from registration under the Act is available. Each
Stockholder further acknowledges that Buyer is under no obligation to register
the Buyer Stock under the Act, except as set forth in Section 10 of this
Agreement.
8
<PAGE> 9
(u) Environmental Matters. The Company has not received
any written or oral notice, report or other information regarding any
liabilities or potential liabilities (whether accrued, absolute, contingent,
unliquidated, or otherwise), including any investigatory, remedial or
corrective obligations, relating to the Company or the facilities of the
Company arising under Environmental and Safety Requirements, and the Company
has not treated, stored, disposed of, arranged for or permitted the disposal
of, transported, handled or Released any substance, including without
limitation, any Hazardous Material, or owned or operated any facility or
property, so as to give rise to material liabilities (whether accrued,
absolute, contingent, unliquidated, or otherwise) of the Company for response
costs, natural resource damages or attorney fees pursuant to Environmental and
Safety Requirements. "Hazardous Material" shall mean anything that is a
"hazardous substance" pursuant to CERCLA, any substance that is a "solid waste"
or "hazardous waste" pursuant to RCRA, any pesticide, pollutant, containment,
toxic chemical, petroleum product or byproduct, asbestos, polychlorinated
biphenyl, noise or radiation. "Release" shall have the meaning set forth in
CERCLA. "Environmental and Safety Requirements" shall mean all federal, state,
local and foreign statues, regulations, ordinances, and other provisions having
the force of law, all judicial and administrative orders and denominations, all
contractual obligations and all common law concerning worker health and safety
or the pollution or protection of the environment, including without
limitation, CERCLA, the Resource Conservation and Recovery Act, the Clean Water
Act, the Clean Air Act, and the Occupational Safety and Health Act, each as may
be amended from time to time. "CERCLA" means the Comprehensive Environmental
Response, Compensation, and Liability Act, as may be amended from time to time.
5. Representations and Warranties of Buyer. Buyer represents and
warrants, as of the date hereof and as of the Closing Date, as follows:
(a) Organization, Good Standing and Qualification. Buyer
is a corporation duly organized, validly existing and in good standing under
the laws of Delaware, has all necessary corporate powers to own its properties
and to carry on its business as now owned and operated by it, and is duly
qualified to transact intrastate business and is in good standing in all
jurisdictions in which the nature of its business or its properties makes such
qualification necessary. Fidelity National Title Insurance Company, an Arizona
corporation, is a wholly owned subsidiary of Buyer; and Fidelity National Tax
Service, a California corporation ("FNTS") is a wholly owned subsidiary of
Fidelity National Title Insurance Company.
9
<PAGE> 10
(b) Authority and Consent. Upon execution by Buyer, this
Agreement shall be valid and binding upon Buyer in accordance with its terms.
Buyer has the corporate power to execute, deliver and carry out the terms of
this Agreement and has taken all necessary corporate and legal action with
respect thereto, including obtaining any consent of the Board of Directors and
its shareholders required by law or its Certificate of Incorporation or Bylaws.
(c) Material Disclosures. There is no fact known to
Buyer which adversely affects, or in the future may adversely affect the
condition, assets, liabilities, business, operations or process of the Company
or any subsidiary or affiliate of the Company that has not been previously
communicated to the Stockholders.
(d) SEC Filings: Financial Status. Buyer, to the best of
its knowledge, has filed all forms, reports and documents required to be filed
with the SEC (the "Buyer's SEC Reports"), which are publicly available in the
form filed with the SEC. The Buyer's SEC Reports (i) were prepared in all
material respects in accordance with the requirements of the Securities Act or
the Securities Exchange Act, as the case may be, and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing) contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statement therein, in the light of
the circumstances under which they were made, not misleading. Each of the
consolidated financial statements (including, in each case, any related notes
thereto) contained in the Buyer's SEC Reports were prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto) and each fairly presents in all material respects the consolidated
financial position of Buyer and its subsidiaries as at the respective dates
thereof and the consolidated results of its operations and cash flows for the
periods indicated, except that any unaudited interim financial statements were
or are subject to normal and recurring year-end adjustments.
(e) Buyer Stock. Upon issuance of the Buyer Stock to the
Stockholders, the Buyer Stock shall be validly issued, fully paid and
non-assessable.
(f) Other Contracts. Schedule "5 (f)" to this Agreement
is a full and complete list of all material contracts and agreements binding
upon and enforceable by FNTS
10
<PAGE> 11
except as such enforceability may be limited by existing and future bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and except as such enforceability may be limited by
equitable principles of enforcement, a copy of all of which have been
previously delivered to the Company and the Stockholders. There is no default
or event that with notice or lapse of time, or both, would constitute default
by any party to any of the agreements set forth on Schedule "5 (f)" to this
Agreement. FNTS has not received notice that any party to any of the
agreements set forth in Schedule "5 (f)" to this Agreement intends to cancel or
terminate any agreement or to exercise or not exercise any option under any of
these agreements. Each such contract shall continue to be binding upon and
enforceable by FNTS (or its assigns), except as set forth herein, following
consummation of the transaction contemplated by this Agreement.
(g) Employees. Schedule "5 (g)" to this Agreement
contains a full and complete list of the names of all employees of FNTS stating
the rates of compensation payable to each. No other person, except
accountants, auditors, computer programmers, and attorneys, regularly performs
compensable services for FNTS.
(h) Compliance with Laws. FNTS is in compliance with all
material applicable laws, rules, regulations and ordinances which are or have
been applicable to the business of FNTS. FNTS has all material licenses,
certificates, and permits that are necessary for the conduct of FNTS's business
as currently conducted and such licenses, certificates and permits are in full
force and effect.
(i) Agreement Will Not Cause Breach or Violation.
Neither the entry into this Agreement nor the consummation of the transactions
contemplated hereby will result in or constitute any of the following: (i) a
material default or any event that, with notice or lapse of time, or both,
would be a default, breach or violation of the Articles of Incorporation or
Bylaws of Buyer or FNTS, or any lease, license, promissory note, conditional
sales contract, commitment, indenture, mortgage, deed of trust or other
agreement, instrument or arrangement to which Buyer or FNTS is a party or by
which Buyer or FNTS is bound; (ii) an event that would permit any party to
terminate any agreement or to accelerate the maturity of any indebtedness or
other material obligation of Buyer or FNTS; (iii) the creation or imposition of
any material lien, charge or encumbrance on any of the assets of Buyer or FNTS;
or (iv) the violation of any law, regulation, ordinance, judgment, order, or
decree applicable to or affecting FNTS or Buyer, which violation
11
<PAGE> 12
would have a material effect on FNTS or Buyer.
(j) Litigation. There is no litigation, proceeding,
judgment, order, writ or decree pending or, to the best knowledge of Buyer,
threatened against FNTS, and there are no facts or circumstances known to Buyer
which would give it reason to suspect any of the foregoing. FNTS is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court, department, agency or instrumentality.
6. Conduct of Seller's Business Prior to Closing. From the date
of this Agreement to the Closing Date, except as otherwise agreed in writing by
Buyer, the Stockholders each covenant and agree that the Company shall:
(a) Not take any action as would create a lien, charge or
encumbrance against any of its assets;
(b) Not enter into any agreement buying, selling or
affecting any of its assets;
(c) Not enter into or assume any contract, agreement,
obligation, lease, license or commitment except in the ordinary course of
business, consistent with past practice, and shall not enter into any license,
including, without limitation, with respect to any computer software used by
the Company;
(d) Not extend, modify or terminate any contract,
agreement, obligation, lease, license or commitment;
(e) Not modify, cancel or cause to be canceled any
insurance policy presently maintained by the Company;
(f) Not use any new methods of management, operation or
accounting in respect of, or otherwise change the character of, the business,
operations, affairs or activities in any way associated with the business of
the Company;
(g) Operate and conduct the business operations of the
Company in the
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normal and customary manner consistent with reasonable and sound business
practice;
(h) Maintain the Company's assets in good condition and
repair, reasonable wear and tear beyond the control of the Company excepted;
(i) Provide Buyer and Buyer's agents, attorneys and
accountants, at any time and from time to time, with reasonable access to the
Company's books, records and tax returns and the business of the Company for
the purpose of reviewing the same;
(j) Make reasonably available for inspection and
review by Buyer and its agents, attorneys and accountants, all other books,
records and files and other materials relating to the business of the Company;
(k) Not do or agree to do any of the following acts: (i)
grant any increase in salaries payable or to become payable to any officer,
employee, agent or representative employed or retained by the Company; (ii)
increase benefits payable to any officer, employee, agent or representative
employed or retained by the Company; (iii) waive or compromise any right or
claim relating to the business of the Company except in the ordinary course of
business and consistent with prior practices; or (iv) cancel, without full
payment, any note, loan or other obligation owing to the Company;
(l) Promptly advise Buyer in writing of any adverse
change or the occurrence of any event which involves any possibility of an
adverse change in the condition, (financial or otherwise), results of
operations, assets, liabilities, business or prospects of the business of the
Company;
(m) Promptly advise Buyer in writing of each of the
following: (i) any notice of default or written threat of default (whether or
not disputed or denied) which is received or given by or to the Company; (ii)
any litigation, action or investigation instituted by or against, or threatened
against the Company; or (iii) any matter which would make the representations
and warranties of Stockholders set forth in this Agreement not true and correct
in all respects;
(n) Use its best efforts to preserve and enhance the
business reputation and relationships of the Company with its customers,
suppliers, and service agencies;
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(o) Not amend or authorize any amendment to the Company's
Articles of Incorporation or Bylaws, except as necessary to carry out the terms
of this Agreement or as otherwise requested by Buyer;
(p) Not issue or grant, or authorize the issuance or
grant, of any capital stock of the Company, or options, warrants or other right
to purchase capital stock of the Company, except as otherwise necessary to
carry out the terms of this Agreement.
