As filed with the Securities and Exchange Commission on December 5, 2001
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE FIRST AMERICAN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
California 95-1068610
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1 First American Way
Santa Ana, California 92707-5913
(Address, Including Zip Code, of Registrant's Principal Executive Offices)
The First American Corporation
2001 Employee Stock Purchase Plan
(Full Title of Plan)
Mark R Arnesen, Esq. With a copy to:
Secretary Neil W. Rust, Esq.
The First American Corporation White & Case LLP
1 First American Way 633 West Fifth Street
Santa Ana, California 92707-5913 Los Angeles, California 90071
(714) 800-3000 (213) 620-7700
(Name and Address of Agent For Service)
CALCULATION OF REGISTRATION FEE
Title Of Each Class Of Amount Proposed Proposed Maximum Amount of
Securities To Be To Be Maximum Offering Aggregate Registration
Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
Common shares,
$1.00 par value... 3,000,000 shares $15.30 $45,900,000 $10,971
(1) Pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers (a) includes an indeterminate amount of interests
to be offered or sold pursuant to the stock purchase plan described
herein and (b) any additional shares of First American Common Stock
which become issuable under the stock purchase plan listed above by
reason of any stock dividend, stock split, recapitalization or other
similar transaction.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act and calculated based
on the average of the high and low sale prices of First American's
Common Stock as reported on the New York Stock Exchange on December 3,
2001. The stock purchase plan establishes a per share purchase price
equal to 85% of the closing sale price of one share of First American's
Common Stock on the last trading day of a pre-defined offering period.
Accordingly, the price for each share under the stock purchase plan is
based upon 85% of the average of the high and low sale prices of First
American's Common Stock as reported on the New York Stock Exchange on
December 3, 2001.
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 on Form S-8 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 SEC allows First American to "incorporate by reference" information
into this registration statement which means that First American can disclose
important information in documents we file with the SEC to you by referring you
to another document filed separately with the SEC. This registration statement
incorporates by reference the documents set forth below that First American has
previously filed with the SEC. These documents contain important business and
financial information about First American, including information concerning its
financial performance.
First American and the plan each incorporates by reference into this
registration statement the following documents:
o our annual report on Form 10-K for the year ended December 31,
2000;
o our quarterly reports on Form 10-Q for the quarters ended March 31,
2001 and June 30, 2001 and September 30, 2001;
o our current reports on Form 8-K filed January 31, 2001, February
21, 2001, April 11, 2001, April 16, 2001, May 7, 2001, May 8, 2001,
May 10, 2001 May 17, 2001, August 1, 2001 and October 25, 2001;
o the description of our common shares, $1.00 par value, contained in
registration statement on Form 8-A, dated November 19, 1993, which
registers the shares under Section 12(b) of the Exchange Act; and
o the description of Rights to Purchase Series A Junior Participating
Preferred Shares, which may be transferred with our common shares,
contained in our registration statement on Form 8-A, dated November
7, 1997, which registers the rights under Section 12(b) of the
Exchange Act.
All documents subsequently filed by First American and the plan
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
registered 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, except as to any portion of any future annual or quarterly report to
shareholders or other document that is not deemed filed under such provisions.
For 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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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subject to certain limitations, Section 317 of the California
Corporations Code provides in part that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any proceeding (other than an action by or in the right of the corporation to
procure a judgment in its favor) by reason of the fact that the person is or was
an agent (which term includes officers and directors) of the corporation,
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the proceeding if that person acted in
good faith and in a manner the person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful.
The California indemnification statute, as provided in Section 317 of
the California Corporations Code (noted above), is nonexclusive and allows a
corporation to expand the scope of indemnification provided, whether by
provisions in its Bylaws or by agreement, to the extent authorized in the
corporation's articles.
The Restated Articles of Incorporation of First American provide that:
"The liability of the directors of the Corporation for monetary damages shall be
eliminated to the fullest extent permissible under California law." The effect
of this provision is to exculpate directors from any liability to First
American, or anyone claiming on First American's behalf, for breaches of the
directors' duty of care. However, the provision does not eliminate or limit the
liability of a director for actions taken in his capacity as an officer. In
addition, the provision applies only to monetary damages and is not intended to
impair the rights of parties suing on behalf of First American to seek equitable
remedies (such as actions to enjoin or rescind a transaction involving a breach
of the directors' duty of care or loyalty).
