As filed with the Securities and Exchange Commission on July 30, 2003
Registration No. 333-[ ]
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE FIRST AMERICAN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
California 6361 95-1068610
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
1 First American Way
Santa Ana, California 92707-5913
(714) 800-3000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Mark R Arnesen, Esq.
Secretary
The First American Corporation
1 First American Way
Santa Ana, California 92707-5913
(714) 800-3000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
With a copy to:
Neil W. Rust, Esq.
White & Case LLP
633 West Fifth Street
Los Angeles, California 90071
(213) 620-7700
Approximate date of commencement of proposed
sale to the public: From time to time after this
Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this Form is a post-effective amendment filed pursuant to Rule
462(d) 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. |_|
CALCULATION OF REGISTRATION FEE
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Title Of Each Class Of Amount Proposed Proposed Maximum Amount of
Securities To Be To Be Maximum Offering Aggregate Registration
Registered Registered(2) Price Per Share(3) Offering Price(3) Fee(2)(4)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common shares,
$1.00 par value(1) 3,000,000 shares $24.26 $72,780,000 $5,888
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(1) The common shares being registered hereunder include the associated rights
to purchase First American's Series A Junior Participating Preferred
Shares. Such rights initially are attached to and trade with the common
shares being registered hereunder.
(2) Pursuant to Rule 416 under the Securities Act, this Registration Statement
shall include any additional shares that may become issuable as a result of
any stock split, stock dividend, recapitalization or other similar
transaction effected without the receipt of consideration that results in
an increase in the number of First American's outstanding common shares.
(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 under the Securities Act. The price
and fee are computed based upon the average of the high and low sale prices
of First American's common stock on July 25, 2003, as reported on the New
York Stock Exchange.
(4) Calculated in accordance with Section 6 of the Securities Act and Rule 457
under the Securities Act by multiplying 0.0000809 and the proposed maximum
aggregate offering price.
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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, as amended, or until this registration statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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PROSPECTUS
[Logo of The First American Corporation]
THE FIRST AMERICAN CORPORATION
3,000,000 SHARES OF COMMON STOCK
We are offering up to 3,000,000 of our common shares, par value $1 per
share, for issuance from time to time as full or partial consideration for the
acquisition of businesses, assets or securities of other business entities.
People who receive shares of our common stock in connection with an
acquisition may be permitted by us to use this prospectus and a prospectus
supplement to resell their shares. You should read the section titled "Selling
Shareholders" to find out more information about resales, if any, including the
amount of securities being resold.
The specific terms of each acquisition will be determined at or near
the time of the acquisition by negotiations with the owners of the businesses,
assets or securities to be acquired. Shares of our common stock issued hereunder
will be valued at approximately the market value at the time the terms of the
acquisition are tentatively or finally agreed to, when the acquisition is
completed, or during a specific period of time before we deliver the shares.
We may be required to provide further information by means of a
post-effective amendment to the registration statement of which this prospectus
forms a part or a prospectus supplement once we know the actual information
concerning a specific acquisition. We urge you to read this prospectus, any
accompanying prospectus supplement and the information described under the
heading "Documents Incorporated By Reference" before you make your investment
decision.
We do not expect to receive any cash proceeds from the sale of our
common shares pursuant to this prospectus, or to use an underwriter or pay
underwriting discounts or commissions with respect to such shares.
Our common shares are traded on the New York Stock Exchange under the
trading symbol "FAF." On July 25, 2003, the closing price of one of our common
shares on the New York Stock Exchange was $24.34.
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An investment in our company involves risk.
You should read carefully the "Risk Factors" beginning on page 3
before deciding whether to purchase shares of our common stock.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated [_____], 2003.
