<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1999
REGISTRATION NO. 333-65837
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIDELITY NATIONAL FINANCIAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0498599
(STATE OR OTHER JURISDICTION (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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
- -----------------------------------------------------------------------------------------------------------------------------------
Debt Securities(3)................. --
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Preferred Stock(4)................. --
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Depositary Shares(4)(5)............ --
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Common Stock(4).................... --
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TOTAL.......................... $200,000,000 -- $200,000,000 $55,600
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- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Not specified as to each class of securities to be registered pursuant to
General Introduction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(2) Estimated in accordance with Rule 457(o) solely for the purpose of
calculating the registration fee. $44,250 of the Registration Fee was paid
with the initial filing of this Registration Statement.
(3) Debt Securities include senior and subordinated Debt Securities. If any Debt
Securities are issued at an original issue discount, then such greater
amount as may be sold for an aggregate initial offering price of up to the
proposed maximum aggregate offering price.
(4) Includes such indeterminate number of shares of Preferred Stock and Common
Stock, and such indeterminate number of Depositary Shares, as may be issued
from time to time at indeterminate prices, or as may be issued upon
conversion or exchange of Debt Securities, Preferred Stock or Depositary
Shares, as the case may be (for which, in any such conversion or exchange,
no separate consideration will be received by the Registrant).
(5) Represent fractional interests in shares of Preferred Stock registered
hereby.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED AUGUST 12, 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.
------------------------
Our common stock is traded on the New York Stock Exchange under the symbol
"FNF".
------------------------
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."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) contains additional information about
Fidelity and the securities offered under this prospectus. That registration
statement can be read at the SEC's web site or at the SEC's offices mentioned
under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file subsequently
with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 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 an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address:
Corporate Secretary
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
(949) 622-5000
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where the offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates
on the front of those documents.
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.
3
<PAGE> 5
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 Granite Financial, 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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<PAGE> 6
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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<PAGE> 7
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>
6
<PAGE> 8
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.
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 from the regulatory agency before those
subsidiaries can pay us any extraordinary dividends.
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<PAGE> 9
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 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
8
<PAGE> 10
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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<PAGE> 11
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 (except
with respect to conversion provisions) 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 (or method of calculation), the dividend
periods, the dates on which dividends will be payable and whether the
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which the dividends will start to cumulate;
- any redemption or sinking fund provisions;
- 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 (i.e., the full purchase price for the outstanding preferred stock
will have been paid and the holders of such shares of preferred stock will not
be assessed any additional monies for such preferred stock). Unless the
applicable prospectus supplement specifies otherwise:
- each series of the preferred stock will rank equally in all respects with
the outstanding shares of each other series of the preferred stock; 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.
Our Board will not declare and pay a dividend on any of our stock ranking,
as to dividends, equal with or junior to the preferred stock unless full
dividends on the preferred stock have been declared and paid (or declared and
sufficient money is set aside for payment). Until full dividends are paid (or
declared and payment is set aside) on preferred stock ranking equal as to
dividends, then:
- we will declare any dividends pro rata among the preferred stock of each
series and any preferred stock ranking equal to the preferred stock as to
dividends (i.e., the dividends we declare per share on each series of
such preferred stock will bear the same relationship to each other that
the full accrued dividends per share on each such series of the preferred
stock bear to each other);
- other than such pro rata dividends, we will not declare or pay any
dividends or declare or make any distributions upon any security ranking
junior to or equal with the preferred stock as to dividends or upon
liquidation (except dividends or distributions paid for with securities
ranking junior to the preferred stock as to dividends and upon
liquidation); and
- we will not redeem, purchase or otherwise acquire (or set aside money for
a sinking fund for) any securities ranking junior to or equal with the
preferred stock as to dividends or upon liquidation (except by conversion
into or exchange for stock junior to the preferred shares as to dividends
and upon liquidation).
We will not owe any interest, or any money in lieu of interest, on any
dividend payment(s) on any series of the preferred stock which may be past due.
