As filed with the Securities and Exchange Commission on July 26, 2005
Registration No. 333-126545
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
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
(714) 800-3000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Kenneth D. DeGiorgio, Esq.
General Counsel
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: As soon as practicable after
this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] Registration
No.________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
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. [ ] Registration No.________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
========================= ====================== ====================== ====================== ======================
Proposed Proposed
Amount Maximum Maximum Amount Of
Title of Securities To Be Offering Price Aggregate Registration
To Be Registered Registered Per Unit Offering Price Fee
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Common shares, par 483,322 $30.00 $14,499,660 $1,706.61(2)
value $1.00(1)
========================= ====================== ====================== ====================== ======================
(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) The registration fee is calculated pursuant to Rule 457(o) under the
Securities Act. Registration fee was previously paid.
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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
[INSERT LOGO OF THE FIRST AMERICAN CORPORATION]
THE FIRST AMERICAN CORPORATION
483,322 SHARES OF COMMON STOCK
We issued $14,500,000 aggregate principal amount of 7.5% convertible notes
due November 1, 2006 in a private offering on November 1, 1999. In connection
with the private offering, we agreed to register the common shares into which
the convertible notes are convertible to facilitate secondary trading by the
holders of the convertible notes.
The notes are convertible prior to maturity into shares of our common stock
at an initial conversion price of $30.00 per share, subject to adjustment upon
any stock split, reverse stock split, capital reorganization or like event.
This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission. Under this registration
statement, (i) we may issue, from time to time, pursuant to one or more
conversions, up to a total of 483,322 of our common shares in connection with
the conversion of the convertible notes described above by the holders thereof
and (ii) holders of the notes named in this registration statement may, upon the
conversion of the convertible notes described above, offer for resale up to a
total of 483,322 of our common shares at any time at market prices prevailing at
the time of the sale or at privately negotiated prices. The selling security
holders may sell the common shares directly to purchasers or through
underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions. We will not receive any of the
proceeds from the sale of the common shares by the selling security holders.
Our common shares are traded on The New York Stock Exchange under the
trading symbol "FAF."
Investing in our common shares involves risk. See "Risk Factors" beginning
on page 3 for a discussion of certain risks that you should consider before
investing in our common shares.
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 July 27, 2005
In making your investment decision, you should rely only on the information
contained or incorporated by reference in this prospectus and in each prospectus
supplement, if any. 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 assume that
the information appearing in this prospectus and any prospectus supplement is
accurate only as of the respective dates thereof. Our business, financial
condition, results of operations and prospects may have changed since those
dates.
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TABLE OF CONTENTS
Page
Prospectus Summary........................................................1
Risk Factors..............................................................3
Use of Proceeds...........................................................4
Selling Security Holders..................................................5
Plan of Distribution......................................................6
Where You Can Find More Information.......................................7
Documents Incorporated by Reference.......................................7
Special Note of Caution Regarding
Forward-Looking Statements..............................................8
Legal Matters.............................................................9
Experts...................................................................9
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(i)
PROSPECTUS SUMMARY
This summary highlights information described more fully elsewhere in this
prospectus. This summary is not complete and does not contain all of the
information that you should consider before investing in the common shares. You
should read the entire prospectus carefully, including "Risk Factors" and our
audited financial statements and the notes to those financial statements, which
are incorporated by reference in this prospectus.
Our Company
We are engaged in the business of providing business information and
related products and services. Our operations include six reportable segments
segregated into two business groups. The first group, Financial Services,
includes title insurance and specialty insurance. 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, including trust, banking and
investment advisory services. The specialty insurance segment provides home
warranties, which protect homeowners against defects in home fixtures, and also
offers property and casualty insurance. 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
and our majority-owned subsidiary, provides employment screening and other
occupational health services, resident screening, risk mitigation services and
consumer location services.
The following is a list of our primary businesses:
Financial Services
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 and investment services
o Aircraft and vessel title insurance o Title and escrow systems
Information Technology
o Flood zone determinations o Specialized credit reporting
o Residential and commercial real estate tax o Pre-employment screening and occupational
reporting and valuation services health services
o Default management services o Sub-prime consumer information
o Property characteristic and valuation information o Resident screening
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o Title plant and document imaging services o Motor vehicle reports
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.