(i)
TABLE OF CONTENTS
Page
Prospectus Summary.............................................................1
Risk Factors...................................................................3
Selected Financial Data........................................................5
Selling Shareholders...........................................................7
Where You Can Find More Information............................................8
Documents Incorporated by Reference............................................8
Special Note of Caution Regarding
Forward-Looking Statements..................................................9
Legal Matters..................................................................9
Experts........................................................................9
This prospectus incorporates important business and financial
information about The First American Corporation that is not included in or
delivered with this document. This means that we may satisfy our disclosure
obligations to you by referring you to one or more documents separately filed
with the SEC. See "Documents Incorporated By Reference" on page 10 for a list of
documents that we have incorporated by reference into this prospectus. This
information is available to shareholders without charge upon written or oral
request to:
The First American Corporation
Mark R Arnesen
1 First American Way
Santa Ana, California 92707-5913
(714) 800-3000
To obtain timely delivery, you must request the information at least
five business days before the date on which you must make a decision on whether
to invest in our company.
(i)
PROSPECTUS SUMMARY
Our Company
We are engaged in the business of providing business information and
related products and services. Our operations include seven reportable segments
segregated into two business groups. The first group, Financial Services,
includes title insurance, specialty insurance, and trust and other services. The
second group, Information Technology, includes mortgage information, property
information, credit information and screening information. The title insurance
segment issues policies, which are insured statements of the condition of title
to real property, and provides other related services. The specialty insurance
segment provides home warranties, which protect homeowners against defects in
home fixtures, and also offers property and casualty insurance. The trust and
other services segment provides trust, banking and investment advisory services.
The mortgage information segment primarily provides to mortgage lender customers
flood zone determination reports that provide information on whether or not a
property is in a special flood hazard area, the status of tax payments on real
property securing loans, default services, and other mortgage information
services. The property information segment supplies core real estate data,
providing, among other things, property valuation information, title
information, tax information and imaged title documents. The credit information
segment provides conventional credit information as well as sub-prime credit
information. The screening information segment, which comprises First Advantage
Corporation, a Nasdaq-listed company, provides drug testing and other
occupational health services, pre-employment screening, tenant screening, motor
vehicle reports and consumer location services.
We operate through networks of offices nationwide. We provide our title
services through both direct operations and agents throughout the United States.
We also offer title services in Australia, the Bahama Islands, Canada, England,
Guam, Ireland, Mexico, Puerto Rico, Scotland, South Korea, the U.S. Virgin
Islands and other countries abroad. To date, the international title operations
have not been material to our financial condition or results of operations. Home
warranty services are provided in 19 states throughout the United States. Trust
services are provided in Southern California. Investment advisory, resident
screening, pre-employment screening and property and casualty insurance are
offered nationwide.
The following is a list of our primary businesses:
Financial Services
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o Residential title insurance o 1031 tax-deferred exchange services
o National/Commercial title insurance o Home warranty
o Subdivision title insurance o Property and casualty insurance
o Equity loan services o Trust services
o Aircraft and vessel title insurance o Banking services
o Title and escrow systems o Investment services
Information Technology
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o Flood determination and compliance o Specialized credit reporting
o Residential and commercial real estate tax o Pre-employment screening and
reporting and valuation services occupational health services
o Default management services o Sub-prime consumer information
o Property characteristic and valuation information o Tenant screening
o Title plant and document imaging services o Vehicle information
o Appraisal and property valuation o Consumer credit reports
o Credit reporting and information management o Mortgage document services
Our principal executive office is located at 1 First American Way,
Santa Ana, California 92707-5913, and our telephone number is (714) 800-3000.
-1-
About This Prospectus
This prospectus and each prospectus supplement (if any) is part of a
registration statement on Form S-4 that we filed with the Securities and
Exchange Commission using a "shelf" registration process. Under the shelf
registration process, we may offer and sell, from time to time, in one or more
offerings, up to a total of 3,000,000 of our common shares for use in connection
with acquisitions by us of other businesses, assets or securities of other
business entities. The consideration offered by us in such acquisitions, in
addition to any shares of common stock offered by this prospectus, may include
cash, certain assets and/or assumption by First American of liabilities of the
businesses, assets or securities being acquired.
