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As Filed With the Securities and Exchange Commission on December 26, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIDELITY NATIONAL FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 86-0498599
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
17911 Von Karman Avenue, Suite 300, Irvine, CA 92614
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(Address of Principal Executive Offices) (Zip Code)
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1991 STOCK OPTION PLAN
1998 STOCK INCENTIVE PLAN
STOCK OPTION GRANTS OUTSIDE OF A PLAN
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(Full title of the plans)
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Peter T. Sadowski, Esq.
Executive Vice President and General Counsel
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300, Irvine, CA 92614
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(Name and address of agent for service)
(949) 622-5000
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(Telephone number, including area code, of agent for service)
Copies to:
C. Craig Carlson, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Aggregate Offering Amount of
To Be Registered Registered(1) Price Per Share(2) Price(2) Registration Fee
================================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$.0001 par value 2,000,000(3) shares $35.6565 $ 71,313,000.00 $17,828.25
Common Stock,
$.0001 par value 1,000,000(4) shares $35.6565 $ 35,656,500.00 $ 8,914.13
Common Stock,
$.0001 par value 2,856,716(5) shares (5) $ 35,603,323.51 $ 8,900.81
================================================================================================================
Totals: 5,856,716 shares $142,572,823.51 $35,643.19
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</TABLE>
(1) Also registered hereunder are an indeterminate number of shares which may
become issuable pursuant to the anti-dilution adjustment provisions of the
Registrant's 1998 Stock Incentive Plan (the "1998 Plan") and the 1991 Stock
Option Plan (the "1991 Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of shares of
Common Stock registered hereby is estimated, solely for purposes of
calculating the registration fee, on the basis of (a) a weighted per share
exercise price of $12.4630 with respect to outstanding options to purchase
2,856,716 shares; and (b) for shares available for future grant under the
1998 Plan and the 1991 Plan, the basis of the price of securities of the
same class, as determined in accordance with Rule 457(c), using the average
of the high and low prices reported by the New York Stock Exchange for the
Common Stock on December 20, 2000, which was $35.6565 per share.
(3) Additional shares issuable pursuant to the 1998 Plan. An aggregate of
3,080,000 shares of Common Stock available for issuance under the 1998 Plan
were registered on a Registration Statement on Form S-8 filed on August 10,
1998 (Registration No. 333-61111).
(4) Additional shares issuable pursuant to the 1991 Plan. An aggregate of
3,148,776 shares of Common Stock available for issuance under the 1991 Plan
were registered on Registration Statements on Form S-8 filed on January 24,
1992 (Registration No. 33-45272), June 23, 1993 (Registration No. 33-64834),
August 18, 1994 (Registration No. 33-83026), and August 10, 1998
(Registration No. 333-61111).
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(5) The following stock option grants, listed below by number and exercise
price, were issued outside of stock option plans.
<TABLE>
<CAPTION>
EXERCISE PRICE
NUMBER OF SHARES PER SHARE
---------------- --------------
<S> <C> <C>
Stock Option Grants Issued Outside of a Plan 55,000 $31.5345
Stock Option Grants Issued Outside of a Plan 27,500 $25.9664
Stock Option Grants Issued Outside of a Plan 224,400 $24.2618
Stock Option Grants Issued Outside of a Plan 224,766 $19.0800
Stock Option Grants Issued Outside of a Plan 35,000 $18.0000
Stock Option Grants Issued Outside of a Plan 12,100 $16.5809
Stock Option Grants Issued Outside of a Plan 50,000 $15.9375
Stock Option Grants Issued Outside of a Plan 140,000 $14.8125
Stock Option Grants Issued Outside of a Plan 33,000 $14.1250
Stock Option Grants Issued Outside of a Plan 25,000 $14.0625
Stock Option Grants Issued Outside of a Plan 5,000 $12.3750
Stock Option Grants Issued Outside of a Plan 358,500 $11.7500
Stock Option Grants Issued Outside of a Plan 366,148 $10.4336
Stock Option Grants Issued Outside of a Plan 110,918 $10.0209
Stock Option Grants Issued Outside of a Plan 666,453 $ 9.2750
Stock Option Grants Issued Outside of a Plan 491,471 $ 6.7500
Stock Option Grants Issued Outside of a Plan 31,460 $ 6.3018
Total: 2,856,716 --
</TABLE>
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PART I
In accordance with the rules and regulations of the Securities and
Exchange Commission, the documents containing the information called for by Part
I of Form S-8 will be sent or given to individuals who participate in the
Fidelity National Financial. Inc. 1991 Stock Option Plan and 1998 Stock
Incentive Plan who have been granted stock options under such plans, and to