REDEMPTION
A series of the preferred stock may be redeemable, in whole or in part, at
our option, and may be subject to mandatory redemption pursuant to a sinking
fund or otherwise, as described in the applicable prospectus supplement.
Redeemed preferred stock will become authorized but unissued shares of preferred
stock that we may issue in the future.
If a series of the preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of preferred stock are
redeemed, we will pay all accrued and unpaid dividends on those shares of
preferred stock up to, but excluding, the redemption date. The prospectus
supplement will also specify whether the redemption price will be paid in cash
or other property. If (1) we are only permitted to pay the redemption price for
a series of preferred stock from the proceeds of a capital stock issuance and
(2) the proceeds from the issuance are insufficient or no such issuance has
occurred, then the terms of that series may provide that the preferred stock
will automatically and mandatorily be converted into such capital stock.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, our Board of Directors will determine the number of
shares to be redeemed. We will redeem the shares pro rata from the holders of
record in proportion to the number of shares held by them (with adjustments to
avoid redemption of fractional shares).
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Even though the terms of a series of preferred stock may permit redemption
of shares of preferred stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due:
- - we will not redeem any preferred stock of that series unless we simultaneously
redeem all outstanding shares of preferred stock of that series; and
- - we will not purchase or otherwise acquire any preferred stock of that series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring preferred stock of that series pursuant to a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 to 60 days prior to the date fixed for
redemption (unless we issue depositary shares representing interests in
preferred shares, in which case we will send a notice to the depositary between
40 to 70 days prior to the date fixed for redemption). We will mail the notices
to the holders' addresses as they appear on our stock records. Each notice will
state:
- - the redemption date;
- - the number of shares and the series of the preferred stock to be redeemed;
- - the redemption price;
- - the place or places where holders can surrender the certificates for the
preferred stock for payment of the redemption price;
- - that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
- - the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the preferred stock
held by any holder, we will also specify the number of shares to be redeemed
from the holder in the notice.
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
- - the dividends on the preferred stock called for redemption will no longer
accrue;
- - such shares will no longer be considered outstanding; and
- - the holders will no longer have any rights as stockholders except to receive
the redemption price.
When the holder properly surrenders the redeemed shares, the redemption
price will be paid out of the funds provided by us. If we redeem fewer than all
of the shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, we will comply
with all applicable provisions of the Exchange Act.
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CONVERSION
The applicable prospectus supplement relating to a series of convertible
preferred stock will describe the terms on which shares of that series are
convertible into shares of common stock or other securities, which may include a
different series of preferred stock. The applicable prospectus supplement will
also specify the price at which the shares of preferred stock are convertible,
the date before any day fixed for redemption of the preferred stock at which the
conversion rights will expire, and the events or circumstances which will result
in adjustments to the conversion price, and, as applicable, the formulae for
determining the adjusted conversion price. Events which may result in a
conversion price adjustment include:
- - stock dividends, stock splits and similar changes to 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.
RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of shares
of each series of the preferred stock will be entitled to receive:
- - liquidation distributions in the amount stated in the applicable prospectus
supplement; and
- - all accrued and unpaid dividends (whether or not earned or declared).
We will pay these amounts to the holders of shares of each series of the
preferred stock, and all amounts owing on any preferred stock ranking equally
with such series of preferred stock as to distributions upon liquidation, out of
our assets available for distribution to stockholders before any distribution is
made to holders of any securities ranking junior to the series of preferred
stock upon liquidation.
The sale of all or substantially all of our property and assets, our merger
into or consolidation with any other corporation or the merger of any other
corporation into us will not be considered a dissolution, liquidation or winding
up of our business.
If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our
business and (2) the assets available for distribution to the holders of the
preferred stock of any series and any other shares of our stock ranking equal
with such series as to any such distribution are insufficient to pay all amounts
to which the holders are entitled, then we will only make pro rata distributions
to the holders of all shares ranking equal as to distributions upon dissolution,
liquidation or winding up of our business (i.e., the distributions we pay to the
holders of all shares ranking equal as to distributions upon dissolution,
liquidation or
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winding up of our business will bear the same relationship to each other that
the full distributable amounts for which such holders are respectively entitled
upon such dissolution, liquidation or winding up of our business bear to each
other).