The Bylaws of First American provide that, subject to certain
qualifications, "(i) The corporation shall indemnify its Officers and Directors
to the fullest extent permitted by law, including those circumstances in which
indemnification would otherwise be discretionary; (ii) the corporation is
required to advance expenses to its Officers and Directors as incurred,
including expenses relating to obtaining a determination that such Officers and
Directors are entitled to indemnification, provided that they undertake to repay
the amount advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an Officer or Director may bring suit against the
corporation if a claim for indemnification is not timely paid; (iv) the
corporation may not retroactively amend this Section 1 in a way which is adverse
to its Officers and Directors; (v) the provisions of subsections (i) through
(iv) above shall apply to all past and present Officers and Directors of the
corporation." "Officer" includes the following officers of First American:
Chairman of the Board, President, Vice President, Secretary, Assistant
Secretary, Chief Financial Officer, Treasurer, Assistant Treasurer and such
other officers as the board shall designate from time to time. "Director" of
First American means any person appointed to serve on First American's board of
directors either by its shareholders or by the remaining board members.
Each of First American's 1996 Stock Option Plan, 1997 Directors' Stock
Plan, 401(k) Savings Plan, Pension Plan, Pension Restoration Plan and Employee
Profit Sharing and Stock Ownership Plan (for purposes of this paragraph only,
each individually, the "Plan") provides that, subject to certain conditions,
First American may, through the purchase of insurance or otherwise, indemnify
each member of the Board (or board of directors of any affiliate), each member
of the committee charged with administering the Plan, and any other employees to
whom any responsibility with respect to the Plan is allocated or delegated, from
and against any and all claims, losses, damages, and expenses, including
attorneys' fees, and any liability, including any amounts paid in settlement
with First American's approval, arising from the individual's action or failure
to act, except when the same is judicially determined to be attributable to the
gross negligence or willful misconduct of such person.
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First American's Deferred Compensation Plan (for purposes of this
paragraph only, the "Plan") provides that, "To the extent permitted by
applicable state law, the Company shall indemnify and save harmless the
Committee and each member thereof, the Board of Directors and any delegate of
the Committee who is an employee of the Company against any and all expenses,
liabilities and claims, including legal fees to defend against such liabilities
and claims arising out of their discharge in good faith of responsibilities
under or incident to the Plan, other than expenses and liabilities arising out
of willful misconduct. This indemnity shall not preclude such further
indemnities as may be available under insurance purchased by the Company or
provided by the Company under any bylaw, agreement or otherwise, as such
indemnities are permitted under state law."
Each of First American's Management Supplemental Benefit Plan and
Executive Supplemental Benefit Plan (for purposes of this paragraph only, each
individually, the "Plan") provides that, subject to certain conditions, First
American may, through the purchase of insurance or otherwise, indemnify and hold
harmless, to the extent permitted by law, the members of the Board of Directors
and any other employees to whom any responsibility with respect to the
administration of the Plan has been delegated against any and all costs,
expenses and liabilities (including attorneys' fees) incurred by such parties in
performing their duties and responsibilities under the Plan, provided that such
party or parties were not guilty of willful misconduct.
First American has purchased and maintains director and officer
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this registration
statement:
Exhibit
Number Description
4.1 Restated Articles of Incorporation of First American, dated
July 14, 1998 (incorporated by reference from Exhibit 3.1 of
Amendment No. 1, dated July 28, 1998, to First American's
Registration Statement No. 333-53681 on Form S-4).
4.2 Certificate of Amendment of Restated Articles of Incorporation
of First American, dated April 23, 1999 (incorporated by
reference from Exhibit (3) to First American's quarterly
report on Form 10-Q for the quarter ended March 31, 1999).
4.3 Certificate of Amendment of Restated Articles of Incorporation
of First American, dated May 11, 2000 (incorporated by
reference from Exhibit 3.1 to First American's current report
on Form 8-K dated June 12, 2000).
4.4 Bylaws of First American, as amended (incorporated by
reference from Exhibit 3(d) to First American's annual report
on Form 10-K for the year ended December 31, 2000).
4.5 Description of First American's capital stock in Article Sixth
of First American's Restated Articles of Incorporation
contained in Exhibits 4.1, 4.2 and 4.3.