The Offering
Issuer...................................... The First American Corporation.
Securities Offered.......................... 483,322 shares of common stock, par value $1.00.
Use of Proceeds............................. We will not receive any proceeds from the issuance of the common
shares or from the resale of such shares by selling security
holders.
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RISK FACTORS
You should carefully consider each of the following risk factors, as well
as the other information contained elsewhere in this prospectus, and the
information incorporated by reference before deciding to purchase any of our
common shares. We face risks other than those listed here, including those that
are unknown to us and others of which we may be aware of but, at present,
consider immaterial. Because of the following factors, as well as other
variables affecting our operating results, past financial performance may not be
a reliable indicator of future performance, and historical trends should not be
used to anticipate results or trends in future periods.
RISKS RELATED TO OUR BUSINESS
CERTAIN RECURRING TRENDS GENERALLY RESULT IN A DECREASE IN THE DEMAND FOR
OUR PRODUCTS.
Demand for our products generally decreases 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 interest 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.
WE MAY BE SUBJECT TO INCREASED REGULATION REGARDING THE USE OF PERSONAL
INFORMATION.
Certain data and services we provide are subject to regulation by various
federal, state and local regulatory authorities. Compliance with existing
federal, state and local laws and regulations has not had a material adverse
effect on our results of operations or financial condition to date. Nonetheless,
federal, state and local laws and regulations in the United States designed to
protect the public from the misuse of personal information in the marketplace
and adverse publicity or potential litigation concerning the commercial use of
such information may increasingly affect our operations and could result in
substantial regulatory compliance expense, litigation expense and/or a loss of
revenue.
RISKS RELATED TO OUR COMPANY
WE MAY NOT BE ABLE TO PURSUE OUR ACQUISITION STRATEGY.
We intend to continue to grow through acquisitions. We may not be able to
identify suitable acquisition candidates or complete acquisitions on
satisfactory terms. A number of our competitors also have adopted the strategy
of expanding and diversifying through acquisitions. We will continue to
experience competition in our effort to execute on our acquisition strategy. As
a result, we may be unable to continue to make acquisitions or may be forced to
pay more for the companies we are able to acquire.
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THE INTEGRATION OF COMPANIES THAT WE ACQUIRE MAY BE DIFFICULT AND MAY
RESULT IN A FAILURE TO REALIZE SOME OF THE ANTICIPATED POTENTIAL BENEFITS
OF ACQUISITIONS.
When companies are acquired, we may not be able to integrate or manage
these businesses so as to produce returns that justify the investment. Any
difficulty in successfully integrating or managing the operations of the
businesses could have a material adverse effect on our business, financial
condition, results of operations or liquidity, and could lead to a failure to
realize any anticipated synergies. Our management also will be required to
dedicate substantial time and effort to the integration of acquisitions. These
efforts could divert management's focus and resources from other strategic
opportunities and operational matters.
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,
pretax margins for our title insurance and services segment were 8.2% in 2004,
while pretax margins for the segments in our information technology group in the
same year averaged 23.3%. 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.
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 2004 was $313.4 million.
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.
USE OF PROCEEDS
We will not receive any proceeds from the issuance of the common shares or
from the resale of such shares by selling security holders.
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SELLING SECURITY HOLDERS
The table below sets forth, as of the date of this prospectus, the
following information:
o the name of each holder of the convertible notes described above
and the number of common shares that such holder may receive upon
conversion of his or her convertible note and that may be sold
pursuant to this prospectus;
o the number of our common shares that each selling security holder
owns as of such date;
o the number of our common shares that may, assuming the conversion
in full of all of the convertible notes described above, be
offered for sale by each selling security holder from time to
time pursuant to this prospectus;
o the number of our common shares to be held by each selling
security holder assuming the conversion in full of all of the
convertible notes described above and the sale of all the shares
offered hereby; and
o by footnote, any position or office held or material relationship
with The First American Corporation or any of its affiliates
within the past three years, other than that of being a
shareholder.
