<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
17911 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92614
(949) 622-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
M'LISS JONES KANE
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FIDELITY NATIONAL FINANCIAL, INC.
17911 VON KARMAN AVENUE, SUITE 300
IRVINE, CALIFORNIA 92614
(949) 622-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
AGENT FOR SERVICE)
COPIES TO:
C. CRAIG CARLSON, ESQ.
J. MICHAEL VAUGHN, ESQ.
STRADLING YOCCA CARLSON & RAUTH
660 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
(949) 725-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ------------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C>
==============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2)
- --------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 par value.............. 328,468 shares $38.53 $12,655,872
==============================================================================================================
<CAPTION>
<S> <C>
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TITLE OF SECURITIES AMOUNT OF
TO BE REGISTERED REGISTRATION FEE
- ----------------------------------------------------------------------------------------
Common Stock, $.0001 par value.............. $3,733.48
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</TABLE>
(1) The amount of Common Stock registered hereunder shall be deemed to include
any additional shares issuable as a result of any stock split, stock
dividend or other similar change in the capitalization of the Registrant and
additional shares that may have become issuable pursuant to the anti-
dilution adjustment provisions of the warrants described herein.
(2) The offering price is estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c), and is based upon the
average of the high and low prices reported on the New York Stock Exchange
on June 26, 1998, which average was $38.53 per share.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED JUNE 29, 1998
PROSPECTUS
FIDELITY NATIONAL FINANCIAL, INC.
328,468 SHARES
COMMON STOCK
------------------------
This Prospectus relates to 328,468 shares (the "Shares") of common stock,
$.0001 par value ("Common Stock"), of Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity" or the "Company"). Of the shares, 26,325 Shares
are issuable upon exercise of a Stock Purchase Warrant, dated July 28, 1997 (the
"CR Warrants"), held by Cruttenden Roth Incorporated ("CR"). The CR Warrant was
originally issued to CR by Granite Financial, Inc. ("Granite") and was assumed
by the Company in connection with its acquisition of Granite on February 26,
1998. All of the remaining Shares have been issued to, and are being offered and
sold by, the selling stockholders named herein (other than CR) under the caption
"Selling Stockholders" (collectively, with CR, the "Selling Stockholders"). The
Company will not receive any part of the proceeds from the sale of the Shares by
the Selling Stockholders.
The Selling Stockholders may sell all or any portion of the Shares for
their own accounts from time to time in one or more transactions through brokers
or dealers at market prices then prevailing, in underwritten transactions at
prices related to then current market prices or in individually negotiated
transactions at such prices as may be agreed upon. Certain expenses of
registration incurred in connection with this offering and all brokers'
commissions, discounts and fees are being borne by the Selling Stockholders. See
"Plan of Distribution."
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Common
Stock may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commissions received by
them and any profit on the resale of the Common Stock purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
The Common Stock of the Company is listed on the New York Stock Exchange
("NYSE") under the symbol "FNF." On June 26, 1998, the closing sales price of
the Common Stock as reported on the NYSE was $38 7/16 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS JUNE __, 1998.
<PAGE> 3
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES BY ANY
PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH
OFFER, SOLICITATION OR SALE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance therewith, files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's regional offices at 7 World Trade Center, Suite 1300,
New York, New York 10048 and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Information on the operation
of the public reference facilities can be obtained by calling the Commission at
1-800-SEC-0330. Copies of these materials can also be obtained from the
Commission at prescribed rates by writing to the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
maintains an Internet web site that contains certain reports, proxy statements
and other information regarding issuers like the Company who files
electronically with the Commission. The address of that site is
http://www.sec.gov. The reports, proxy statements and other information filed by
the Company with the Commission may also be inspected at the offices of the
NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (including all amendments, exhibits and schedules thereto, the "Registration
Statement"), with respect to the Common Stock offered for resale hereby. As
permitted by the rules and regulations of the Commission, this Prospectus omits
certain information contained in the Registration Statement. For further
information, reference is made to the Registration Statement. Statements
contained in this Prospectus as to the contents of any agreement, instrument or
other document are not necessarily complete, and, in each instance, reference is
made to the copy of such agreement, instrument or document filed as an exhibit
to the Registration Statement, incorporated by reference into this Prospectus or
otherwise filed with the Commission, each such statement being qualified in its
entirety by such reference. Additional updating information with respect to the
Company may be provided in the future by means of appendices of supplements to
this Prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports and other documents previously filed by the Company
with the Commission under the Exchange Act are incorporated by reference in this
Prospectus:
a. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended;
b. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998;
c. The Company's Current Reports on Form 8-K dated February 26, 1998, as
amended, March 25, 1998, April 23, 1998, May 6, 1998 and June 24, 1998;
and
d. The description of the Company's Common Stock which is contained in the
registration statement filed by the Company under the Exchange Act,
including any amendment or reports filed for the purpose of updating
such description.