7. Conditions to Buyer's Obligations. Unless waived by Buyer in
writing, the obligations of Buyer under this Agreement are subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) The representations and warranties of the
Stockholders set forth in this Agreement shall be true and correct at and as of
the Closing Date;
(b) Each of the covenants and obligations of the
Stockholders hereunder shall have been fully performed to the satisfaction of
Buyer and its counsel;
(c) No material adverse change shall have occurred in the
financial or other condition of the business of the Company from that existing
on the date of this Agreement;
(d) All necessary agreements. Licenses, permits,
approval, and consents of any parties to the consummation of the transaction
contemplated by this Agreement shall have been obtained by the Stockholders and
delivered to Buyer; and
(e) Buyer and the Company shall have entered into a
Software License Agreement; substantially in the form attached hereto as
Exhibit "A".
(f) Buyer and the Stockholders shall have entered into a
Stock Put and Call Agreement, substantially in the form attached hereto as
Exhibit "B".
(g) The Stockholders shall have caused the formation of
CRM Management Co., a California corporation, including, but not limited to,
the incorporation of CRM Management
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Co. and the issuance to CRM Management Co. of any and all licenses,
certificates, permits or approvals required for its operation as contemplated
by the Management Agreement and shall have caused CRM Management Co. to
execute and deliver the Management Agreement, which shall also have been
entered into by Buyer and the Company, substantially in the form attached
hereto as Exhibit "C".
(h) Buyer and the Company shall have entered into a Real
Property Tax Reporting and Payment Service Agreement, substantially in the form
attached hereto as Exhibit "D".
8. Conditions to the Stockholder's Obligations. Unless waived by
Stockholders in writing, the obligations of the Stockholders under this
Agreement are subject to the fulfillment on or prior to the Closing Date of the
following conditions:
(a) The representations and warranties of Buyer set forth
in this Agreement shall be true and correct at and as of the Closing Date;
(b) Each of the covenants and obligations of Buyer
hereunder shall have been fully performed to the satisfaction of Seller and its
counsel;
(c) Buyer shall deliver to Seller certified resolutions
of the Board of Directors of Buyer authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby;
(d) No material change shall have occurred in the
financial or other condition of Buyer from that existing at the date of this
Agreement;
(e) Buyer and the Stockholders shall have entered into a
Stock Put and Call Agreement, substantially in the form attached hereto as
Exhibit "B".
(f) Buyer, the Company and CRM Management, Co. shall have
entered into a Management Agreement, substantially in the form attached hereto
as Exhibit "C".
(g) Buyer and the Company shall have entered into a Real
Estate Tax
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<PAGE> 16
Reporting and Payment Service Agreement, substantially in the form attached
hereto as Exhibit "D".
9. Non-Competition.
(a) Each of the Stockholders agrees that for a period
commencing on the Closing Date and terminating on earlier of (i) five (5) years
from the Closing Date, or (ii) the date on which the Management Agreement is
terminated by CRM Management Co. as a result of a breach of the provisions
thereof by the Company, such Stockholder (whether directly or indirectly
through any affiliate of such Stockholder) shall refrain from carrying on
directly or indirectly (either as a proprietor, partner, stockholder, director,
officer, employee, consultant or otherwise), in any county in which the Company
is then actively conducting business, any business which is the same as or
similar to the business that is being conducted by the Company, except as
officers, employees, or representatives of Buyer, an affiliate of Buyer, the
Company, or CRM Management Co. (during the period of time the Management
Agreement is in effect), and that such Stockholder will not, for a period
commencing on the Closing Date and terminating on the earlier of (i) six (6)
years from the Closing Date, or (ii) the date on which the Management Agreement
is terminated by CRM Management Co. as a result of a breach of the provisions
thereof by the Company, directly or indirectly, for himself or on behalf of or
in conjunction with any third party, hire any employee of the Company, induce
or entice any employee of the Company to leave his employment with the Company
or solicit, or attempt to solicit, to any competing business of the Company,
any person or entity which has an active account with the Company under the
Management Agreement at the time such Stockholder ceases to be a service
provider to CRM Management Co. or which had an account with the Company during
the twelve (12) months prior thereto.
(b) Buyer agrees that during the period that CRM
Management Co. is providing services to the Company under the Management
Agreement between said parties, Buyer (whether directly, or indirectly through
any subsidiary or affiliate of Buyer) shall refrain from carrying on directly
or indirectly (either as a proprietor, partner, stockholder, director, officer,
employee, consultant or otherwise) in any county in which the Company is then
conducting business, any business which is the same as or similar to the
business that is being conducted by the Company; provided, however, that if
Buyer is acquired by another entity by way of a merger, sale of all or
substantially all of the assets of Buyer, or the sale of more than fifty
percent (50%) of the stock of Buyer, and such entity is engaged directly or
indirectly in a business substantially
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<PAGE> 17
similar to the business of the Company, such other entity shall be excluded
from this Section 9 (b). Buyer specifically agrees that it shall not acquire
any other entity (by merger, acquisition of stock or assets, or otherwise) and
use such other entity to compete with the Company; rather any such acquisition
shall be merged into, and treated for all purposes as part of, the Company with
respect to the acquired entity's tax servicing business; and Buyer covenants
and agrees that in the event of any such acquisition, Buyer shall transfer such
tax service business to the Company upon the terms and at a price equal to the
price paid for such tax service business by Buyer.
(c) FNTS agrees during the period that CRM Management
Co. is providing services to the Company under the Management Agreement, FNTS
(whether directly, or indirectly through any subsidiary or affiliate of FNTS)
shall refrain from carrying on directly or indirectly (either as a proprietor,
partner, stockholder, director, officer, employee, consultant or otherwise) any
business which is the same as or similar to the business that is being
conducted by the Company. FNTS specifically agrees that it shall not acquire
any other entity (by merger, acquisition of stock or assets, or otherwise) and
use such other entity to compete with the Company; rather any such acquisition
shall be merged into, and treated for all purposes as part of, the Company.
10. Stockholders' Registration Rights of Buyer Stock
(a) If Buyer at any time proposes to register any of its
securities under the Securities Act, it will each such time give written notice
to all of the Stockholders of its intention so to do. If such registration is
proposed to be on a form which permits inclusion of the Buyer Stock, upon the
written request of any holder thereof, given within fifteen (15) days after
receipt of notice by the holders thereof, Buyer shall include in such
registration (and in any related qualification under Blue Sky laws) and in any
underwriting therein, the Buyer Stock specified in said written request;
provided, however, that if the underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the
underwriter may limit (or reduce to zero) the number of shares of the Buyer
Stock that the holder thereof may include in the offering based on the total
number of the securities held by the holders of Buyer Stock and based on the
total number of securities (other than registrable securities) entitled to
registration held by the holders of Buyer Stock and by other persons selling
securities pursuant to registration rights granted them by Buyer; provided,
however, that none of the terms of this Agreement shall be construed to limit
or restrict Buyer's ability to grant registration rights to any holders of
Buyer's stock at any time
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<PAGE> 18
provided that any such registration rights shall not be senior to the rights
granted to the Stockholders in this Agreement. The Stockholders expressly
agree that the rights granted hereunder shall be subject to any registration
rights granted by Buyer prior to the date hereof. All Stockholders proposing
to distribute their securities through such underwriting shall (together with
Buyer and other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by Buyer.
(b) The holders of Buyer Stock included in any
registration shall furnish to Buyer such information regarding such holder and
the distribution proposed by such holder as Buyer may reasonably request in
writing and as shall be required in connection with any registration, or
qualification.
(c) Buyer shall not be obligated to effect any
registration pursuant to this Section 10 if the Buyer Stock intended to be
included in such registration on behalf of the holder thereof could be sold by
such holder to the public in an offering without registration.
(d) All costs and expenses, (except for commissions
resulting from the registration of the shares of the Stockholders, which shall
be borne by the appropriate Stockholder) incurred in effecting the registration
provided for in this Section 10, including without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for
Buyer, one (1) counsel for the Stockholders (which may be the same counsel
representing other stockholders participating in such registration and provided
fees for such counsel shall not exceed $5,000), underwriting expenses, expenses
of any audits incident to or required by any such registration, and expenses of
complying with the securities or Blue Sky laws of any jurisdictions, shall be
paid by Buyer; provided that such expenses will be borne pro rata by the
selling holders if so required by any state securities law regulatory agency
applicable to Buyer as a condition to qualifying said sale.
