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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIDELITY NATIONAL FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 86-0498599
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
17911 Von Karman Avenue, Irvine, CA 92614
(Address of Principal Executive Offices) (Zip Code)
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1996 OMNIBUS STOCK OPTION PLAN (GRANITE)
(Full title of the plan)
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M'Liss Jones Kane
Senior Vice President and General Counsel
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Irvine, CA 92614
(Name and address of agent for service)
(714) 622-4333
(Telephone number, including area code, of agent for service)
Copies to:
C. Craig Carlson, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(714) 725-4000
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value 623,376 shares 21.38 (2) $13,327,778(2) $3,931.69
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(1)Includes additional shares of Common Stock that may become issuable pursuant
to the anti-dilution adjustment provisions of the 1996 Omnibus Stock Option
Plan (the "1996 Plan").
(2)In accordance with Rule 457(h), the aggregate offering price of the 623,376
shares of Common Stock registered hereby which would be issued upon exercise
of options granted under the 1996 Plan is based upon the per share exercise
price of such options, the weighted average of which is approximately $21.38
per share. The options were assumed by the Registrant in connection with its
acquisition of Granite Financial, Inc. on February 26, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Fidelity National Financial, Inc. (the
"Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as filed on March 31, 1997 and amended
on April 30, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 (as filed on May 8, 1997), June 30, 1997 (as
filed on August 6, 1997) and September 30, 1997 (as filed on
November 13, 1997);
(c) The Company's Current Reports on Form 8-K dated September 23,
1997, November 3, 1997, November 5, 1997, November 21, 1997 and
February 26, 1998;
(d) The Joint Proxy Statement/Prospectus, dated January 16, 1998, of
the Company and Granite Financial, Inc., a copy of which was
filed on January 20, 1998 pursuant to Rule 424(b) under the
Securities Act of 1933; and
(e) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed under Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration Statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by Delaware law, a director will not be liable for monetary
damages for breach of the director's fiduciary duty of care to the Company and
its stockholders. This provision in the Certificate of Incorporation does not
eliminate a director's fiduciary duty of care, and, in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for (i) breach of the director's duty
of loyalty to the Company or its stockholders for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, (ii)
acts or omissions that the director believes to be contrary to the best
interests of the Company or its stockholders, (iii) any transaction from which
the
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director derives an improper personal benefit, (iv) acts or omissions involving
reckless disregard for the director's duty to the Company or its stockholders
when the director was aware or should have been aware of the risk of serious
injury to the Company or its stockholders, (v) acts or omissions that constitute
an unexpected pattern of inattention that amounts to an abdication of the
director's duty to the Company or its stockholders, (vi) improper transactions
between a director and the Company, and (vii) improper distributions and loans
to directors and officers. This provision does not affect a director's
responsibilities under any laws, such as the federal securities laws or state or
federal environmental laws.
In addition, the Company's Bylaws provide that the Company will
indemnify its directors and executive officers and may indemnify its other
officers, employees and other agents to the fullest extent permitted by Delaware
law. The Company is also empowered under its Bylaws to enter into
indemnification contracts with its directors and officers and to purchase
insurance on behalf of any person whom the Company is required or permitted to
indemnify. The Company has entered into agreements with its directors and
executive officers, which requires the Company to indemnify them to the fullest
extent permitted by law against certain losses they may incur in legal
proceedings arising in connection with their services to the Company.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
The above discussion of the Registrant's Bylaws and Certificate of
Incorporation and of the Delaware Law is not intended to be exhaustive and is
respectively qualified in its entirety by such Bylaws and Certificate of
Incorporation and the Delaware Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Number Description
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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, independent auditors,
with respect to the consolidated financial statements of
the Registrant.
23.3 Consent of Ehrhardt Keefe Steiner & Hottman, PC,
independent auditors, with respect to the consolidated
financial statements of Granite Financial, Inc.
24.1 Power of Attorney (included on signature page).
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10
(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 20th day of
March, 1998.
FIDELITY NATIONAL FINANCIAL, INC.
By: WILLIAM P. FOLEY, II
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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.
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Signature Title Date
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/s/ WILLIAM P. FOLEY, II Chairman of the Board and
- -------------------------------- Chief Executive Officer March 20, 1998
William P. Foley, II (Principal Executive Officer)
/s/ ALLEN D. MEADOWS Executive Vice President and
- -------------------------------- Chief Financial Officer March 20, 1998
Allen D. Meadows (Principal Financial Officer and
Accounting Officer)
/s/ FRANK P. WILLEY
- -------------------------------- President and Director March 20, 1998
Frank P. Willey
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/s/ WILLIAM A. IMPARATO
- -------------------------------- Director March 20, 1998
William A. Imparato
/s/ DONALD M. KOLL
- -------------------------------- Director March 20, 1998
Donald M. Koll
/s/ DANIEL D. LANE
- -------------------------------- Director March 20, 1998
Daniel D. Lane
/s/ STEPHEN C. MAHOOD
- -------------------------------- Director March 20, 1998
Stephen C. Mahood
/s/ J. THOMAS TALBOT
- -------------------------------- Director March 20, 1998
J. Thomas Talbot
/s/ CARY H. THOMPSON
- -------------------------------- Director March 20, 1998
Cary H. Thompson
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EXHIBIT INDEX
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Exhibit Sequential
Number Description Page Number
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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, independent auditors,
with respect to the consolidated financial statements of
the Registrant.
23.3 Consent of Ehrhardt Keefe Steiner & Hottman, PC,
independent auditors, with respect to the consolidated
financial statements of Granite Financial, Inc.
24.1 Power of Attorney (included on signature page).
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EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660-6441
TELEPHONE (714) 725-4000
FACSIMILE (714) 725-4100
SAN FRANCISCO OFFICE
44 MONTGOMERY STREET, SUITE 2950
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE (415) 765-9180
FACSIMILE (415) 765-9187
March 20, 1998
Fidelity National Financial, Inc.
17911 Von Karman Avenue
Irvine, CA 92614
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Fidelity National
Financial, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of 623,376 shares of the Company's common stock, $.0001 par
value ("Common Stock"), issuable under the 1996 Omnibus Stock Option Plan (the
"Plan"), which was assumed by the Company in connection with its acquisition of
Granite Financial, Inc.
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 623,376 shares of
Common Stock to be issued under the Plan against full payment in accordance with
the respective terms and conditions of the Plan will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the use of our report incorporated herein by reference in the
Registration Statement.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
March 20, 1998
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference of our report on Granite
Financial, Inc. dated August 20, 1997, into Fidelity National Financial, Inc.'s
Registration Statement on Form S-8 and to all references to our firm included
in such Registration Statement.
/s/ EHRHARDT KEEFE STEINER & HOTTMAN PC
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Ehrhardt Keefe Steiner & Hottman PC
March 18, 1998
Denver, Colorado