The terms of acquisitions involving the issuance of the shares of
common stock covered by this prospectus are expected to be determined by direct
negotiations with the owners or controlling persons of the assets, businesses or
securities to be acquired. Factors taken into account in acquisitions may
include, among other factors, the quality and reputation of the business to be
acquired and its management, the strategic market position of the business to be
acquired, its proprietary assets, earning power, cash flow and growth potential,
and the market value of its equity securities when pertinent. It is anticipated
that shares of our common stock issued in any such acquisition will be offered
at approximately the then current market value of the common stock. The value
will be determined either when the terms of the acquisition are tentatively or
finally agreed to, when the acquisition is completed, or during a period of time
before we deliver the shares.
We do not expect to pay underwriting discounts or commissions, although
we may pay finders' fees from time to time in connection with certain
acquisitions. Any person receiving finders' fees may be deemed to be an
"underwriter" within the meaning of the Securities Act, and any profit on the
resale of shares of common stock purchased by them may be considered
underwriting commissions or discounts under the Securities Act.
This prospectus provides you with a general description of the
securities we may sell. If necessary, each time we sell securities under this
prospectus, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
this prospectus, the applicable prospectus supplement and the information
incorporated by reference. See "Documents Incorporated by Reference" on page 8.
We may also permit individuals or entitles who have received or will
receive shares of our common stock in connection with the acquisitions described
above, or their transferees or successors-in-interest, to use this prospectus to
cover their resale of such shares. See "Selling Shareholders," as it may be
amended or supplemented from time to time, for a list of those individuals or
entities who are authorized to use this prospectus to sell their shares of our
common stock.
In making your investment decision, you should rely only on the
information contained or incorporated by reference in this prospectus. We have
not authorized anyone to provide you with any other information. If you receive
any unauthorized information, you must not rely on it. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these
securities in any state or jurisdiction where the offer or sale of these
securities is not permitted. You should not assume that the information
contained or incorporated by reference in this prospectus is accurate as of any
date other than the date on which it is released by First American.
-2-
RISK FACTORS
You should consider carefully the following risk factors, as well as
the other information contained elsewhere in this prospectus, each prospectus
supplement and the information incorporated by reference before deciding to
purchase any of our common shares.
OUR REVENUES MAY DECLINE DURING PERIODS WHEN THE DEMAND FOR OUR PRODUCTS
DECREASES
Our revenues decrease as the number of real estate transactions in
which our products are purchased decreases. We have found that the number of
real estate transactions in which our products are purchased decreases in the
following situations:
o when mortgage rates are high;
o when the mortgage fund supply is limited; and
o when the United States economy is weak.
We believe that this trend will recur.
CHANGES IN GOVERNMENT REGULATION COULD PROHIBIT OR LIMIT OUR OPERATIONS
Our title insurance, property and casualty insurance, home warranty,
thrift, trust and investment businesses are regulated by various federal, state
and local governmental agencies. Many of our other businesses operate within
statutory guidelines. Changes in the applicable regulatory environment or
statutory guidelines could prohibit or restrict our existing or future
operations. Such restrictions may restrict our ability to implement rate
increases, acquire assets or businesses or otherwise have a negative impact on
our ability to increase our operating results. Such regulation may adversely
affect our financial performance.
AS A HOLDING COMPANY, WE DEPEND ON DISTRIBUTIONS FROM OUR SUBSIDIARIES, AND IF
DISTRIBUTIONS FROM OUR SUBSIDIARIES ARE MATERIALLY IMPAIRED, OUR ABILITY TO
DECLARE AND PAY DIVIDENDS MAY BE ADVERSELY AFFECTED
First American is a holding company whose primary assets are the
securities of its operating subsidiaries. Our ability to pay dividends is
dependent on the ability of our subsidiaries to pay dividends or repay funds to
us. If our operating subsidiaries are not able to pay dividends or repay funds
to us, we may not be able to declare and pay dividends to you. Moreover,
pursuant to insurance and other regulations under which our insurance
subsidiaries operate, the amount of dividends, loans and advances available to
us is limited. Under such regulations, the maximum amount of dividends, loans
and advances available to us from our insurance subsidiaries in 2003 is $210.8
million.
