<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 1999
REGISTRATION NO. 333-65837
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIDELITY NATIONAL FINANCIAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0498599
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</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 CORPORATE 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, SUITE 1600
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. [ ]
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 SEPTEMBER 20, 1999
PROSPECTUS
$200,000,000
FIDELITY NATIONAL LOGO
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 for an
aggregate initial public offering price of up to $200,000,000. We will provide
the specific terms for each of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
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Our common stock is traded on the New York Stock Exchange under the symbol
"FNF".
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The securities we may offer involve a high degree of risk. The risks
associated with an investment in our company, as well as with the particular
types of securities, will be described in the 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
may not 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 , 1999
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-65837) that we
filed with the SEC using a "shelf" registration process. Under this shelf
process, we may offer from time to time any combination of the securities
described in this prospectus, either separately or in units, in one or more
offerings up to a total dollar amount of $200,000,000. This prospectus provides
you with a general description of those securities. Each time we sell
securities, we will provide a prospectus supplement that will describe the
specific amounts, prices and terms of the securities that we offer. 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."
This prospectus does not contain all of the information in the registration
statement. We have omitted certain parts of the registration statement as
permitted by the rules and regulations of the SEC. You may inspect and copy the
registration statement, including the exhibits, 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 (SEC File No. 1-9396) 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 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 for the year ended December 31, 1998;
- - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999 and June
30, 1999;
- - Current Reports on Form 8-K dated March 19, 1999 and August 1, 1999; and
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<PAGE> 4
- - The description of our Common Stock which is contained in our Registration
Statement on Form 8-A filed on February 4, 1992 under the Exchange Act,
including any amendment or reports filed for the purpose of updating such
description.
You may request a copy of these filings, other than exhibits, at no cost by
contacting 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.
FORWARD LOOKING INFORMATION
This prospectus includes forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. This Act provides a "safe
harbor" for forward-looking statements to encourage companies to provide
prospective information about themselves so long as they identify these
statements as forward looking and provide meaningful cautionary statements
identifying important factors that could cause actual results to differ from the
prospective results. All statements, other than statements of historical fact we
make in this prospectus, prospectus supplement or in any document incorporated
by reference are forward-looking and may be identified by words such as
"anticipate," "believe," "estimate" and similar expressions. Because such
forward-looking statements involve risks and uncertainties, there are important
factors that could cause actual results to differ materially from those
expressed or implied by such forward-looking statements, including:
- changes in the interest rate environment;
- decreases in activity in the real estate market;
- changes in general economic conditions, either nationally or in the
regions in which we operate;
- increases in competitive pressure in the title insurance and other title
and real estate related services industries; and
- legislative or regulatory changes that adversely affect our operations.
These and other factors are discussed in our Annual Report on Form 10-K for
the year ended December 31, 1998, as well as the section entitled "Risk Factors"
that appears in the prospectus supplement accompanying this prospectus.
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FIDELITY NATIONAL FINANCIAL, INC.
Fidelity National Financial, Inc. is one of the largest national title
insurance underwriters and also provides diversified real estate services. We
are engaged in doing business in 49 states, the District of Columbia, Mexico,
Puerto Rico and the Virgin Islands. Through our subsidiaries, we issue title
insurance policies and perform other title-related services such as escrow,
collection and trust activities, real estate information and technology
services, trustee sale guarantees, home warranty insurance, 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 our direct operations and
otherwise through independent title insurance agents who issue title policies on
behalf of our 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.
Our principal underwriting subsidiaries are Fidelity National Title
Insurance Company, Fidelity National Title Insurance Company of New York,
Nations Title Insurance of New York Inc., and Alamo Title Insurance. We also
operate through our underwritten title companies, a national network of agents
and our real estate-related ancillary service companies. Additionally, our
subsidiary Fidelity National Leasing, Inc., originates, funds, purchases, sells,
securitizes and services equipment leases for a broad range of businesses.
During 1996 and 1997, we expanded our platform of title and real estate
transactional services and increased our market share in the commercial and
agency segments of the title industry. Through our proprietary technology we
offer fully integrated software to our customers in the real estate closing
business, creating a competitive advantage through increased productivity and
accuracy.
Fidelity 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, we will continue to consider strategic
opportunities in businesses that are less interest rate sensitive than the title
industry.
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USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the proceeds
we receive from the sale of the offered securities, after paying our expenses
related to the offering, 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 Fidelity for each of the periods
indicated were as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
- -------------------------------- -----------
1994 1995 1996 1997 1998 1998 1999
- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.1 1.5 2.7 3.6 5.9 6.8 8.0
</TABLE>
These computations include Fidelity, and except as otherwise noted,
Fidelity's subsidiaries and 50% or less owned companies. For these ratios,
"earnings" is determined by adding "fixed charges" (excluding interest
capitalized), income taxes, minority common stockholders' equity in net income
and amortization of interest capitalized to income from continuing operations
after eliminating equity in undistributed earnings and adding back losses of
companies in which at least 20% but less than 50% stock is owned. For this
purpose, "fixed charges" consists of (i) interest on all debt and amortization
of debt discount and expense, (ii) interest capitalized, and (iii) an interest
factor attributable to rentals.
Fidelity'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 Fidelity had no shares of preferred stock outstanding
during the periods indicated and currently has no such shares outstanding.
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CERTAIN FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The following table sets forth selected financial data of Fidelity as of
and for each of the years in the three-year period ended December 31, 1998 and
as of and for the six months ended June 30, 1998 and 1999. The following
selected consolidated financial data should be read in conjunction with our
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,
-------------------------------- -------------------
1996 1997 1998 1998 1999
-------- -------- ---------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Total revenue.............................. $734,795 $863,059 $1,288,465 $583,654 $702,093
Total expenses............................. 686,569 777,456 1,113,331 497,404 628,351
-------- -------- ---------- -------- --------
Earnings before income taxes and
extraordinary item...................... 48,226 85,603 175,134 86,250 73,742
Income tax expense......................... 18,985 36,595 69,442 36,131 30,234
-------- -------- ---------- -------- --------
Earnings before extraordinary item......... 29,241 49,008 105,692 50,119 43,508
Extraordinary item......................... -- (1,700) -- -- --
-------- -------- ---------- -------- --------
Net earnings............................... $ 29,241 $ 47,308 $ 105,692 $ 50,119 $ 43,508
======== ======== ========== ======== ========
PER SHARE AND OTHER DATA:
Basic net earnings......................... $ 29,241 $ 47,308 $ 105,692 $ 50,119 $ 43,508
======== ======== ========== ======== ========
Basic earnings per share before
extraordinary item...................... $ 1.43 $ 2.10 $ 3.79 $ 1.84 $ 1.42
Extraordinary item......................... -- (0.07) -- -- --
-------- -------- ---------- -------- --------
Basic net earnings per share............... $ 1.43 $ 2.03 $ 3.79 $ 1.84 $ 1.42
======== ======== ========== ======== ========
Weighted average shares outstanding, basic
basis................................... 20,426 23,355 27,921 27,281 30,594
Diluted net earnings....................... $ 32,437 $ 50,450 $ 108,155 $ 51,342 $ 43,771
======== ======== ========== ======== ========
Diluted net earnings per share before
extraordinary item...................... $ 1.23 $ 1.76 $ 3.23 $ 1.55 $ 1.35
Extraordinary item......................... -- (0.06) -- -- --
-------- -------- ---------- -------- --------
Diluted net earnings per share............. $ 1.23 $ 1.70 $ 3.23 $ 1.55 $ 1.35
======== ======== ========== ======== ========
Weighted average shares outstanding,
diluted basis........................... 26,431 29,599 33,474 33,028 32,502
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................................. 6.56% 9.92% 13.59% 14.78% 10.50%
BALANCE SHEET DATA:
Investments................................ $254,577 $358,373 $ 510,515 $387,792 $478,330
Cash and cash equivalents.................. 81,108 72,887 51,309 90,185 55,846
Notes payable.............................. 179,508 163,015 214,624 156,295 178,935
Reserve for claim losses................... 196,527 201,674 224,534 206,919 233,576
Stockholders' equity....................... 162,645 274,050 396,740 334,041 464,359
</TABLE>
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DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities, either separately, or together with, or upon the conversion of or in
exchange for, other securities. Debt securities are unsecured general
obligations. Senior debt securities rank above all subordinated debt and equal
to all other debt outstanding on the date of the prospectus supplement.