(e) In the event of any registration of any of its
securities under the Securities Act pursuant to this Section 10, Buyer shall
indemnify and hold harmless the seller of such securities, the seller's
accountants and attorneys, each underwriter (as defined in the Securities Act),
and each other person who participates in the offering of such securities and
each other person, if any, who controls (within the meaning of the Securities
Act) such seller,
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<PAGE> 19
underwriter or participating person against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter, participating
person or controlling person may become subject under the Securities Act or any
other statute or at common law, in so far as such losses, claims, damages or
liabilities (or action in respect thereof) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
Prospectus or final Prospectus contained therein, or any summary Prospectus
issued in connection with any securities being registered, or any amendment or
supplement thereto, or (b) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, except as otherwise provided in this Section 10
(e) hereof, shall reimburse each such seller, underwriter, participating person
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that Buyer
shall not be liable to any seller, underwriter, participating person, or
controlling person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statements or
alleged untrue statement or omissions or alleged omission made in such
Registration Statement, preliminary Prospectus, summary Prospectus, Prospectus
or amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such seller specifically for
use therein, or upon such statement or omission therein based on the authority
of an expert within the meaning of that term as defined in the Securities Act;
and provided further that Buyer shall not be required to indemnify any person
against any liability arising from any untrue or misleading statement or
omission or any alleged untrue statement or omission contained in any
preliminary Prospectus if such deficiency is corrected in the final Prospectus.
(f) Each Stockholder selling shares in any underwritten
public offering shall indemnify and hold harmless each other holder of any
stock of Buyer, Buyer, its directors and officers, each other person, if any,
who controls Buyer, and Buyer's accountants and attorneys, against any losses,
claims, damages, or liabilities, joint or several, to which any such holder,
the Buyer or any such director or officer or any such person may become subject
under the Securities Act or any other statute or at common law, in so far as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
Registration Statement under which Securities were registered under the
Securities Act at the request of such holder, any preliminary Prospectus or
final Prospectus contained therein, or any
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<PAGE> 20
summary Prospectus issued in connection with any securities being registered,
or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such Registration Statement, preliminary
Prospectus, summary Prospectus, Prospectus, amendment or supplement thereto in
reliance upon and in conformity with written information furnished to Buyer by
the Stockholder specifically for use therein, and then only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission by the Stockholder was not based on the authority of an expert as to
which the Stockholder had no reasonable ground to believe, and did not believe,
that the statement made on the authority of such expert was untrue or that
there was an omission to state a material fact; provided, however, that no
Stockholder shall be required to indemnify any person against any liability
arising from any untrue or misleading statement or omission or alleged untrue
or misleading statement or omission contained in any preliminary Prospectus if
such deficiency is corrected in the final Prospectus.
(g) Indemnification similar to, but only to the extent
of, that specified in paragraphs (e) and (f) of this Section 12 shall be given
by Buyer and each Stockholder (with such modifications as shall be appropriate)
with respect to any required registration or other qualification of the Buyer
Stock under any Federal or state law or regulation or governmental authority
other than the Securities Act.
(h) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 10 is due in accordance with its terms but is held by a court of
competent jurisdiction to be unenforceable or otherwise unavailable, the Buyer
or the relevant Stockholder shall contribute to the aggregate expenses, claims,
losses, damages and liabilities of the other party and for which such
indemnification was sought and owed by the terms hereof. In determining the
amount of contribution to which the respective parties are entitled, there
shall be considered the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission and the relative
fault of the parties. No person guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act shall be entitled to
contribution from any person who was not guilty of such misrepresentation. For
purposes of this Section 10(i), the directors, officers, employees, agents,
controlling persons and underwriters of the Stockholders and the Company shall
be entitled to contribution on the basis described above.
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11. Buyer's Covenant Re Operation of the Company's Business.
(a) Separate Corporate Existence; Liabilities. Buyer
covenants and agrees that subsequent to the Closing, Buyer shall maintain the
separate corporate existence of the Company, FNTS, and Buyer for the period
commencing on the Closing Date and terminating on the date of expiration of
Stockholders' and Buyer's respective rights under the Put and Call Agreement
between Buyer and the Stockholders, and Buyer shall not, and shall cause FNTS
to not, in any manner whatsoever, assign, convey, or transfer to the Company
any obligations or liabilities, or potential obligations or liabilities, of any
type of Buyer or FNTS (whether accrued, absolute, contingent, unliquidated or
otherwise), without the prior written consent of CRM Management Co., which may
be withheld in the sole and absolute discretion of CRM Management Co. Buyer
understands and agrees that all obligations and liabilities of every type
whatsoever of Buyer and FNTS, including, without limitation, any and all
obligations to employees arising prior to the Closing Date (including liability
for termination pay, back pay, vacation pay, vacation benefits, sick leave,
health benefits, pension plans, profit sharing plans, stock purchase plans,
reimbursement for business expenses, claims of any employee relating to
employment or the termination thereof by Buyer, or otherwise, through and
including November 1, 1996), customers, real property lessors, equipment
lessors, vendors, creditors, and all other persons or entities are and shall
remain the sole and exclusive liability and obligation of Buyer or FNTS, except
for the obligations of FNTS set forth on Schedule "11 (a)" to this Agreement,
which such other obligations shall be the responsibility of the Company.
(b) Assistance to the Company. Buyer covenants and
agrees that it shall extend all reasonable and customary assistance to the
Company in all areas where reasonable to assist the Company in obtaining new
business and in maintaining the Company's existing and new business.
(c) Appointment of Directors. Buyer covenants and agrees
that it shall vote its shares of capital stock of the Company, when taken
together with the shares voted by the Stockholders, in such a manner as to
cause the election of one (1) of the Stockholders to be a director of the
Company throughout the term of the Management Agreement between the Company and
CRM Management Co., and shall not increase the number of directors of the
Company to more than five (5) directors during the term of such Management
Agreement. It is the intention of
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the parties hereto that the Stockholders be entitled to elect only one (1) of
the five (5) directors of the Company.
(d) Principal Place of Business. Buyer covenants and
agrees that as soon as reasonably practicable after the Closing Date, as
determined by CRM Management Co. in its sole discretion, the Company shall
conduct the consolidated operations of the Company and FNTS at the Company's
offices at 468 North Rosemead Boulevard, Pasadena, California.
12. Indemnification.
(a) Indemnification by the Buyer. Buyer shall indemnify
and hold harmless the Stockholders against any and all losses, liabilities,
claims and expenses, including reasonable attorneys' fees ("Losses"), sustained
by the Stockholders resulting from, arising out of, or connected with any
inaccuracy in, breach of, or nonfulfillment of any representation, warranty,
covenant or other obligation of Buyer contained in this Agreement.
(b) Indemnification by Stockholders. Each Stockholder
shall (severally but not jointly) indemnify and hold harmless Buyer against any
and all Losses sustained by Buyer resulting from, arising out of, or connected
with any inaccuracy in, breach of, or nonfulfillment of any representation,
warranty, covenant or agreement made by or other obligation of such Stockholder
contained in this Agreement.
(c) Procedure. In the event any third party asserts any
claim with respect to any matter as to which the indemnities in this Agreement
relate, including indemnification pursuant to Section 10 hereof, the party
against whom the claim is asserted (the "Indemnified Party") shall give prompt
notice to the other party (the "Indemnifying Party"), and the Indemnifying Party
shall have the right at its election to take over the defense or settlement of
the third party claim at its own expense by giving prompt notice to the
Indemnified Party. Failure by the Indemnified Party to provide the Indemnifying
Party with notice of any such claim shall not relieve the Indemnifying Party
from any liability which the Indemnifying Party may have on account of this
indemnity or otherwise, except to the extent the Indemnifying Party shall have
been materially prejudiced by such failure. If the Indemnifying does not give
such notice and does not proceed diligently so to defend the third party claim
within 30 days after receipt of the notice of the third party claim, the
Indemnifying Party shall be bound by any defense or settlement that the
Indemnified Party may
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make as to those claims and shall reimburse the Indemnified Party for its Losses
and expenses related to the defense or settlement of the third party claim. The
parties shall cooperate in defending against any asserted third party claims.
For purposes of this Section 12, the indemnification of the Indemnified Party
shall also include the indemnification of the Indemnified Party's employees,
agents, affiliates, and third parties performing services for the Indemnified
Party, and the reference to this Agreement includes certificate, schedule, list,
summary or other information provided or delivered to a party by the
Indemnifying Party or its agents and affiliates in connection with this
Agreement.
13. Brokers and Finders Fee. The Stockholders and Buyer each
represent that there is no obligation to pay any commission, finders fee or
similar charge in connection with the transaction provided for in this
Agreement.
14. Survival of Representations and Warranties. The
representations and warranties of the Stockholders set forth in Section 4(b),
4(c), 4(d), 4(e), and 4(g) of this Agreement shall survive the Closing until
the expiration of the applicable statue of limitations; the representations and
warranties of Buyer set forth in Section 5(b), 5(e), and 5(f) of this Agreement
shall survive the Closing until the expiration of the applicable statue of
limitations; all other representations and warranties of the parties contained
in this Agreement shall survive the Closing for a period of one (1) year.
15. No Other Negotiations Pending Closing. After execution of
this Agreement and prior to the Closing Date, the Stockholders shall not
negotiate with any other person, firm or entity regarding the subject of this
Agreement.
16. General Provisions.
(a) Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by, the parties and their respective successors and
assigns.
(b) Amendment. This Agreement may not be amended,
altered or repealed,
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in whole or in part, except by an instrument in writing signed on behalf of
each of the parties hereto.
(c) Arbitration. Any controversy or claim arising out of
or relating to this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Los Angeles or Orange County,
California, in accordance with the Rules of the American Arbitration
Association then existing, and the judgment in arbitration may be entered in
any court having jurisdiction thereto.
