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As Filed With the Securities and Exchange Commission on March 20, 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.
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(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, CALIFORNIA 92614
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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CHICAGO TITLE CORPORATION 1998 LONG-TERM INCENTIVE PLAN
CHICAGO TITLE CORPORATION DIRECTORS STOCK OPTION PLAN
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(FULL TITLES OF THE PLANS)
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PETER T. SADOWSKI, ESQ.
FIDELITY NATIONAL FINANCIAL, INC.
17911 VON KARMAN AVENUE, SUITE 300, IRVINE, CALIFORNIA 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
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value (3) 3,098,697 $12.4505 $38,580,399 $10,185.23
Common Stock, $0.0001 par value (4) 97,251 $11.48 $ 1,116,439 $ 294.74
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Total $10,479.97
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(1) Represents shares issuable upon the exercise of options assumed by the
Registrant in connection with the merger of Chicago Title Corporation with
and into the Registrant on March 20, 2000.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h)(1), the aggregate offering price is computed upon
the basis of the price at which the options may be exercised, the weighted
average per share amount of which is $12.4505 (for options under the 1998
Long-Term Plan) and $11.48 (for options under the Directors Plan).
(3) Outstanding under the Chicago Title Corporation 1998 Long-Term Incentive
Plan (the "1998 Long-Term Plan").
(4) Outstanding under the Chicago Title Corporation Directors Stock Option Plan
(the "Directors Plan").
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EXPLANATORY NOTE
This Registration Statement on Form S-8 registers shares of common
stock, par value $.0001 per share (the "Common Stock"), of Fidelity National
Financial, Inc. ("Fidelity" or the "Company"), which may be issued in connection
with, or in respect of, options ("Chicago Title Options") to purchase shares of
common stock, par value $1.00 per share (the "Chicago Title Shares"), of Chicago
Title Corporation, a Delaware corporation ("Chicago Title"), outstanding
pursuant to the Chicago Title Corporation 1998 Long-Term Incentive Plan (the
"1998 Long-Term Plan"), and the Chicago Title Corporation Directors Stock Option
Plan (the "Directors Plan" and, together with the 1998 Long-Term Plan, the
"Chicago Title Plans"). The shares of Common Stock registered in respect of
Chicago Title Options under each Chicago Title Plan are as follows: 1998
Long-Term Plan - 3,098,697 shares; and Directors Plan - 97,251 shares.
The Agreement and Plan of Merger, dated as of August 1, 1999 and
amended as of October 13, 1999, between the Company and Chicago Title (the
"Merger Agreement") provides that each Chicago Title Option shall be converted
at the effective time of the merger of Chicago Title with and into the Company
into an option or right to acquire, on the same terms and conditions as were
applicable under such Chicago Title Option (except that the converted option
shall be vested and immediately exercisable) that number of shares of Common
Stock determined by multiplying the number of Chicago Title Shares subject to
such Chicago Title Option by the Per Share Stock Amount (as such term is defined
in and determined in accordance with the Merger Agreement), with any fractional
shares of Common Stock resulting from such calculation being rounded down to the
nearest whole share, at a price per share (rounded up to the nearest whole cent)
equal to (x) the aggregate exercise price for Chicago Title Shares covered by
such Chicago Title Option divided by (y) the number of full shares of Common
Stock covered by such Chicago Title Option in accordance with the foregoing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is
omitted from this Registration Statement in accordance with Rule 428 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Fidelity with the Commission
(File No. 1-9396) and are incorporated herein by reference:
(a) Annual Report on Form 10-K, as amended, for the year ended
December 31, 1998;
(b) Quarterly Reports on Form 10-Q, as amended, for the
quarters ended March 31, 1999 and June 30, 1999 and September 30, 1998;
(c) Current Reports on Form 8-K filed on March 22, 1999,
August 4, 1999, January 26, 2000 and February 15, 2000; and
(d) The description of Common Stock contained in Fidelity'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 Fidelity 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
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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.