In addition, all reports and other documents subsequently filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of
the Exchange Act prior to the termination of the offering made hereby shall be
deemed to be incorporated by reference in this Prospectus and to be part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, or in any other subsequently filed document that
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been or may be incorporated by
reference herein (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to Fidelity National Financial, Inc., Attn: M'Liss Jones
Kane, Senior Vice President, General Counsel and Secretary, 17911 Von Karman
Avenue, Suite 300, Irvine, California 92614 (telephone (949) 622-5000).
FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference certain
forward-looking statements with respect to the financial condition and results
of operations and businesses of the Company. These forward-looking statements
involve certain risks and uncertainties, and any such statement is qualified in
its entirety by reference to the following cautionary statements. Factors which
may cause actual results to differ materially from those contemplated by such
forward-looking statements include the following: (i) competitive pressure in
the financial services and title insurance industries increases significantly;
(ii) general economic conditions, either nationally or in the regions in which
the Company conducts business, are less favorable than expected; or (iii)
legislation or regulatory changes adversely affect the business conducted by the
Company. Further information on other factors which could affect the financial
results of the Company is included in filings with the Commission incorporated
by reference herein.
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RISK FACTORS
The following factors should be considered carefully in evaluating the
Company and its business before making an investment in the Common Stock offered
hereby, together with all of the other information set forth or incorporated by
reference in this Prospectus.
This prospectus contains or incorporates by reference certain forward
looking statements within the meaning of Section 27A of the Securities and
Exchange Act of 1933, as amended, and Section 21E of the Securities and Exchange
Act of 1934, as amended, that involve risks and uncertainties. In addition, the
Company may from time to time make oral forward looking statements. Actual
results are uncertain and may be impacted by the following factors, among
others, which may cause the actual results to differ materially from those
projected in the forward looking statements. Because of these and other factors
that may affect the Company's operating results, past performance should not be
considered an indicator of future performance and investors should not use
historical results to anticipate results or trends in future periods.
In connection with the title insurance industry in general, factors that
may cause actual results to differ materially from those contemplated by such
forward-looking statements include the following: (i) the title insurance
business is characterized by low profit margins due to the high cost of
producing title evidence, whereas premium revenues are subject to regulatory and
competitive restraints; (ii) the amount of title insurance business available is
influenced by housing starts, housing resales and commercial real estate
transactions; (iii) real estate activity levels have historically been cyclical
and are influenced by such factors as interest rates and the condition of the
overall economy; (iv) the value of the Company's investment portfolio is subject
to fluctuation based on similar factors; (v) the title insurance industry may be
exposed to substantial claims; and (vi) the industry is regulated by state laws
that require the maintenance of minimum levels of capital and surplus and that
restrict the amount of dividends that may be paid without prior regulatory
approval.
In connection with the equipment leasing industry, factors which may cause
actual results to differ materially from those contemplated by such
forward-looking statements include the following: (i) the equipment leasing
industry is highly fragmented, and characterized by numerous competitors on a
national, regional and local level, the consolidation of which could affect
Granite's industry consolidation strategy or competitive position; (ii) business
investment in capital and other equipment, which is influenced by interest
rates, availability of capital and prevailing general economic conditions; (iii)
the industry is regulated by federal and state laws concerning licensing,
financing practices, extension of credit, and collection and repossession
practices; and (iv) potential cyclical fluctuations in the third and fourth
quarters of the calendar year due to budgeting and tax considerations of lessees
and other seasonal practices which affect the businesses of the lessees.
The Company cautions that the foregoing list of important factors is not
exclusive and does not undertake to update any forward looking statement that
may be made from time to time by or on behalf of the Company.
TITLE INSURANCE INDUSTRY AND RELATED RISKS
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. The overall economic environment, stable mortgage interest rates and
strength in the real estate market, especially in California and on the West
Coast, contributed to very positive conditions for the industry throughout 1996
and 1997 and into the first quarter of
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1998. It is impossible to predict in what future direction interest rates and
the real estate market may move or fluctuate.
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. 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.
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.