4.6 Rights Agreement (incorporated by reference from Exhibit 4 of
First American's Registration Statement on Form 8-A dated
November 7, 1997).
4.7 First American's 2001 Employee Stock Purchase Plan.
5 Opinion of White & Case LLP.
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23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
to First American.
23.2 Consent of White & Case LLP (contained in Exhibit 5).
24 Power of Attorney.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during the 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;
(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; and
(iii) to include any additional or changed material information on
the plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by First American pursuant to Section 13 or 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, 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.
(4) 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 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.
(5) 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 Securities and Exchange
Commission 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.
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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 Santa Ana, state of California, on this 5th day of
December, 2001.
THE FIRST AMERICAN CORPORATION
By: /s/ Parker S. Kennedy
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Parker S. Kennedy
President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Date: December 5, 2001 By: /s/ D. P. Kennedy
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D. P. Kennedy, Chairman and Director
Date: December 5, 2001 By: /s/ Parker S. Kennedy
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Parker S. Kennedy, President and Director
Date: December 5, 2001 By: /s/ Thomas A. Klemens
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Thomas A. Klemens, Executive Vice
President, Chief Financial Officer
(Principal Financial Officer)
Date: December 5, 2001 By: /s/ Max Valdes
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Max Valdes, Vice President,
Chief Accounting Officer
(Principal Accounting Officer)
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
Date: By:
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D. P. Kennedy, Chairman and Director
Date: By:
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Parker S. Kennedy, President and Director
Date: December 5, 2001 By: *
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George L. Argyros, Director
Date: December 5, 2001 By: *
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Gary J. Beban, Director
Date: December 5, 2001 By: *
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J. David Chatham, Director
Date: By:
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Hon. William G. Davis, Director
Date: December 5, 2001 By: *
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James L. Doti, Director
Date: December 5, 2001 By: *
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Lewis W. Douglas, Jr., Director
Date: December 5, 2001 By: *
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Paul B. Fay, Jr., Director
Date: December 5, 2001 By: *
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Frank E. O'Bryan, Director
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Date: December 5, 2001 By: *
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Roslyn B. Payne, Director
Date: December 5, 2001 By: *
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D. Van Skilling, Director
Date: December 5, 2001 By: *
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Virginia Ueberroth, Director
* By: /s/ Parker S. Kennedy
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Parker S. Kennedy
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other person or persons who administer the stock purchase plan)
have duly caused this registration statement to be signed on its or their behalf
by the undersigned, thereunto duly authorized, in the city of Santa Ana, state
of California, on this 29th day of November, 2001.
THE FIRST AMERICAN CORPORATION 2001 EMPLOYEE STOCK
PURCHASE PLAN
By: /s/ Parker S. Kennedy
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EXHIBIT INDEX
Exhibit
Number Description
4.1 Restated Articles of Incorporation of First American,
dated July 14, 1998 (incorporated by reference from
Exhibit 3.1 of Amendment No. 1, dated July 28, 1998, to
First American's Registration Statement No. 333-53681 on
Form S-4).
4.2 Certificate of Amendment of Restated Articles of
Incorporation of First American, dated April 23, 1999
(incorporated by reference from Exhibit (3) to First
American's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999).
4.3 Certificate of Amendment of Restated Articles of
Incorporation of First American, dated May 11, 2000
(incorporated by reference from Exhibit 3.1 to First
American's Current Report on Form 8-K dated June 12,
2000).
4.4 Bylaws of First American, as amended (incorporated by
reference from Exhibit 3(d) to First American's Annual
Report on Form 10-K for the year ended December 31, 2000).
4.5 Description of First American's capital stock in Article
Sixth of First American's Restated Articles of
Incorporation (incorporated by reference from Exhibit 3.1
of Amendment No. 1, dated July 28, 1998, to First
American's Registration Statement No. 333-53681 on Form
S-4).
4.6 Rights Agreement (incorporated by reference from Exhibit 4
of First American's Registration Statement on Form 8-A
dated November 7, 1997).
4.7 First American's 2001 Employee Stock Purchase Plan.
5 Opinion of White & Case LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants to First American.
23.2 Consent of White & Case LLP (contained in Exhibit 5).
24 Power of Attorney.
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