<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 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)
<TABLE>
<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 OFFICE)
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, as determined by market
conditions.
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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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- -----------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
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Debt Securities(3)................. --
- -----------------------------------------------------------------------------------------------------------------------------------
Preferred Stock(4)................. --
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Depositary Shares(4)(5)............ --
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Common Stock(4).................... --
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TOTAL.......................... $150,000,000 -- $150,000,000 $44,250
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</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Introduction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(2) Estimated in accordance with Rule 457(o) solely for the purpose of
calculating the registration fee.
(3) Debt Securities include subordinated convertible Debt Securities and junior
subordinated convertible Debt Securities. If any Debt Securities are issued
at an original issue discount, then such greater amount as may be sold for
an aggregate initial offering price of up to the proposed maximum aggregate
offering price.
(4) Includes such indeterminate number of shares of Preferred Stock and Common
Stock, and such indeterminate number of Depositary Shares, as may be issued
from time to time at indeterminate prices, or as may be issued upon
conversion or exchange of Debt Securities, Preferred Stock or Depositary
Shares, as the case may be (for which, in any such conversion or exchange,
no separate consideration will be received by the Registrant).
(5) Represent fractional interests in shares of Preferred Stock registered
hereby.
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.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED OCTOBER 16, 1998
PROSPECTUS
$150,000,000
FIDELITY NATIONAL FINANCIAL, INC.
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES AND COMMON STOCK
------------------------
Fidelity National Financial, Inc. may from time to time offer and sell Debt
Securities, shares of Preferred Stock, Depositary Shares representing fractional
interests in shares of Preferred Stock, and shares of Common Stock. These
Securities may be offered from time to time for an aggregate initial public
offering price of up to $150,000,000. The Debt Securities and Preferred Stock
may be convertible into or exchangeable for Common Stock or other Securities. We
will provide the specific terms and the initial public offering prices of these
Securities in supplements to this Prospectus. You should read this Prospectus
and the applicable supplement carefully before you invest. This Prospectus may
not be used to sell Securities unless accompanied by a prospectus supplement.
------------------------
The Common Stock is traded on the New York Stock Exchange under the symbol
"FNF". Any Common Stock sold pursuant to a prospectus supplement will be listed
on such exchange, subject to official notice of issuance.
------------------------
The Securities may be sold directly, through agents designated from time to time
or to or through underwriters or dealers. See "Plan of Distribution." If any
agents or underwriters are involved in the sale of any Securities, their names
and any applicable commissions or discounts will be set forth in a prospectus
supplement. The net proceeds to the issuer from the sale of Securities also will
be set forth in a prospectus supplement.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these Securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The information in this Prospectus is not complete and may be changed. We cannot
sell these Securities until the Registration Statement filed with the Securities
and Exchange Commission is effective. This Prospectus is not an offer to sell
these Securities and we are not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
------------------------
The date of this Prospectus is October , 1998
<PAGE> 3
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement filed by Fidelity National
Financial, Inc. (the "Company") with the Securities and Exchange Commission (the
"SEC") using a "shelf" registration process. Under this shelf process, we may
sell any combination of the Debt Securities, Preferred Stock, Depositary Shares
and Common Stock (the "Securities") described in this Prospectus, either
separately or in units, in one or more offerings up to a total dollar amount of
$150,000,000. This Prospectus provides you with a general description of those
Securities. Each time we sell Securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this Prospectus. You should read this Prospectus and the applicable
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information."
The registration statement that contains this Prospectus (including the exhibits
to the registration statement) contains additional information about our Company
and the Securities offered under this Prospectus. That registration statement
can be read at the SEC's web site or at the SEC's offices mentioned under the
heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this Prospectus the information we file with
the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus and information that we file subsequently
with the SEC will automatically update this Prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") after the initial filing of the registration statement that
contains this Prospectus and prior to the time that we sell all the securities
offered by this Prospectus:
- - Annual Report on Form 10-K, as amended, for the year ended December 31, 1997
(including information specifically incorporated by reference into our Form
10-K from our definitive Notice and Proxy Statement for our 1998 Annual
Meeting of Stockholders);
2
<PAGE> 4
- - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June
30, 1998; and
- - Current Reports on Form 8-K dated February 26, 1998, as amended, March 19,
1998, March 25, 1998, April 23, 1998, May 6, 1998, June 24, 1998 and August
20, 1998.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address:
Corporate Secretary
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
(949) 622-5000
You should rely only on the information incorporated by reference or set forth
in this Prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this Prospectus to sell Securities if it is accompanied by a prospectus
supplement. We are only offering these Securities in states where the offer is
permitted. You should not assume that the information in this Prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates
on the front of those documents.
3
<PAGE> 5
THE COMPANY
The Company is one of the largest national title insurance underwriters and also
provides diversified real estate services. The Company is engaged in doing
business in 49 states, the District of Columbia, Puerto Rico, the Bahamas and
the Virgin Islands. Through its subsidiaries, the Company issues title insurance
policies and performs other title-related services such as escrow, collection
and trust activities, real estate information and technology services, trustee
sales guarantees, credit reporting, attorney services, flood certification, real
estate tax services, reconveyances, recordings, foreclosure publishing and
posting services and exchange intermediary services in connection with real
estate transactions. Title insurance and related 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 underwriting subsidiaries are Fidelity National Title
Insurance Company, Fidelity National Title Insurance Company of New York,
Fidelity National Title Insurance Company of Tennessee, Nations Title Insurance
of New York Inc., National Title Insurance of New York Inc., and Alamo Title
Insurance. The Company also operates through its wholly-owned underwritten title
companies, a national network of agents and wholly-owned real estate-related
ancillary service companies. Additionally, through its wholly-owned subsidiary
Granite Financial, Inc., the Company originates, funds, purchases, sells,
securitizes and services equipment leases for a broad range of businesses.
During 1996 and 1997, the Company expanded its platform of title and real estate
transactional services and increased its market share in the commercial and
agency segments of the title industry. Through the Company's proprietary
technology the Company offers fully integrated software to its customers in the
real estate closing business, creating a competitive advantage through increased
productivity and accuracy.
The Company has long recognized the perceived volatility of the title insurance
industry as it relates to interest rates and other factors affecting the real
estate industry. As a result, the Company will continue to consider strategic
opportunities in businesses that are less interest rate sensitive than the title
industry.
4
<PAGE> 6
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net proceeds
from the sale of the offered Securities will be added to our general funds and
may be used:
- - to meet our working capital requirements;
- - to repurchase or redeem our outstanding debt securities;
- - to refinance or repay our outstanding borrowings;
- - to make investments in or loans to our subsidiaries;
- - to finance acquisitions; and
- - for other general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company on a consolidated basis
for each of the periods indicated were as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
- -------------------------------- -----------
1993 1994 1995 1996 1997 1997 1998
- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
21.8 2.4 2.0 4.9 7.8 4.8 13.3
</TABLE>
For the purpose of calculating these ratios, earnings consist of income from
continuing operations of the Company, before income taxes, fixed charges and
extraordinary items. Fixed charges include interest expensed and capitalized and
amortized discounts and capitalized expenses related to indebtedness.
The Company's ratios of earnings to combined fixed charges and preferred stock
dividends for the periods indicated above are the same as the ratios of earnings
to fixed charges, because the Company had no shares of preferred stock
outstanding during the periods indicated and currently has no such shares
outstanding.