INTEREST RATE AND ECONOMIC RISKS
Granite's business is directly related to business investment in capital
and other equipment, which is influenced by a variety of factors, including the
implicit return on capital invested, prevailing interest rates, availability of
capital and other general economic conditions. Although Fidelity and Granite
believe that current economic conditions favor continued growth in the markets
Granite serves, a future economic slowdown or recession could adversely affect
Granite's ability to fund or securitize leases. In addition, delinquencies and
charge-offs could be expected to rise in an adverse economic environment, which
could also adversely impact Granite's ability to sell or securitize leases which
it funds or its ability to recognize its basis in the securitization residual
interest or in leases held in its portfolio.
Granite's profitability is determined by, among other things, the
difference between the implicit lease rate charged to lessees and Granite's cost
of funds. The implicit lease rates charged by Granite are based on interest
rates prevailing in the market at the time of lease approval. Until Granite
sells or securitizes leases, Granite generally funds the cost of the lease
investment under its variable rate bank credit facilities and from working
capital. Granite's operating margins could be adversely affected if interest
rates increase prior to Granite selling or securitizing leases or if Granite is
unable to securitize leases. Future increases in Granite's cost of funds could
result in Granite raising the implicit lease rate charged to its customers,
which could cause originators or customers to seek funding elsewhere. Granite
has sought to mitigate the risk of interest rate increases by attempting to
match funds required for lease financings with funds available through bank and
other credit facilities, securitization transactions and lease sales. Although
Granite may be able to dispose of leases through other securitization
transactions in the event interest rates decline, existing securitization
arrangements require Granite to securitize a minimum dollar amount of leases on
a periodic basis. Granite does not hedge against interest rate increases using
derivative securities or otherwise.
REGULATION
Insurance companies are subject to insurance laws and regulations
established by the states in which they transact business. The agencies
established pursuant to these state laws have broad administrative and
supervisory powers relating to the granting and revocation of licenses to
transact business, regulation of trade practices, establishment of guaranty
associations, licensing of agents, approval of policy forms, premium rate
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<PAGE> 7
filing requirements, reserve requirements, the form and content of required
regulatory financial statements, capital and surplus requirements and the
maximum concentrations of certain classes of investments. Most states also have
enacted legislation regulating insurance holding company systems, including
acquisitions, extraordinary dividends, the terms of affiliate transactions and
other related matters. The Company and its insurance subsidiaries have
registered as holding company systems pursuant to such legislation and routinely
report to other jurisdictions. The National Association of Insurance
Commissioners has formed committees and appointed advisory groups to study and
formulate regulatory proposals on such diverse issues as the use of surplus
debentures, accounting for reinsurance transactions and the adoption of
risk-based capital requirements. It is not possible to predict the impact of
future state and federal regulation on the operations of the Company or its
insurance subsidiaries.
Granite also is subject to a variety of federal and state regulations. Such
regulations require Granite to obtain and maintain certain licenses and
qualifications in various states. Granite is also subject to certain state
regulations concerning collection practices and the right to repossess and sell
the leased equipment. Statutes and regulations governing financing operations
are subject to interpretation and change. Any adverse change in existing laws or
regulations, promulgation of new laws or regulations or changes in the
interpretation thereof, or failure to comply with new or existing laws or
regulations, could result in Granite being subject to fines or other penalties,
any of which could have a material adverse impact on Granite's operations.
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,
LandAmerica Financial Group, Inc., First American Title Insurance Company, 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.
6
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THE COMPANY
Fidelity National Financial, Inc. is a specialty finance company engaged in
doing business in 49 states, the District of Columbia, Puerto Rico, the Bahamas
and the Virgin Islands. Through its subsidiaries, 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 software product development and technology
services, trustee sale guarantees, foreclosure publishing and posting services,
exchange intermediary services in connection with real estate transactions, real
estate tax services, credit reporting services, flood compliance products, and
attorneys' services. 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, which, in
turn, is the parent company of Fidelity National Title Insurance Company of
Tennessee; Fidelity National Title Insurance Company of New York, which, in
turn, is the parent company of Nations Title Insurance of New York Inc. and
National Title Insurance of New York Inc.; and its wholly-owned underwritten
title companies Fidelity National Title Company and Fidelity National Title
Company of California.
The Company, through Granite, performs specialty finance functions such as
originating, funding, purchasing, selling, securitizing and servicing equipment
leases for a broad range of businesses. Granite was acquired by the Company on
February 26, 1998 in a business combination accounted for as a pooling of
interests. Certain information concerning Granite, the Company's acquisition of
Granite, historical consolidated financial statements of Granite and pro forma
financial statements are incorporated by reference herein. See "Incorporation of
Certain Documents by Reference."