Subordinated debt securities rank in right of payment below all other debt
outstanding at or after the time issued, unless the other debt provides that it
is not senior to the subordinated debt. As used in this prospectus, "debt
securities" means the debentures, notes, bonds and other evidences of
indebtedness that we issue. 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.
When we issue debt securities, we will enter into an indenture with a
trustee. The indenture is the legal document which specifies the terms and
conditions of the debt securities and the obligations of the trustee to persons
who hold the debt securities. We may issue the senior debt securities and the
subordinated debt securities under separate indentures between us, as issuer,
and the trustee or trustees identified in the prospectus supplement. A copy of
the form of each type of indenture has been or will be filed as an exhibit to
the registration statement of which this prospectus is a part.
The following summaries of the debt securities and the indentures are not
complete. We urge you to read the indentures and the description of the debt
securities included in the prospectus supplement.
GENERAL
We may issue debt securities in separate series. We may specify a maximum
aggregate principal amount for the debt securities of any series. The debt
securities will have terms that are consistent with the indentures. Unless
otherwise specified in the applicable prospectus supplement, senior debt
securities will be unsecured and unsubordinated obligations of ours and will
rank equal with all our other unsecured and unsubordinated debt. Subordinated
debt securities will be paid only if all payments due under our senior debt,
including any outstanding senior debt securities, have been made.
The indentures might not limit the amount of other debt that we may incur
and might not contain a financial or similar restrictive covenants. The
indentures might not contain any provisions to protect holders of debt
securities against a sudden or dramatic decline in our ability to pay our debt.
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, 1999, our subsidiaries
had approximately $106.1 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 require prior approval
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<PAGE> 9
from the regulatory agency before those subsidiaries can pay us any
extraordinary dividends.
TERMS OF DEBT SECURITIES
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 or the
series of which they are a part;
- 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, or exchangeable for, common stock or other securities,
including the initial conversion price or exchange rate and any
adjustments thereto;
- the subordination terms applicable to the debt securities;
- any optional redemption provisions that would permit us or the holders of
debt securities to elect redemption or repayment of the debt securities
prior to their final maturity including upon a change of control of
Fidelity or other extraordinary event;
- 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;
- any special tax implications of the debt securities; and
- any other terms of the debt securities.
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
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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 AND EXCHANGE RIGHTS
The applicable prospectus supplement relating to a series of debt
securities will describe the terms on which those debt securities are
convertible into or exchangeable for shares of common stock or other securities.
The applicable prospectus supplement will also describe how the number of
shares of common stock or other securities or property to be received upon
conversion or exchange would be calculated, the date before any day fixed for
redemption of the debt securities at which the conversion or exchange rights
will expire, and the events or circumstances which will result in adjustments to
the conversion or exchange price, and, as applicable, the formulae for
determining the adjusted conversion or exchange price. Events which may result
in an adjustment include:
- stock dividends, stock splits and similar changes to our common stock;
- other distributions of debt as assets to holders of common stock;
- extraordinary cash dividends on our common stock;
- reclassifications of our common stock; and
- mergers, consolidations or sales of substantially all of our assets in
which holders of common stock are entitled to receive stock, other
securities, or other property or assets.
The conversion or exchange price may also be subject to reduction, at our
option, in certain circumstances to be described in the applicable prospectus
supplement.
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SUBORDINATION
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under senior indebtedness, including any outstanding senior debt securities,
have been made. If we distribute our assets to creditors upon any dissolution,
winding-up, liquidation or reorganization or in bankruptcy, insolvency,
receivership or similar proceedings, we must first pay all amounts due or to
become due on all senior indebtedness before we pay the principal of, or any
premium or interest on, the subordinated debt securities. In the event the
subordinated debt securities are accelerated because of an event of default, we
may not make any payment on the subordinated debt securities until we have paid
all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
We may not make any payment on the subordinated debt securities if a
default in the payment of the principal of, premium, if any, interest or other
obligations, including a default under any repurchase or redemption obligation,
in respect of designated senior indebtedness occurs and continues beyond any
applicable grace period. We may not make any payment on the subordinated debt
securities if any other default occurs and continues with respect to designated
senior indebtedness that permits holders of the designated senior indebtedness
to accelerate its maturity and the trustee receives a notice of such default
from us, a holder of such designated senior indebtedness or other person
permitted to give such notice. We may not resume payments on the subordinated
debt securities until the defaults are cured or certain periods pass.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors.
The term "designated senior indebtedness" means our obligations under any
particular senior indebtedness in which the debt instrument expressly provides
that the senior indebtedness will be designated senior indebtedness with respect
to the subordinated debt securities.
The indenture for subordinated debt securities may not limit our ability to
incur additional senior indebtedness.
CONSOLIDATION, MERGER OR SALE
The indentures generally permit a consolidation or merger between us and
another corporation. They also permit 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.
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<PAGE> 12
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 a subsidiary in which we own all of the capital stock.
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.
MODIFICATION AND WAIVER
Under the indentures, 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;
- make a change that adversely affects the rights of the holders of the
debt securities to convert them into common stock;
- 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.
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EVENTS OF DEFAULT
An "event of default," when used in an 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 a
specified number of 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 perform any other covenant in the indenture that applies to
debt securities of that series for a specified number of 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
- any other event of default that may be specified in the prospectus
supplement.
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 that 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. A defeasance provision
enables us to terminate our obligation to pay the debt securities if we provide
for payment through another source. In particular,
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these provisions would release us from our obligations to make payments on the
debt securities of that series and to comply with the other covenants if we
deposit with the trustee, in trust, sufficient money or government obligations
to pay the principal, interest, any premium and any other sums due on the debt
securities of that series 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.
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 convert
debt securities into common stock, 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. No such defeasance shall be permitted unless prior thereto, the
trustee shall have received an opinion of counsel to the effect that such action
will not have any federal income tax consequences to the holders.
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DESCRIPTION OF PREFERRED STOCK
We may issue preferred stock either separately, or together with, or upon
the conversion of or in exchange for, other securities. 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 Restated Certificate of Incorporation and the form of Certificate
of Designation, Preferences and Rights of Preferred Stock as exhibits to the
registration statement. You should read our Restated Certificate of
Incorporation and the Certificate of Designation relating to the applicable
series of the preferred stock for additional information before you buy any
preferred stock.
We may elect to offer depositary shares representing a fractional interest
in shares of preferred stock deposited with a depositary. For information about
the depositary shares, please see "Description of Depositary Shares" below.
GENERAL
Pursuant to our Restated 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 June 30, 1999, 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;
- the terms and conditions upon which the shares will be convertible into
common stock or other securities, including the initial conversion rate
and any adjustments to the conversion rate;
- 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.
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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, the 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;
- the 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. Shares of preferred stock are fully paid and nonassessable if 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; and
- 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).
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 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
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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.
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.
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. If we issue depositary shares representing interests in preferred
shares, we will give the 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;
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- - 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.
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 our 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 our 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 our option, in
certain circumstances to be described in the applicable prospectus supplement.
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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. In other words, the distributions we
pay to the holders of all shares ranking equal as to distributions upon
dissolution, liquidation or 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.
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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 Restated 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
We may issue depositary shares representing a fractional interest in shares
of preferred stock. 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 to the public of receipts for depositary shares, each of which will
represent a fractional interest in a share of a particular series of preferred
stock. The fractional interest to be issued will be specified in the applicable
prospectus supplement.