Number of Common Shares Owned of
Common Shares Common Shares Record After Completion
to be to be Offered of the Offering
Received Upon for the
Common Shares Conversion of Selling
Owned of the Security
Name of Convertible Note Holder (Selling Security Record Prior Convertible Holder's
Holder) to the Offering Notes Account Number Percentage
------------------------------------------------ --------------- ------------ ------------- ---------- ------------
Anvil Bancorp 0 32,293 32,293 0 *
Beall Family Trust, Donald R. Beall, as Trustee 0 53,823 53,823 0 *
BMH, LLC 0 38,752 38,752 0 *
Roy A. Brown & Vivian S. Brown, Community Property 0 5,382 5,382 0 *
Cay Cowie 0 5,382 5,382 0 *
Donald J. Drake, MD, Inc., P./P.S. Trust 0 10,764 10,764 0 *
Robert and Jo Ann Fawcett Family Trust 0 16,146 16,146 0 *
George J. Grupp(1) 4,857.078(2) 10,764 10,764 4,857.078(2) *
Daniel M. Houck 0 17,223 17,223 0 *
Lincoln Trust Company Custodian FBO George M.
McNamee #61135420(3) 122 3,918 3,918 122 *
Edwin C. Lynch 0 2,691 2,691 0 *
Russ Lyon, Jr., and Rosalyn B. Lyon, Community
Property 0 10,764 10,764 0 *
Dirk R. McNamee(4) 0 38,752 38,752 0 *
George M. McNamee, Trustee of the George M.
McNamee Family Trust(3) 0 74,125 74,125 0 *
Philip H. McNamee 0 60,282 60,282 0 *
National Reinsurance Corporation 0 43,058 43,058 0 *
John A. Propstra 0 5,382 5,382 0 *
Earl F. Rippee 9,000 32,293 32,293 9,000 *
Marylou S. Smith and Brit O. Smith Family Trust 0 10,764 10,764 0 *
Universal Asphalt Profit Sharing Plan 0 10,764 10,764 0 *
* Less than 1%.
(1) Since 1999, Mr. Grupp has served as Director, Executive Vice President, Vice
President, Chief Financial Officer, Treasurer and Investment Committee Member
for various subsidiaries and affiliates of The First American Corporation,
including
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GPIC Holdings, Inc., Five Star Holdings, Inc., First American Property &
Casualty Insurance Company and First American Specialty Insurance Company.
(2) Includes 1,000 common shares which Mr. Grupp has the right to acquire by
virtue of options which may be exercised at any time.
(3) Mr. McNamee, beneficiary of Lincoln Trust Company #61135420 and Trustee of
the George M. McNamee Family Trust currently serves as Chairman of the Board of
Directors of Five Star Holdings, Inc. and a Director and Vice President of GPIC
Holdings, Inc. and beneficially owns 27,315 common shares of The First American
Corporation, in addition to the common shares to be received upon conversion of
the 7.5% convertible notes due November 1, 2006 that may be deemed to be
beneficially owned by Mr. McNamee as beneficiary of Lincoln Trust Company
#61135420 and Trustee of the George M. McNamee Family Trust.
(4) Mr. McNamee currently serves as a Director and President of Five Star
Holdings, Inc. and a Director, Chief Operating Officer and Vice President of
GPIC Holdings, Inc.
PLAN OF DISTRIBUTION
Issuance of the Common Shares
We are registering the common shares issuable upon conversion of up to
$14,500,000 aggregate principal amount of 7.5% convertible notes due November 1,
2006, issued in a private offering on November 1, 1999 to permit public
secondary trading of such common shares by the selling security holders from
time to time after the date of this prospectus. The conversion price of these
notes is $30.00. We have agreed, among other things, to bear all expenses in
connection with the registration and issuance of the common shares issuable upon
conversion of the notes, which we expect will be minimal.
This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission. Under this registration
statement, we may issue, from time to time, pursuant to one or more conversions,
up to a total of 483,322 of our common shares. No dealers will be involved in
the issuance and initial distribution of the common shares registered pursuant
to this registration statement.
Sale by Selling Security Holders
Selling security holders may sell the common shares registered pursuant to
this registration statement in any combination of the following:
o through the New York Stock Exchange or any national securities
exchange on which our common shares have 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 security holders 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. Our common shares 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 security holders
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 security holders 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.
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Selling security holders may also offer common shares 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 under the Securities Act.
Selling security holders should seek the advice of their own counsel about the
legal requirements for such sales.
