As filed with the Securities and Exchange Commission on June 13, 2001
Registration No. 333-[ ]
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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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)
Credit Management Solutions, Inc. 1997 Stock Incentive Plan
(as assumed by The First American Corporation)
(Full Title of Plan)
Mark R Arnesen, Esq. With copies 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
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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(1)(2) Price Per Share(3)(4) Offering Price(3) Fee(4)
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Common shares,
$1.00 par value... 914,478 shares $20.94 $18,938,839 $4,787.29
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(1) Represents the common shares of The First American Corporation issuable
upon exercise of options granted under the Credit Management Solutions,
Inc. 1997 Stock Incentive Plan, all of which options were assumed by First
American in connection with the merger of a wholly-owned subsidiary of
First American with and into CMSI on May 30, 2001.
(2) Pursuant to Rule 416(a), this registration statement also includes any
additional shares of First American common stock which may become issuable
in connection with the shares being registered for sale hereby by reason of
any stock dividend, stock split or similar transaction that results in an
increase in the number of First American common shares.
(3) Estimated solely for the purpose of determining the registration fee. The
number of shares to be registered hereby is determined by multiplying
3,218,860, which is the number of shares of Credit Management Solutions,
Inc. issuable
pursuant to options outstanding under the Plan immediately prior to the
effective time of the merger of a subsidiary of First American with and
into CMSI, by the exchange ratio of 0.2841.
(4) Calculated pursuant to Rule 457(c) based upon the average of the high and
low prices of First American common shares on the New York Stock Exchange
on June 11, 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
This registration statement on Form S-8 filed by The First American
Corporation, a California corporation ("First American"), registers common
shares of First American which may be issued in connection with, or in respect
of, options (the "Options") to purchase shares of common stock of Credit
Management Solutions, Inc., a Delaware corporation ("CMSI"), outstanding
pursuant to the Credit Management Solutions, Inc. 1997 Stock Incentive Plan (the
"Plan").
The Agreement and Plan of Merger, dated as of January 30, 2001
(together with Amendment No. 1 to Agreement and Plan of Merger, dated as of
March 22, 2001, the "Merger Agreement"), among First American, CMSI and Rusti
Corp., a Delaware corporation wholly-owned by First American ("Rusti"), provides
that, at the effective time of the merger of Rusti with and into CMSI (the
"Effective Time"), each Option shall be assumed by First American and converted
into an option to acquire, on substantially the same terms and conditions as
were applicable under such Option immediately prior to the Effective Time, the
number of whole shares of First American's common stock equal to the number of
shares of CMSI common stock that were issuable upon exercise of such Option
immediately prior to the Effective Time multiplied by an exchange ratio of
0.2841, with any fractional shares of First American common stock resulting from
such calculation being rounded down to the nearest whole share, at a per share
exercise price equal to the exercise price at which such Option was exercisable
immediately prior to the Effective Time divided by such exchange ratio, rounded
up to the nearest whole cent.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows First American to "incorporate by reference"
information into this registration statement. This means that First American can
disclose important information 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 incorporates by reference into this registration
statement the following documents:
o annual report on Form 10-K for the year ended December 31, 2000;
o quarterly report on Form 10-Q for the quarter ended March 31,
2001;
o 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 and May 17, 2001;
o the description of First American's common shares, $1.00 par
value, contained in its 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.
All documents subsequently filed by First American pursuant to
Sections 13(a), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
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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 OFFICERS.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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.
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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.
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.
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).
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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).
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 material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (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 First
American pursuant to the foregoing provisions, or otherwise,
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First American 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
First American of expenses incurred or paid by a director, officer or
controlling person of First American 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, First American 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 13th day of
June, 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: June 13, 2001 By: /s/ D.P. Kennedy
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D. P. Kennedy, Chairman and Director
Date: June 13, 2001 By: /s/ Parker S. Kennedy
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Parker S. Kennedy, President and Director
Date: June 13, 2001 By: /s/ Thomas A. Klemens
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Thomas A. Klemens, Executive Vice
President, Chief Financial Officer
(Principal Financial Officer)
Date: June 13, 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: June 13, 2001 By: *
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George L. Argyros, Director
Date: By:
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Gary J. Beban, Director
Date: June 13, 2001 By: *
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J. David Chatham, Director
Date: By:
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Hon. William G. Davis, Director
Date: June 13, 2001 By: *
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James L. Doti, Director
Date: June 13, 2001 By: *
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Lewis W. Douglas, Jr., Director
Date: June 13, 2001 By: *
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Paul B. Fay, Jr., Director
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Date: June 13, 2001 By: *
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Frank E. O'Bryan, Director
Date: June 13, 2001 By: *
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Roslyn B. Payne, Director
Date: June 13, 2001 By: *
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D. Van Skilling, Director
Date: June 13, 2001 By: *
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Virginia Ueberroth, Director
* By: /s/ Parker S. Kennedy
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Parker S. Kennedy
Attorney-in-Fact
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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 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).
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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