(d) Attorneys' Fees. If any action at law or equity,
including an action for declaratory relief, or any proceeding in arbitration,
is brought to enforce or interpret the provisions of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees, and other costs incurred in that action or proceeding which
may be set by the court or the arbitration panel in the same action or any
separate action brought for that purpose, in addition to any other relief to
which such party may be entitled.
(e) Notices. Any notices or other communications
required or permitted hereunder shall be in writing and shall be deemed duly
given upon (a) transmitter's confirmation of a receipt of a facsimile
transmission, (b) confirmed delivery by a standard overnight carrier or when
delivered by hand, or (c) the expiration of five business days after the day
when mailed by certified or registered mail, postage prepaid, addressed to the
parties at the following addresses:
If to Buyer, to: Fidelity National Financial, Inc.
17911 Von Karman Avenue
Suite 300
Irvine, CA 92714
Facsimile No. (714) 622-4116
Attention: Andrew F. Puzder
with a copy to: Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive
Suite 1600
Newport Beach, CA 92660
Facsimile No. (714) 725-4100
Attention: C. Craig Carlson
If to Stockholders, to: the address set forth under their name
on the signature page hereof
with a copy to: Citron & Deutsch
10866 Wilshire Blvd. #970
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<PAGE> 25
Los Angeles, California 90024
Facsimile No. (310) 475-1368
Attention: Richard K. Citron
The addressees or addresses set forth above may be changed from time to time by
a notice sent to the other parties.
(f) Agreement to Perform All Necessary Acts. Each party
to this Agreement shall make, execute, acknowledge and deliver such other
instruments and documents and take all such other action, as may be reasonably
required to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
(g) Waiver of Breach. No waiver of any term, provision,
condition or breach of this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such term, provision, condition or breach of this
Agreement. No failure or delay by a party to exercise any right it may have by
reason of the breach or default of any other party shall operate as a waiver of
default or modification of this Agreement or prevent the exercise of any right
while the party continues to be in default.
(h) Entire Agreement. This Agreement (and the Exhibits
hereto) constitutes the entire agreement between the parties hereto pertaining
to the subject matter contained herein and supersedes any and all other
agreements, arrangements, and understandings, either oral or in writing,
between the parties hereto with respect to the subject matter hereof. Each
party to this Agreement acknowledges and represents that no representations,
warranties, covenants, conditions, inducements, promises or agreements, oral or
otherwise, other than as set forth herein, have been made by any party hereto,
or anyone acting on behalf of any party.
(i) Severability. It is intended that each section of
this Agreement should be viewed as separate and divisible, and in the event
that any section, provision, covenant, or condition of this Agreement shall be
held to be invalid, void, or unenforceable, the remainder of the provisions
shall remain in full force and effect and shall in no way be affected,
impaired, or invalidated.
(j) Choice of Law; Consent to Jurisdiction. This Agreement
shall be
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construed, interpreted and the rights of the parties determined in accordance
with the laws of the State of California, without regard to its choice of law
or conflict of law provisions. Each of the parties hereto irrevocably submit
to the exclusive jurisdiction of (i) the Superior Court of the State of
California for the County of Los Angeles or the County of Orange, and (ii) the
United States District Court for the Central District of California, for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby.
(k) Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
(l) Captions. The paragraph titles or captions used in
this Agreement are intended solely for the convenience of reference and shall
in no manner modify, expand, limit, explain, construe, describe the scope of or
intent, or in any way affect the terms and conditions of this Agreement.
(m) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(n) Exhibits and Schedules. The following Exhibits and
Schedules are attached to this Agreement and are incorporated in this Agreement
as though set forth in full therein.
Schedule 4 (d): CRM Liens on Assets
Schedule 4 (e): CRM Financial Statements
Schedule 4 (i): CRM Accounts Receivable
Schedule 4 (j): CRM Accounts Payable
Schedule 4 (k): CRM Trade Names, Trademarks, Copyrights and Patents
Schedule 4 (n): CRM Employees
Schedule 4 (p): CRM Insurance Policies
Schedule 4 (q): CRM Contracts
Schedule 5 (f) FNTS Contracts
Schedule 5 (g) FNTS Employees
Schedule 11 (a) FNTS Liabilities Assumed By CRM
Exhibit A: Software License Agreement
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Exhibit B: Stock Put Agreement
Exhibit C: Management Agreement
Exhibit D: Real Property Tax Reporting and Payment Service Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
<TABLE>
<CAPTION>
STOCKHOLDERS BUYER
- ------------ -----
<S> <C>
/s/ William F. McCreary, Sr. FIDELITY NATIONAL FINANCIAL, INC.
- ----------------------------- a Delaware corporation
WILLIAM F. MCCREARY, SR.
Trustee of The McCreary Family Trust
9750 Amanita Avenue
Tujunga, CA 91042 By: /s/ Andrew F. Puzder
--------------------
Andrew F. Puzder
Executive Vice President
/s/ Christopher M. McCreary and General Counsel
- ---------------------------
CHRISTOPHER M. MCCREARY
159 Stedman Place
Monrovia, CA 91016
/s/ William F. McCreary, Jr. AS TO SECTION 9(c) ONLY
- ----------------------------
WILLIAM F. MCCREARY, JR.
2812 Hermosita Drive
Glendale, CA 91208 FIDELITY NATIONAL TAX SERVICE
A California corporation
/s/ Dean P. McCreary By: /s/ Andrew F. Puzder
- -------------------- --------------------
DEAN P. MCCREARY Andrew F. Puzder
262 Manzanita Avenue Executive Vice President
Sierra Madre, CA 91024 and General Counsel
/s/ Mark R. Johnson
- -------------------
MARK R. JOHNSON
10447 Laramie Avenue
Chatsworth, CA 91311
/s/ Alan H. Martin
- ------------------
ALAN H. MARTIN
612 Mondo Drive
La Habra Heights, CA 90631
</TABLE>
27
<PAGE> 28
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(d)
CRM Liens on Assets
CRM, Inc. has the following liens on its assets
Advanta Leasing Corp. -
Inter-tel Leasing, Inc. - Telephone system
Digital Financial Services -
28
<PAGE> 29
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(e)
CRM, Inc. Financial Statements
29
<PAGE> 30
BRIAN W. POLCHOW
CERTIFIED PUBLIC ACCOUNTANT
468 NORTH ROSEMEAD BOULEVARD, PASADENA, CALIFORNIA 91107
(818)351-8180 FAX (818)351-8181
MEMBER
AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
CALIFORNIA SOCIETY OF
CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors
CRM Incorporated
468 North Rosemead Boulevard
Second Floor
Pasadena, California 91107
I have compiled the balance sheet of Crm Incorporated as of September 30, 1996
and the related statement of income and retained earnings for the year then
ended, in accordance with the standards established by the American Institute
of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. I have not audited or
reviewed the accompanying financial statements and, accordingly do not express
an opinion or any form of assurance on them. However, I did become aware of
departures from generally accepted accounting principles that are described in
the following paragraph.
Management has elected to omit substantially all of the disclosures and
statement of cash flows required by Generally Accepted Accounting Principles.
If the omitted disclosures and statement of cash flows were included, they
might influence the user's conclusions about the company's financial position,
results of operations and cash flows. Accordingly, these financial statements
are not designed for those who are not informed about such matters. Further,
management has elected not to recognize the liability for deferred income taxes
required by Generally Accepted Accounting Principles. The effect of this
departure on the financial position, results of operations, and cash flows have
not been determined.
I am not independent with respect to CRM Incorporated.
/s/ BRIAN W. POLCHOW
October 10, 1996
<PAGE> 31
CRM INCORPORATED
BALANCE SHEET
SEPTEMBER 30, 1996
ASSETS
CURRENT ASSETS
CASH AND CERTIFICATES OF DEPOSIT $1,076,946
ACCOUNTS RECEIVABLE 372,755
LOANS TO RELATED PARTIES 37,963
PREPAID EXPENSES 76,574
----------
TOTAL CURRENT ASSETS 1,564,238
PROPERTY, PLANT, AND EQUIPMENT
LEASEHOLD IMPROVEMENTS $ 338,781
FURNITURE AND EQUIPMENT 1,059,958
----------
1,398,739
LESS: ACCUMULATED DEPRECIATION (826,079)
----------
TOTAL PROPERTY, PLANT, AND EQUIPMENT 572,660
OTHER ASSETS
LEASE DEPOSITS 67,206
INVESTMENTS 75,459
---------
TOTAL OTHER ASSETS 142,665
----------
$2,279,563
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
ACCOUNTS PAYABLE $ 97,891
ACCRUED PAYROLL AND RELATED LIABILITIES 29,132
INCOME TAXES PAYABLE 139,650
CURRENT PORTION OF LONG TERM DEBT 31,417
----------
TOTAL CURRENT LIABILITIES 298,090
LONG TERM DEBT 72,920
LEASE DEPOSITS 2,055
STOCKHOLDERS' EQUITY
COMMON STOCK $ 29,000
ADDITIONAL PAID IN CAPITAL 25,000
RETAINED EARNINGS 1,852,498
----------
TOTAL STOCKHOLDERS' EQUITY 1,906,498
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $2,279,563
==========
BRIAN W. POLCHOW
CERTIFIED PUBLIC ACCOUNTANT
<PAGE> 32
CRM INCORPORATED
STATEMENT OF INCOME AND RETAINED EARNINGS
FOR THE YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<S> <C> <C>
REVENUE
INCOME FROM OPERATIONS $2,925,937
INTEREST INCOME 25,819
OTHER INCOME 17,252
----------
2,969,008
EXPENSES
SALARIES AND WAGES $989,889
TAXES ON PAYROLL 74,937
EMPLOYEE BENEFITS 69,326
AUTOMOBILE 40,691
COMMISSIONS 212,519
CONVENTIONS 7,658
DATA ACQUISITION AND CERTIFIED DOCUMENTS 329,940
CUSTOMER REIMBURSEMENTS 18,588
DEPRECIATION 168,994
DUES AND SUBSCRIPTIONS 14,159
ENTERTAINMENT AND PROMOTION 31,944
INSURANCE 31,869
INTEREST AND BANK CHARGES 2,822
LEGAL AND ACCOUNTING 53,295
OFFICE EXPENSE 1,704
OUTSIDE SERVICES 15,529
POSTAGE AND DELIVERY 34,455
PRINTING AND STATIONERY 27,371
PROGRAMMING AND SOFTWARE 37,843
RENT 161,715
REPAIRS AND MAINTENANCE 50,859
SUPPLIES 23,587
TAXES AND LICENSES 25,689
TELEPHONE 62,252
TRAVEL 29,346
UTILITIES 32,841
--------
TOTAL EXPENSE 2,549,822
----------
OPERATING INCOME (LOSS) $ 419,186
LOSS ON INVESTMENTS (ENVIRONMENTAL RESEARCH, INC.) 99,650
----------
NET INCOME BEFORE TAXES 319,536
INCOME TAXES 167,323
----------
NET INCOME 152,213
RETAINED EARNINGS, OCTOBER 1, 1995 1,700,285
----------
RETAINED EARNINGS, SEPTEMBER 30, 1996 $1,852,498
==========
</TABLE>
BRIAN W. POLCHOW
CERTIFIED PUBLIC ACCOUNTANT
<PAGE> 33
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(i)
CRM Accounts Receivable
- -----------------------
30
<PAGE> 34
CRM, INC.