5
<PAGE> 7
CERTAIN FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The following table sets forth selected financial data of the Company as of and
for each of the years in the three-year period ended December 31, 1997 and as of
and for the six months ended June 30, 1997 and 1998. The financial information
presented herein has been restated for the Company's merger with Granite
Financial, Inc. in February 1998 as if the companies had been combined as of and
for the two-year period ended December 31, 1997. The following selected
consolidated financial data should be read in conjunction with the Company's
Consolidated Financial Statements and the Notes thereto incorporated by
reference herein. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------ -------------------
1995 1996 1997 1997 1998
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Total revenue............................... $409,845 $642,377 $763,181 $337,987 $525,738
Total expenses.............................. 400,385 600,004 684,329 315,723 446,703
-------- -------- -------- -------- --------
Earnings before income taxes and
extraordinary item....................... 9,460 42,373 78,852 22,264 79,035
Income tax expense.......................... 1,828 16,846 34,055 8,871 33,594
-------- -------- -------- -------- --------
Earnings before extraordinary item.......... 7,632 25,527 44,797 13,393 45,441
Extraordinary item.......................... (813) -- (1,700) -- --
-------- -------- -------- -------- --------
Net earnings................................ $ 6,819 $ 25,527 $ 43,097 $ 13,393 $ 45,441
======== ======== ======== ======== ========
PER SHARE AND OTHER DATA:
Basic net earnings.......................... $ 6,819 $ 25,527 $ 43,097 $ 13,393 $ 45,441
======== ======== ======== ======== ========
Basic earnings per share before
extraordinary item....................... $ 0.50 $ 1.53 $ 2.32 $ 0.75 $ 1.99
Extraordinary item.......................... (0.05) -- (0.09) -- --
-------- -------- -------- -------- --------
Basic net earnings per share................ $ 0.45 $ 1.53 $ 2.23 $ 0.75 $ 1.99
======== ======== ======== ======== ========
Weighted average shares outstanding, basic
basis.................................... 15,131 16,647 19,272 17,908 22,833
Diluted net earnings........................ $ 6,819 $ 28,723 $ 46,239 $ 15,008 $ 46,664
======== ======== ======== ======== ========
Diluted earnings per share before
extraordinary item....................... $ 0.49 $ 1.30 $ 1.92 $ 0.63 $ 1.66
Extraordinary item.......................... (0.05) -- (0.07) -- --
-------- -------- -------- -------- --------
Diluted net earnings per share.............. $ 0.44 $ 1.30 $ 1.85 $ 0.63 $ 1.66
======== ======== ======== ======== ========
Weighted average shares outstanding, diluted
basis.................................... 15,694 22,106 24,948 23,673 28,057
Dividends per share......................... $ 0.22 $ 0.24 $ 0.26 $ 0.13 $ 0.14
Earnings before income taxes and
extraordinary item as a percent of total
revenue.................................. 2.31% 6.60% 10.33% 6.59% 15.03%
BALANCE SHEET DATA:
Investments................................. $180,082 $227,674 $326,877 $244,678 $353,599
Cash and cash equivalents................... 47,431 72,364 59,855 65,127 74,571
Leases and lease securitization residual
interest................................. -- 29,034 53,782 35,556 73,538
Total assets................................ 405,063 549,013 679,592 567,897 761,958
Notes payable............................... 136,047 171,525 155,795 175,823 149,866
Reserve for claim losses.................... 146,094 187,245 190,747 188,351 195,386
Stockholders' equity........................ 77,947 124,435 231,830 139,547 285,536
</TABLE>
6
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the Debt Securities
(as defined below). The prospectus supplement will describe the specific terms
of the Debt Securities offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those Debt
Securities.
The Company may issue Debt Securities either separately, or together with, or
upon the conversion of or in exchange for, other Securities. The Debt Securities
will be issued under an indenture (the "Indenture") between us and the trustee
named in the applicable prospectus supplement (the "Trustee"). As used in this
Prospectus, "Debt Securities" means the debentures, notes, bonds and other
evidences of indebtedness that we issue and the Trustee authenticates and
delivers under the Indenture.
We have summarized certain terms and provisions of the Indenture in this
section. The summary is not complete. We have also filed the form of the
Indenture as an exhibit to the registration statement. You should read the form
of Indenture for additional information before you buy any Debt Securities.
Capitalized terms used but not defined in this summary have the meanings
specified in the Indenture.
GENERAL
The Debt Securities will be our unsecured obligations. The Indenture does not
limit the amount of Debt Securities that we may issue and permits us to issue
Debt Securities from time to time. Debt Securities issued under the Indenture
will be issued as part of a series that has been established by us pursuant to
the Indenture. Unless a prospectus supplement relating to Debt Securities states
otherwise, the Indenture and the terms of the Debt Securities will not contain
any covenants designed to afford holders of any Debt Securities protection in a
highly leveraged or other transaction involving us that may adversely affect
holders of the Debt Securities. The indebtedness represented by Debt Securities
will be subordinated in right of payment to the prior payment in full of all
Senior Debt (as defined below) of the Company. See "-- Subordination."
Because we are a holding company that conducts our operations through our
subsidiaries, holders of Debt Securities will generally have a junior position
to claims of creditors of our subsidiaries, including trade creditors,
debtholders, secured creditors, taxing authorities, beneficiaries under title
insurance policies, and guarantee holders. As of June 30, 1998, our subsidiaries
had approximately $54.6 million of outstanding debt. Moreover, our ability to
pay principal and interest on the Debt Securities is, to a large extent,
dependent upon our receiving dividends, interest or other amounts from our
subsidiaries. Certain of our principal operating subsidiaries are subject to
insurance regulations that require minimum amounts of statutory surplus, which
may restrict the amount of funds which are available to us from such
subsidiaries, or prior approval from the regulatory agency before those
subsidiaries can pay us any extraordinary dividends.
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<PAGE> 9
A prospectus supplement relating to a series of Debt Securities being offered
will include specific terms relating to the offering. These terms will include
some or all of the following:
- - the title and type of the Debt Securities;
- - any limit on the total principal amount of the Debt Securities;
- - the price at which the Debt Securities will be issued;
- - the date or dates on which the principal of and premium, if any, on the Debt
Securities will be payable;
- - the maturity date of the Debt Securities;
- - if the Debt Securities will bear interest, the interest rate on the Debt
Securities, the date from which interest will accrue, the record and interest
payment dates for the Debt Securities, the first interest payment date, and
any circumstances under which we may defer interest payments;
- - the terms and conditions upon which the Debt Securities will be convertible
into Common Stock or other Securities, including the initial conversion price
and any adjustments thereto;
- - the subordination terms applicable to the Debt Securities;
- - any optional redemption provisions that would permit us or the Holders (as
defined below) of Debt Securities to elect redemption of the Debt Securities
prior to their final maturity;
- - any sinking fund provisions that would obligate us to redeem the Debt
Securities prior to their final maturity;
- - the currency or currencies in which the Debt Securities will be denominated
and payable, if other than U.S. dollars;
- - any provisions that would permit us or the Holders of the Debt Securities to
elect the currency or currencies in which the Debt Securities are paid;
- - whether the provisions described under the heading "Defeasance" below apply to
the Debt Securities;
- - any changes to or additional Events of Default or covenants;
- - whether the Debt Securities will be issued in whole or in part in the form of
Global Securities and, if so, the Depositary for those Global Securities (a
"Global Security" means a Debt Security that we issue in accordance with the
Indenture to represent all or part of a series of Debt Securities);
- - any special tax implications of the Debt Securities; and
- - any other terms of the Debt Securities.
A "Holder," with respect to a Registered Security, means the Person in whose
name such Registered Security is registered in the Security Register.
8
<PAGE> 10
PAYMENT; TRANSFER
In the applicable prospectus supplement, we will designate a Place of Payment
where you can receive payment of the principal of and any premium and interest
on the Debt Securities or transfer the Debt Securities. Even though we will
designate a Place of Payment, we may elect to pay any interest on the Debt
Securities by mailing a check to the Person listed as the owner of the Debt
Securities in the Security Register or by wire transfer to an account designated
by that Person in writing not less than ten days before the date of the interest
payment. There will be no service charge for any registration of transfer or
exchange of the Debt Securities, but we may require you to pay any tax or other
governmental charge payable in connection with a transfer or exchange of the
Debt Securities.