The Company has also recently agreed to acquire Matrix Capital Corporation
("Matrix") and Alamo Title Holding Company ("Alamo"). Matrix is a unitary thrift
holding company which focuses on mortgage banking, traditional banking and the
administration of self-directed trust accounts. Alamo, through its subsidiaries,
is a title insurance underwriter with operations in Texas. The Company's
acquisitions of Matrix and Alamo are subject to the satisfaction of various
conditions, such as regulatory and other approvals, and are intended to be
accounted for by the pooling of interests method of accounting.
Certain information relating to the executive compensation, various benefit
plans (including stock option plans), voting securities and the principal
holders thereof, certain relationships and related transactions and other
related matters as to the Company is incorporated by reference or set forth in
the Company's Annual Report on Form 10-K, as amended, for the year ended
December 31, 1997, incorporated herein by reference. Those persons, to whom a
copy of this Prospectus is delivered, desiring copies of such documents may
contact the Company at its address or telephone number indicated under
"Incorporation of Certain Documents by Reference."
The Company's principal executive offices are located at 17911 Von Karman
Avenue, Suite 300, Irvine, California 92614 and its telephone number is (949)
622-5000.
USE OF PROCEEDS
All of the Shares covered by this Prospectus are being offered by the
Selling Stockholders. The Company will not receive any of the proceeds from the
sale of the Shares.
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SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
shares of Common Stock held by each of the Selling Stockholders as of June 26,
1998. Except as otherwise noted elsewhere in this Prospectus, none of the
Selling Stockholders has held any position, office or other material
relationship with the Company or any of its predecessors or affiliates within
the past three years.
<TABLE>
<CAPTION>
SHARES
OWNED
AFTER
OFFERING
SHARES OWNED --------
NAME PRIOR TO OFFERING SHARES OFFERED NUMBER PERCENT
---- ----------------- -------------- ------- --------
<S> <C> <C> <C> <C>
Brian J. Balli........................... 235,453 75,000 160,453 *
Ronald F. Herrman, Jr.................... 235,453 75,000 160,453 *
Ryan F. Herrman.......................... 52,364 45,000 7,364 *
Cruttenden Roth Incorporated............. 26,325(1) 26,325(1) --
Walter W. Cruttenden III................. 107,143 107,143 --
</TABLE>
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* less than 1%
(1) Includes 26,325 Shares issuable upon exercise of the CR Warrants.
Messrs. Balli, Herrman and Herrman (collectively, the "BRON Shareholders")
are former shareholders and executive officers and directors of BRON Research,
Inc. ("BRON"), which was acquired by the Company on October 2, 1997 pursuant to
an Agreement and Plan of Reorganization, dated as of September 24, 1997, by and
among the Company, BRON Acquisition Corporation, a wholly-owned subsidiary of
the Company, BRON and the BRON Shareholders. Each of the BRON Shareholders is
employed by Fidelity National Flood, Inc., a wholly-owned subsidiary of the
Company.
CR acquired the CR Warrants from Granite on July 28, 1997 in connection
with an underwritten public offering of Granite Common Stock, for which CR acted
as a representative of the underwriters. The CR Warrants initially represented
the right to acquire 37,500 shares of Granite Common Stock at a purchase price
of $10.31 per share. In connection with the Company's acquisition of Granite on
February 26, 1998, the CR Warrants were assumed by the Company and were
converted into the right to acquire 26,325 shares of the Company's Common Stock
at a purchase price of $14.69 per share.
Mr. Cruttenden is a director, executive officer and shareholder of CR. The
Company acquired 580,000 shares of CR Common Stock from Mr. Cruttenden, and an
option to acquire 170,000 additional shares of CR Common Stock from Mr.
Cruttenden, on April 8, 1998, in exchange for cash and 107,143 shares of Common
Stock.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time directly by the Selling
Stockholders or, alternatively, through underwriters, broker-dealers or agents.
If the Shares are sold through underwriters or broker-dealers, the Selling
Stockholders will be responsible for underwriting discounts or commissions or
agent's commissions. Such Shares may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such Sales may be
effected in transactions (which may involve crosses or block transactions) (i)
on any national securities exchange or quotation service on which the Shares may
be listed or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. Sales of the
Shares may also be made pursuant to Rule 144 under the Securities Act, where
applicable.