After we pay the full amount of the liquidation distribution to which the
holders of a series of the preferred stock are entitled, such holders will have
no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as described in this section or in the applicable prospectus
supplement, or except as expressly required by applicable law, the holders of
the preferred stock will not be entitled to vote. If the holders of a series of
preferred stock are entitled to vote and the applicable prospectus supplement
does not state otherwise, then each share of preferred stock will be entitled to
one vote.
As more fully described under "Description of Depositary Shares" below, if
we elect to provide for the issuance of depositary shares representing
fractional interests in shares of preferred stock, the holders of each
depositary share will be entitled to a fraction of a vote.
For any series of preferred stock having one vote per share, the voting
power of the series, on matters on which holders of such series and holders of
any other series of preferred stock are entitled to vote as a single class, will
solely depend on the total number of shares in such series (not the aggregate
liquidation preference or initial offering price).
Unless we receive the consent of the holders of an outstanding series of
preferred stock and the outstanding shares of all other series of preferred
stock which (1) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (2) have voting rights that are exercisable and that are similar to
those of such series, we will not:
- authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking prior to such outstanding
preferred stock with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of our business; or
- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our 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 (to be
specified in the applicable prospectus supplement) 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
(as defined below), 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 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 (unless the related depositary shares have previously been called for
redemption), you are entitled to receive at such office the number of shares of
preferred stock and any money or other property represented by such depositary
shares. We will not issue partial shares of preferred stock. If you deliver
depositary receipts evidencing a number of depositary shares that represent more
than a whole number of shares of preferred stock, the depositary will issue you
a new depositary receipt evidencing such excess number of depositary shares at
the same time that the shares of preferred stock are withdrawn. Holders of
preferred stock received in exchange for depositary shares will no longer be
entitled to deposit such shares
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under the deposit agreement or to receive depositary shares in exchange for such
preferred stock.
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.
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VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the depositary will mail information about the
meeting contained in the notice to the record holders of the depositary shares
relating to such preferred stock. Each record holder of such depositary shares
on the record date (which will be the same date as the record date for the
preferred stock) will be entitled to instruct the depositary as to how the
preferred stock underlying the holder's depositary shares should be voted.
The depositary will try, if practical, to vote the number of preferred
stock underlying the depositary shares according to the instructions received.
We will agree to take all action requested by and deemed necessary by the
depositary in order to enable the depositary to vote the preferred stock in that
manner. The depositary will not vote any preferred stock for which it does not
receive specific instructions from the holders of the depositary shares relating
to such preferred stock.
TAXATION
Owners of depositary shares will be treated for federal income tax purposes
as if they were owners of the shares of preferred stock represented by the
depositary shares. Accordingly, for federal income tax purposes they will have
the income and deductions to which they would be entitled if they were holders
of the preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock;
and
- the holding period for the preferred stock, in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period that the owner
held such depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless approved by the record holders of at least a majority of the
depositary shares then outstanding. A deposit agreement may be terminated by us
or the depositary only if:
- all outstanding depositary shares relating to the deposit agreement have
been redeemed; or
- there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up of our business and the distribution has been distributed to
the holders of the related depositary shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay associated
charges of the depositary for the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares will pay
transfer and other taxes and governmental charges and any other charges that are
stated to be their responsibility in the deposit agreement.
MISCELLANEOUS
We will forward to the holders of depositary shares all reports and
communications that we must furnish to the holders of the preferred stock.
Neither the depositary nor we will be liable if the depositary is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. Our obligations and the depositary's
obligations under the deposit agreement will be limited to performance in good
faith of duties set forth in the deposit agreement. Neither the depositary nor
we will be obligated to prosecute or defend any legal proceeding connected with
any depositary shares or preferred stock unless satisfactory indemnity is
furnished to us and/or the depositary. We and the depositary may rely upon
written advice of counsel or accountants, or information provided by persons
presenting preferred stock for deposit, holders of depositary shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us. We may
also remove the depositary at any time. Resignations or removals will take
effect upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50 million.