DENOMINATIONS
Unless the prospectus supplement states otherwise, the Debt Securities will be
issued only in registered form, without coupons, in denominations of $1,000 each
or multiples of $1,000.
ORIGINAL ISSUE DISCOUNT
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities and sold at a substantial discount below their stated principal
amount. If a Debt Security is an "Original Issue Discount Security," that means
that an amount less than the principal amount of the Debt Security will be due
and payable upon a declaration of acceleration of the maturity of the Debt
Security pursuant to the Indenture. The applicable prospectus supplement will
describe the federal income tax consequences and other special factors which
should be considered prior to purchasing any Original Issue Discount Securities.
CONVERSION
The applicable prospectus supplement relating to a series of Debt Securities
will describe the terms on which those Debt Securities are convertible into
shares of Common Stock or other Securities.
The applicable prospectus supplement will also specify the price at which Debt
Securities are convertible, the date before any day fixed for redemption of the
Debt Securities at which the conversion rights will expire, and the events or
circumstances which will result in adjustments to the conversion price, and, as
applicable, the formulae for determining the adjusted conversion price. Events
which may result in a conversion price adjustment include:
- - stock dividends, stock splits and similar changes to the Company's Common
Stock;
- - other distributions of debt as assets to holders of Common Stock;
- - extraordinary cash dividends on the Common Stock;
- - reclassifications of the Common Stock; and
- - mergers, consolidations or sales of substantially all of the Company's assets
in which holders of Common Stock are entitled to receive stock, other
securities, or other property or assets.
9
<PAGE> 11
The conversion price may also be subject to reduction, at the Company's option,
in certain circumstances to be described in the applicable prospectus
supplement.
SUBORDINATION
Under the Indenture, payment of the principal, interest and any premium on the
Debt Securities will generally be subordinated and junior in right of payment to
the prior payment in full of all Senior Debt. The Indenture provides that no
payment or principal, interest or any premium on the Debt Securities may be made
in the event:
- - we fail to pay the principal, interest, any premium or any other amounts on
any Senior Debt when due; or
- - of any insolvency, bankruptcy or similar proceeding involving the Company or
our property.
The Indenture will not limit the amount of Senior Debt that we may incur.
"Senior Debt" is defined as all notes or other evidences of indebtedness,
including guarantees of the Company for money borrowed by the Company, not
expressed to be subordinate or junior in right of payment to any other
indebtedness of the Company.
CONSOLIDATION, MERGER OR SALE
The Indenture generally permits a consolidation or merger between us and another
corporation. It also permits the sale or transfer by us of all or substantially
all of our property and assets and the purchase by us of all or substantially
all of the property and assets of another corporation. These transactions are
permitted if:
- - the resulting or acquiring corporation (if other than us) assumes all of our
responsibilities and liabilities under the Indenture, including the payment of
all amounts due on the Debt Securities and performance of the covenants in the
Indenture; and
- - immediately after the transaction, no Event of Default exists.
We are not required by the Indenture to comply with those provisions if we sell
all of our property and assets to another corporation if, immediately after the
sale, that corporation is one of our wholly-owned Subsidiaries.
If we consolidate or merge with or into any other corporation or sell all or
substantially all of our assets according to the terms and conditions of the
Indenture, the resulting or acquiring corporation will be substituted for us in
the Indenture with the same effect as if it had been an original party to the
Indenture. As a result, such successor corporation may exercise our rights and
powers under the Indenture, in our name or in its own name, and we will be
released from all our liabilities and obligations under the Indenture and under
the Debt Securities.
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<PAGE> 12
MODIFICATION AND WAIVER
Under the Indenture, certain of our rights and obligations and certain of the
rights of Holders of the Debt Securities may be modified or amended with the
consent of the Holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series of Debt Securities affected by the
modification or amendment. The following modifications and amendments will not
be effective against any Holder without its consent:
- - a change in the stated maturity date of any payment of principal or interest;
- - a reduction in certain payments due on the Debt Securities;
- - a change in the place of payment or currency in which any payment on the Debt
Securities is payable;
- - a limitation of a Holder's right to sue us for the enforcement of certain
payments due on the Debt Securities;
- - a reduction in the percentage of outstanding Debt Securities required to
consent to a modification or amendment of the Indenture;
- - a limitation of a Holder's right, if any, to repayment of Debt Securities at
such Holder's option; and
- - a modification of any of the foregoing requirements or a reduction in the
percentage of outstanding Debt Securities required to waive compliance with
certain provisions of the Indenture or to waive certain defaults under the
Indenture.
Under the Indenture, the Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of any series of Debt Securities may, on behalf
of all Holders of that series:
- - waive compliance by us with certain restrictive covenants of the Indenture;
and
- - waive any past default under the Indenture, except: a default in the payment
of the principal of or any premium or interest on any Debt Securities of that
series, or a default under any provision of the Indenture which itself cannot
be modified or amended without the consent of the Holders of each outstanding
Debt Security of that series.
EVENTS OF DEFAULT
"Event of Default," when used in the Indenture with respect to any series of
Debt Securities, means any of the following:
- - failure to pay interest on any Debt Security of that series for 30 days after
the payment is due;
- - failure to pay the principal of or any premium on any Debt Security of that
series when due;
- - failure to deposit any sinking fund payment when due on Debt Securities of
that series;
- - failure to perform any other covenant in the Indenture that applies to Debt
Securities of that series for 90 days after we have received written notice of
the failure to perform in the manner specified in the Indenture;
- - certain events in bankruptcy, insolvency or reorganization; or
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- - any other Event of Default that may be specified for the Debt Securities of
that series when that series is created.
If an Event of Default for any series of Debt Securities occurs and continues,
the Trustee or the Holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of the series may declare the entire principal of
all the Debt Securities of that series to be due and payable immediately. If
such a declaration occurs, the Holders of a majority of the aggregate principal
amount of the outstanding Debt Securities of that series can, subject to certain
conditions, rescind the declaration.
The prospectus supplement relating to each series of Debt Securities which are
Original Issue Discount Securities will describe the particular provisions that
relate to the acceleration of maturity of a portion of the principal amount of
such series when an Event of Default occurs and continues.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indenture. The Indenture requires us to file an
Officers' Certificate with the Trustee each year that states that certain
defaults do not exist under the terms of the Indenture. The Trustee may withhold
notice to the Holders of Debt Securities of any default (except defaults in the
payment of principal, premium, interest or any sinking fund installment) if it
considers such withholding of notice to be in the best interests of the Holders.
Other than its duties in the case of a default, a Trustee is not obligated to
exercise any of its rights or powers under the Indenture at the request, order
or direction of any Holders, unless the Holders offer the Trustee reasonable
indemnification. If reasonable indemnification is provided, then, subject to
certain other rights of the Trustee, the Holders of a majority in principal
amount of the outstanding Debt Securities of any series may, with respect to the
Debt Securities of that series, direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee; or exercising any trust
or power conferred upon the Trustee.
DEFEASANCE
At the time that we establish a series of Debt Securities under the Indenture,
we can provide that the Debt Securities of that series are subject to the
defeasance and discharge provisions of the Indenture. If we so provide, we will
be discharged from our obligations on the Debt Securities of that series if we
deposit with the Trustee, in trust, sufficient money or Government Obligations
(as defined below) to pay the principal, interest, any premium and any other
sums due on the Debt Securities of that series (such as sinking fund payments)
on the dates such payments are due under the Indenture and the terms of the Debt
Securities. As used above, "Government Obligations" mean:
- - securities of the same government which issued the currency in which the
series of Debt Securities are denominated and in which interest is payable; or
- - securities of government agencies backed by the full faith and credit of such
government.
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In the event that we deposit funds in trust and discharge our obligations under
a series of Debt Securities as described above, then:
- - the Indenture will no longer apply to the Debt Securities of that series
(except for certain obligations to compensate, reimburse and indemnify the
Trustee, to register the transfer and exchange of Debt Securities, to replace
lost, stolen or mutilated Debt Securities and to maintain paying agencies and
the trust funds); and
- - Holders of Debt Securities of that series can only look to the trust fund for
payment of principal, any premium and interest on the Debt Securities of that
series.