The stock of any series of preferred stock underlying the depositary shares
will be deposited under a separate 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 acting as a 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. 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, you will be 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
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record holder of such depositary shares on the record date 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
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charges and any other charges that are stated to be their responsibility in the
deposit agreement.
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.
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DESCRIPTION OF COMMON STOCK
We may issue shares of 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 filed our Restated Certificate of
Incorporation and our bylaws as exhibits to the registration statement. You
should read our Restated Certificate of Incorporation and our bylaws for
additional information before you buy any common stock.
GENERAL
Stock Outstanding. As of August 6, 1999, our authorized common stock was
50,000,000 shares, of which 30,439,000 shares were issued and outstanding.
Payment of 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, regulatory
restrictions, 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. With no cumulative
voting rights, a holder of a single share of our common stock cannot cast more
than one vote for each position to be filled on our Board of Directors.
Rights Upon Liquidation; No Preemptive or Preferred 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, as holders of common stock, to buy any portion of those
issued securities. Holders of common stock have no preferences, conversion or
exchange rights.
Listed on NYSE; Transfer Agent. 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. 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
Certain provisions of our Restated 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; Transactions With Interested Stockholders. Our
Restated Certificate of Incorporation prohibits certain business combinations
between us 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
Restated 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
Restated Certificate of Incorporation that meets certain conditions specified in
our Restated 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
us; 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
Restated 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 May be Issued Without Stockholder Approval. Our Board of
Directors can at any time, under our Restated 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 of Directors. Members of our Board of Directors are
divided into three classes and serve staggered three-year terms under our
Restated 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 Restated 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 Restated 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
26
<PAGE> 28
Restated 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.
Restriction on Stockholder Actions by Written Consent. Our Restated
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 Restated
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 Restated 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 Restated Certificate of
Incorporation, in which case holders of at least a majority of the outstanding
voting stock entitled to vote may approve such proposal.
Advance Notice Requirements for Director Nominations and Stockholder
Proposals. 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.
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.
Directors' Ability to Amend Bylaws. Under our bylaws, our Board of
Directors can adopt, amend or repeal the bylaws, subject to limitations under
Delaware law and our Restated Certificate of Incorporation. Pursuant to our
Restated Certificate of Incorporation, a majority of our Board of Directors may
not amend or repeal bylaw provisions relating to:
- the calling of special meetings of the stockholders;
- actions by stockholders without a meeting;
- agenda matters to be presented at stockholders' meetings;
- elections of directors; and
- 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 Restated
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
Restated 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 Fidelity.
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.
The applicable prospectus supplement will describe the terms of the offering of
the securities, including:
- the name or names of the underwriters, if any;
- the purchase price of the securities and the proceeds we will receive
from the sale;
- any underwriting discounts and other items which may be underwriters'
compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchange or market on which the securities may be listed.
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 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.
28
<PAGE> 30
LEGAL OPINIONS
The validity of the securities offered by this prospectus and certain legal
matters relating thereto will be passed upon for Fidelity National Financial,
Inc. by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport
Beach, California.
EXPERTS
The Consolidated Financial Statements of Fidelity National Financial, Inc.
as of December 31, 1998 and 1997, and for each of the years in the three year
period ended December 31, 1998, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP,
independent auditors, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
29
<PAGE> 31
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
, 1999
FIDELITY NATIONAL LOGO
FIDELITY NATIONAL FINANCIAL, INC.
$200,000,000
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES OR COMMON STOCK
----------------------------------
PROSPECTUS
----------------------------------
- --------------------------------------------------------------------------------
We have not authorized any dealer, salesperson or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy the securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sales made hereunder after the date of this prospectus shall create an
implication that the information contained herein or the affairs of the company
have not changed since the date hereof.
- --------------------------------------------------------------------------------
<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............... $ 55,600
Accounting Fees and Expenses......................... $ *
Legal Fees and Expenses.............................. $ *
Printing Expenses.................................... $ *
Miscellaneous Expenses............................... $ *
--------
Total...................................... $
========
</TABLE>
- -------------------------
* To be provided by amendment or as an exhibit to a filing with the SEC under
Section 13(a), 13(c), or 15(d) under the Securities Exchange Act of 1934.
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 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*
</TABLE>
II-1
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of the Registrant
3.2 Bylaws of the Registrant, as amended to date
4.1 Form of Indenture*
4.2 Form of Subordinated Indenture*
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 LLP**
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)**
24.1 Powers of Attorney**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Trustee to act as Trustee under the indenture*
</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.
** Previously filed.
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 Amendment No. 4 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on the 17th day of September, 1999.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
------------------------------------
William P. Foley, II
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to the 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 and September 17, 1999
- --------------------------------------- Chief Executive Officer
William P. Foley, II (Principal Executive
Officer)
/s/ FRANK P. WILLEY President and Director September 17, 1999
- ---------------------------------------
Frank P. Willey
/s/ ALAN L. STINSON Executive Vice President and September 17, 1999
- --------------------------------------- Chief Financial Officer
Alan L. Stinson (Principal Financial and
Accounting Officer)
* Director September 17, 1999
- ---------------------------------------
William A. Imparato
* Director September 17, 1999
- ---------------------------------------
Donald M. Koll
Director
- ---------------------------------------
Daniel D. Lane
* Director September 17, 1999
- ---------------------------------------
General William Lyon
* Director September 17, 1999
- ---------------------------------------
J. Thomas Talbot
* Director September 17, 1999
- ---------------------------------------
Cary H. Thompson
</TABLE>
*By: /s/ WILLIAM P. FOLEY, II
----------------------------------------
William P. Foley, II, Attorney-in-Fact
<PAGE> 36
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*
3.1 Restated Certificate of Incorporation of the Registrant
3.2 Bylaws of the Registrant, as amended to date
4.1 Form of Indenture*
4.2 Form of Subordinated Indenture*
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 LLP**
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)**
24.1 Powers of Attorney**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Trustee to act as Trustee under the indenture*
</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.
** Previously filed.
<PAGE> 1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
FIDELITY NATIONAL FINANCIAL, INC.
FIDELITY NATIONAL FINANCIAL, INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
1. The present name of the Corporation is Fidelity National Financial,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on December 29, 1986.
2. This Restated Certificate of Incorporation was duly adopted in
accordance with Section 245 of the Delaware General Corporation Law.
3. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there is
no discrepancy between those provisions and the provisions of the restated
Certificate of Incorporation, other than omissions permitted by Section 245(c)
of the Delaware General Corporation Law.
4. The Certificate of Incorporation of the Corporation, as heretofore
amended or supplemented, is hereby restated and integrated to read in its
entirety as follows:
"RESTATED CERTIFICATE OF INCORPORATION
OF
FIDELITY NATIONAL FINANCIAL, INC.
"FIRST: The name of the corporation is Fidelity National Financial,
Inc.
SECOND: The address of the registered office of the corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the city
of Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: (a) General. The aggregate number of shares which the
Corporation is authorized to issue is 53,000,000 shares, of which 3,000,000
shall be shares of preferred stock, $.0001 par value per share (the "Preferred
Stock") and 50,000,000 shall be shares of common stock, $.0001 par value per
share (the "Common Stock").
<PAGE> 2
(b) Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this Article FOURTH, to
provide for the issuance of the shares of the Preferred Stock in series, and by
filing a certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series of
the Preferred Stock shall include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series and the
distinctive designation of that series;
(ii) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends on
shares of that series;
(iii) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of
such voting rights;
(iv) Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(v) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or date upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
(vi) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms,
and amount of such sinking fund;
(vii) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of
shares of that series; and
(viii) Any other relative rights, preferences and limitations
of that series.
(c) Common Stock. Each share of Common Stock issued and outstanding
shall have one vote upon matters submitted to the common stock shareholders for
a vote.