The Selling Stockholders and any broker executing selling orders on behalf
of the Selling Stockholders may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933, as amended (the
8
<PAGE> 10
"Securities Act"), in which event commissions received by such broker may be
deemed to be underwriting commissions under the Securities Act.
195,000 of the Shares covered by this Prospectus have been registered
pursuant to a Registration Rights Agreement, dated as of October 2, 1997,
between the Company and the BRON Shareholders (the "BRON Registration Rights
Agreement"). Pursuant to the BRON Registration Rights Agreement, the Company has
agreed to file one or more registration statements with the Commission to
register the resale of the Shares under the Securities Act and, after such
registration statement(s) become effective, use its best efforts to maintain the
effectiveness of any such registration statement(s) for specified time periods.
The BRON Shareholders have agreed to pay certain expenses in connection
with the registration of their Shares, including all underwriting discounts,
commissions and fees applicable to the sale of their Shares, the fees and
expenses of any legal counsel or accountants retained by a BRON Shareholder to
assist it in connection with the registration of his Shares, and all
registration and filing fees attributable to their Shares.
107,143 of the Shares covered by this Prospectus have been registered
pursuant to a Registration Rights Agreement, dated as of April 8, 1998, between
the Company and Mr. Cruttenden.
Under the BRON Registration Rights Agreement, the Registration Rights
Agreement with Mr. Cruttenden and the CR Warrants, the Company has agreed to
indemnify the Selling Stockholders against certain liabilities, including
liabilities arising under the federal securities laws.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered hereby
will be passed upon for the Company by Stradling Yocca Carlson & Rauth, a
Professional Corporation, Newport Beach, California.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K, as amended, for the year ended December
31, 1997 and in the Company's Current Report on Form 8-K dated June 24, 1998
have been incorporated by reference herein and in the Registration Statement in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated herein by reference, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements of Granite appearing in the Company's
Current Report on Form 8-K, as amended, dated February 26, 1998 have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of Ehrhardt Keefe Steiner & Hottman PC, independent certified
public accountants, incorporated herein by reference, and upon the authority of
said firm as experts in accounting and auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by Delaware law, a director will not be liable for monetary
damages for breach of the director's fiduciary duty of care to the Company and
its stockholders. This provision in the Certificate of Incorporation does not
eliminate a director's fiduciary duty of care, and, in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for (i) breach of the director's duty
of loyalty to the Company or its stockholders for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, (ii)
acts or omissions that the director believes to be contrary to the best
interests of the Company or its stockholders, (iii) any transaction from which
the director derives an improper personal benefit, (iv) acts or omissions
involving reckless disregard for the director's duty to the Company or its
stockholders when the director was aware or should have been aware of the risk
of serious injury to the Company or its stockholders, (v) acts or omissions that
constitute an unexpected pattern of inattention that amounts to an abdication of
the director's
9
<PAGE> 11
duty to the Company or its stockholders, (vi) improper transactions between a
director and the Company, and (vii) improper distributions and loans to
directors and officers. This provision does not affect a director's
responsibilities under any laws, such as the federal securities laws or state or
federal environmental laws.
In addition, the Company's Bylaws provide that the Company will indemnify
its directors and executive officers and may indemnify its other officers,
employees and other agents to the fullest extent permitted by Delaware law. The
Company is also empowered under its Bylaws to enter into indemnification
contracts with its directors and officers and to purchase insurance on behalf of
any person whom the Company is required or permitted to indemnify. The Company
has entered into agreements with its directors and executive officers, which
requires the Company to indemnify them to the fullest extent permitted by law
against certain losses they may incur in legal proceedings arising in connection
with their services to the Company.
Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
10
<PAGE> 12
======================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY TO ANY
PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR THAT
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
Forward-Looking Statements............ 3
Risk Factors.......................... 4
The Company........................... 7
Use of Proceeds....................... 7
Selling Stockholders.................. 8
Plan of Distribution.................. 8
Legal Matters......................... 9
Experts............................... 9
Indemnification of Directors and
Officers............................ 9
</TABLE>
======================================================
======================================================
328,468 SHARES
FIDELITY NATIONAL
FINANCIAL, INC.