Under federal income tax law, such deposit and discharge may be treated as an
exchange of the related Debt Securities for an interest in the trust mentioned
above. Each Holder might be required to recognize gain or loss equal to the
difference between (1) the Holder's cost or other tax basis for the Debt
Securities and (2) the value of the Holder's interest in the trust. Holders
might be required to include in income a share of the income, gain or loss of
the trust. You are urged to consult your own tax advisor as to the specific
consequences of such a deposit and discharge, including the applicability and
effect of tax laws other than federal income tax law.
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DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of our Preferred Stock
that may be offered by this Prospectus ("Preferred Stock"). A prospectus
supplement will describe the specific terms of the series of the Preferred Stock
offered through that prospectus supplement and any general terms outlined in
this section that will not apply to those shares of Preferred Stock.
We have summarized certain terms and provisions of the Preferred Stock in this
section. The summary is not complete. We have also filed or incorporated by
reference our Certificate of Incorporation, as amended, and the form of
Certificate of Designation, Preferences and Rights of Preferred Stock
("Certificate of Designation") as exhibits to the registration statement. You
should read our Certificate of Incorporation, as amended, and the Certificate of
Designation relating to the applicable series of the Preferred Stock for
additional information before you buy any Preferred Stock.
GENERAL
Pursuant to our Certificate of Incorporation, our Board of Directors has the
authority, without further stockholder action, to issue a maximum of 3,000,000
shares of Preferred Stock. As of October 15, 1998, no shares of Preferred Stock
were issued or outstanding or reserved for issuance. The Board of Directors has
the authority to determine or fix the following terms with respect to shares of
any series of Preferred Stock:
- - the number of shares and designation or title of the shares;
- - dividend rights;
- - whether and upon what terms the shares will be redeemable;
- - the rights of the holders upon our dissolution or upon the distribution of our
assets;
- - whether and upon what terms the shares will have a purchase, retirement or
sinking fund;
- - whether and upon what terms the shares will be convertible into Common Stock
or other Securities;
- - the voting rights, if any, which will apply; and
- - any other preferences, rights, limitations or restrictions of the series.
If we purchase, redeem or convert shares of Preferred Stock, we will retire and
cancel them and restore them to the status of authorized but unissued shares of
Preferred Stock. Such shares will not be part of any particular series of
Preferred Stock and may be reissued by us.
As described under "Description of Depositary Shares" below, we may elect to
offer Depositary Shares represented by Depositary Receipts. If we so elect, each
Depositary Share will represent a fractional interest (to be specified in the
applicable prospectus supplement) in shares of Preferred Stock. If we issue
Depositary Shares representing interests in shares of Preferred Stock, those
shares of Preferred Stock will be deposited with a Depositary.
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The Preferred Stock will have the dividend, liquidation, redemption, voting and
conversion rights described in this section unless the applicable prospectus
supplement provides otherwise. You should read the prospectus supplement
relating to the particular series of the Preferred Stock for specific terms,
including:
- - the title and liquidation preference of the Preferred Stock and the number of
shares offered;
- - the initial public offering price at which we will issue the Preferred Stock;
- - the dividend rate or rates (or method of calculation), the dividend periods,
the dates on which dividends will be payable and whether the dividends will be
cumulative or noncumulative and, if cumulative, the dates from which the
dividends will start to cumulate;
- - any redemption or sinking fund provisions;
- - any conversion provisions;
- - whether we have elected to offer Depositary Shares as described under
"Description of Depositary Shares" below; and
- - any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
When we issue shares of Preferred Stock, they will be fully paid and
nonassessable (i.e., the full purchase price for the outstanding Preferred Stock
will have been paid and the holders of such shares of Preferred Stock will not
be assessed any additional monies for such Preferred Stock). Unless the
applicable prospectus supplement specifies otherwise:
- - each series of the Preferred Stock will rank equally in all respects with the
outstanding shares of each other series of the Preferred Stock;
- - the Preferred Stock will have no preemptive rights to subscribe for any
additional securities which we may issue in the future (i.e., the holders of
Preferred Stock will have no right, as holders of Preferred Stock, to buy any
portion of those issued securities); and
- - Continental Stock Transfer and Trust Company will be the transfer agent and
registrar for the Preferred Stock and any Depositary Shares.
DIVIDENDS
The holders of the Preferred Stock of each series will be entitled to receive
cash dividends, if declared by our Board of Directors or its duly authorized
committee, out of our assets that we can legally use to pay dividends. The
prospectus supplement relating to a particular series of Preferred Stock will
set forth the dividend rates and dates on which dividends will be payable. The
rates may be fixed or variable or both. If the dividend rate is variable, the
applicable prospectus supplement will describe the formula used for determining
the dividend rate for each dividend period. We will pay dividends to the holders
of record as they appear on our stock books on the record dates fixed by our
Board of Directors or its duly authorized committee.
The applicable prospectus supplement will also state whether the dividends on
any series of the Preferred Stock are cumulative or noncumulative. If our Board
of Directors does not
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declare a dividend payable on a dividend payment date on any noncumulative
series of Preferred Stock, then the holders of that series will not be entitled
to receive a dividend for that dividend period and we will not be obligated to
pay the dividend for that dividend period even if the Board declares a dividend
on that series payable in the future.
Our Board will not declare and pay a dividend on any of our stock ranking, as to
dividends, equal with or junior to the Preferred Stock unless full dividends on
the Preferred Stock have been declared and paid (or declared and sufficient
money is set aside for payment). Until full dividends are paid (or declared and
payment is set aside) on Preferred Stock ranking equal as to dividends, then:
- - we will declare any dividends pro rata among the Preferred Stock of each
series and any Preferred Stock ranking equal to the Preferred Stock as to
dividends (i.e., the dividends we declare per share on each series of such
Preferred Stock will bear the same relationship to each other that the full
accrued dividends per share on each such series of the Preferred Stock bear to
each other);
- - other than such pro rata dividends, we will not declare or pay any dividends
or declare or make any distributions upon any security ranking junior to or
equal with the Preferred Stock as to dividends or upon liquidation (except
dividends or distributions paid for with securities ranking junior to the
Preferred Stock as to dividends and upon liquidation); and
- - we will not redeem, purchase or otherwise acquire (or set aside money for a
sinking fund for) any securities ranking junior to or equal with the Preferred
Stock as to dividends or upon liquidation (except by conversion into or
exchange for stock junior to the Preferred Shares as to dividends and upon
liquidation).
We will not owe any interest, or any money in lieu of interest, on any dividend
payment(s) on any series of the Preferred Stock which may be past due.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or in part, at our
option, and may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, as described in the applicable prospectus supplement. Redeemed
Preferred Stock will become authorized but unissued shares of Preferred Stock
that we may issue in the future.
If a series of the Preferred Stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of Preferred Stock are
redeemed, we will pay all accrued and unpaid dividends on those shares of
Preferred Stock up to, but excluding, the redemption date. The prospectus
supplement will also specify whether the redemption price will be paid in cash
or other property. If (1) we are only permitted to pay the redemption price for
a series of Preferred Stock from the proceeds of a capital stock issuance and
(2) the proceeds from the issuance are insufficient or no such issuance has
occurred, then the terms of that series may provide that the Preferred Stock
will automatically and mandatorily be converted into such capital stock.
If fewer than all of the outstanding shares of any series of the Preferred Stock
are to be redeemed, our Board of Directors will determine the number of shares
to be redeemed. We will redeem the shares pro rata from the holders of record in
proportion to the number of shares held by them (with adjustments to avoid
redemption of fractional shares).