-2-
<PAGE> 3
FIFTH: The Board of Directors shall have the power to adopt, amend and
repeal the Bylaws of the Corporation (except so far as the Bylaws of the
Corporation adopted by the stockholders shall otherwise provide). Any Bylaws
adopted by the directors under the powers conferred hereby may be amended or
repealed by the directors or by the stockholders. Notwithstanding the foregoing
and anything contained in this Certificate of Incorporation to the contrary,
Article II, Sections 1 (c), 5, 6 and 7; Article III, Section 2; and Article V of
the Bylaws as originally adopted by the sole incorporator shall not be amended
or repealed and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least 80% of the voting power of all the
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class; provided, however, that the
Continuing Directors by a two-thirds vote of such Continuing Directors defined
in Article EIGHTH say amend or repeal the foregoing Bylaw provisions without the
requirement of such shareholder vote. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all the shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article Fifth; provided, however, that if the
Continuing Directors as defined in Article EIGHTH shall by a two-thirds vote of
such Continuing Directors have adopted a resolution approving the amendment or
repeal proposal and have determined to recommend it for approval by the holders
of stock entitled to vote thereon, then the vote required shall be the
affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote thereon.
SIXTH: Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in writing by such
holders. Except as otherwise required by law and subject to the rights of the
holders of the Preferred Stock, special meetings of stockholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of Directors.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 80% of the voting
power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
alter, amend, or adopt any provision inconsistent with or repeal this Article
Sixth; provided, however, that if the Continuing Directors as defined in Article
EIGHTH shall by a two-thirds vote of such Continuing Directors have adopted a
resolution approving the amendment or repeal proposal and have determined to
recommend it for approval by the holders of stock entitled to vote thereon, then
the vote required shall be the affirmative vote of the holders of at least a
majority of the outstanding shares entitled to vote thereon.
SEVENTH: (a) The business and affairs of the corporation shall be
managed by the Board of Directors of the corporation.
(b) Except as otherwise fixed by or pursuant to the provisions of
Article Fourth hereof relating to the rights of the holders of Preferred Stock
to elect additional
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directors under specified circumstances, the number of the directors of the
Corporation shall be fixed from time to time by or pursuant to the Bylaws of the
Corporation. The directors, other than those who may be elected by the holders
of Preferred Stock, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, as shall be provided in the manner specified in the Bylaws of the
Corporation, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 1988, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1989, and another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 1990, with each class to
hold office until its successor is elected and qualified. At each annual meeting
of the stockholders, the successors of the class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election.
(c) Advance notice of stockholder nominations, for the election of
directors shall be given in the manner provided in the Bylaws of the
Corporation. Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
(d) Except as otherwise provided for or fixed by or pursuant to the
provisions of Article Fourth hereof relating to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(e) Subject to the rights of any Preferred Stock to elect directors
under specified circumstances, any director may be removed from office, only
with cause, and only by the affirmative vote of the holders of 50% of the
combined voting power of the then outstanding shares of stock entitled to vote
generally in the election of directors, voting together as a single class.
(f) To the fullest extent permitted by the General Corporation Law of
the State of Delaware, a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this paragraph shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the corporation with respect to any act or
omission occurring prior to the time of such repeal or modification.
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(g) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend, adopt any provision inconsistent with or repeal
this Article Seventh; provided, however, that if the Continuing Directors as
defined in Article EIGHTH shall by a two-thirds vote of such Continuing
Directors have adopted a resolution approving the amendment or repeal proposal
and have determined to recommend it for approval by the holders of stock
entitled to vote thereon, then the vote required shall be the affirmative vote
of the holders of at least a majority of the outstanding shares entitled to vote
thereon.
EIGHTH: (a) In addition to any affirmative vote required by law, this
Certificate of Incorporation, any resolution or resolutions adopted by the Board
of Directors pursuant to its authority under Article FOURTH of this Certificate
of Incorporation, any agreement with any national securities exchange or
otherwise, any Business Combination involving the corporation or any Subsidiary
and any Related Person or any Affiliate or Associate of a Related Person shall
be subject to approval or authorization in the manner provided by this Article
EIGHTH. Certain capitalized terms used herein are defined in paragraph (d) of
this Article EIGHTH.
(b) Except as otherwise expressly provided in paragraph (c) of this
Article EIGHTH, no Business Combination shall be consummated or effected, either
directly or indirectly, unless such Business Combination shall have been
approved or authorized by the affirmative vote of the holders of not less than
sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Voting
Stock which are not Beneficially Owned by any Related Person or an Affiliate or
Associate of such Related Person, voting together as a single class (it being
understood for purposes of this Article EIGHTH, each share of Voting Stock shall
have one vote, notwithstanding any provision contained in Article FOURTH to the
contrary), notwithstanding the fact that no vote for such transaction or
approval by some lesser percentage of stockholders may be required or specified
by law, this Certificate of Incorporation, any resolution or resolutions adopted
by the Board of Directors of the corporation pursuant to its authority under
Article FOURTH of this Certificate of Incorporation, any agreement with any
national securities exchange or otherwise.
(c) The approval or authorization of any Business Combination in the
manner provided for by paragraph (b) of this Article EIGHTH shall not be
required if all the conditions specified in either paragraph (c)(i) or paragraph
(c)(ii) of this Article EIGHTH are satisfied:
(i) such Business Combination shall have been expressly
approved by not less than two-thirds of the Continuing Directors,
either in advance of or subsequent to a Related Person having become a
Related Person; or
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<PAGE> 6
(ii) all of the conditions specified in the following clauses
shall have been met:
(A) the Fair Market Value as of the Consummation Date
of the consideration to be received per share of each class or
series of Capital Stock by Disinterested Stockholders in the
Business Combination is not less than the Highest Per Share
Price (it being understood that the provisions of this
subparagraph (c)(ii)(A) shall be required to be met with
respect to every class or series of the outstanding Capital
Stock, whether or not the Related Person has previously
acquired any shares of a particular series or class of Capital
Stock); and
(B) the form of consideration to be received by
Disinterested Stockholders in the Business Combination shall
be United States currency or the form of consideration used by
the Related Person in acquiring the largest aggregate number
of shares of the Capital Stock that such Related Person has
previously acquired; and
(C) after such Related Person has become a Related
Person and prior to the Consummation Date: (1) except as
approved by not less than two-thirds of the Continuing
Directors, there shall have been no failure to declare and pay
at the regular date therefor any full quarterly dividends
(whether or not cumulative) on the outstanding Capital Stock;
and (2) such Related Person shall have not become the
beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such
Related Person becoming a Related Person; and.
(D) after such Related Person has become a Related
Person, such Related Person shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder of the corporation), of any loans, advances,
guarantees, pledges or other financial assistance or tax
advantages provided by the corporation or any Subsidiary,
whether in anticipation of or in connection with such Business
Combination or otherwise; and
(E) a proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Act as then in effect shall have been
mailed to all Disinterested Stockholders at least thirty (30)
days prior to the date of the stockholders' meeting at which
such Business Combination is to be considered (whether or not
a proxy or information statement is required to be mailed
pursuant to the Act) and such proxy or information statement
shall have contained at the front thereof, in a prominent
place, such recommendations and other relevant information
concerning the Business Combination as a majority of the
Continuing Directors may determine so to include.
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(d) For the purposes of this Article EIGHTH:
(i) The term "Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder,
or any similar United States statute enacted to supercede or supplement
the Act.
(ii) The term "Affiliate" shall have the meaning ascribed to
it in Rule 12b-2 under the Act, as in effect on October 31, 1986, and
shall include any Person that, after giving effect to a Business
Combination, would become an Affiliate.
(iii) The term "Announcement Date" shall mean the date of the
first public announcement of a proposed Business Combination.
(iv) The term "Associate" shall have the meaning ascribed to
it in Rule 12b-2, under the Act as in effect on October 31, 1986 (the
term "registrant," as used in such Rule 12b-2, meaning in this case the
corporation), and shall include any Person that, after giving effect to
a Business Combination, would become an Associate.