ACCOUNTS RECEIVABLE
9/30/96
<TABLE>
<S> <C>
BALANCE PER AGING $301,077.3?
9/30/96 BILLING (SEE BILLING DEBIT TOTAL 45,530.00
9/30/96 WESTERN FINANCIAL BILLING 26,148.00
-----------
BALANCE 9/30/96 $372,755.3?
===========
</TABLE>
<PAGE> 35
10/09/96 at 01:25 PM CRM, Inc. Page 8
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
UNITED TITLE 8150 48.00 48.00
CONTINENTAL LAND 8180 52.00 52.00
ORANGE COAST TITLE 8230 96.00 96.00
OLD REPUBLIC TTLE CO 8660 56.00 56.00
FIRST SOUTH WESTERN TITLE 8670 148.00 52.00 96.00
WESTERN CITIES TITLE 8700 112.00 112.00
MISCELLANEOUS 99000 3,414.18 1,126.00 48.00 2,240.18
BENEFIT LAND TITLE COMPANY 99126 96.00 207.000 96.00
SIGNAL MORTGAGE MIS001 207.00
</TABLE>
<TABLE>
<CAPTION>
--------------- AGING SUMMARY --------------
<S> <C> <C>
TOTAL OPEN ITEMS 301,077.37 100.0%
CURRENT 130,840.64 43.5%
31 - 60 DAYS 1,944.55 0.6%
61 - 90 DAYS 19,191.25 6.4%
90 + DAYS 149,100.93 49.5%
</TABLE>
<PAGE> 36
10/09/96 at 01:23 PM CRM, Inc. Page 1
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
SAN FRANCISCO FIREMEN C U 1300 50.00 10.00 40.00
POSTAL CREDIT UNION OF L.A. 1445 144.00- 144.00-
PARSONS FEDERAL CREDIT UNION 1480 48.00 48.00
POSTAL & FEDERAL EMPLOYEES C.U. 1525 654.00 288.00 144.00- 510.00
SESLCO FEDERAL CREDIT UNION 1825 336.00 192.00 144.00
STANISLAUS COUNTY FEDERAL 1876 144.00 48.00 96.00
WATER & POWER CREDIT UNION 1896 364.00 104.00 260.00
XEROX FED CREDIT UNION 1975 6,676.00 5,268.00 1,408.00
SECURITY UNION TITLE INSURANCE ?SEC 4,199.30 1,379.65 2,517.15 302.50
TEST MORTGAGE 22222 96.00 96.00
ROLAND LAND, CALIF RESOURCES ?550 2,668.00 986.00 116.00 1,566.00
HIGHLAND FEDERAL ?440 1,032.00 384.00 648.00
MALAGA BANK ?505 1,838.00 322.00 676.00 840.00
</TABLE>
<PAGE> 37
10/09/96 at 01:24 PM CRM, Inc. Page 2
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
IMPERIAL THRIFT AND LOAN 3524 19,752.00 2,922.00 10,174.00 6,656.00
EASTERN INTERNATIONAL BANK 3628 520.00 376.00 144.00
HAWTHORNE SAVINGS AND LOAN 3636 8,724.30 3,241.00 5,483.30
TORRANCE BANK 3830 54.00 54.00
TRUST SAVINGS 3843 212.00 96.00 116.00
UNIVERSAL SAVINGS 3901 2,430.00 1,348.00 1,082.00
WESTERN FEDERAL 3972 237.00 237.00
WESTERN FINANCIAL 3999 30,004.80 29,808.00 196.80
REHAB FINANCIAL CORP. 41000 8,944.00 8,944.00
POWAY REDEVELOPMENT AGENCY 41110 378.00 378.00
CITY OF SOUTHGATE/REDEV AGENCY 1150 972.00 972.00
CITY OF EL CAJON 3001 30.00 24.00-
BANKERS MUTUAL ?050 112.00 112.00
</TABLE>
<PAGE> 38
10/09/96 at 01:25 PM CRM, Inc. Page 3
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
BANKERS MUTUAL MORTGAGE, INC. 5060
BENEFICIAL MORTGAGE CORP. 5200 4,276.00 4,276.00
COUNTRYWIDE HOME MORTGAGE 5333 8,642.80 8,642.80
FIRST ALLIANCE MORTGAGE CO 5344 2,376.00 1,728.00 648.00
SOUTHWEST HARVARD GROUP 5375 100.00 100.00
IMPERIAL CREDIT INDUSTRIES 5432 240.00 240.00
PACIFIC CREST INVESTMENT & LOAN 5434 164.00 39.00 125.00
CALIFORNIA THRIFT AND LOAN 5440 50.00 50.00
DIRECTORS MORTGAGE 5511 676.00- 676.00-
BENEFIT LAND TITLE CO 55555 96.00 96.00
G.E. CAPITAL COMMERCIAL CORP. 5575 1,779.90 249.10 260.40 48.00 1,222.40
DARYL BIRD
COASTAL SECURITY MORTGAGE 5581 100.00 100.00
COASTAL SECURITY MORTGAGE 5582 96.00 96.00
RICHARD
</TABLE>
<PAGE> 39
10/09/96 at 01:24 PM CRM, Inc. Page 4
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
GREAT WESTERN FINANCIAL SERVI. 5585 240.00 192.00 48.00
SANWA BANK OF CALIFORNIA 56200 864.00 72.00 376.00 416.00
HARBOR BANK 5630 240.00 240.00
TITLE WEST MORTGAGE 5650 48.00 48.00
LTC ESCROW DIVISION 5650A 48.00 48.00
CACHE MORTGAGE 5686 1,773.00 1,773.00
SECURED BANKERS MORTGAGE CO. 5700 14,964.00 14,964.00
PACIFIC THRIFT AND LOAN 5740 704.00 704.00
CALIFORNIA STATEWIDE CDC 5785 24.00- 48.00 72.00-
SOUTHERN PACIFIC THRIFT & LOAN 5800 36,582.00 3,295.00 3,775.00- 3,693.00 33,369.00
WALLACE MOIR COMPANY 5815 12,916.00 320.00 472.00 960.00 11,164.00
LTC PROPERTIES, INC. 5890 282.00 282.00
BUDGET FINANCE COMPANY 5970 48.00 48.00
</TABLE>
<PAGE> 40
10/09/96 at 01:24 PM CRM, Inc. Page 5
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
NORTH AMERICAN REAL ESTATE SER 5996 48.00 48.00
CALIFORNIA UNITED BANK 6000 472.00 312.00 160.00
CITIZENS BANK 6006 112.00 112.00
AMERICAN PACIFIC STATE BANK 6020 656.00 272.00 384.00
EXCHANGE BANK 6025 1,208.00 1,208.00
CUB FUNDING CORP. 6060 53,830.98 572.00 1,452.75 51,806.23
SUN TRUST BANK 61001 48.00 48.00
CHINO VALLEY BANK 6110 652.00 64.00 100.00 488.00
UNITED NATIONAL BANK 6118 272.00 64.00 208.00
COMMUNITY BANK 6120 298.00 64.00 234.00
CEDARS BANK 6133 436.00 96.00 112.00 228.00
MARATHON NATIONAL BANK 6155 216.00 216.00
OMNI BANK 6190 152.00 152.00
</TABLE>
<PAGE> 41
10/09/96 at 01:24 PM CRM, Inc. Page 6
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
BANK OF SOUTHERN CALIFORNIA 6215 33.00 33.00
NATIONAL BANK OF THE REDWOODS 6243 672.00 672.00
KAWEAH NATIONAL BANK 6245 576.00 576.00
VENTURA COUNTY NATIONAL BANK 6260 160.00 160.00
THE BANK OF HOLLYWOOD 6270 264.00 264.00
BANK OF CANTON 6328 99.00 96.00 3.00
BAY CITIES NATIONAL BANK 6350 144.00 144.00
PREFERRED BANK 6377 48.00 48.00
FOOTHILL INDEPENDENT BANK 6460 144.00 48.00 96.00
UTAH FEDERAL SAVINGS BANK 6465 1,134.00 378.00 756.00
DEPARTMENT OF VETERANS AFFAIRS 65025 43,760.00 43,760.00
MILLENIUM BANK 6510 336.00 116.00 220.00
LOS ANGELES NATIONAL BANK 6523 568.00 328.00 240.00
</TABLE>
<PAGE> 42
10/09/96 at 01:24 PM CRM, Inc. Page 7
CUSTOMER AGED RECEIVABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
TOTAL ------------------- AGED BALANCE ----------------------
CUSTOMER NO. DUE CURRENT 31-60 61-90 90 +
- -------------------------------- ---- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
SAN GABRIEL VALLEY BANK 6530 48.00 48.00
SANTA MONICA BANK 6600 144.00 48.00 96.00
CHINA TRUST BANK OF CALIFORNIA 6630 144.00 144.00
SIMI VALLEY BANK 6765 96.00 96.00
METROBANK 6790 48.00 48.00
QUEEN CITY BANK 6805 48.00 48.00
THE SIAM COMMERCIAL BANK 6810 18.00 18.00
SANWA BANK - RESIDENTIAL 6820 84.00 84.00
PAN AMERICAN BANK 6830 144.00 144.00
FIRST CENTRAL MORTG. DIVISION 6882 58.00 58.00
FAR EAST NATIONAL 6888 320.00 320.00
GOVERNMENT FINANCE GROUP 77700 4,972.11 2,513.09 2,459.02
J KLIMOWSKI
CHICAGO TITLE COMPANY 8101 8,124.00 104.00 244.00 7,776.00
</TABLE>
<PAGE> 43
CRM, INC.
