As filed with the Securities and Exchange Commission on March 2, 2009

Registration No. 333—
 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM S–8

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

FIDELITY NATIONAL FINANCIAL, INC.

Delaware (State or Other Jurisdiction of Incorporation or Organization)		16-1725106 (I.R.S. Employer Identification No.)
601 Riverside Avenue		32204
Jacksonville, Florida		(Zip Code)
(Address of Principal Executive Offices)

Fidelity National Financial, Inc. Amended and Restated 2005 Omnibus Incentive Plan
(Full Title of the Plans)

Peter T. Sadowski
Executive Vice President and Chief Legal Officer
601 Riverside Avenue
Jacksonville, Florida 32204
(Name and Address of Agent for Service)

(904) 854 – 8100
(Telephone Number, Including Area Code, of Agent for Service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer þ		Accelerated filer o		Non-accelerated filer o (Do not check if a smaller reporting company)		Smaller reporting company o

									Proposed Maximum					Proposed Maximum					Amount Of
	Title Of Securities			Amount To Be					Offering Price					Aggregate					Registration
	To Be Registered			Registered (1)					Per Share					Offering Price					Fee
	Common Stock, par value $0.01 per share(3)				11,000,000				$	17.72	(2)			$	194,920,000	(2)			$	7,660.36
	Total:				11,000,000				$	—				$	194,920,000				$	7,660.36

(1)

In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities to be offered or issued in connection with stock splits, stock dividends or similar transactions.

(2)

Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, the offering price is estimated solely for the purpose of calculating the registration fee and is based on the average of the high and the low prices of the Registrant’s Common Stock on February 25, 2009, as reported on the New York Stock Exchange.

(3)

Fidelity National Financial, Inc. Amended and Restated 2005 Omnibus Incentive Plan.

 

 

TABLE OF CONTENTS

EXPLANATORY NOTE			3
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT			3
Item 3. Incorporation of Documents by Reference			3
Item 4. Description of Securities			3
Item 5. Interests of Named Experts and Counsel			3
Item 6. Indemnification of Directors and Officers			4
Item 7. Exemption From Registration Claimed			4
Item 8. Exhibits			4
Item 9. Undertakings			5
SIGNATURES			7
EXHIBIT INDEX			9
EX-5.1 OPINION OF COUNSEL
EX-23.2 CONSENT OF KPMG LLP

EXPLANATORY NOTE

     This Registration Statement on Form S-8 registers shares of common stock, par value $0.0001 per share (the “Common Stock”), of Fidelity National Financial, Inc., a Delaware corporation (the “Registrant”), which may be issued pursuant to the Fidelity National Financial, Inc. Amended and Restated 2005 Omnibus Incentive Plan (the “Plan”). The primary purpose of the amendments to the Plan, adopted by the Registrant’s board of directors and later approved by the Registrant’s shareholders at the Annual Meeting of Shareholders, was to increase the authorized shares available for issuance under the plan by 11,000,000 shares in order to assure that the Registrant has adequate means to provide equity incentive compensation to its employees on a going-forward basis. Prior to the approval of the amendments to the Plan, there were approximately 283,000 shares that had been previously authorized under the Plan which were available for grant.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

     The following documents filed by the Registrant with the Securities and Exchange Commission (the “SEC”) are incorporated into this Registration Statement by reference:

	(1)		The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008;
	(2)		The Registrant’s Current Report on Form 8-K filed on February 5, 2009; and
	(3)		The description of the Registrant’s Common Stock, par value $0.0001 per share, contained in the Registrant’s Registration Statement on Form 8-A (File No. 1-32630), filed with the SEC on September 27, 2005 under the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description.

     All documents subsequently filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents with the SEC.

     Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any subsequently filed document which also is incorporated by reference herein or any document which constitutes part of the prospectus relating to the Plan meeting the requirements of Section 10(a) of the Securities Act) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof.

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 following summary is qualified in its entirety by reference to the complete text of the statutes referred to below, the Registrant’s Amended and Restated Certificate of Incorporation (the “Certificate”) and Amended and Restated Bylaws.