23
<PAGE> 25
DESCRIPTION OF COMMON STOCK
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 (i.e., a holder of a
single share of common stock cannot cast more than one vote for each position to
be filled on our Board of Directors).
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 (i.e., the holders of common stock have no right, as holders
of common stock, to buy any portion of those issued securities). Holders of
common stock have no preferences, conversion or exchange rights.
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 (i.e., the full purchase price for the outstanding shares of
common stock has been paid and the holders of such shares will not be assessed
any additional monies for such shares). Any additional common stock that we may
issue in the future pursuant to an offering under this prospectus or upon the
conversion or exercise of other securities offered under this prospectus will
also be fully paid and nonassessable.
24
<PAGE> 26
ANTI-TAKEOVER PROVISIONS
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 (i) the calling of special
meetings of the stockholders, (ii) actions by stockholders without a meeting,
(iii) agenda matters to be presented at stockholders' meetings, (iv) elections
of directors and (v) indemnification of officers and directors, all of which may
be amended or repealed only by the vote of at least 80% of all shares entitled
to vote or by the vote of at least 66.67% of the members of our Board of
Directors who are continuing directors according to our 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 Form of Restated Certificate of Incorporation of the
Registrant (to be filed with the Delaware Secretary of
State)**
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. 3 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 12th day of August, 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. 3 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 August 12, 1999
- ------------------------------------------ and Chief Executive
William P. Foley, II Officer (Principal
Executive Officer)
/s/ FRANK P. WILLEY President and Director August 12, 1999
- ------------------------------------------
Frank P. Willey
/s/ ALAN L. STINSON Executive Vice President August 12, 1999
- ------------------------------------------ and Chief Financial
Alan L. Stinson Officer (Principal
Financial and Accounting
Officer)
* Director August 12, 1999
- ------------------------------------------
William A. Imparato
* Director August 12, 1999
- ------------------------------------------
Donald M. Koll
Director August , 1999
- ------------------------------------------
Daniel D. Lane
* Director August 12, 1999
- ------------------------------------------
General William Lyon
* Director August 12, 1999
- ------------------------------------------
J. Thomas Talbot
* Director August 12, 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 Form of Restated Certificate of Incorporation of the
Registrant (to be filed with the Delaware Secretary of
State)**
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 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
August 12, 1999
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
Re: Registration Statement on Form S-3 (File No. 333-65837)
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity"), in connection with the preparation of the
Registration Statement on Form S-3 (File No. 333-65837) filed by Fidelity with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act") (as amended, the "Registration
Statement"). The Registration Statement relates to the issuance and sale from
time to time, pursuant to Rule 415 of the General Rules and Regulations of the
Commission promulgated under the Securities Act, of the following securities of
Fidelity with an aggregate initial public offering price of up to $200,000,000:
(i) debt securities, in one or more series (the "Debt Securities"), which may be
issued under an Indenture (the "Indenture") entered into or proposed to be
entered into between Fidelity and a trustee (the "Trustee") that has been or
will be appointed prior to the issuance of Debt Securities; (ii) shares of
Fidelity preferred stock, par value $.0001 per share (the "Preferred Stock"), in
one or more series, which may also be issued in the form of depositary shares
(the "Depositary Shares") evidenced by depositary receipts (the "Receipts"); and
(iii) shares of Fidelity common stock, par value $.0001 per share (the "Common
Stock" and, collectively with the Debt Securities, the Preferred Stock, the
Depositary Shares and the Common Stock, the "Offered Securities").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
<PAGE> 2
Fidelity National Financial, Inc.