Schedule of Doubtful Accounts
September 30, 1996
<TABLE>
<CAPTION>
CUSTOMER # CUSTOMER NAME AMOUNT
- ----------- --------------------------------- ---------
<S> <C> <C>
1525 POSTAL & FEDERAL EMPLOYEES C/U 510.00
1975 XEROX 1,408.00
2550 ROLAND LAND 1,566.00
3440 HIGHLAND FEDERAL 648.00
3505 MALAGA BANK 840.00
3524 IMPERIAL THRIFT 9,005.00
3636 HAWTHORNE SAVINGS 5,483.30
41000 REHAB FINANCIAL 8,744.00
41150 CITY OF SOUTHGATE 972.00
5200 BENEFICIAL 4,276.00
5575 G.E. CAPITAL 1,222.40
5740 PACIFIC THRIFT AND LOAN 704.00
5800 SOUTHERN PACIFIC THRIFT AND LOAN 36,582.00
5815 WALLACE MOIR 11,164.00
6060 CUB FUNDING 53,830.98
6465 UTAH FEDERAL 756.00
77700 GOVERNMENT FINANCE GROUP 2,459.02
8101 CHICAGO TITLE 7,776.00
99000 MISCELLANEOUS 2,240.18
----------
150,186.88
==========
</TABLE>
<PAGE> 44
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(j)
CRM Accounts Payable
- --------------------
31
<PAGE> 45
10/10/96 at 10:20AM CRM, Inc. Page 4
VENDOR AGED PAYABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
VENDOR --------------- AGED BALANCE ------------------
INV DATE REF NO. T DUE CURRENT 31 - 60 61 - 90 90+
- -------- ------- - ----- --------- --------- --------- --------
-------------------- AGING SUMMARY ---------------------
<S> <C> <C>
TOTAL OPEN ITEMS 84,891.14 100.0%
CURRENT 84,891.14 100.0%
31 - 60 DAYS 0.00
61 - 90 DAYS 0.00
90 + DAYS 0.00
ESTIMATED SEPT UTILITIES 3,000.00
ESTIMATED UNRECORDED 10,000.00
DATA ACQUISITION
---------
97,891.14
=========
</TABLE>
<PAGE> 46
10/10/96 at 10:18AM CRM, Inc. Page 1
VENDOR AGED PAYABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
VENDOR ------------------- AGED BALANCE ----------------------
INV DATE REF NO. T DUE CURRENT 31 - 60 61 - 90 90+
- -------- ------- - ----- --------- --------- --------- --------
<S> <C> <C > <C> <C> <C> <C> <C>
1ABE AIRBORNE EXPRESS
09/20/96 T7284196 I 10/20 123.25
TOTAL DUE: 123.25 123.25
1AJT AJT MICROFILMING
09/30/96 10-520 I 10/30 50.88
TOTAL DUE: 50.88 50.88
1ATT AT&T
09/09/96 3637167 I 10/09 9.63
TOTAL DUE: 9.63 9.63
1AVS 15174 JEFFERSON STREET
09/23/96 9609-005 I 10/23 225.00
TOTAL DUE: 225.00 225.00
1CAB CABLE & WIRELESS COMM, INC.
09/16/96 8237479 I 10/16 5.91
TOTAL DUE: 5.91 5.91
1CAL CALIFORNIA TRUST DEED BROKERS
09/30/96 1056 I 10/30 120.00
TOTAL DUE: 120.00 120.00
1CFI CFI PROSERVICES, INC.
09/30/96 190948 I 10/30 256.25
TOTAL DUE: 256.25 256.25
1CLAN CLARK COUNTY TREASURER
09/19/96 FEB DATA I 10/19 111.01
TOTAL DUE: 111.01 111.01
1CRM CRM PROFIT SHARING PLAN & TR
09/30/96 PEN LOAN I 10/30 4,766.08
TOTAL DUE: 4,766.08 4,766.08
1DAT DATAQUICK
09/30/96 NO2883 I 10/30 459.25
TOTAL DUE: 459.25 459.25
1DFS DIGITAL FINANCIAL SERVICES
09/22/96 18023897 I 10/22 2,652.60
TOTAL DUE: 2,652.60 2,652.60
1FED FEDERAL EXPRESS CORP
09/30/96 67979491 I 10/30 12.40
TOTAL DUE: 12.40 12.40
1GTE GTE CALIFORNIA
09/16/96 182-1096 I 10/16 150.38
09/30/96 351-5060 I 10/30 2,283.06
TOTAL DUE: 2,494.42 2,494.42
</TABLE>
<PAGE> 47
10/10/96 at 10:18 AM CRM, Inc. Page 2
VENDOR AGED PAYABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
VENDOR ---------------------- AGED BALANCE ---------------------
INV DATE REF NO. T DUE CURRENT 31-60 61 - 90 90 +
- -------- ------- - --- ---------- ----------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
1HAW RON HAWKINS
09/30/96 9/96 I 09/30 1,752.00
TOTAL DUE: 1,752.00 1,752.00
1HOR KOBEY HORN
09/30/96 SEP 96 I 10/30 279.20
TOTAL DUE: 279.20 279.20
1INF INFORMATION SERVICES & SUPPORT
09/30/96 808 I 10/30 100.00
TOTAL DUE: 100.00 100.00
1INK INK SPOT LITHOGRAPHY
09/30/96 3728 I 10/30 297.88
TOTAL DUE: 297.88 297.88
1LAC LA CELLULAR TELEPHONE CO
09/30/96 14325922 I 10/30 54.32
TOTAL DUE: 54.32 54.32
1LACT LOS ANGELES COUNTY TAX
09/30/96 MO64 I 10/30 358.00
TOTAL DUE: 358.00 358.00
1LIT WILLIAM LITTLE
09/30/96 9/96 I 10/30 116.20
TOTAL DUE: 116.20 116.20
1NFS NATIONAL FLOOD SERVICE
09/30/96 VA PROJ I 10/30 32,580.00
TOTAL DUE: 32,580.00 32,580.00
1RES RESSAC
09/30/96 27041 I 10/30 100.00
09/30/96 26288 I 10/30 100.00
TOTAL DUE: 200.00 200.00
1ROS ROSS DIVERSIFIED
09/30/96 9/96 I 10/30 11,000.00
TOTAL DUE: 11,000.00 11,000.00
1SCH SCHWAAB
09/19/96 L424320 I 10/19 30.80
TOTAL DUE: 30.80 30.80
1SEC SECURITY UNION TITLE INSURANCE
09/30/96 DP0012 I 10/30 785.79
09/30/96 196058 I 10/30 632.12
TOTAL DUE: 1,417.91 1,417.91
1SEPH SEPHTON ELECTRICAL SERVICES
09/27/96 1523 I 10/27 221.25
TOTAL DUE: 221.25 221.25
</TABLE>
<PAGE> 48
10/10/96 at 10:19 AM CRM, Inc. Page 3
VENDOR AGED PAYABLES
AGING DATE: 09/30/96
<TABLE>
<CAPTION>
VENDOR ---------------------- AGED BALANCE ---------------------
INV DATE REF NO. T DUE CURRENT 31-60 61 - 90 90 +
- -------- ------- - --- ---------- ----------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
1STATE STATE COMPENSATION INS
09/26/96 1320155 I 10/26 1,161.25
TOTAL DUE: 1,161.25 1,161.25
1UNI UNIDEN VALENCIA INC.