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Even though the terms of a series of Preferred Stock may permit redemption of
shares of Preferred Stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due:
- - we will not redeem any Preferred Stock of that series unless we simultaneously
redeem all outstanding shares of Preferred Stock of that series; and
- - we will not purchase or otherwise acquire any Preferred Stock of that series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring Preferred Stock of that series pursuant to a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will give
notice of a redemption by mailing a notice to each record holder of the shares
to be redeemed, between 30 to 60 days prior to the date fixed for redemption
(unless we issue Depositary Shares representing interests in Preferred Shares,
in which case we will send a notice to the Depositary between 40 to 70 days
prior to the date fixed for redemption). We will mail the notices to the
holders' addresses as they appear on our stock records. Each notice will state:
- - the redemption date;
- - the number of shares and the series of the Preferred Stock to be redeemed;
- - the redemption price;
- - the place or places where holders can surrender the certificates for the
Preferred Stock for payment of the redemption price;
- - that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
- - the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the Preferred Stock held by
any holder, we will also specify the number of shares to be redeemed from the
holder in the notice.
If we have given notice of the redemption and have provided the funds for the
payment of the redemption price, then beginning on the redemption date:
- - the dividends on the Preferred Stock called for redemption will no longer
accrue;
- - such shares will no longer be considered outstanding; and
- - the holders will no longer have any rights as stockholders except to receive
the redemption price.
When the holder properly surrenders the redeemed shares, the redemption price
will be paid out of the funds provided by us. If we redeem fewer than all of the
shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
In the event that a redemption described above is deemed to be a "tender offer"
within the meaning of Rule 14e-1 under the Exchange Act, we will comply with all
applicable provisions of the Exchange Act.
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CONVERSION
The applicable prospectus supplement relating to a series of convertible
Preferred Stock will describe the terms on which shares of that series are
convertible into shares of Common Stock or other Securities, which may include a
different series of Preferred Stock. The applicable prospectus supplement will
also specify the price at which the shares of Preferred Stock are convertible,
the date before any day fixed for redemption of the Preferred Stock at which the
conversion rights will expire, and the events or circumstances which will result
in adjustments to the conversion price, and, as applicable, the formulae for
determining the adjusted conversion price. Events which may result in a
conversion price adjustment include:
- - stock dividends, stock splits and similar changes to the Company's Common
Stock;
- - other distributions of debt as assets to holders of Common Stock;
- - extraordinary cash dividends on the Common Stock;
- - reclassifications of the Common Stock; and
- - mergers, consolidations or sales of substantially all of the Company's assets
in which holders of Common Stock are entitled to receive stock, other
securities, or other property or assets.
The conversion price may also be subject to reduction, at the Company's option,
in certain circumstances to be described in the applicable prospectus
supplement.
RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of shares
of each series of the Preferred Stock will be entitled to receive:
- - liquidation distributions in the amount stated in the applicable prospectus
supplement; and
- - all accrued and unpaid dividends (whether or not earned or declared).
We will pay these amounts to the holders of shares of each series of the
Preferred Stock, and all amounts owing on any Preferred Stock ranking equally
with such series of Preferred Stock as to distributions upon liquidation, out of
our assets available for distribution to stockholders before any distribution is
made to holders of any securities ranking junior to the series of Preferred
Stock upon liquidation.
The sale of all or substantially all of our property and assets, our merger into
or consolidation with any other corporation or the merger of any other
corporation into us will not be considered a dissolution, liquidation or winding
up of our business.
If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our
business and (2) the assets available for distribution to the holders of the
Preferred Stock of any series and any other shares of our stock ranking equal
with such series as to any such distribution are insufficient to pay all amounts
to which the holders are entitled, then we will only make pro rata distributions
to the holders of all shares ranking equal as to distributions upon dissolution,
liquidation or winding up of our business (i.e., the distributions we pay to the
holders of all shares ranking equal as to distributions upon dissolution,
liquidation or
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winding up of our business will bear the same relationship to each other that
the full distributable amounts for which such holders are respectively entitled
upon such dissolution, liquidation or winding up of our business bear to each
other).
After we pay the full amount of the liquidation distribution to which the
holders of a series of the Preferred Stock are entitled, such holders will have
no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as described in this section or in the applicable prospectus supplement,
or except as expressly required by applicable law, the holders of the Preferred
Stock will not be entitled to vote. If the holders of a series of Preferred
Stock are entitled to vote and the applicable prospectus supplement does not
state otherwise, then each share of Preferred Stock will be entitled to one
vote.
As more fully described under "Description of Depositary Shares" below, if we
elect to provide for the issuance of Depositary Shares representing fractional
interests in shares of Preferred Stock, the holders of each Depositary Share
will be entitled to a fraction of a vote.
For any series of Preferred Stock having one vote per share, the voting power of
the series, on matters on which holders of such series and holders of any other
series of Preferred Stock are entitled to vote as a single class, will solely
depend on the total number of shares in such series (not the aggregate
liquidation preference or initial offering price).
Unless we receive the consent of the holders of an outstanding series of
Preferred Stock and the outstanding shares of all other series of Preferred
Stock which (1) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (2) have voting rights that are exercisable and that are similar to
those of such series, we will not:
- - authorize, create or issue, or increase the authorized or issued amount of,
any class or series of stock ranking prior to such outstanding Preferred Stock
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of our business; or
- - amend, alter or repeal, whether by merger, consolidation or otherwise, the
provisions of our Certificate of Incorporation or of the resolutions contained
in a Certificate of Designation creating such series of the Preferred Stock so
as to materially and adversely affect any right, preference, privilege or
voting power of such outstanding Preferred Stock.
This consent must be given by the holders of at least two-thirds of all such
outstanding Preferred Stock described in the preceding sentence, voting together
as a single class. We will not be required to obtain this consent with respect
to the actions listed in the second bullet point above, however, if we only (1)
increase the amount of the authorized Preferred Stock, (2) create and issue
another series of Preferred Stock, or (3) increase the amount of authorized
shares of any series of Preferred Stock, if such Preferred Stock in each case
ranks equal with or junior to the Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up of our business.
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DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the Depositary Shares
(as defined below). The prospectus supplement will describe the specific terms
of the Depositary Shares offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those Depositary
Shares.
We have summarized certain terms and provisions of the Deposit Agreement, the
Depositary Shares and the Depositary Receipts in this section. The summary is
not complete. We have also filed the form of Deposit Agreement, including the
form of Depositary Receipt, as an exhibit to the registration statement. You
should read the forms of Deposit Agreement and Depositary Receipt relating to a
series of Preferred Stock for additional information before you buy any
Depositary Shares that represent Preferred Stock of such series.
GENERAL
We may offer fractional interests in Preferred Stock, rather than full shares of
Preferred Stock. If we do, we will provide for the issuance by a Depositary (as
defined below) to the public of receipts for depositary shares ("Depositary
Shares"), each of which will represent a fractional interest in a share of a
particular series of Preferred Stock.
The stock of any series of Preferred Stock underlying the Depositary Shares will
be deposited under a separate deposit agreement (the "Deposit Agreement")
between us and a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least $50 million (the
"Depositary"). We will name the Depositary in the applicable prospectus
supplement. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will have a fractional interest in all the rights and
preferences of the Preferred Stock underlying such Depositary Shares. Those
rights include any dividend, voting, redemption, conversion and liquidation
rights.
The Depositary Shares will be evidenced by depositary receipts issued under the
Deposit Agreement (the "Depositary Receipts"). If you purchase fractional
interests in shares of the related series of Preferred Stock, you will receive
Depositary Receipts as described in the applicable prospectus supplement. While
the final Depositary Receipts are being prepared, we may order the Depositary to
issue temporary Depositary Receipts substantially identical to the final
Depositary Receipts although not in final form. The holders of the temporary
Depositary Receipts will be entitled to the same rights as if they held the
Depositary Receipts in final form. Holders of the temporary Depositary Receipts
can exchange them for the final Depositary Receipts at our expense.