     The Registrant is incorporated under the laws of the State of Delaware.

     Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers, as well as other employees and individuals, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any certificate of incorporation, bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The Certificate provides for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law.

     Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transactions from which the director derived an improper personal benefit. The Certificate provides for such limitation of liability.

     The Registrant maintains standard policies of insurance under which coverage is provided (i) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, and (ii) to the Registrant with respect to payments which may be made by the registrant to such directors and officers pursuant to the above indemnification provision or otherwise as a matter of law.

Item 7. Exemption From Registration Claimed

     Not Applicable.

Item 8. Exhibits

     The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement:

Exhibit
Number		Description
4.1		Form of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.3 to our Registration Statement on Form S-1/A (File No. 333-136043) filed on July 26, 2006).
4.2		Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.2 to the Quarterly Report on Form 10-Q filed on November 10, 2005).
4.3		Form of the Common Stock Certificate of Fidelity National Financial, Inc. (incorporated by reference to Exhibit 4.5 to the Annual Report on Form 10-K for the year ended December 31, 2006).
5.1		Opinion of Counsel.

Exhibit
Number		Description
10.1		Amended and Restated Fidelity National Financial, Inc. 2005 Omnibus Incentive Plan, effective as of September 26, 2005 (incorporated by reference to Annex A to the Registrant’s Schedule 14A filed on April 15, 2008).(1)
23.1		Consent of Counsel (included in Exhibit 5.1).
23.2		Consent of KPMG LLP, Independent Registered Public Accounting Firm.
24.1		Power of Attorney (included on the signature pages of this Registration Statement).

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. 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

	(2)		That, for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

The Registrant. Pursuant to the requirements of the Securities Act, 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 Jacksonville, State of Florida, on March 2, 2009.

POWER OF ATTORNEY AND SIGNATURES

     We, the undersigned directors and officers of Fidelity National Financial, Inc., hereby severally appoint Alan L. Stinson and Anthony J. Park, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys, with full powers to them and each of them to sign for us, in our names and in the capacities indicated below, any and all amendments to such Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that such attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.

     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.

Signature		Title		Date
/s/ Alan L. Stinson   Alan L. Stinson		Chief Executive Officer (Principal Executive Officer)		March 2, 2009
/s/ Anthony J. Park   Anthony J. Park		Chief Financial Officer (Principal Financial and Accounting Officer)		March 2, 2009
/s/ William P. Foley, II		Director and Chairman of the Board		March 2, 2009
William P. Foley, II
/s/ Douglas K. Ammerman		Director		March 2, 2009
Douglas K. Ammerman
/s/ Willie D. Davis		Director		March 2, 2009
Willie D. Davis
/s/ John F. Farrell, Jr.		Director		March 2, 2009
John F. Farrell, Jr.
/s/ Thomas M. Hagerty		Director		March 2, 2009
Thomas M. Hagerty
/s/ Philip G. Heasley   Philip G. Heasley		Director		March 2, 2009

Signature		Title		Date
/s/ Daniel D. (Ron) Lane		Director		March 2, 2009
Daniel D. (Ron) Lane
/s/ General William Lyon		Director		March 2, 2009
General William Lyon
/s/ Richard N. Massey		Director		March 2, 2009
Richard N. Massey
/s/ Peter O. Shea, Jr.		Director		March 2, 2009
Peter O. Shea, Jr.
/s/ Cary H. Thompson		Director		March 2, 2009
Cary H. Thompson
/s/ Frank P. Willey		Director		March 2, 2009
Frank P. Willey

EXHIBIT INDEX

Exhibit
Number		Description
4.1		Form of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.3 to our Registration Statement on Form S-1/A (File No. 333-136043) filed on July 26, 2006).
4.2		Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.2 to the Quarterly Report on Form 10-Q filed on November 10, 2005).
4.3		Form of the Common Stock Certificate of Fidelity National Financial, Inc. (incorporated by reference to Exhibit 4.5 to the Annual Report on Form 10-K for the year ended December 31, 2006).
5.1		Opinion of Counsel.
10.1		Amended and Restated Fidelity National Financial, Inc. 2005 Omnibus Incentive Plan, effective as of September 26, 2005 (incorporated by reference to Annex A to the Registrant’s Schedule 14A filed on April 15, 2008).(1)
23.1		Consent of Counsel (included in Exhibit 5.1).
23.2		Consent of KPMG LLP, Independent Registered Public Accounting Firm.
24.1		Power of Attorney (included on the signature pages of this Registration Statement).