OUR EARNINGS MAY BE REDUCED IF ACQUISITION PROJECTIONS ARE INACCURATE
Our earnings have improved since 1991 in large part because of our
acquisition and integration of non-title insurance businesses. These businesses
generally have higher margins than our title insurance businesses. For example,
pre-tax margins for our title insurance and services segment were 8.5% in 2002,
while pre-tax margins for the segments in our information technology group in
the same year were 23.9%. The success or failure of acquisitions in this group
has depended in large measure upon the accuracy of our projections. These
projections are not always accurate. Inaccurate projections have historically
led to lower than expected earnings.
-3-
CERTAIN PROVISIONS OF OUR CHARTER AND RIGHTS PLAN MAY MAKE A TAKEOVER OF OUR
COMPANY DIFFICULT EVEN IF SUCH TAKEOVER COULD BE BENEFICIAL TO SOME OF OUR
SHAREHOLDERS
Our restated articles of incorporation authorize the issuance of
"blank check" preferred stock with such designations, rights and preferences as
may be determined from time to time by our board of directors. Accordingly, our
board is empowered, without further shareholder action, to issue shares or
series of preferred stock with dividend, liquidation, conversion, voting or
other rights that could adversely affect the voting power or other rights,
including the ability to receive dividends, of our common shareholders. The
issuance of such preferred stock could be utilized, under certain circumstances,
as a method of discouraging, delaying or preventing a change in control. In
conjunction with the rights plan discussed below, we have authorized the
issuance of our Series A Junior Participating Preferred Shares. Although we have
no present intention of issuing any additional shares or series of preferred
stock, we cannot guarantee that we will not make such an issuance in the future.
We have adopted a rights plan which could, alone or in combination with
our restated articles of incorporation, discourage transactions involving actual
or potential changes of control, including transactions that otherwise could
involve payment of a premium over prevailing market prices to our shareholders
for their common shares.
-4-
SELECTED FINANCIAL DATA
The following table sets forth our selected historical consolidated
financial and other data for the five years ended December 31, 2002. The summary
is qualified in its entirety by reference to the financial statements and other
information contained in our annual report on Form 10-K for the year ended
December 31, 2002, which is incorporated by reference into this prospectus. All
data are in thousands except percentages, per share data and employee data.
Year Ended
December 31
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1998 1999 2000 2001 2002
---- ---- ---- ---- ----
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Revenues....................... $2,943,880 $2,988,169 $2,934,255 $3,750,723 $4,704,209
Income before cumulative effect
of a change in accounting for
tax service contracts (1)... 201,527 88,643 82,223 167,268 234,367
Cumulative effect of a change
in accounting for tax
service contracts (1)....... -- (55,640) -- -- --
Net income..................... 201,527 33,003 82,223 167,268 234,367
Total assets................... 1,852,731 2,116,414 2,199,737 2,837,263 3,398,045
Notes and contracts payable.... 143,466 196,815 219,838 415,341 425,705
Mandatorily redeemable
preferred securities........ 100,000 100,000 100,000 100,000 100,000
Stockholders' equity........... 762,265 815,991 870,237 1,104,452 1,364,589
Return on average stockholders'
equity (2).................. 33.4% 10.9% 9.8% 16.9% 19.0%
Cash dividends on common
shares...................... 13,894 15,840 15,256 18,210 24,570
Per share of common stock (3)
Basic:
Income before cumulative
effect of a change in
accounting for tax
service contracts......... 3.35 1.37 1.29 2.51 3.27
Cumulative effect of a change
in accounting for tax
service contracts......... -- (.86) -- -- --
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Net income................... $ 3.35 $ .51 $ 1.29 $ 2.51 3.27
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Diluted:
Income before cumulative effect
of a change in accounting for
tax service contracts..... $ 3.21 $ 1.34 $ 1.24 $ 2.27 $ 2.92
Cumulative effect of a change in
accounting for tax service
contracts................. -- (.84) -- -- --
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Net income................... $ 3.21 $ .50 $ 1.24 $ 2.27 $ 2.92
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Stockholders' equity......... $ 12.08 $ 12.54 $ 13.62 $ 16.08 $ 18.53
Cash dividends............... $ .23 $ .24 $ .24 $ .27 $ .33
Number of common shares outstanding:
Weighted average during the year:
Basic..................... 60,194 64,669 63,680 66,568 71,594
Diluted................... 62,720 66,351 66,050 75,834 82,567
End of year................. 63,120 65,068 63,887 68,694 73,636
Title orders opened (4)........ 1,585 1,334 1,241 1,930 2,184
Title orders closed (4)........ 1,210 1,120 975 1,405 1,696
Number of employees............ 19,669 20,065 20,346 22,597 24,886
(1) Resulted from the adoption of Staff Accounting Bulletin No. 101 (SAB),
"Revenue Recognition in Financial Statements," which became effective
January 1, 1999, and applied to First American's tax service operations.