If you surrender Depositary Receipts at the principal office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), you are entitled to receive at such office the number of shares of
Preferred Stock and any money or other property represented by such Depositary
Shares. We will not issue partial shares of Preferred Stock. If you deliver
Depositary Receipts evidencing a number of Depositary Shares that represent more
than a whole number of shares of Preferred Stock, the Depositary will issue you
a new Depositary Receipt evidencing such excess number of Depositary Shares at
the same time that the shares of Preferred Stock are withdrawn. Holders of
Preferred Stock received in exchange for Depositary Shares will no longer be
entitled to deposit such shares under the Deposit Agreement or to receive
Depositary Shares in exchange for such Preferred Stock.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received with respect to the Preferred Stock to the record holders of Depositary
Shares representing the Preferred Stock in proportion to the number of
Depositary Shares owned by the holders on the relevant record date. The
Depositary will distribute only the amount that can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent. The
balance not distributed will be added to and treated as part of the next sum
received by the Depositary for distribution to record holders of Depositary
Shares.
If there is a distribution other than in cash, the Depositary will distribute
property to the holders of Depositary Shares, unless the Depositary determines
that it is not feasible to make such distribution. If this occurs, the
Depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of Depositary Shares.
The Deposit Agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the Preferred Stock
will be made available to the holders of Depositary Shares.
CONVERSION AND EXCHANGE
If any series of Preferred Stock underlying the Depositary Shares is subject to
conversion or exchange, the applicable prospectus supplement will describe the
rights or obligations of each record holder of Depositary Receipts to convert or
exchange the Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If the series of the Preferred Stock underlying the Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the redemption
proceeds, in whole or in part, of such series of the Preferred Stock held by the
Depositary. The Depositary will mail notice of redemption between 30 to 60 days
prior to the date fixed for redemption to the record holders of the Depositary
Shares to be redeemed at their addresses appearing in the Depositary's records.
The redemption price per Depositary Share will bear the same relationship to the
redemption price per share of Preferred Stock that the Depositary Share bears to
the underlying Preferred Share. Whenever we redeem Preferred Stock held by the
Depositary, the Depositary will redeem, as of the same redemption date, the
number of Depositary Shares representing the Preferred Stock redeemed. If less
than all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as determined by the Depositary.
After the date fixed for redemption, the Depositary Shares called for redemption
will no longer be outstanding. When the Depositary Shares are no longer
outstanding, all rights of the holders will cease, except the right to receive
money or other property that the holders of the Depositary Shares were entitled
to receive upon such redemption. Such payments will be made when holders
surrender their Depositary Receipts to the Depositary.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail information about the
meeting contained in the notice to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same
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date as the record date for the Preferred Stock) will be entitled to instruct
the Depositary as to how the Preferred Stock underlying the holder's Depositary
Shares should be voted.
The Depositary will try, if practical, to vote the number of Preferred Stock
underlying the Depositary Shares according to the instructions received. We will
agree to take all action requested by and deemed necessary by the Depositary in
order to enable the Depositary to vote the Preferred Stock in that manner. The
Depositary will not vote any Preferred Stock for which it does not receive
specific instructions from the holders of the Depositary Shares relating to such
Preferred Stock.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes as
if they were owners of the shares of Preferred Stock represented by the
Depositary Shares. Accordingly, for federal income tax purposes they will have
the income and deductions to which they would be entitled if they were holders
of the Preferred Stock. In addition:
- - no gain or loss will be recognized for federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares as provided in
the Deposit Agreement;
- - the tax basis of each share of Preferred Stock to an exchanging owner of
Depositary Shares will, upon the exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged for such Preferred Stock; and
- - the holding period for the Preferred Stock, in the hands of an exchanging
owner of Depositary Shares who held the Depositary Shares as a capital asset
at the time of the exchange, will include the period that the owner held such
Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended by agreement between us and
the Depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of Depositary Shares will not be
effective unless approved by the record holders of at least a majority of the
Depositary Shares then outstanding. A Deposit Agreement may be terminated by us
or the Depositary only if:
- - all outstanding Depositary Shares relating to the Deposit Agreement have been
redeemed; or
- - there has been a final distribution on the Preferred Stock of the relevant
series in connection with our liquidation, dissolution or winding up of our
business and the distribution has been distributed to the holders of the
related Depositary Shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. We will pay associated
charges of the Depositary for the initial deposit of the Preferred Stock and any
redemption of the Preferred Stock. Holders of Depositary Shares will pay
transfer and other taxes and governmental charges and any other charges that are
stated to be their responsibility in the Deposit Agreement.
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MISCELLANEOUS
We will forward to the holders of Depositary Shares all reports and
communications that we must furnish to the holders of the Preferred Stock.
Neither the Depositary nor we will be liable if the Depositary is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. Our obligations and the Depositary's
obligations under the Deposit Agreement will be limited to performance in good
faith of duties set forth in the Deposit Agreement. Neither the Depositary nor
we will be obligated to prosecute or defend any legal proceeding connected with
any Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished to us and/or the Depositary. We and the Depositary may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering notice to us. We may also
remove the Depositary at any time. Resignations or removals will take effect
upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50 million.
23
<PAGE> 25
DESCRIPTION OF COMMON STOCK
This section describes the general terms and provisions of the shares of our
Common Stock that may be offered by this Prospectus ("Common Stock"). A
prospectus supplement will describe the specific terms of the Common Stock
offered through that prospectus supplement and any general terms outlined in
this section that will not apply to that Common Stock.
We have summarized certain terms and provisions of the Common Stock in this
section. The summary is not complete. We have also incorporated by reference our
Certificate of Incorporation, as amended, and our bylaws, as amended, as
exhibits to the registration statement. You should read our Certificate of
Incorporation and our bylaws for additional information before you buy any
Common Stock.
GENERAL
Stock Outstanding. As of October 15, 1998, our authorized Common Stock was
50,000,000 shares, of which 23,861,566 shares were issued and outstanding.
Dividends. Holders of Common Stock may receive dividends when declared by our
Board of Directors out of our funds that we can legally use to pay dividends. We
may pay dividends in cash, stock or other property. In certain cases, holders of
Common Stock may not receive dividends until we have satisfied our obligations
to any holders of outstanding Preferred Stock. Our ability to pay dividends may
also be restricted by loan agreements or other transactions that we enter into
from time to time.
Voting Rights. Holders of Common Stock have the exclusive power to vote on all
matters presented to our stockholders unless Delaware law or the certificate of
designation for an outstanding series of Preferred Stock gives the holders of
that Preferred Stock the right to vote on certain matters. Each holder of Common
Stock is entitled to one vote per share. Holders of Common Stock have no
cumulative voting rights for the election of directors (i.e., a holder of a
single share of Common Stock cannot cast more than one vote for each position to
be filled on our Board of Directors).
Other Rights. If we voluntarily or involuntarily liquidate, dissolve or wind up
our business, holders of Common Stock will receive pro rata, according to shares
held by them, any remaining assets legally distributable to our stockholders
after we have provided for any liquidation preference for outstanding shares of
Preferred Stock. When we issue securities in the future, holders of Common Stock
have no preemptive rights (i.e., the holders of Common Stock have no right, as
holders of Common Stock, to buy any portion of those issued securities). Holders
of Common Stock have no preferences, conversion or exchange rights.
Listing. Our outstanding shares of Common Stock are listed on the New York Stock
Exchange under the symbol "FNF." Continental Stock Transfer and Trust Company
serves as the transfer agent and registrar for the Common Stock.
Fully Paid. The outstanding shares of Common Stock are fully paid and
nonassessable (i.e., the full purchase price for the outstanding shares of
Common Stock has been paid and the holders of such shares will not be assessed
any additional monies for such shares). Any additional Common Stock that we may
issue in the future pursuant to an offering under this Prospectus or upon the
conversion or exercise of other securities offered under this Prospectus will
also be fully paid and nonassessable.