August 12, 1999
Page Two
In connection with the preparation of this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate and other records and documents as we considered appropriate
including, without limitation:
(i) the Registration Statement;
(ii) the Indenture or form thereof filed as an exhibit to the
Registration Statement;
(iii) the form of deposit agreement (the "Deposit Agreement") filed as
an exhibit to the Registration Statement that may be entered into among
Fidelity, a depositary to be appointed by Fidelity (the "Depositary") and the
holders from time to time of Receipts issued thereunder in connection with any
offering of Depositary Shares, including the form of Receipt evidencing the
Depositary Shares included as Annex A to the Deposit Agreement;
(iv) a specimen certificate representing the Common Stock;
(v) the Certificate of Incorporation of Fidelity, as presently in
effect;
(vi) the Bylaws of Fidelity, as presently in effect; and
(vii) resolutions of the Board of Directors of Fidelity (the "Board
Resolutions") relating to the preparation and filing of the Registration
Statement.
In addition, we have examined such other documents and considered such
questions of law as we have deemed necessary or appropriate. As to questions of
fact material to our opinions, we have relied upon certificates of public
officials, certificates of officers or other representatives of Fidelity and
others, and such other certificates or representations as we considered
appropriate.
We have assumed the authenticity of all documents submitted to us as
originals, the conformity with originals of all documents submitted to us as
copies and the genuineness of all signatures. We have also assumed that, with
respect to all parties to agreements or instruments relevant hereto other than
Fidelity, such parties had or will have the requisite power and authority to
execute and deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action,
corporate or other, and executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of officers and other representatives of
Fidelity and others.
Based upon the foregoing, and subject to the assumptions, exceptions,
qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Board of Directors of Fidelity has taken all
necessary corporate action to authorize the offer,
<PAGE> 3
Fidelity National Financial, Inc.
August 12, 1999
Page Three
sale and issuance of, and to fix and determine the terms of, the Offered Debt
Securities; (ii) the terms of the Offered Debt Securities and of their issuance
and sale have been duly established in conformity with the Indenture; (iii) the
Indenture has been duly executed and delivered; and (iv) the Offered Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Indenture and duly delivered to the purchasers thereof upon payment
of the agreed-upon consideration therefor, the issuance and sale of the Offered
Debt Securities will have been duly authorized by all necessary corporate action
on the part of Fidelity, and the Offered Debt Securities will constitute valid
and binding obligations of Fidelity enforceable against Fidelity in accordance
with their terms, except as the enforceability thereof may be subject to or
limited by (1) bankruptcy, insolvency, reorganization, arrangement, moratorium
or similar laws relating to creditors' rights generally, and (2) general
equitable principles, regardless of whether the issue is enforceability is
considered in a proceeding in equity or at law.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Offered Preferred Stock, including the
adoption of a Certificate of Designations for such Preferred Stock in the form
required by applicable law; (ii) such Certificate of Designations has been duly
filed with the Secretary of State of the State of Delaware; (iii) certificates
representing the shares of the Offered Preferred Stock have been manually signed
by an authorized officer of Fidelity or of the transfer agent and registrar for
the Preferred Stock and registered by Fidelity or such transfer agent and
registrar, and delivered to the purchasers thereof; and (iv) Fidelity receives
consideration per share of the Offered Preferred Stock (A) in such amount (not
less than the par value per share) as may be determined by the Board of
Directors in the form of cash, services rendered, personal property, real
property, leases of real property, or a combination thereof or (B) in an amount
not less than the amount of consideration determined to be capital, in any of
the above-stated forms, and a binding obligation of the purchaser to pay the
balance of such purchase price, the issuance and sale of the shares of Offered
Preferred Stock will have been duly authorized by all necessary corporate action
on the part of Fidelity, and such shares will be validly issued, fully paid and
nonassessable.
3. With respect to Depositary Shares representing fractional interests
in any series of Preferred Stock, when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Depositary Shares and the related series of
Preferred Stock, including the adoption of a Certificate of Designations for
such related series of Preferred Stock in the form required by applicable law;
(ii) such Certificate of Designations has been duly filed with the Secretary of
State of the State of Delaware; (iii) the terms of the Depositary Shares and of
their issuance and sale have been duly established in conformity with the
Deposit Agreement; (iv) the Deposit Agreement has been duly executed and
delivered; (v) the related series of Preferred Stock has been duly authorized
and validly issued in accordance with the laws of the State of Delaware and
delivered to the Depositary for deposit in accordance with the Deposit
Agreement; and (vi) the Receipts evidencing the Depositary Shares have been duly
issued against deposit of the related series of Preferred Stock with the
Depositary in accordance with
<PAGE> 4
Fidelity National Financial, Inc.