(v) The term "Beneficial Owner" or "Beneficially Owned" shall
mean, or refer to stock ownership by, any person who beneficially own
any Voting Stock within the meaning ascribed in Rule 13d-3 under the
Act as in effect in October 31, 1986 or who has the right to acquire
any such beneficial ownership (whether or not such right is exercisable
immediately, with the passage of time or subject to any condition)
pursuant to any agreement, contract, arrangement or understanding or
upon the exercise of any conversion, exchange or other right, warrant
or option, or otherwise. A Person shall be deemed the Beneficial Owner
of all Capital Stock of which any Affiliate or Associate of such Person
is the Beneficial Owner.
(vi) The term "Business Combination" shall mean any (A) merger
or consolidation of the corporation or a Subsidiary with or into a
Related Person or any other corporation which is, or after such merger
or consolidation would be, an Affiliate or Associate of a Related
Person; (B) sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Related Person or any Affiliate or Associate of any Related Person,
of all or any Substantial Amount of the assets of the corporation, one
or more Subsidiaries, or the corporation and one or more Subsidiaries,
other than in the ordinary course of business; (C) adoption of any plan
or proposal for the liquidation or dissolution of the corporation
proposed by or on behalf of a Related Person or any Affiliate or
Associate of any Related Person; (D) sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series
of transactions) to the corporation, one or more Subsidiaries or the
corporation and one or more Subsidiaries (in one transaction or a
series of transactions) of all or any Substantial Amount of the assets
of a Related Person or any Affiliate or Associate of any Related
Person, other then in the ordinary course of business;
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<PAGE> 8
(E) issuance, pledge or transfer of securities of the corporation, one
or more Subsidiaries, or the corporation and one or more Subsidiaries
(in one transaction or a series of transactions) to or with a Related
Person or any Affiliate or Associate of any Related Person in exchange
for a Substantial Amount of cash, securities or other property (or a
combination thereof), except any issuance, pledge or transfer of such
securities to any such Person if such Person is acting as an
underwriter with respect to such securities; (F) reclassification of
securities, (including any reverse stock split) or recapitalization of
the corporation, any merger or consolidation of the corporation with or
into one or more Subsidiaries, or any other transaction that would have
the effect, either directly or indirectly, of increasing the voting
power or the proportionate share of any class of equity or convertible
securities of the corporation or any Subsidiary which is directly or
indirectly Beneficially Owned by any Related Person or any Affiliate or
Associate of my Related Person; (G) agreement, contract or other
arrangement providing for any of the transactions described in this
definition of Business Combinations; and (H) any series of transactions
that not less than two-thirds of the Continuing Directors determine are
related and, if taken together, would constitute a Business Combination
under this definition of Business Combination.
(vii) The term "Capital Stock" shall mean all capital stock of
any class of the corporation authorized to be issued from time to time
under this Certificate of Incorporation, whether now or hereafter
outstanding.
(viii) The term "Consummation Date" shall mean the date of the
consummation of the Business Combination.
(ix) The term "Continuing Director" shall mean any member of
the Board of Directors of the corporation who is not the Related
Person, and not an Affiliate, Associate, representative or nominee of
the Related Person or of such an Affiliate or Associate, that is
involved in the relevant Business Combination, and (A) was a member of
the Board of Directors prior to the Determination Date with respect to
such Related Person or (B) whose initial election as a director of the
corporation succeeds a Continuing Director and was recommended by a
majority vote of the Continuing Directors then in office; provided,
that, in either case, such Continuing Director shall have continued in
office after becoming a Continuing Director.
(x) The term "Determination Date" shall mean the date and time
at which a Person became a Related Person.
(xi) The term "Disinterested Stockholder" shall mean a holder
of shares of a particular class or series of Capital Stock who is not
(A) a Related Person with or for the benefit of whom a Business
Combination is proposed to be consummated or (B) an Affiliate or
Associate of such Related Person.
(xii) The term "Fair Market Value" shall mean (A) in the case
of United States currency, the amount thereof; (B) in the case of stock
and other
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<PAGE> 9
securities, the highest closing sales price during the 30-day period
immediately preceding the date in question of a share or trading unit
of such stock or security on the Composite Tape for New York Stock
Exchange -- Listed Stocks, or, if such stock or security is not listed
on the New York Stock Exchange, on the principal United States
securities exchange registered under the Act on which such stock or
security is listed, or, if such stock or security to not listed on any
such securities exchange, the highest closing sale price or bid
quotation with respect to a share or trading unit of such stock or
security during the 30-day period on the National Association of
Securities Dealers, Inc. Automated Quotations System or any successor
system or, if no such quotations are available, the fair market value
on the date in question of a share or trading unit of such stock or
security as determined in good faith by a majority vote of the
Continuing Directors; and (C) in the case of property other than cash,
stock or other securities, the fair market value of such property on
the date in question as determined in good faith by a majority vote of
the Continuing Directors.
(xiii) The term "Highest Per Share Price" shall mean, with
respect to the consideration to be received per share of each class or
series of Capital Stock by Disinterested Stockholders in any particular
Business Combinations, the higher of the following:
(A) the highest per share price (including brokerage
commissions transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person in acquiring Beneficial
Ownership of any of its holdings of such class or series of
Capital Stock of this corporation (1) within the two-year
period immediately prior to the Announcement Date or (2) in
the transaction or series of transactions in which the Related
Person became a Related Person, whichever is higher; or
(B) the fair Market Value per share of the shares of
Capital Stock being acquired in the Business Combination as of
(1) the Announcement Date or (2) the date on which the Related
Person became a Related Person, whichever is higher.
For the purposes of this paragraph (d)(xiii), (A) the price
deemed to have been paid by a Related Person for any shares of Capital
Stock of which an Affiliate or Associate is the Beneficial Owner shall
be the price which to the highest of the following: (1) the price paid
upon the acquisition thereof by the relevant Affiliate or Associate (if
any, and whether or not such Affiliate or Associate was an Affiliate or
Associate at the time of such acquisition) or (2) the Fair Market Value
of such Capital Stock as of the day when the Related Person became a
Beneficial Owner thereof; (B) in determining the Highest Per Share
Price, all purchases by the Related Person shall be taken into account,
regardless of whether the shares were purchased before or after the
Related Person became a Related Person; (C) a Person shall be deemed to
have
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<PAGE> 10
acquired a share of Capital Stock at the time when such Person became
the Beneficial Owner thereof; and (D) appropriate adjustments shall be
made to reflect the relevant effect of any stock dividends, splits and
distributions and any combination or reclassification of Capital Stock.
(xiv) The phrase "consideration to be received" as used in
subparagraph (c)(ii)(A) of this Article EIGHTH shall include, without
limitation, the shares of Common Stock or any other class or series of
Capital Stock retained by the Disinterested Stockholders in the event
of a Business Combination that is a merger or consolidation in which
the corporation is the surviving entity.
(xv) The term "Person" shall mean any individual, corporation,
partnership or other entity, including any group comprised of any
Person and any other Person or any Affiliate or Associate thereof with
whom such Person or any Affiliate or Associate thereof has any
agreement, arrangement or understanding, directly or indirectly, for
the purpose of acquiring, holding, voting, or disposing of Voting Stock
and each Person, and any Affiliate or Associate thereof, that is a
member of such group.