24
<PAGE> 26
ANTI-TAKEOVER PROVISIONS CONTAINED IN THE CERTIFICATE OF INCORPORATION AND
BYLAWS
Certain provisions of our Certificate of Incorporation may make it less likely
that our management would be changed or someone would acquire voting control of
our Company without our Board's consent. These provisions may delay, deter or
prevent tender offers or takeover attempts that stockholders may believe are in
their best interests, including tender offers or attempts that might allow
stockholders to receive premiums over the market price of their Common Stock.
Fair Price Provision. Our Certificate of Incorporation prohibits certain
business combinations between our Company and interested stockholders, which
include direct and indirect owners of 10% or more of our voting stock unless
those transactions are approved by holders of at least 66.67% of our outstanding
voting stock not owned by any interested stockholders, voting together as a
single class. This 66.67% approval is in addition to any approval required by
law. Business combinations requiring the 66.67% approval include the following
transactions, among others:
- - any merger or consolidation with an interested stockholder or a corporation
affiliated with an interested stockholder;
- - any sale, lease, pledge, exchange, mortgage or other transfer or disposition
of our assets valued at 10% or more of the fair market value of our
consolidated assets to an interested stockholder or person or entity
affiliated with an interested stockholder, other than in the ordinary course
of business;
- - the issuance, pledge or transfer by us of any of our securities, or the
securities of one or more of our subsidiaries to an interested stockholder in
exchange for consideration with a value of 10% or more of the fair market
value of our consolidated assets, unless such person is acting as an
underwriter for such securities;
- - any sale, lease, pledge, exchange, mortgage or other transfer or disposition
of the assets of any interested stockholder or any person or entity affiliated
with an interested stockholder with a value of 10% or more of the fair market
value of our consolidated assets to us or one or more of our subsidiaries,
other than in the ordinary course of business;
- - the adoption of any plan proposed by or on behalf of an interested stockholder
or a person or entity affiliated with an interested stockholder to liquidate
or dissolve our Company; and
- - any transaction that increases the voting power or proportionate share of any
class of our equity or convertible securities owned directly or indirectly by
an interested stockholder or a person or entity affiliated with an interested
stockholder.
Stockholders do not need to approve a business combination under our Certificate
of Incorporation if 66.67% of the "continuing directors" approve the business
combination. Continuing directors are those directors, other than the interested
stockholder or any representative or affiliate of the interested stockholder,
(1) who were members of the Board of Directors before the interested stockholder
involved in the business combination became an interested stockholder or (2)
whose election or nomination was approved by a majority of such directors.
25
<PAGE> 27
Stockholders also do not need to approve a business combination under our
Certificate of Incorporation that meets certain conditions specified in our
Certificate of Incorporation. These conditions include, among other things, the
following:
- - the price received by each stockholder is at least as high as the highest
price paid for our shares by the interested stockholder in becoming an
interested stockholder in the two years before the business combination is
announced, and also is at least as high as the higher of the fair market value
of our shares when the interested stockholder became an interested stockholder
or when the business combination was announced;
- - after the interested stockholder became an interested stockholder and prior to
completion of the business combination, we have not failed to declare and pay
any quarterly dividends, unless approved by 66.67% of the continuing
directors;
- - the interested stockholder has not acquired any additional shares of our stock
after becoming an interested stockholder;
- - after the interested stockholder became an interested stockholder, such person
has not directly or indirectly received the benefit of any loans, advances,
guarantees, pledges or other financial assistance provided by our Company; and
- - a proxy or information statement describing the proposed business combination
is mailed to all holders of our stock at least 30 days before the business
combination is completed.
Holders of at least 66.67% of our outstanding voting stock not owned by any
interested stockholders, voting together as one class, must approve a proposal
to amend or repeal, or adopt provisions inconsistent with the provisions of our
Certificate of Incorporation described above unless such proposal is approved by
66.67% of the continuing directors, in which case holders of at least a majority
of the outstanding voting stock entitled to vote may approve such a proposal.
Preferred Stock. Our Board of Directors can at any time, under our Certificate
of Incorporation and without stockholder approval, issue one or more new series
of Preferred Stock. In some cases, the issuance of Preferred Stock without
stockholder approval could discourage or make more difficult attempts to take
control of our Company through a merger, tender offer, proxy contest or
otherwise. Preferred Stock with special voting rights or other features issued
to persons favoring our management could stop a takeover by preventing the
person trying to take control of our Company from acquiring enough voting shares
necessary to take control.
Classified Board. Members of our Board of Directors are divided into three
classes and serve staggered three-year terms under our Certificate of
Incorporation. This means that only approximately one-third of our directors are
elected at each annual meeting of stockholders and that it would take two years
to replace a majority of the directors unless they are removed. Under our
Certificate of Incorporation, directors can be removed from office during their
terms only if holders of at least 50% of our outstanding voting stock, voting
together as one class, approve the removal. Holders of at least 80% of our
outstanding voting stock, voting together as one class, must approve any
proposal to amend or repeal, or adopt any provisions inconsistent with, this
provision of our Certificate of Incorporation unless such proposal is approved
by 66.67% of the members of our Board of Directors who are continuing directors
according to our Certificate of Incorporation, in which case holders of at least
a majority of the outstanding voting stock entitled to vote may approve such a
proposal.
26
<PAGE> 28
Stockholder Actions. Our Certificate of Incorporation provides that any action
required or permitted to be taken by the stockholders must be effected at a duly
called annual or special meeting of stockholders and not by any consent in
writing. Our Certificate of Incorporation and bylaws each provide that special
meetings of the stockholders may only be called by the Board of Directors.
Holders of at least 80% of our outstanding voting stock, voting together as one
class, must approve any proposal to amend or repeal, or adopt any provision
inconsistent with, these provisions of our Certificate of Incorporation and
bylaws, unless such proposal is approved by 66.67% of the members of our Board
of Directors who are continuing directors according to our Certificate of
Incorporation, in which case holders of at least a majority of the outstanding
voting stock entitled to vote may approve such proposal.
Nomination Procedures. Stockholders can nominate candidates for our Board of
Directors. However, a stockholder must follow the advance notice procedures
described in our bylaws. In general, a stockholder must submit a written notice
of the nomination to our Corporate Secretary at least 90 days before a scheduled
annual meeting of our stockholders or within 10 days after a stockholder
receives notice of a special meeting. The notice must set forth such information
about the stockholder making the nomination and the nominee as is specifically
required in the bylaws.
Proposal Procedures. Stockholders can propose that business other than
nominations to our Board of Directors be considered at an annual meeting of
stockholders only if a stockholder follows the advance notice procedures
described in our bylaws. In general, a stockholder must submit a written notice
of the proposal and the stockholder's interest in the proposal at least 60 days
before the date set for the annual meeting of our stockholders.
Amendment of Bylaws. Under our bylaws, our Board of Directors can adopt, amend
or repeal the bylaws, subject to limitations under Delaware law and our
Certificate of Incorporation. Pursuant to our Certificate of Incorporation, a
majority of our Board of Directors may not amend or repeal bylaw provisions
relating to (i) the calling of special meetings of the stockholders, (ii)
actions by stockholders without a meeting, (iii) agenda matters to be presented
at stockholders' meetings, (iv) elections of directors and (v) indemnification
of officers and directors, all of which may be amended or repealed only by the
vote of at least 80% of all shares entitled to vote or by the vote of at least
66.67% of the members of our Board of Directors who are continuing directors
according to our Certificate of Incorporation. Our stockholders also have the
power to change or repeal our bylaws.
Additional Authorized Shares of Capital Stock. Additional shares of authorized
Common Stock and Preferred Stock available for issuance under our Certificate of
Incorporation could be issued at such times, under such circumstances and with
such terms and conditions as to impede a change in control of our Company.
27
<PAGE> 29
PLAN OF DISTRIBUTION
We may sell the Securities offered pursuant to this Prospectus through agents,
through underwriters or dealers or directly to one or more purchasers.