August 12, 1999
Page Four
the Deposit Agreement, the issuance and sale of the Depositary Shares will be
validly issued and the Receipts will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement.
4. With respect to the shares of Common Stock (the "Offered Common
Stock"), when (i) the Board of Directors has taken all necessary corporate
action to authorize the offer, sale and issuance of the Offered Common Stock;
(ii) certificates representing the shares of the Offered Common Stock in the
form of the specimen certificates examined by us have been manually signed by an
authorized officer of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar, and delivered to the purchasers
thereof; and (iii) Fidelity receives consideration per share of the Offered
Common Stock (A) in such an amount (not less than the par value per share) as
may be determined by the Board of Directors in the form of cash, services
rendered, personal property, real property, leases of real property, or a
combination thereof or (B) in an amount not less than the amount of
consideration determined to be capital, in any of the above-stated forms, and a
binding obligation of the purchaser to pay the balance of such purchase price,
the issuance and sale of the shares of Offered Common Stock (including any
Offered Common Stock duly issued upon exchange or conversion of any Debt
Securities or shares of Preferred Stock that are exchangeable or convertible
into Common Stock) will have been duly authorized by all necessary corporate
action on the part of Fidelity, and such shares will be validly issued, fully
paid and nonassessable.
The foregoing opinions are subject to the following:
A. Notwithstanding the foregoing, the opinions expressed above with
respect to the Offered Debt Securities shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission to Offered Debt
Securities the payment or interest on which will be determined by reference to
one or more currency exchange rates, commodity prices, equity indices or other
factors.
B. With respect to any Indenture, Deposit Agreement or other agreement
or instrument evidencing or relating to any Offered Securities, we have not
examined the question of what law would govern the interpretation or enforcement
thereof, and our opinions are based on the assumption that the internal laws of
the State of California would govern such agreement or instrument and the
transactions contemplated thereby. We express no opinion regarding the choice of
law provisions of any such agreement or instrument.
We are members of the Bar of the State of California and, accordingly,
do not purport to be experts on, or to be qualified to express any opinion
herein concerning, nor do we express any opinion concerning, any law other than
the laws of the State of California and the General Corporation Law of the State
of Delaware.
<PAGE> 5
Fidelity National Financial, Inc.
August 12, 1999
Page Five
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 12.1
FIDELITY NATIONAL FINANCIAL, INC.
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six months ended
Year ended December 31, June 30,
------------------------------------------------ -----------------
1994 1995 1996 1997 1997 1998 1999
------- ------- ------- ------- -------- ------- -------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings $15,577 $ 7,953 $29,241 $47,308 $105,692 $50,119 $43,508
Fixed charges 13,779 15,053 16,885 18,208 21,456 8,704 6,174
------- ------- ------- ------- -------- ------- -------
$29,356 $23,006 $46,126 $65,516 $127,148 $58,823 $49,682
======= ======= ======= ======= ======== ======= =======
Fixed charges:
Interest expense $ 9,078 $10,137 $11,590 $12,269 $ 17,024 $ 6,674 $ 5,689
Amortization of original issue discount
and debt issuance costs 4,701 4,916 5,295 5,939 4,432 2,030 485
------- ------- ------- ------- -------- ------- -------
$13,779 $15,053 $16,885 $18,208 $ 21,456 $ 8,704 $ 6,174
======= ======= ======= ======= ======== ======= =======
Ratio of Earnings to Fixed charges 2.1 1.5 2.7 3.6 5.9 6.8 8.0
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the use of our reports incorporated herein by reference and to the
reference of our firm under the heading "Experts" in the registration statement.
/s/ KPMG LLP
Los Angeles, California
August 12, 1999