(xvi) The term "Related Person" shall mean any Person who,
alone or together with any Affiliates or Associates is:
(A) the Beneficial Owner, directly or indirectly, of
an aggregate percentage of the outstanding Voting Stock equal
to or exceeding ten percent (10%), or
(B) an assignee of or otherwise has succeeded to the
Beneficial Ownership of any shares of Voting Stock which were
at any time within the two-year period immediately prior to
the date in question Beneficially Owned by any Related Person,
if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933, as amended;
provided, however, that the term "Related Person" shall not include (v)
any officer or director initially appointed by the sole incorporator of
the Corporation or any of their Affiliates or Associates, (w) any one
or a group of more than one Continuing Director, (x) the corporation or
any Subsidiary all of the Capital Stock of or other ownership interest
in which is directly or indirectly owned by the Corporation, (y) any
Person whose acquisition of such aggregate percentage of Voting Stock
was approved by not less than a two-thirds vote of the Continuing
Directors prior to such acquisition or (z) any pension, profit sharing,
employee stock ownership or other employee benefit plan of the
corporation or any Subsidiary or any trustee or fiduciary when acting
in such capacity with respect to any such plan.
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<PAGE> 11
(xvii) The term "Subsidiary" shall mean any Person a majority
of any class of equity securities in which is owned, directly or
indirectly, by the corporation, one or more Subsidiaries or the
corporation and one or more Subsidiaries.
(xviii) The term "Substantial Amount" shall mean the amount of
stock, securities or other assets or property having a Fair Market
Value equal to ten percent (10%) or more of the Fair Market Value of
the total consolidated assets of the corporation and its Subsidiaries
taken as a whole as of the end of the most recent fiscal year of the
corporation ended prior to the time as of which the determination is
being made.
(xix) The term "Voting Stock" shall mean all outstanding
Common Stock of the corporation and all other outstanding Capital
Stock, if any, entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote, and each reference to
a proportion of shares of Voting Stock shall refer to such proportion
of the votes entitled to be cast by the holders of such shares of
Common Stock and other Capital Stock voting as one class (it being
understood that for purposes of this Article EIGHTH, each share of
Voting Stock shall have the number of votes granted to it in accordance
with Article FOURTH of this Certificate of Incorporation).
(e) The fact that any Business Combination complies with the provisions
of paragraph (c)(ii) of this Article EIGHTH shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the stockholders of the corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
(f) A majority of the Continuing Directors of the corporation shall
have the power and duty to determine for the purposes of this article EIGHTH, on
the basis of information known to then after reasonable inquiry, (i) whether a
person is a Related Party, (ii) the number of shares of Voting Stock
Beneficially Owned by any person, and (iii) whether a person is an Affiliate or
Associate of another. A majority of the Continuing Directors of the corporation
shall have the further power to interpret all of the terms and provisions of
this Article EIGHTH.
(g) The affirmative vote of not less than sixty-six and two-thirds
percent (66-2/3%) of the outstanding shares of Voting Stock which are not
Beneficially Owned by any Related Person or any Affiliate or Associate of a
Related Person shall be required to alter, amend or repeal, or adopt any
provisions inconsistent with, the provision set forth in this Article EIGHTH;
provided, however, that if the Continuing Directors shall by a two-thirds vote
of such Continuing Directors have adopted a resolution approving the amendment
or repeal proposal and have determined to recommend it for approval by the
holders of stock entitled to vote thereon, then the vote required shall be the
affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote thereon.
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NINTH: Subject to the other terms of this Certificate of
Incorporation, the Corporation reserves the right to amend, altar,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute and
this Certificate of Incorporation, and all rights conferred on
stockholders herein are granted subject to this reservation.
TENTH: The period of duration of the Corporation is
perpetual."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its duly authorized officer this ____ day of September, 1999.
FIDELITY NATIONAL FINANCIAL, INC.
By:
-----------------------------------
M'Liss Jones Kane,
Senior Vice President and Secretary
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<PAGE> 1
EXHIBIT 3.2
FIDELITY NATIONAL FINANCIAL, INC.
BYLAWS
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of the Corporation in the State of Delaware
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices.
The Corporation also may have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Stockholder Meetings.
(a) Time and Place of Meetings. Meetings of the stockholders shall be
held at such times and places, either within or without the State of Delaware,
as may from time to time be fixed by the Board of Directors and stated in the
notices or waivers of notice of such meetings.
(b) Annual Meeting. The annual meeting of the stockholders shall be
held sometime during the month of June in each year as shall be designated by
the Board of Directors, or at such other date as may be designated by the Board
of Directors, for the election of directors and the transaction of such other
business properly brought before such annual meeting of the stockholders and
within the powers of the stockholders.
(c) Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time only by the
Board of Directors pursuant to a resolution approved by a majority of the entire
Board of Directors. Business transacted at any special meeting of the
stockholders shall be limited to the purposes stated in the notice of such
meeting.
(d) Notice of Meetings. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, written notice of each meeting of
the stockholders shall be given not less than ten (10) days nor more than sixty
(60) days before the date of such meeting to each stockholder entitled to vote
thereat, directed to such stockholder's address as it appears upon the books of
the Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States
<PAGE> 2
mail, postage prepaid, addressed to the stockholder at his address as it appears
on the stock ledger of the Corporation. When a meeting of the stockholders is
adjourned to another time and/or place, notice need not be given of such
adjourned meeting if the time and place thereof are announced at the meeting of
the stockholders at which the adjournment is taken, unless the adjournment is
for more than thirty (30) days or unless after the adjournment a new record date
is fixed for such adjourned meeting, in which event a notice of such adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Notice of the time, place and purpose of any meeting of the stockholders may be
waived in writing either before or after such meeting and will be waived by any
stockholder by such stockholder's attendance thereat in person or by proxy. Any
stockholder so waiving notice of such a meeting shall be bound by the
proceedings of any such meeting in all respects as if due notice thereof had
been given.
(e) Quorum. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than a majority of the
shares entitled to vote at any meeting of the stockholders, present in person or
by proxy, shall constitute a quorum and the affirmative vote of the majority of
such quorum shall be deemed the act of the stockholders. If a quorum shall fail
to attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
Section 2. Determination of Stockholders Entitled to Notice and to Vote.
To determine the stockholders entitled to notice of any meeting of
the stockholders or to vote thereat, the Board of Directors may fix in advance a
record date as provided in Article VII, Section 1 of these Bylaws, or if no
record date is fixed by the Board of Directors, a record date shall be
determined as provided by law.
Section 3. Voting.
(a) Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote for each full share
of stock registered in the name of such stockholder at the time fixed by the
Board of Directors or by law as the record date of the determination of
stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the person or such stockholder's duly
authorized agent, whether by manual signature, typewriting, telegraphic
transmission or otherwise. Every proxy must be executed in writing (which shall
include telegraphing or cabling) by the stockholder or by his duly authorized
agent, but no proxy shall be voted on after three years from its date, unless
the proxy provides for a longer period.
2
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(c) Voting may be by voice or by ballot as the presiding officer of
the meeting of the stockholders shall determine. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the Chairman
of the Board or President may appoint one or more persons as inspectors of
election (the "Inspectors") to act at such meeting. Such Inspectors shall take
charge of the ballots at such meeting. After the balloting on any question, the
Inspectors shall count the ballots cast and make a written report to the
secretary of such meeting of the results. Subject to the direction of the
chairman of the meeting, the duties of such Inspectors may further include
without limitation: determining the number of shares outstanding and the voting
power of each; the shares represented at the meeting; the existence of a quorum;
the authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
of consents and determining when the polls shall close; determining the result;
and doing such acts as may be proper to conduct the election or vote with
fairness to all shareholders. An Inspector need not be a stockholder of the
Corporation and any officer of the Corporation may be an Inspector on any
question other than a vote for or against such officer's election to any
position with the Corporation or on any other questions in which such officer
may be directly interested. If there are three Inspectors, the determination,
report or certificate of two such Inspectors shall be effective as if
unanimously made by all Inspectors.
Section 4. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make available, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of each such stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to such meeting, either
at a place within the city where such meeting is to be held and which place
shall be specified in the notice of such meeting, or, if not so specified, at
the place where such meeting is to be held. The list also shall be produced and
kept at the time and place of the meeting of the stockholders during the whole
time thereof, and may be inspected by any stockholder who is present.
Section 5. Action by Consent of Stockholders.