Underwriters, dealers and agents that participate in the distribution of the
Securities offered pursuant to this Prospectus may be underwriters as defined in
the Securities Act of 1933, as amended (the "Securities Act"), and any discounts
or commissions received by them from us and any profit on the resale of the
offered Securities by them may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters or agents will be
identified and their compensation (including underwriting discount) will be
described in the applicable prospectus supplement. The prospectus supplement
will also describe other terms of the offering, including any discounts or
concessions allowed or reallowed or paid to dealers and any securities exchanges
on which the offered Securities may be listed.
The distribution of the Securities offered under this Prospectus may occur from
time to time in one or more transactions at a fixed price or prices, which may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
If the applicable prospectus supplement indicates, we will authorize dealers or
our agents to solicit offers by certain institutions to purchase offered
Securities from us pursuant to contracts that provide for payment and delivery
on a future date.
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the
Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
When we issue the Securities offered by this Prospectus (except for shares of
Common Stock), they may be new securities without an established trading market.
If we sell a Security offered by this Prospectus to an underwriter for public
offering and sale, the underwriter may make a market for that Security, but the
underwriter will not be obligated to do so and could discontinue any market
making without notice at any time. Therefore, we cannot give any assurances to
you concerning the liquidity of any Security offered by this Prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
LEGAL OPINIONS
The validity of the Securities and certain legal matters relating thereto will
be passed upon for the Company by Stradling Yocca Carlson & Rauth, a
Professional Corporation, Newport Beach, California and for the underwriters by
O'Melveny and Myers LLP, Los Angeles, California.
28
<PAGE> 30
EXPERTS
The Consolidated Financial Statements of the Company as of December 31, 1997 and
1996, and for each of the years in the three year period ended December 31,
1997, 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 by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The Consolidated Financial Statements of Granite Financial, Inc. as of December
31 1997 and 1996, and for each of the years in the three year period ended
December 31, 1997, 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 by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
29
<PAGE> 31
============================================================================
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PROSPECTUS PAGE
---------- ----
<S> <C>
About this Prospectus.................. 2
Where You Can Find More Information.... 2
The Company............................ 4
Use of Proceeds........................ 5
Ratios of Earnings to Fixed Charges.... 5
Certain Financial Information.......... 6
Description of Debt Securities......... 7
Description of Preferred Stock......... 14
Description of Depositary Shares....... 20
Description of Common Stock............ 24
Plan of Distribution................... 28
Legal Opinion.......................... 28
Experts................................ 29
</TABLE>
------------------------
UNTIL , ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE
SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO
DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER
A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD
ALLOTMENTS OR SUBSCRIPTIONS.
============================================================================
============================================================================
$150,000,000
FIDELITY NATIONAL FINANCIAL, INC.
[LOGO]
[DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES OR
COMMON STOCK]
----------------
PROSPECTUS
----------------
OCTOBER , 1998
============================================================================
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Fee................ $44,250
Accounting Fees and Expenses.......................... *
Legal Fees and Expenses............................... *
Printing Expenses..................................... *
Miscellaneous Expenses................................ *
-------
Total....................................... $ *
=======
</TABLE>
- -------------------------
* To be filed by amendment.
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.
The directors and officers of the Company are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act, which might be incurred by them in such capacities and
against which they cannot be indemnified by the Company.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Common Stock*
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
4.1 Form of Indenture for Debt Securities*
</TABLE>
II-1
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.2 Form of Preferred Stock Certificate*
4.3 Form of Certificate of Designations of Preferred Stock*
4.4 Form of Deposit Agreement with respect to the Depositary
Shares*
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation*
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)*
24.1 Powers of Attorney (included on signature page)
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of
as Trustee for the Debt Securities*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to Item
601 of Regulation S-K under the Securities Act.
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is
II-2
<PAGE> 34
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 (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 of
1933, 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
of 1933, 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.
(e) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Fidelity National
Financial, Inc. 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 Irvine, State of California, on the 16th day of
October, 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, Frank P. Willey 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
--------- ----- ----
<C> <C> <S>
/s/ WILLIAM P. FOLEY, II Chairman of the Board October 16, 1998
- ------------------------------------------ and Chief Executive
William P. Foley, II Officer (Principal
Executive Officer)
/s/ FRANK P. WILLEY President and Director October 16, 1998
- ------------------------------------------
Frank P. Willey
</TABLE>
II-4
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ ALLEN D. MEADOWS Executive Vice October 16, 1998
- ------------------------------------------ President and Chief
Allen D. Meadows Financial Officer
(Principal Financial
Officer and Accounting
Officer)
/s/ WILLIAM A. IMPARATO Director October 16, 1998
- ------------------------------------------
William A. Imparato
/s/ DONALD M. KOLL Director October 16, 1998
- ------------------------------------------
Donald M. Koll
Director October , 1998
- ------------------------------------------
Daniel D. Lane
/s/ GENERAL WILLIAM LYON Director October 16, 1998
- ------------------------------------------
General William Lyon
/s/ STEPHEN C. MAHOOD Director October 16, 1998
- ------------------------------------------
Stephen C. Mahood
/s/ J. THOMAS TALBOT Director October 16, 1998
- ------------------------------------------
J. Thomas Talbot
/s/ CARY H. THOMPSON Director October 16, 1998
- ------------------------------------------
Cary H. Thompson
Director October , 1998
- ------------------------------------------
William W. Wehner
</TABLE>
II-5
<PAGE> 37
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities *
1.2 Form of Underwriting Agreement for Common Stock *
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
4.1 Form of Indenture for Debt Securities *
4.2 Form of Preferred Stock Certificate*
4.3 Form of Certificate of Designations of Preferred Stock *
4.4 Form of Deposit Agreement with respect to the Depositary
Shares *
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation *
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)*
24.1 Powers of Attorney (included on signature page)
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of
as trustee for the Debt Securities*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to Item
601 of Regulation S-K of the Securities Act.
<PAGE> 1
EXHIBIT 12.1
FIDELITY NATIONAL FINANCIAL, INC.
Calculation of Ratios of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six months ended
Year ended December 31, June 30,
----------------------------------------------- -----------------
1993 1994 1995 1996 1997 1997 1998
------- ------- ------- ------- ------- ------- -------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Pretax income from continuing operations $53,754 $12,339 $ 9,460 $42,373 $78,852 $22,264 $79,035
Fixed charges 2,587 8,594 9,239 10,936 11,654 5,879 6,451
------- ------- ------- ------- ------- ------- -------
$56,341 $20,933 $18,699 $53,309 $90,506 $28,143 $85,486
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Interest expense $ 2,587 $ 3,893 $ 4,323 $ 5,641 $ 5,715 $ 3,124 $ 4,421
Amortization of original issue discount
and debt issuance costs -- 4,701 4,916 5,295 5,939 2,755 2,030
------- ------- ------- ------- ------- ------- -------
$ 2,587 $ 8,594 $ 9,239 $10,936 $11,654 $ 5,879 $ 6,451
======= ======= ======= ======= ======= ======= =======
Ratio of Earnings to Fixed charges 21.8 2.4 2.0 4.9 7.8 4.8 13.3
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the inclusion of our report dated June 19, 1998, with respect to
the consolidated Financial Statements of Fidelity National Financial, Inc. and
subsidiaries as of December 31, 1997 and 1996, 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, 1997, which report appears in
the Form 8-K of Fidelity National Financial, Inc. dated June 24, 1998, and to
the reference of our firm under the heading "Experts" in the registration
statement.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
October 16, 1998
<PAGE> 1
EXHIBIT 23.2
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-3 and to all references to our firm included
in such Registration Statement.
/s/ Ehrhardt Keefe Steiner & Hottman PC
----------------------------------------
Ehrhardt Keefe Steiner & Hottman PC
October 16, 1998
Denver, Colorado