(2) Return on average stockholders' equity for 1999 excludes the cumulative
effect of a change in accounting for tax service contracts from both net
income and stockholders' equity.
-5-
(3) Per share information relating to net income is based on weighted-average
number of shares outstanding for the years presented. Per share information
relating to stockholders' equity is based on shares outstanding at the end
of each year.
(4) Title order volumes are those processed by the direct title operations of
First American and do not include orders processed by agents.
-6-
SELLING SHAREHOLDERS
In general, the persons to whom we issue shares of common stock under
this prospectus will be able to resell such shares in the public market without
further registration and without being required to deliver a prospectus.
However, certain persons who receive our common shares may want to resell those
securities in distributions that would require the delivery of a prospectus.
With our consent, this prospectus and a prospectus supplement may be used by
certain shareholders who wish to sell our common stock. As used in this
prospectus, "selling shareholders" may include shareholders who receive our
common shares hereunder in connection with an acquisition and donees and
pledgees selling shares received from such people. We may limit our consent to a
specified time period and subject our consent to certain limitations and
conditions, which may vary by agreement.
Selling shareholders may sell our common shares in any combination of
the following:
o through the New York Stock Exchange or any national securities
exchange on which our common stock has been approved for listing
in the future;
o directly to purchasers in negotiated transactions;
o by or through brokers or dealers, in ordinary brokerage
transactions or transactions in which the broker solicits
purchases;
o in block trades in which the broker or dealer will attempt to
sell securities as an agent but may position and resell a portion
of the block as principal;
o in a transaction in which a broker or dealer purchases as
principal for resale for its own account; or
o through underwriters or agents.
Resales by selling shareholders may be made directly to investors or
through securities firms acting as underwriters, brokers or dealers. The fees
earned by or paid to the securities firm may be the normal stock exchange
commission or negotiated commissions or underwriting discounts to the extent
permissible. Shares of our common stock may be sold at a fixed offering price,
which may be changed, at the prevailing market price at the time of sale, at
prices related to such prevailing market price or at negotiated prices. The
securities firm may resell the shares through other securities dealers, and
commissions or concessions to those other dealers may be allowed. Such selling
shareholders may indemnify any securities firm participating in such
transactions against certain liabilities, including liabilities under the
Securities Act and to reimburse them for any expenses in connection with an
offering or sale of securities.
The selling shareholders and any broker-dealers who act in connection
with the sale of shares hereunder may be deemed to be an "underwriter" within
the meaning of the Securities Act. Any commissions received by them and profit
on any resale of such shares as principal may be deemed to be underwriting
discounts and commissions under the Securities Act.
Selling shareholders may also offer shares of common stock covered by
this prospectus by means of prospectuses under other registration statements or
pursuant to exemptions from the registration requirements of the Securities Act,
including sales that meet the requirements of Rule 144 or Rule 145(d) under the
Securities Act. Selling shareholders should seek the advice of their own counsel
about the legal requirements for such sales.