Any action required or permitted to be taken by the stockholders must
be effected at a duly called annual or special meeting of such holders and may
not be effected by any consent in writing by such holders.
Section 6. Conduct of Meetings.
The chairman of the meeting shall have full and complete authority to
determine the agenda, to set the procedures and order the conduct of meetings,
all as deemed appropriate by such person in his sole discretion with due regard
to the orderly conduct of business.
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Section 7. Notice of Agenda Matters.
If a stockholder wishes to present to the Chairman of the Board or
the President an item for consideration as an agenda item for a meeting of
shareholders, he must give timely notice to the Secretary of the Corporation and
give a brief description of the business desired to be brought before the
meeting. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public disclosure
of the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the date on which such notice of the date of
the annual meeting was mailed or such public disclosure was made.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers.
Unless otherwise restricted by law, the Certificate of Incorporation
or these Bylaws as to action which shall be authorized or approved by the
stockholders, and subject to the duties of directors as prescribed by these
Bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be controlled by, the
Board of Directors. Without prejudice to such general powers, but subject to the
same limitations, the directors shall have the following powers:
(a) To select and remove all the other officers, agents
and employees of the Corporation; prescribe such powers and duties
for them as may not be inconsistent with law, the Certificate of
Incorporation or these Bylaws, fix their compensation and require
from them security for faithful service.
(b) To conduct, manage, and control the affairs and
business of the Corporation and to make such rules and regulations
therefor not inconsistent with law, the Certificate of Incorporation
or these Bylaws, as they may deem best.
(c) To change the principal office for the transaction of
the business of the Corporation from one location to another as
provided in Article I, Section 2, hereof; to designate any place
within or without the State of Delaware for the holding of any
stockholders' meeting or meetings and to adopt, make and use a
corporate seal, and to prescribe the forms of certificates of stock,
and to alter the form of such seal and of such certificates from time
to time, as in their judgment they may deem best, provided such seal
and such certificates shall at all times comply with the provisions
of law.
(d) To authorize the issue of shares of stock of the
Corporation from time to time, upon such terms as may be lawful, in
consideration of money paid, labor done or services actually
rendered, debts or securities cancelled, or tangible or intangible
property actually received or, in the case of shares issued as a
dividend, against amounts transferred from surplus to stated capital.
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(e) To borrow money and incur indebtedness for the
purposes of the Corporation, and to cause to be executed and
delivered therefor, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations or
other evidences of debt and securities therefor.
(f) To adopt and put into effect such stock purchase plans
and stock option plans, both of general and restricted stock option
plan character, as they may deem advisable for the benefit of
employees of the Corporation, and to issue stock in accordance with
and pursuant to any such plan.
Section 2. Election of Directors.
(a) Number, Qualification and Term of Office. The authorized number
of directors of the Corporation shall be fixed from time to time by the Board of
Directors, but shall not be less than three (3) nor more than ten (10). The
exact number of directors shall be determined from time to time, either by a
resolution or Bylaw provision duly adopted by a majority of the whole Board of
Directors. Directors need not be stockholders.
(b) Resignation. Any director may resign from the Board of Directors
at any time by giving written notice to the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein, or if the time
when such resignation shall become effective shall not be so specified, then
such resignation shall take effect immediately upon its receipt by the
Secretary; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(c) Nomination of Directors. Candidates for director of the
Corporation shall be nominated only either by:
(i) the Board of Directors or a committee appointed by the
Board of Directors, or
(ii) nomination at any stockholders' meeting by or on behalf of
any stockholder entitled to vote thereat; provided, that written
notice of such stockholder's intent to make such nomination or
nominations shall have been given, either by personal delivery or by
United States certified mail, postage prepaid, to the Secretary of
the Corporation not later than (1) with respect to an election to be
held at an annual meeting of the stockholders, ninety (90) days in
advance of such annual meeting, and (2) with respect to an election
to be held at a special meeting of the stockholders for the election
of directors, the close of business on the tenth day following the
date on which notice of such special meeting is first given to the
stockholders entitled to vote thereat. Each such notice by a
stockholder shall set forth: (1) the name and address of the (A)
stockholder who intends to make the nomination and (B) person or
persons to be nominated; (2) a representation that the stockholder is
a holder of record of stock of the Corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice;
(3) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (4) such other
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information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy or information statement
filed with the Securities and Exchange Commission pursuant to the
proxy rules promulgated under the Securities Act of 1934, as amended,
or any successor statute thereto, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (5) the
manually signed consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting of
the stockholders may refuse to acknowledge the nominee of any person
not made in compliance with the foregoing procedure.
(d) Preferred Stock Provisions. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of stock issued by the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of the stockholders, the election,
term of office, filling of vacancies, nomination, terms of removal and other
features of such directorships shall be governed by the terms of Article FOURTH
of the Certificate of Incorporation and the resolution or resolutions
establishing such class or series adopted pursuant thereto.
Section 3. Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors
shall be held without call at the following times:
(i) at such times as the Board of Directors shall from time to
time by resolution determine; and
(ii) one-half hour prior to any special meeting of the
stockholders and immediately following the adjournment of any annual
or special meeting of the stockholders.
Notice of all such regular meetings hereby is dispensed with.
(b) Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board of Directors, any three (3) directors,
the President or by any officer authorized by the Board of Directors. Notice of
the time and place of special meetings of the Board of Directors shall be given
by the Secretary or an Assistant Secretary of the Corporation, or by any other
officer authorized by the Board of Directors. Such notice shall be given to each
director personally or by mail, messenger, telephone or telegraph at such
director's business or residence address. Notice by mail shall be deposited in
the United States mail, postage prepaid, not later than the third day prior to
the date fixed for such special meeting. Notice by telephone or telegraph shall
be sent, and notice given personally or by messenger shall be delivered, at
least twenty-four (24) hours prior to the time set for such special meeting.
Notice of a special meeting of the Board of Directors need not contain a
statement of the purpose of such special meeting.
(c) Adjourned Meetings. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise. Notice of the time and place of holding
any adjourned meeting shall not be required if the time and place are fixed at
the meeting adjourned.
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(d) Place of Meetings Unless a resolution of the Board of Directors
is given, either before or after the meeting, and filed with the Secretary of
the Corporation designating a different place within or without the State of
Delaware, meetings of the Board of Directors, both regular and special, shall be
held at the Corporation's principal executive offices.
(e) Participation by Telephone. Members of the Board of Directors or
any committee may participate in any meeting of the Board of Directors or
committee through the use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another, and such participation shall constitute presence in person at such
meeting.
(f) Quorum. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors of the entire
then authorized Board of Directors or such committee shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any such meeting at which there is a quorum shall be the act of the
Board of Directors or any committee, except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws. A meeting of
the Board of Directors or any committee at which a quorum initially is present
may continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) Waiver of Notice. The transactions of any meeting of the Board of
Directors or any committee, however called and noticed or wherever held, shall
be as valid as though had at a meeting duly held after regular call and notice,
if a quorum be present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, or a consent to hold
such meeting, or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 5. Action Without Meeting.
Any action required or permitted to be taken by the Board of
Directors at any meeting or at any meeting of a committee may be taken without a
meeting if all members of the Board of Directors or such committee consent in
writing and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee.
Section 6. Compensation of Directors.
Unless otherwise restricted by law, the Certificate of Incorporation
or these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
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Section 7. Committees of the Board.
(a) Committees. The Board of Directors may, by resolution adopted by
a majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these Bylaws, shall have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. The Board of Directors shall have the power, at any time for any reason,
to change the members of any such committee, to fill vacancies, and to
discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
(c) Limits on Authority of Committees. No committee shall have the
power or authority in reference to amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
of Directors as provided in Section 151(a) of the General Corporation Law of the
State of Delaware, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation, or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the same
or any other class or classes of stock of the Corporation, or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending any provision of these Bylaws; nor, unless the resolutions
establishing such committee or the Certificate of Incorporation expressly so
provide, shall it have the power or authority to declare a dividend, to
authorize the issuance of stock, to adopt a certificate of ownership and merger,
or to fill vacancies in the Board of Directors.