09/25/96 4015 I 10/25 404.14
TOTAL DUE: 404.14 404.14
1VEN VENTURA COUNTY
09/18/96 01247 I 10/18 355.00
09/25/96 01250 I 10/25 355.00
TOTAL DUE: 710.00 710.00
1WEL WELLS FARGO BANK
09/30/96 MCARD I 10/30 1,937.98
TOTAL DUE: 1,937.98 1,937.98
1WRD WESTERN REGIONAL DATA
09/30/96 11781 I 10/30 100.00
09/30/96 12093 I 10/30 15.00
TOTAL DUE: 415.00 415.00
1WYL WYLE EMG-LOS ANGELES
09/20/96 055921 I 10/20 3,527.41
09/30/96 055616 I 10/30 4,328.25
TOTAL DUE: 7,855.66 7,855.66
2DIR DIRECTORS MORTGAGE LOAN
09/30/96 A317722 I 10/30 62.82
09/30/96 A318088 I 10/30 307.78
09/30/96 5511 I 10/30 1,578.04
09/30/96 2735 I 10/30 2,434.10
TOTAL DUE: 4,382.74 4,382.74
2NOR NORTH AMERICAN MORTGAGE
09/30/96 I 10/30 120.00
TOTAL DUE: 120.00 120.00
2SEC SECURED BANKERS MORTGAGE
09/30/96 5700 I 10/30 1,058.24
09/30/96 9401362 I 10/30 322.57
TOTAL DUE: 1,380.81 1,380.81
2WEST WESTERN FINANCIAL SAVINGS
09/30/96 399 I 10/30 3,758.51
09/30/96 539080 I 10/30 563.84
09/30/96 2735 I 10/30 2,432.17
TOTAL DUE: 6,754.52 6,754.52
3MED ANGEL MEDINA
09/30/96 EXP RPRT I 10/30 74.80
TOTAL DUE: 74.80 74.80
</TABLE>
<PAGE> 49
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(k)
CRM Trade Names, Trademarks, Logos, Patents
CRM, Inc. is doing business under the name CRM Real Estate Tax Services
CRM, Inc. is doing business under the name CRM Credit Services
32
<PAGE> 50
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(n)
CRM Employees
<TABLE>
<CAPTION>
Employee Hourly Rate Monthly Salary
- -------- ----------- --------------
<S> <C> <C>
Susan Miyadi Salary $4,200.00
Elizabeth Sia $11.03 $1,911.86
Angel Medina Salary $2,154.24
Armando Perez Salary $2,527.92
Amy Quach $14.71 $2,549.73
Natalie Dankenbring $10.45 $ 905.67 Part Time
Olivia Medina $ 8.10 $1,404.00
Samantha Singh $ 6.65 $1,037.40 Part Time
Manolito Garcia $11.50 $1,993.33
Candy Ng $20.83 $3,610.53
Theu Vu Salary $2,500.00
Katie Hartnett Salary $2,500.00
Frank Flores $ 5.50 $ 953.33 Part Time
William McCreary, Jr. Salary $7,150.00
Dean McCreary Salary $7,150.00
Chris McCreary Salary $7,150.00
Alan Martin Salary $7,150.00
Mark Johnson Salary $7,150.00
</TABLE>
33
<PAGE> 51
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(p)
CRM Insurance Policies
Errors and Omissions Insurance
National Union Fire Insurance Company of Pittsburgh, PA Policy No. 482-92-99
Property Insurance
Northbrook Property & Casualty Company Policy No. 95-450456
Automobile Insurance
Northbrook Property & Casualty Company Policy No. CA0450458
Health Insurance
Blue Cross of California
34
<PAGE> 52
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 4(q)
CRM Contracts
1. Agreement for Marketing and Servicing Real Estate Tax Service Business with
Chicago Title Company.
2. Independent Contractors Agreement with Ron Hawkins.
3. Agreement with National Flood Information Services, Inc.
4. Title Plant Agreement with Safeco Title Insurance Company.
5. Agreement with TRW REDI Texas Tax System Access.
6. Data Base Agreement with Security Union Title Insurance Company.
7. Master Lease Agreement with Digital Financial Services.
8. Support Quotation from Forest Computer.
9. Master Maintenance Agreement with Dover Elevators.
10. Equipment Lease with Inter-tel.
11. Agreement with Computer Development Services, Inc.
12. CRM's Profit Sharing and Trust Schedule of Contributions and Forfeitures.
13. Service Agreement with Digital Financial Services.
14. Real Estate Tax Reporting and Payment of Service Agreement with Cache
Mortgage.
15. Real Estate Tax Reporting and Payment of Service Agreement with LTC
Properties, Inc.
16. Real Estate Tax Reporting and Payment of Service Agreement with Bankers
Mutual.
17. Real Estate Tax Reporting and Payment of Service Agreement with Metrobank.
18. Real Estate Tax Reporting and Payment of Service Agreement with California
United Bank.
19. Real Estate Tax Reporting and Payment of Service Agreement with Hawthorne
Savings and Loan Association.
20. Real Estate Tax Reporting and Payment of Service Agreement with Kaweah
National Bank.
35
<PAGE> 53
21. Real Estate Tax Reporting and Payment of Service Agreement SESLOC Federal
Credit Union.
22. Real Estate Tax Reporting and Payment of Service Agreement with Pacific
Crest Investment and Loan.
23. Form Real Estate Tax Reporting and Payment of Service Agreement with
Western Financial Savings Bank.
24. Real Estate Tax Reporting and Payment of Service Agreement with Wallace
Moir Company.
25. Tax Services for Multifamily and Commercial Loans with GMAC Commercial
Mortgage Corporation.
26. Private Label Agreement with Lawyers Title Insurance Company.
27. Letter from the Department of Veterans Affairs dated May 14, 1996.
28. Electronic Product Annual Lease Agreement with TRW-REDI.
29. Standard Office Lease - Net between Glen Gary Partners, as Lessor, and
CRM, Inc., as Lessee, for the property located at 468 Rosemead Blvd.,
Pasadena, CA.
30. Standard Office Lease - Gross, between CRM, Inc. and Edwards, Eichel and
Beranek.
31. Indemnification Agreement, between CRM, Inc. And William H. Little.
32. Indemnification Agreement between DRM, Inc. And Norman M. Coulson.
33. Commission Agreement with Ross Diversified.
34. Commission Agreement with William H. Little.
35. Automobile Payment Agreement for Bill McCreary Vehicle Lease Agreement.
36. Automobile Payment Agreement for Christopher McCreary Vehicle Lease
Agreement.
37. Automobile Payment Agreement for Dean McCreary Vehicle Lease Agreement.
38. Automobile Payment Agreement for Alan Martin Vehicle Lease Agreement.
Defaults
CRM, Inc. has not provided financial statements to Lawyers Title Insurance
Company as provided in Section 9 of the Private Label Agreement. CRM, Inc. has
not received any notice of default from Lawyers Title Insurance Company.
36
<PAGE> 54
AGREEMENT FOR PURCHASE AND SALE OF STOCK
SCHEDULE 5(f)
FNTS Contracts
Office Lease for 1698 Greenbriar Lane, Brea California
Tax Service Agreement between World Tax Services, Inc. and Coast Federal Bank
FSB
Tax Service Agreement between World Tax Services, Inc. and Eldorado Bank
Tax Service Agreement between World Tax Services, Inc. and First Republic
Thrift & Loan
Tax Service Agreement between World Tax Services, Inc. and Long Beach Bank
Tax Service Agreement between World Tax Services, Inc. and National Pacific
Mortgage
Tax Service Agreement between World Tax Services, Inc. and Stockton Savings
Bank
Tax Service Agreement between Fidelity National Tax Service and California
State Bank
Tax Service Agreement between Fidelity National Tax Service and Glendale
Federal Bank
Tax Service Agreement between Fidelity National Tax Service and Mountain States
Mortgage Center
Property Tax Service Agreement between Fidelity National Tax Service and Wells
Fargo Bank, National Association
Oral Tax Service Agreement between Fidelity National Tax Service and First
Mortgage Corporation
Other oral agreements to render tax services which have less than one hundred
(100) orders per month
37
<PAGE> 1
EXHIBIT 11
FIDELITY NATIONAL FINANCIAL, INC. AND SUBSIDIARIES
COMPUTATION OF PRIMARY AND FULLY DILUTED
EARNINGS PER SHARE
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1996 1995 1994
------------ ------------ ------------
<S> <C> <C> <C>
Earnings before extraordinary item ......................... $24,337 $ 7,632 $ 9,745
Extraordinary item - gain (loss) on early retirement of
debt, net of applicable income tax expense (benefit)
of $(437) in 1995 and $1,292 in 1994...................... -- (813) 2,400
------- ------- --------
Primary net earnings ....................................... 24,337 6,819 12,145
Add: Interest expense and amortization of debt
issuance costs, net of income tax effect,
applicable to LYONs.................................... 3,196 3,245 3,056
------- ------- --------
Fully diluted net earnings ................................. $27,533 $10,064 $15,201
======= ======= =======
Weighted average shares outstanding
during the period (1) .................................... 13,670 13,755 17,555
Common stock equivalent shares-primary ..................... 595 512 569
------- ------- --------
Common and common stock equivalent shares outstanding
for purpose of calculating primary net earnings
per share ................................................ 14,265 14,267 18,124
Incremental shares to reflect full dilution................. 4,417 4,643 4,480
------- ------- --------
Total shares for purpose of calculating fully diluted net
earnings per share ....................................... 18,682 18,910 22,604
======= ======= =======
Primary earnings per share before extraordinary item .... $ 1.71 $ .53 $ .54
Extraordinary item, gain (loss) on early retirement of debt . -- (.05) .13
------- ------- --------
Primary net earnings per share .............................. $ 1.71 $ .48 $ .67
======= ======= ========
Fully diluted net earnings per share ........................ $ 1.47 $ .53 (2) $ .67
======= ======= ========
</TABLE>
- ---------------
(1) Includes retroactive effects of all stock dividends and splits.