In connection with resales of shares sold under this prospectus, a
prospectus supplement, if required, will be filed under Rule 424(b) under the
Securities Act, to disclose the identity of the selling shareholders, the number
of shares to be sold by the selling shareholders, any material relationship a
selling shareholder may have with us, and other details of the resale to the
extent appropriate. Information concerning the selling shareholders will be
obtained from the selling shareholders.
We will not receive any part of the proceeds from the resale by the
selling shareholders of any shares under this prospectus. We will bear all
expenses other than selling discounts and commissions and fees and expenses of
the selling shareholders in connection with the registration of the shares being
reoffered by the selling shareholders.
-7-
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information and documents with the SEC. You may read and copy any document
we file with the SEC at the SEC's Public Reference Room located at 450 Fifth
Street, N.W., Washington, D.C. 20549. The SEC may charge a fee for making
copies. You may call the SEC at (800) 732-0330 for more information on the
operation of the Public Reference Room, and on the availability of other Public
Reference Rooms. Our filings with the SEC are also available to the public on
the Internet through the SEC's EDGAR database. You may access the EDGAR database
at the SEC's web site at www.sec.gov.
We have filed a registration statement on Form S-4 with the SEC to
register the common stock offered by this prospectus. This prospectus is part of
the registration statement. As allowed by SEC rules, this prospectus does not
contain all of the information that is in the registration statement and the
exhibits to the registration statement. For further information about First
American, investors should refer to the registration statement and its exhibits.
A copy of the registration statement and its exhibits may be inspected, without
charge, at a Public Reference Room or on the SEC's web site.
You should analyze the information in this prospectus, each prospectus
supplement and the additional information described under the heading "Documents
Incorporated By Reference" below before you make a decision about investing in
our common shares.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" certain information in
documents we file with them, which means that we can disclose important
information to you in this prospectus by referring you to another document filed
separately with the SEC. The information incorporated by reference is deemed to
be part of this prospectus, except for any information superseded by information
in this prospectus, information filed subsequently that is incorporated by
reference and information in any prospectus supplement. These documents contain
important business and financial information about our company, including
information concerning its financial performance, and we urge you to read them.
We incorporate by reference into this prospectus all of the following documents:
o our annual report on Form 10-K for the fiscal year ended December
31, 2002;
o our quarterly report on Form 10-Q for the quarter ended March 31,
2003;
o the description of our common shares, $1.00 par value, contained
in our 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
First American's common shares, contained in its registration
statement on Form 8-A, dated November 7, 1997, which registers
the rights under Section 12(b) of the Exchange Act.
We also incorporate into this prospectus all of our filings with the
SEC made pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
that we file between the date of this prospectus and the earlier of the
following dates:
o the date on which all of the shares offered by this prospectus
are resold by the persons or entities who acquire them from us;
and
o the date that is one year after the last date on which shares
offered by this prospectus are issued by us.
However, any documents or portions thereof or any exhibits thereto
that we furnish to, but do not file with, the SEC shall not be incorporated or
deemed to be incorporated by reference into this prospectus.
-8-
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
"forward-looking statements" within the meaning of the federal securities laws.
These forward-looking statements are based on our management's estimates and
assumptions and take into account only the information available at the time the
forward-looking statements are made. Although we believe these estimates and
assumptions are and will be reasonable, forward-looking statements involve
risks, uncertainties and other factors that could cause our actual results to
differ materially from those suggested in the forward-looking statements.
Forward-looking statements include the information concerning future financial
performance, business strategy, projected plans and objectives of First American
set forth in this prospectus, including:
o statements about any future increase in refinancing activity;
o continued strong relationships with lenders and our ability to
leverage such relationships;
o future cash flows from operations and anticipated operational
cash requirements; and
o the scope of our services.