(d) Audit Committee. The Board of Directors shall appoint an Audit
Committee consisting of at least two directors, none of whom shall be employees
of the Corporation. The Audit Committee shall review the financial affairs and
procedures of the Corporation from time to time with management and meet with
the auditors of the Corporation to review the financial statements and
procedures.
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ARTICLE IV
OFFICERS
Section 1. Officers.
(a) Number. The officers of the Corporation shall be chosen by the
Board of Directors and may include a Chairman of the Board of Directors and
shall include a President, a Vice President, a Secretary and a Treasurer. The
Board of Directors or the President may appoint one or more Assistant Vice
Presidents, Assistant Secretaries or Assistant Treasurers and such other
officers and agents with such powers and duties as it shall deem necessary. Any
Vice President may be given such specific designation as may be determined from
time to time by the Board of Directors. Any number of offices may be held by the
same person, unless otherwise required by law, the Certificate of Incorporation
or these Bylaws.
(b) Election and Term of Office. All officers shall be elected
annually by the Board of Directors at its regular meeting following the annual
meeting of the stockholders and each officer shall hold office until the next
annual election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any assistant officers may be removed, with or
without cause, and any vacancy filled by the President of the Corporation
without benefit of Board action.
(c) Salaries . The salaries of all officers of the Corporation shall
be fixed by the Board of Directors or a committee thereof from time to time.
Section 2. Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be a Chairman, shall
preside at all meetings of the stockholders and the Board of Directors and shall
have such other power and authority as may from time to time be assigned by the
Board of Directors.
Section 3. President.
The President shall be the chief executive officer of the
Corporation, shall preside at all meetings of the stockholders and the Board of
Directors, if a Chairman of the Board has not been elected, and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, the President shall have the general and active management of the
business of the Corporation, may execute all contracts requiring a seal and
shall also execute any mortgages, conveyances or other legal instruments in the
name of and on behalf of the Corporation, but his provision shall not prohibit
the delegation of such powers by the Board of Directors to some other officer,
agent or attorney-in-fact of the Corporation.
Section 4. Vice Presidents.
In the absence or disability of the President, the Vice Presidents in
order of their rank as fixed by the Board of Directors, or if not ranked, the
Vice President designated by the Board of Directors,
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shall perform all the duties of the President, and when so acting shall have all
the powers of, and be subject to all the restrictions upon, the President. The
Vice Presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them, respectively, by the Board of
Directors or these Bylaws. At the request of a Vice President or in a Vice
President's absence or disability, any Assistant Vice President may perform the
duties of an absentee Vice President and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, a Vice President.
Section 5. Secretary and Assistant Secretaries.
The Secretary shall record or cause to be recorded, in books provided
for the purpose, minutes of the meetings of the stockholders, the Board of
Directors and all committees of the Board of Directors; see that all notices are
duly given in accordance with the provisions of these Bylaws as required by law;
be custodian of all corporate records (other than financial) and of the seal of
the Corporation, and have authority to affix the seal to all documents requiring
it and attest to the same; give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors; and, in
general, shall perform all duties incident to the office of Secretary and such
other duties as may, from time to time, be assigned to him by the Board of
Directors or by the President. At the request of the Secretary, or in the
Secretary's absence or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary.
Section 6. Treasurer and Assistant Treasurers.
The Treasurer shall keep or cause to be kept the books of account of
the Corporation and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Treasurer, subject to the order of the Board of Directors,
shall have custody of all funds and securities of the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements. The
Treasurer shall perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. At the request of
the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the
Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
Section 1. Actions Against Directors and Officers.
The Corporation shall indemnify to the full extent permitted by, and in
the manner permissible under, the laws of the State of Delaware any person made,
or threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that
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such person or such person's testator or intestate is or was a director or
officer of the Corporation or any predecessor of the Corporation, or served any
other enterprise as a director or officer at the request of the Corporation or
any predecessor of the Corporation.
Section 2. Contract.
The provisions of Section 1 of this Article V shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while such Bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter based in whole or in part upon any
such state of facts.
Section 3. Nonexclusivity.
The rights of indemnification provided by this Article V shall not be
deemed exclusive of any other rights to which any director or officer of the
Corporation may be entitled apart from the provisions of this Article V.
Section 4. Indemnification of Employees and Agents.
The Board of Directors in its discretion shall have the power on
behalf of the Corporation to indemnify any person, other than a director or
officer, made a party to any action, suit or proceeding by reason of the fact
that such person or such person's testator or intestate, is or was an employee
or agent of the Corporation.
Section 5. Insurance.
Upon a resolution or resolutions duly adopted by the Board of
Directors of the Corporation, the Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation against any liability asserted against such person and
incurred by him in any capacity, or arising out of his capacity as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of applicable law, the Certificate of
Incorporation or these Bylaws.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares.
Unless otherwise provided by a resolution of the Board of Directors,
the shares of the Corporation shall be represented by a certificate. The
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by or in the name of the
Corporation by (a) the Chairman of the Board of Directors, the President or any
Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimile. In case any officer of the Corporation, transfer agent or registrar
who has signed, or whose facsimile signature has been placed upon such
certificate, shall have ceased to be
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such officer, transfer agent or registrar before such certificate is issued,
such certificate may nevertheless be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issuance.
Section 2. Classes of Stock.
(a) If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualification, limitations, or
restrictions of such preferences or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, that, except as
otherwise provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate that the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 151, 156, 202(a),
or 218(a) of the General Corporation Law of the State of Delaware) or a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
or rights.
Section 3. Transfer.
Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the Corporation.
Section 4. Record Owner.
The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof, and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of the State of
Delaware.
Section 5. Lost Certificates.
The Board of Directors may direct a new certificate or certificates
or uncertificated shares to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the
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certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates or uncertificated shares, the Board
of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that it may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
ARTICLE VII
MISCELLANEOUS
Section 1. Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise, any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days prior to the
date of such meeting nor more than sixty (60) days prior to any other action. If
not fixed by the Board of Directors, the record date shall be determined as
provided by law.
(b) A determination of stockholders of record entitled to notice of
or to vote at a meeting of the stockholders shall apply to any adjournments of
the meeting, unless the Board of Directors fixes a new record date for the
adjourned meeting.
(c) Holders of stock on the record date are entitled to notice and to
vote or to receive the dividend, distribution or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these Bylaws.
Section 2. Execution of Instruments.
The Board of Directors may, in its discretion, determine the method
and designate the signatory officer or officers, or other persons, to execute
any corporate instrument or document or to sign the corporate name without
limitation, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. Such designation may be general or confined to
specific instances.
Section 3. Voting of Securities Owned by the Corporation.
All stock and other securities of other corporations held by the
Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
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Section 4. Corporate Seal.
The Corporation shall have a corporate seal in such form as shall be
prescribed and adopted by the Board of Directors.
Section 5. Construction and Definitions.
Unless the context requires otherwise, the general provisions, rules
of construction and definitions in the General Corporation Law of the State of
Delaware and the Certificate of Incorporation shall govern the construction of
these Bylaws.
Section 6. Amendments.
Subject to the provisions of the Certificate of Incorporation and
these Bylaws, these Bylaws may be altered, amended or repealed at any annual
meeting of the stockholders (or at any special meeting thereof duly called for
that purpose) by a majority vote of the shares represented and entitled to vote
thereat; provided, that in the notice of any such meeting, notice of such
purpose shall be given. Subject to the laws of the State of Delaware, the
Certificate of Incorporation and these Bylaws, the Board of Directors may by
majority vote of the whole Board of Directors amend these Bylaws, or enact such
other Bylaws as in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
Section 7.
The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of Delaware.
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