As filed with the Securities and Exchange Commission on March 4, 2004
Registration No. 333-[_____]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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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 No.)
1 First American Way
Santa Ana, California 92707-5913
(Address of Principal Executive Offices)
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THE FIRST AMERICAN CORPORATION 1996 STOCK OPTION PLAN
(Full title of the plan)
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Mark R Arnesen, Esq. (Copy to)
Secretary Neil W. Rust, Esq.
The First American Corporation White & Case
1 First American Way 633 West Fifth Street
Santa Ana, California 92707 Los Angeles, California 90071
(714) 800-3000 (213) 620-7700
(Name, Address and Telephone
Number of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Amount Maximum Aggregate Amount Of
Title of Securities To Be Offering Price Offering Registration
To Be Registered Registered (1) Per Share (3) Price (3) Fee
--------------------------------------- ----------------------- -------------------- ------------------- -----------------
Common shares, $1.00 par value (2) 6,000,000 shares $31.33 $187,980,000 $23,818 (4)
--------------------------------------- ----------------------- -------------------- ------------------- -----------------
======================================= ======================= ==================== =================== =================
(1) In accordance with Rule 429 under the Securities Act of 1933, as
amended (the "Securities Act"), the prospectus included in this
Registration Statement is a combined prospectus which also relates to
Registration Statement No. 333-19065 pursuant to which 5,625,000 common
shares have previously been registered and Registration No. 333-76701
pursuant to which an additional 3,000,000 common shares have previously
been registered. The registration fees with respect to such previously
registered common shares has previously been paid. This Registration
Statement also covers an indeterminate number of common shares that may
be issuable by reason of
stock splits, stock dividends, recapitalizations or similar
transactions in accordance with Rule 416 under the Securities Act.
(2) 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.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act, based
on the average of the high and low prices of the Common shares
registered on the New York Stock Exchange on March 1, 2004.
(4) Computed in accordance with Section 6(b) of the Securities Act by
multiplying 0.00012670 by the proposed maximum aggregate offering
price.
================================================================================
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 of 1933.
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 to you by referring you to another document that First
American filed separately with the SEC. Accordingly, 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 incorporates by reference into this registration statement
the following documents:
o our annual report on Form 10-K for the year ended December 31, 2002;
o our quarterly reports on Form 10-Q for the periods ended March 31, 2003,
June 30, 2003 and September 30, 2003;
o our current reports on Form 8-K filed September 4, 2003 and October 2,
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 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 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.
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, 2003 Title Agent Stock Purchase 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.
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 policies of liability insurance which insure its
directors and officers against the cost of defense, settlement or payment of a
judgment under certain circumstances.
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
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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 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 The First American Financial Corporation 1996 Stock Option Plan
(incorporated by reference from Exhibit 4 of First American's
Registration Statement on Form S-8 dated December 31, 1996).
4.8 Amendment No. 1, dated February 26, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 4.4 of First American's Registration
Statement on Form S-8 dated April 21, 1999).
4.9 Amendment No. 2, dated June 22, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 4.5 of First American's Registration
Statement on Form S-8 dated April 21, 1999).
4.10 Amendment No. 3, dated July 7, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 4.6 of First American's Registration
Statement on Form S-8 dated April 21, 1999).
4.11 Amendment No. 4, dated April 22, 1999, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(a) of the First American's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1999).
4.12 Amendment No. 5, dated February 29, 2000 to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(o) of First American's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999).
4.13 Amendment No. 6, dated July 19, 2000, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(b) of the First American's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2000).
4.14 Amendment No. 7, dated June 4, 2002, to The First American
Corporation 1996 Stock Option Plan (incorporated by reference
from Exhibit 10(a) of First American's Quarterly Report on Form
10-Q for the quarter ended June 30, 2002).
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.
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 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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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
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 March 4, 2004.
THE FIRST AMERICAN CORPORATION
By: /s/ Parker S. Kennedy
--------------------------------------
Parker S. Kennedy, President,
Chief Executive Officer and Chairman
(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: March 4, 2004 By: /s/ Parker S. Kennedy
------------------------------------------
Parker S. Kennedy, President,
Chief Executive Officer and Chairman
(Principal Executive Officer)
Date: March 4, 2004 By: /s/ Thomas A. Klemens
------------------------------------------
Thomas A. Klemens, Senior Executive Vice
President, Chief Financial Officer
(Principal Financial Officer)
Date: March 4, 2004 By: /s/ Max O. Valdes
-----------------------------------------
Max O. Valdes, Vice President,
Chief Accounting Officer
(Principal Accounting 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: March 4, 2004 By: /s/ D.P. Kennedy
-----------------------------------
D.P. Kennedy, Chairman Emeritus
and Director
Date: March 4, 2004 By: *
-----------------------------------
Gary J. Beban, Director
Date: March 4, 2004 By: *
-----------------------------------
J. David Chatham, Director
Date: March 4, 2004 By: *
-----------------------------------
William G. Davis, Director
Date: March 4, 2004 By: *
-----------------------------------
James L. Doti, Director
Date: March 4, 2004 By: *
-----------------------------------
Lewis W. Douglas, Jr., Director
Date: March 4, 2004 By: *
-----------------------------------
Paul B. Fay, Jr., Director
Date: March 4, 2004 By: *
-----------------------------------
Frank E. O'Bryan, Director
Date: By:
-----------------------------------
Roslyn B. Payne, Director
Date: March 4, 2004 By: *
-----------------------------------
D. Van Skilling, Director
Date: March 4, 2004 By: *
-----------------------------------
Herbert B. Tasker, Director
Date: March 4, 2004 By: *
-----------------------------------
Virginia M. Ueberroth, Director
*By: /s/ Mark R Arnesen
----------------------------------
Mark Arnesen
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
Number Description
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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 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 The First American Financial Corporation 1996 Stock Option Plan
(incorporated by reference from Exhibit 4 of First American's
Registration Statement on Form S-8 dated December 31, 1996).
4.8 Amendment No. 1, dated February 26, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 4.4 of First American's Registration
Statement on Form S-8 dated April 21, 1999).
4.9 Amendment No. 2, dated June 22, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 4.5 of First American's Registration
Statement on Form S-8 dated April 21, 1999).
4.10 Amendment No. 3, dated July 7, 1998, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from
Exhibit 4.6 of First American's Registration Statement on Form
S-8 dated April 21, 1999).
4.11 Amendment No. 4, dated April 22, 1999, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(a) of the First American's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1999).
4.12 Amendment No. 5, dated February 29, 2000 to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(o) of First American's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999).
4.13 Amendment No. 6, dated July 19, 2000, to The First American
Financial Corporation 1996 Stock Option Plan (incorporated by
reference from Exhibit 10(b) of the First American's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2000).
4.14 Amendment No. 7, dated June 4, 2002, to The First American
Corporation 1996 Stock Option Plan (incorporated by reference
from Exhibit 10(a) of First American's Quarterly Report on Form
10-Q for the quarter ended June 30, 2002).
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.