individuals who have been granted stock options outside of a plan, and are not
being filed with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Fidelity National Financial, Inc. (the
"Registrant" or the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K, as amended, for the fiscal
year ended December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 2000;
(d) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2000;
(e) The Company's Current Reports on Form 8-K dated March 20, 2000, as
amended, April 10, 2000, May 17, 2000, and June 6, 2000; and
(f) The description of the Registrant's common stock, par value $.0001 per
share (the "Common Stock"), contained in the Registrant's Registration
Statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration Statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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The contents of the Registrant's Registration Statements on Form S-8
(Registration Nos. 33-45272, 33-64834, 33-83026, and 333-61111) are incorporated
herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The 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 DGCL provides that a corporation may indemnify any
person made a party to an action (other than an action by or in the right of the
corporation) by reason of the fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action (other than an action
by or in the right of the corporation), has no reasonable cause to believe his
or her conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
Number Description
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4.1 1991 Stock Option Plan (incorporated by reference to same
numbered exhibit to the Registrant's Registration Statement on
Form S-8, Reg. No. 33-45272).
4.2 1998 Stock Incentive Plan (incorporated by reference to same
numbered exhibit to the Registrant's Registration Statement on
Form S-8, Reg. No. 333-61111).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP independent auditors, with respect to the
consolidated financial statements of the Registrant.
24.1 Power of Attorney (included on the signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 26th day of
December, 2000.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ William P. Foley, II
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William P. Foley, II
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Fidelity National Financial,
Inc., do hereby make, constitute and appoint William P. Foley, II and Alan L.
Stinson, and each of them acting individually, our true and lawful
attorneys-in-fact and agents, with power to act without any other and with full
power of substitution, to do any and all acts and things in our name and behalf
in our capacities as directors and officers, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, or any
related Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ William P. Foley, II Chairman of the Board and December 26, 2000
----------------------------- Chief Executive Officer
William P. Foley, II (Principal Executive Officer)
/s/ Alan L. Stinson Executive Vice President, December 26, 2000
----------------------------- Chief Financial Officer
Alan L. Stinson and Treasurer
(Principal Financial and
Accounting Officer)
/s/ Frank P. Willey Vice Chairman and Director December 26, 2000
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Frank P. Willey
/s/ William A. Imparato Director December 26, 2000
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William A. Imparato
/s/ Donald M. Koll Director December 26, 2000
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Donald M. Koll
/s/ Daniel D. Lane Director December 26, 2000
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Daniel D. Lane
/s/ General William Lyon Director December 26, 2000
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General William Lyon
/s/ Philip G. Heasley Director December 26, 2000
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Philip G. Heasley
/s/ J. Thomas Talbot Director December 26, 2000
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J. Thomas Talbot
/s/ Cary H. Thompson Director December 26, 2000
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Cary H. Thompson
/s/ John J. Burns, Jr. Director December 26, 2000
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John J. Burns, Jr.
/s/ Richard P. Toft Director December 26, 2000
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Richard P. Toft
/s/ John Farrell, Jr. Director December 26, 2000
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John Farrell, Jr.
</TABLE>
S-1
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EXHIBIT INDEX
Number Description
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4.1 1991 Stock Option Plan (incorporated by reference to same numbered
exhibit to the Registrant's Registration Statement on Form S-8, Reg.
No. 33-45272.
4.2 1998 Stock Incentive Plan (incorporated by reference to same numbered
exhibit to the Registrant's Registration Statement on Form S-8, Reg.
No. 333-61111.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP independent auditors, with respect to the
consolidated financial statements of the Registrant.
24.1 Power of Attorney (included on the signature page).