The words "anticipates," "estimates," "projects," "forecasts,"
"goals," "believes," "expects," "intends," and similar expressions are intended
to identify such forward-looking statements. Forward-looking statements are
subject to numerous risks and uncertainties. The following are some important
factors that could cause actual results to differ materially from those in
forward-looking statements:
o changes in the real estate market, interest rates or the general
economy;
o changes in government regulations that are applicable to our
regulated businesses;
o our continued ability to identify businesses to be acquired;
o changes in our ability to integrate businesses which we acquire;
o an increase in our expenses;
o consolidation among our significant competitors or customers; and
o other factors described in our annual report on Form 10-K for the
fiscal year ended December 31, 2002.
Our actual results, performance or achievement could differ materially
from those expressed in, or implied by, forward-looking statements and,
accordingly, no assurances can be given that any of the events anticipated by
the forward-looking statements will transpire or occur, or if any of them do so,
what impact they will have on the results of operations and financial condition
of First American. The forward-looking statements speak only as of the date they
are made. We do not undertake to update forward-looking statements to reflect
circumstances or events that occur after the date the forward-looking statements
are made.
LEGAL MATTERS
The validity of the common stock offered hereunder will be passed upon
by White & Case LLP, 633 West Fifth Street, Los Angeles, California 90071.
EXPERTS
The financial statements and the related financial statement schedules
incorporated into this prospectus by reference to our annual report on Form 10-K
for the year ended December 31, 2002, have been audited by
PricewaterhouseCoopers LLP, independent accountants, as stated in the report of
said firm, which report is also incorporated herein by reference, given on the
authority of said firm as experts in auditing and accounting.
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THE FIRST AMERICAN CORPORATION
3,000,000 SHARES OF COMMON STOCK
[Logo of The First American Corporation]
PROSPECTUS
We have not authorized anyone to give you any information that differs
from the information in this prospectus. If you receive any different
information, you should not rely on it.
The delivery of this prospectus shall not, under any circumstances,
create an implication that THE FIRST AMERICAN CORPORATION is operating under the
same conditions that it was operating under on the date of this prospectus. Do
not assume that the information contained in this prospectus is correct at any
time past the date indicated.
This prospectus does not constitute an offer to sell, or the
solicitation of an offer to buy, any securities other than the securities to
which it relates.
This prospectus does not constitute an offer to sell, or the
solicitation of an offer to buy, the securities to which it relates in any
circumstances in which such offer or solicitation is unlawful.
Dated [______], 2003
PART II
Information Not Required in Prospectus
Item 20. 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 the Registrant 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 the
Registrant, or anyone claiming on the Registrant'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 the Registrant 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 the Registrant 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 the Registrant:
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 the
Registrant means any person appointed to serve on the Registrant's board of
directors either by its shareholders or by the remaining board members.
Each of the Registrant'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, the
Registrant 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 the
Registrant'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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The Registrant'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 the Registrant'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, the
Registrant 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.
The Registrant has a policy of liability insurance which insures its
directors and officers against the cost of defense, settlement or payment of a
judgment under certain circumstances.
Item 21. Exhibits and Financial Statements.
Exhibit
Number Description
------ -----------
3.1 Restated Articles of Incorporation of Registrant, dated July 14, 1998
(incorporated by reference from Exhibit 3.1 of Amendment No. 1, dated
July 28, 1998, to Registrant's Registration Statement No. 333-53681 on
Form S-4).
3.2 Certificate of Amendment of Restated Articles of Incorporation of
Registrant, dated April 23, 1999 (incorporated by reference from
Exhibit (3) to Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999).
3.3 Certificate of Amendment of Restated Articles of Incorporation of
Registrant, dated May 11, 2000 (incorporated by reference from Exhibit
3.1 to Registrant's Current Report on Form 8-K dated June 12, 2000).
3.4 Bylaws of Registrant, as amended (incorporated by reference from
Exhibit 3(d) to Registrant's Annual Report on Form 10-K for the year
ended December 31, 2000).
4.1 Description of Registrant's capital stock in Article Sixth of
Registrant's Restated Articles of Incorporation (contained in Exhibits
3.1, 3.2 and 3.3).