COMMON STOCK
------------------------
PROSPECTUS
------------------------
JUNE , 1998
======================================================
<PAGE> 13
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the estimated costs and expenses (of which the
amounts attributable to the 195,000 Shares offered by the BRON Shareholders
shall be borne by the BRON Shareholders) in connection with the offering of the
shares of Common Stock pursuant to this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee...................... $ 3,733
Printing Expenses........................................... $ 5,000
Accounting Fees and Expenses................................ $45,000
Legal Fees and Expenses..................................... $15,000
Miscellaneous Expenses...................................... $ 6,267
-------
Total............................................. $75,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for breach of their fiduciary duties as a director. The Registrant's
Bylaws provide that the Registrant shall indemnify its officers and directors
and may indemnify its employees and other agents to the fullest extent permitted
by Delaware law.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person made a party to an action (other than an
action by or in the right of the corporation) by reason of the fact that he or
she was a director, officer, employee or agent of the corporation or was serving
at the request of the corporation against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal action
(other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Ehrhardt Keefe Steiner & Hottman PC.
24.1 Power of Attorney (included on signature page).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
II-1
<PAGE> 14
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Barbara, State of California, on the 26th day
of June, 1998.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
------------------------------------
William P. Foley, II
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Fidelity National Financial,
Inc., do hereby make, constitute and appoint William P. Foley, II, Andrew F.
Puzder and Allen D. Meadows, and each of them acting individually, our true and
lawful attorneys-in-fact and agents, with power to act without any other and
with full power of substitution, to do any and all acts and things in our name
and behalf in our capacities as directors and officers, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
or any related Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM P. FOLEY, II Chairman of the Board and June 26, 1998
- -------------------------------------------------------- Chief Executive Officer
William P. Foley, II (Principal Executive Officer)
/s/ FRANK P. WILLEY President and Director June 26, 1998
- --------------------------------------------------------
Frank P. Willey
/s/ ALLEN D. MEADOWS Executive Vice President and June 26, 1998
- -------------------------------------------------------- Chief Financial Office
Allen D. Meadows (Principal Financial Officer
and
Accounting Officer)
Director June , 1998
- --------------------------------------------------------
William A. Imparato
Director June , 1998
- --------------------------------------------------------
Donald M. Koll
</TABLE>
II-3
<PAGE> 16
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Director June , 1998
- --------------------------------------------------------
Daniel D. Lane
/s/ GENERAL WILLIAM LYON Director June 26, 1998
- --------------------------------------------------------
General William Lyon
/s/ STEPHEN C. MAHOOD Director June 26, 1998
- --------------------------------------------------------
Stephen C. Mahood
Director June , 1998
- --------------------------------------------------------
J. Thomas Talbot
/s/ CARY H. THOMPSON Director June 26, 1998
- --------------------------------------------------------
Cary H. Thompson
/s/ WILLIAM W. WEHNER Director June 26, 1998
- --------------------------------------------------------
William W. Wehner
</TABLE>
II-4
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
------- ----------- -----------
<C> <S> <C>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant. --
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1). --
23.2 Consent of KPMG Peat Marwick LLP. --
23.3 Consent of Ehrhardt Keefe Steiner & Hottman PC. --
24.1 Power of Attorney (included on signature page). --
</TABLE>
<PAGE> 1
EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660
TELEPHONE (949) 725-4000
FAX (949) 725-4100
June 26, 1998
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-3 (the "Registration Statement"), being filed by Fidelity National
Financial, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933 for resale of an aggregate of up to 328,468 shares (the "Shares") of
Common Stock, par value $.0001 per share, of the Company (the "Common Stock"),
including 26,325 shares (the "CR Shares") issuable upon exercise of the CR
Warrant (as such term is defined in the Registration Statement). The Shares may
be sold from time to time for the account of the Selling Stockholders.
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, and assuming that the full consideration for
each of the Shares (other than the CR Shares) has been received by the Company,
and that full consideration for the CR Shares will have been received by the
Company upon the exercise of the CR Warrants in accordance with the terms
thereof, it is our opinion that the Shares (other than the CR Shares) covered by
the Registration Statement have been duly authorized and validly issued and are
fully paid and nonassessable shares of Common Stock, and that the CR Shares,
when issued in accordance with the terms of the CR Warrants, will be duly
authorized and validly issued and will be fully paid and nonassessable shares of
Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus which is part of the Registration Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
-----------------------------------
STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
June 24, 1998
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference, in this Registration Statement on
Form S-3, of our report dated August 20, 1997, on our audit of the consolidated
financial statements of Granite Financial, Inc. and Subsidiaries. We also
consent to the references to our firm under the caption "Experts."
/s/ Ehrhardt Keefe Steiner & Hottman PC
----------------------------------------
Ehrhardt Keefe Steiner & Hottman PC
June 24, 1998
Denver, Colorado