(2) As other dilutive securities have an antidilutive effect, the earnings per
share impact is not presented in the Consolidated Financial Statements.
<PAGE> 1
EXHIBIT 21
List of Subsidiaries
1. Manchester Development Corporation, a California corporation (d/b/a
Orion Realty Group);
a. Kensington Development Corporation, a California corporation,
owns 90%, Fidelity National Title Insurance Company of
California ("FNCAL"), a California corporation, owns 10% (see
3(d)(2) below);
2. Rocky Mountain Aviation, Inc., an Arizona corporation
3. Fidelity National Title Insurance Company, a California
corporation (99.9% owned by FNFI);
Material Subsidiaries:
----------------------
(a) Republic Title Insurance Agency, Inc., an Arizona corporation
(inactive);
(b) Fidelity National Title Insurance Company of Tennessee, a Tennessee
corporation;
Material Subsidiaries:
----------------------
1. Title Services, Inc., a Tennessee corporation;
2. BHC&M, Ltd., a Virginia corporation;
(c) Southern Title Holding Company, a Texas corporation (inactive);
(d) Fidelity National Title Insurance Company of California, a California
corporation;
Material Subsidiaries:
----------------------
1. Western Financial Trust Company, a California corporation;
2. Manchester Development Corporation, a California corporation,
10% is owned by FNTIC-CA; 90% by Kensington Development
Corporation, a California corporation (see 1(a) above);
3. Fidelity National Company of Northern California, a California
corporation;
(e) Title Insurance Policy Co. of Pinal County, an Arizona corporation:
(f) Pacific American Property Exchange Corporation, a California
corporation;
(g) UTC Capital Group, Inc., a Texas corporation;
Material Subsidiaries:
-----------------------
(1) Dallas-Fidelity National Title Agency, Inc., a Texas corporation
d/b/a Fidelity National Title Agency, Inc.;
(2) LRT Record Services, Inc., a Texas corporation d/b/a Land Records of
Texas;
(h) Fidelity Tax Service, a California corporation;
(i) Fidelity National Company of California, a California corporation;
(j) Nations Title Insurance Company, a Kansas corporation, subsidiaries:
Material Subsidiary:
--------------------
(1) Suds Car Wash, Inc., a Nevada Corporation
(k) Fidelity National Title of Hawaii, Inc., a Hawaii corporation;
(l) Fidelity National Title Agency of Nevada, Inc., a Nevada corporation;
<PAGE> 2
EXHIBIT 21
(Continued)
4. Fidelity National Title Insurance Company of Pennsylvania, a
Pennsylvania corporation, owned 99.9%;
Material Subsidiaries:
(a) American Title Insurance Company ("ATIC"), a Florida
corporation (merged into Fidelity National Title Insurance
Company of Pennsylvania on 11/21/96);
Material Subsidiaries:
(1) Amtitle Company, a California corporation (inactive);
(2) Gulf Stream Title Company of Miami, a Florida corporation
(inactive);
(3) Settlement Network of Pennsylvania, a Pennsylvania
corporation (inactive);
(4) American Title and Abstract Company, a Florida corporation
(inactive);
(5) Miami Title and Abstract Company, a Florida corporation
(inactive);
(b) National Title Insurance Services, Inc., a North Carolina
corporation (inactive);
(c) Network Title Insurance Agencies of Florida, Inc. a Florida
corporation (inactive);
(d) Statewide Research, Inc., a Florida corporation;
5. Western Pacific Property and Casualty Agency, Inc., an Arizona
corporation;
6. Lake Mortgage Corporation, an Arizona corporation (inactive);
7. FNTIC Properties, a California corporation;
8. Rocky Mountain Printing Services, Inc., a California corporation;
9. Fidelity Asset Management, Inc., a California corporation;
10. Fidelity Participations, Inc., an Arizona corporation;
11. Nationwide Recording Service, a California corporation;
12. CalWest Service Corporation, a California corporation;
13. Fidelity National Title Insurance Company of New York, a New York
corporation;
Material Subsidiaries:
(a) Nations Title Insurance of New York, Inc., a New York
corporation;
Material Subsidiaries:
(1) Maryland Abstract, Inc., a Maryland corporation;
(2) Nations Title of Arizona, Inc., an Arizona corporation;
(b) National Title Insurance of New York, Inc., a New York
corporation;
14. Agency Sales and Posting, Inc., a California corporation;
15. Arizona Sales and Posting, Inc., an Arizona corporation;
16. Pente Enterprises, Inc., a California corporation;
17. Rocky Mountain Support Services, Inc., an Arizona corporation;
<PAGE> 3
EXHIBIT 21
(Continued)
Material Subsidiary:
(a) ACS Systems, Inc., a California corporation;
18. Fidelity National Title Company of Washington, a Washington corporation;
19. FNF Ventures, Inc., a California corporation;
20. Fidelity National Title Company of California, a California corporation;
21. Fidelity National Title Company, a California corporation;
22. Fidelity National Title Insurance Agency of Coconino, Inc., an Arizona
corporation;
23. Fidelity National Title Agency, Inc., an Arizona corporation;
24. Fidelity National Title Agency of Pinal County, Inc., an Arizona
corporation;
25. Fidelity National Title Company of Oregon, an Oregon corporation;
Material Subsidiary:
a. Professional Escrow, Inc., an Oregon corporation;
26. Fidelity National Title Agency of Nevada, Inc., a Nevada corporation;
27. American Title Company, a California corporation;
28. Fidelity National Title Company of El Paso, a Texas corporation;
29. Western American Exchange Corporation, a California corporation;
30. Nations Title, Inc., a Kansas corporation;
Material Subsidiaries
(a) Fidelity National Appraisal Services, Inc., a Kansas
corporation;
(b) Landmark REO Management Services, Inc., a Kansas corporation;
(c) Nations Post and Pub Services, Inc., a Kansas corporation;
(d) Nations Title Insurance Company, a Kansas corporation;
Material Subsidiary:
1. Suds Car Wash, Inc., a Nevada corporation;
31. Nations Title Insurance Company of Arizona, Inc., an Arizona
corporation;
32. Fidelity Asset Management, Inc., an Arizona corporation;
33. Fidelity National Information Services, Inc., a California corporation;
34. Fidelity National Tax Service, Inc., a California corporation (100% of
the Preferred stock is owned by FNFI);
<PAGE> 4
EXHIBIT 21
(Continued)
35. San Joaquin Title Company, a California corporation;
36. Title Insurance and Escrow Services, Inc., an Oregon corporation;
37. WAEC, Inc., a California corporation;
38. WAEC Apartments, Inc., a California corporation:
ALL SUBSIDIARIES ARE 100% OWNED BY THE PARENT LISTED UNLESS OTHERWISE NOTED.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Fidelity National Financial, Inc.:
We consent to incorporation by reference in the Registration Statements
(Nos. 33-32853, 33-15027, 33-34300, 33-45709, 33-45272, 33-15008, 33-56514,
33-64834, 33-64836, 33-83026 and 33-61983) on Form S-8 of Fidelity National
Financial, Inc. of our reports dated February 24, 1997, relating to the
Consolidated Balance Sheets of Fidelity National Financial, Inc. and
subsidiaries as of December 31, 1996, 1995 and the related Consolidated
Statements of Earnings, Stockholders' Equity and Cash Flows and related
schedules for each of the years in the three-year period ended December 31,
1996 which reports appear in the December 31, 1996 Annual Report on Form 10-K
of Fidelity National Financial, Inc.
KPMG PEAT MARWICK LLP
Orange County, California
March 28, 1997
<TABLE> <S> <C>
<ARTICLE> 7
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<DEBT-HELD-FOR-SALE> 166,329
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 43,578
<MORTGAGE> 0
<REAL-ESTATE> 11,352
<TOTAL-INVEST> 227,674
<CASH> 63,971
<RECOVER-REINSURE> 0
<DEFERRED-ACQUISITION> 0
<TOTAL-ASSETS> 509,296
<POLICY-LOSSES> 187,245
<UNEARNED-PREMIUMS> 0
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 148,922
0
0
<COMMON> 2
<OTHER-SE> 110,249
<TOTAL-LIABILITY-AND-EQUITY> 509,296
475,961
<INVESTMENT-INCOME> 15,067
<INVESTMENT-GAINS> 2,625
<OTHER-INCOME> 143,260
<BENEFITS> 33,302
<UNDERWRITING-AMORTIZATION> 0
<UNDERWRITING-OTHER> 563,058
<INCOME-PRETAX> 40,553
<INCOME-TAX> 16,216
<INCOME-CONTINUING> 24,337
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 24,337
<EPS-PRIMARY> 1.71
<EPS-DILUTED> 1.47
<RESERVE-OPEN> 0
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