4.2 Rights Agreement (incorporated by reference from Exhibit 4 of
Registrant's Registration Statement on Form 8-A dated November 7,
1997).
5.1 Opinion of White & Case LLP regarding validity of the common shares.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to
Registrant.
23.2 Consent of White & Case LLP (contained in Exhibit 5.1).
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24.1 Power of Attorney.
Item 22. 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 to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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) 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;
(2) 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 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.
(3) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(4) That every prospectus: (i) that is filed pursuant to paragraph (3)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act of 1933 and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes 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.
(5) 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 provisions described in Item 20 above,
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 of 1933, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
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.
II-3
(6) To respond to requests for information that is incorporated by
reference into this prospectus pursuant to Item 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the Registration Statement through the date of responding to the
request.
(7) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
(8) 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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Signatures
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 July 30, 2003.
THE FIRST AMERICAN CORPORATION
By: /s/ Parker S. Kennedy
----------------------------------
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: July 30, 2003 By: /s/ Parker S. Kennedy
-----------------------------------
Parker S. Kennedy, President
Date: July 30, 2003 By: /s/ Thomas A. Klemens
----------------------------------
Thomas A. Klemens, Executive Vice
President, Chief Financial Officer
(Principal Financial and Accounting
Officer)
Date: July 30, 2003 By: /s/ Max Valdes
-----------------------------------
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: July 30, 2003 By: /s/ D.P. Kennedy
----------------------------
D. P. Kennedy, Chairman and
Director
Date: July 30, 2003 By: /s/ Parker S. Kennedy
----------------------------
Parker S. Kennedy,
President and Director
Date: July 30, 2003 By: *
----------------------------
Gary J. Beban, Director
Date: By:
----------------------------
J. David Chatham, Director
Date: By:
----------------------------
Hon. William G. Davis,
Director
Date: July 30, 2003 By: *
----------------------------
James L. Doti, Director
Date: July 30, 2003 By: *
----------------------------
Lewis W. Douglas, Jr.,
Director
Date: July 30, 2003 By: *
----------------------------
Paul B. Fay, Jr., Director
Date: July 30, 2003 By: *
----------------------------
Frank E. O'Bryan, Director
Date: July 30, 2003 By: *
----------------------------
Roslyn B. Payne, Director
II-6
Date: July 30, 2003 By: *
----------------------------
D. Van Skilling, Director
Date: July 30, 2003 By: *
----------------------------
Herbert B. Tasker, Director
Date: July 30, 2003 By: *
----------------------------
Virginia M. Ueberroth,
Director
* By: /s/ Parker S. Kennedy
---------------------------------------
Parker S. Kennedy
Attorney-in-Fact
II-7
Exhibit
Number Description
3.1 Restated Articles of Incorporation of Registrant, dated July 14, 1998
(incorporated by reference from Exhibit 3.1 of Amendment No. 1, dated
July 28, 1998, to Registrant's Registration Statement No. 333-53681 on
Form S-4).
3.2 Certificate of Amendment of Restated Articles of Incorporation of
Registrant, dated April 23, 1999 (incorporated by reference from
Exhibit (3) to Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999).
3.3 Certificate of Amendment of Restated Articles of Incorporation of
Registrant, dated May 11, 2000 (incorporated by reference from Exhibit
3.1 to Registrant's Current Report on Form 8-K dated June 12, 2000).
3.4 Bylaws of Registrant, as amended (incorporated by reference from
Exhibit 3(d) to Registrant's Annual Report on Form 10-K for the year
ended December 31, 2000).
4.1 Description of Registrant's capital stock in Article Sixth of
Registrant's Restated Articles of Incorporation (contained in Exhibits
3.1, 3.2 and 3.3).
4.2 Rights Agreement (incorporated by reference from Exhibit 4 of
Registrant's Registration Statement on Form 8-A dated November 7,
1997).
5.1 Opinion of White & Case LLP regarding validity of the common shares.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to
Registrant.
23.2 Consent of White & Case LLP (contained in Exhibit 5.1).
24.1 Power of Attorney.
II-8