Any statement in a document incorporated by reference shall be deemed
to be modified or superseded to the extent that a statement contained in this
Registration Statement modifies or supersedes a statement in such document. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by Delaware law, a director will not be liable for monetary
damages for breach of the director's fiduciary duty of care to the Company and
its stockholders. This provision in the Certificate of Incorporation does not
eliminate a director's fiduciary duty of care, and, in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for (i) breach of the director's duty
of loyalty to the Company or its stockholders for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, (ii)
acts or omissions that the director believes to be contrary to the best
interests of the Company or its stockholders, (iii) any transaction from which
the director derives an improper personal benefit, (iv) acts or omissions
involving reckless disregard for the director's duty to the Company or its
stockholders when the director was aware or should have been aware of the risk
of serious injury to the Company or its stockholders, (v) acts or omissions that
constitute an unexpected pattern of inattention that amounts to an abdication of
the director's duty to the Company or its stockholders, (vi) improper
transactions between a director and the Company, and (vii) improper
distributions and loans to directors and officers. This provision does not
affect a director's responsibilities under any laws, such as the federal
securities laws or state or federal environmental laws.
In addition, the Company's Bylaws provide that the Company will
indemnify its directors and executive officers and may indemnify its other
officers, employees and other agents to the fullest extent permitted by Delaware
law. The Company is also empowered under its Bylaws to enter into
indemnification contracts with its directors and officers and to purchase
insurance on behalf of any person whom the Company is required or permitted to
indemnify. The Company has entered into agreements with its directors and
executive officers, which requires the Company to indemnify them to the fullest
extent permitted by law against certain losses they may incur in legal
proceedings arising in connection with their services to the Company.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
The above discussion of the Registrant's Certificate of Incorporation
and Bylaws and of the Delaware Law is not intended to be exhaustive and is
respectively qualified in its entirety by such Certificate of Incorporation and
Bylaws and the Delaware Law.
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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5.1 Opinion of Stradling Yocca Carlson & Rauth.
23.1 Consent of KPMG LLP.
23.2 Consent of Stradling Yocca Carlson & Rauth (included
in Exhibit 5.1).
24.1 Power of Attorney (included on 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.
(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.
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(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 17th day of
March, 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,
Frank P. Willey 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, and to file the same, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ William P. Foley, II Chairman of the Board and March 17, 2000
- ------------------------------ Chief Executive Officer
William P. Foley, II (Principal Executive Officer)
/s/ Frank P. Willey President and Director March 17, 2000
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Frank P. Willey
/s/ Alan L. Stinson Executive Vice President and March 17, 2000
- ------------------------------- Chief Financial Officer
Alan L. Stinson (Principal Financial Officer and
Accounting Officer)
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<TABLE>
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<S> <C> <C>
/s/ William A. Imparato Director March 17, 2000
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William A. Imparato
/s/ Donald M. Koll Director March 17, 2000
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Donald M. Koll
/s/ Daniel D. Lane Director March 17, 2000
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Daniel D. Lane
/s/ General William Lyon Director March 17, 2000
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General William Lyon
/s/ J. Thomas Talbot Director March 17, 2000
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J. Thomas Talbot
/s/ Cary H. Thompson Director March 17, 2000
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Cary H. Thompson
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EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
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5.1 Opinion of Stradling Yocca Carlson & Rauth.
23.1 Consent of KPMG LLP.
23.2 Consent of Stradling Yocca Carlson & Rauth
(included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
March 17, 2000
Fidelity National Financial, Inc.
17911 Von Karman Avenue
Suite 300
Irvine, California 92614
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Fidelity National
Financial, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of an aggregate of 3,195,948 shares of the Company's
common stock, $.0001 par value ("Common Stock"), issuable under The Chicago
Title Corporation 1998 Long-Term Incentive Plan and The Chicago Title
Corporation Director's Stock Option Plan (collectively, the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 3,195,948 shares of
Common Stock, when issued under the Plans and against full payment therefor in
accordance with the respective terms and conditions of the Plans, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING YOCCA CARLSON & RAUTH
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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.
KPMG LLP
Los Angeles, California
March 17, 2000