Exhibit 5.1

		Dewey & LeBoeuf LLP
		1301 Avenue of the Americas
		New York, NY 10019-6092
		tel +1 212 259 8000
		fax +1 212 259 6333

March 2, 2009

Fidelity National Financial, Inc.
601 Riverside Avenue
Jacksonville, Florida 32204

     Re:       Registration Statement on Form S-8 for Fidelity National Financial, Inc.

     Ladies and Gentlemen:

     We have acted as special counsel to Fidelity National Financial, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the “Registration Statement”) relating to an aggregate of 11,000,000 shares (the “Shares”) of the Company’s Common Stock, par value $.0001 per share, to be offered or sold in accordance with the Fidelity National Financial, Inc. Amended and Restated 2005 Omnibus Incentive Plan (the “Plan”). This opinion letter is furnished pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K of the Commission.

     In connection with the opinion expressed below, we have examined (i) the Certificate of Incorporation and the Bylaws of the Company, in each case as amended to the date hereof, (ii) certain resolutions of the Board of Directors of the Company, and (iii) the Plan. In addition, we have examined originals (or copies certified or otherwise identified to our satisfaction) of such other agreements, instruments, certificates, documents and records, and we have made such investigations of law, as we have deemed necessary or appropriate as a basis for the opinion expressed below.

     In such examination, we have assumed, without inquiry, the legal capacity of all natural persons, the genuineness of all signatures on all documents examined by us, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies and the authenticity of the originals of such latter documents. As to any facts material to our opinion, we have, when the relevant facts were not independently established, relied upon the aforesaid agreements, instruments, certificates, documents and records and upon statements, representations, certificates and covenants of officers and representatives of the Company and of public officials. We have assumed that such statements, representations, certificates and covenants are and will continue to be true and complete without regard to any qualification as to knowledge or belief.

New York | London multinational partnership | Washington, DC
Albany | Almaty | Beijing | Boston | Brussels | Chicago | Doha | Dubai
Frankfurt | Hong Kong | Houston | Johannesburg (pty ) ltd. | Los Angeles | Milan | Moscow
Paris multinational partnership | Riyadh affiliated office | Rome | San Francisco | Silicon Valley | Warsaw

Fidelity National Financial, Inc.
March 2, 2009
Page 2 of 2

     Based upon and subject to the foregoing, and subject to the further qualifications, assumptions and limitations stated below, we are of the opinion that the Shares to be issued under the Plan are duly authorized and, when issued by the Company in accordance with the terms of the Plan, will be validly issued, fully paid, and nonassessable.

     The opinion expressed herein are limited in all respects to the laws of the State of Delaware, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinion expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

     This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinion contained herein.

     We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

The Board of Directors
Fidelity National Financial, Inc.:

We consent to the use of our reports with respect to the consolidated financial statements, and all related financial statement schedules, and the effectiveness of internal control over financial reporting incorporated by reference herein.

Our reports on the Consolidated Financial Statements and all related financial statement schedules refer to a change, effective January 1, 2007, in the method of accounting for uncertain tax positions. Our report dated March 2, 2009, on the effectiveness of internal control over financial reporting as of December 31, 2008, contains an explanatory paragraph regarding the acquired LFG Underwriters that are excluded from management’s assessment and our evaluation of the effectiveness of Fidelity National Financial, Inc.’s internal control over financial reporting as of December 31, 2008.

/s/ KPMG LLP

March 2, 2009
Jacksonville, Florida
Certified Public Accountants