We will not receive any part of the proceeds from the resale by the selling
security holders of any shares under this prospectus. We will bear all expenses
other than selling discounts and commissions and fees and expenses of the
selling security holders in connection with the registration of the shares being
reoffered by the selling security holders.
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.
This prospectus is part of a registration statement on Form S-3 that we
filed with the SEC. 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.
It is important for you to analyze the information in this prospectus, the
registration statement and the exhibits to the registration statement, and
additional information described under the heading "Documents Incorporated By
Reference" below before you make your investment decision.
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,
2004;
o our quarterly report on Form 10-Q for the quarter ended March 31,
2005;
o our current reports on Form 8-K dated January 25, 2005, March 23, 2005
and May 24, 2005;
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 are 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 after date of this prospectus but prior to the termination of any
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offering of common shares made by this prospectus. Information in this
prospectus, any prospectus supplement and incorporated by reference is only
current as of the date it is made. Information in documents that we subsequently
file with the SEC will automatically update and supersede any previously
disclosed information.
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.
We will furnish to you without charge, upon written or oral request, a copy
of any or all of the documents incorporated by reference into this prospectus,
except for exhibits to those documents, unless the exhibits are specifically
incorporated by reference into those documents. Requests should be addressed to:
The First American Corporation
Mark R Arnesen
1 First American Way
Santa Ana, California 92707-5913
(714) 800-3000
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein 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 and the documents incorporated by reference herein,
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 limitations on access to public records and other data;
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;
o general volatility in the capital markets; and
o other factors described in our annual report on Form 10-K for the
fiscal year ended December 31, 2004.
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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 management's assessment of the effectiveness
of internal control over financial reporting (which is included in Management's
Report on Internal Control Over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2004 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and accounting.
* * *
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THE FIRST AMERICAN CORPORATION
483,322 SHARES OF COMMON STOCK
[INSERT LOGO OF THE FIRST AMERICAN CORPORATION]
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PROSPECTUS
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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 July 27, 2005
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated to be as follows:
SEC registration fee.........................................$1,706.61
Printing fees*...............................................$0.00
Legal fees and expenses*.....................................$25,000.00
Accounting fees and expenses*................................$25,000.00
Miscellaneous*...............................................$5,000.00
Total...................................................$56,706.61
-----------------
* Estimated
Item 15. 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.
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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.
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 that insures its
directors and officers against the cost of defense, settlement or payment of a
judgment under certain circumstances.
Item 16. Exhibits.
Exhibit
Number Description
-------------------------------------------------------------------------------
See Exhibit Index.
Item 17. Undertakings.
(a) 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the 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 the registrant 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 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) 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 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.
* * *
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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-3 and has duly caused this Pre-Effective
Amendment No. 1 to Registration Statement on Form S-3 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Santa Ana, state
of California, on July 26, 2005.
THE FIRST AMERICAN CORPORATION
By: /s/ Parker S. Kennedy
---------------------------------------
Parker S. Kennedy
Chairman and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to Registration Statement on Form S-3 has been
signed below by the following persons in the capacities indicated and on July
26, 2005.
By: /s/ Parker S. Kennedy
---------------------------------------
Parker S. Kennedy
Chairman and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Thomas A. Klemens
---------------------------------------
Thomas A. Klemens
Senior Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
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
Pre-Effective Amendment No. 1 to Registration Statement on Form S-3 has been
signed below by the following persons in the capacities and on the dates
indicated.
Date: July 26, 2005 By: *
--------------------------------
Parker S. Kennedy, Chairman
Date: July 26, 2005 By: *
--------------------------------
D.P. Kennedy, Chairman
Emeritus and Director
Date: July 26, 2005 By: *
--------------------------------
Gary J. Beban, Director
Date: July 26, 2005 By: *
--------------------------------
J. David Chatham, Director
Date: July 26, 2005 By: *
--------------------------------
Hon. William G. Davis, Director
Date: July 26, 2005 By: *
--------------------------------
James L. Doti, Director
II-4
By:
--------------------------------
Lewis W. Douglas, Jr., Director
Date: July 26, 2005 By: *
--------------------------------
Paul B. Fay, Jr., Director
Date: July 26, 2005 By: *
--------------------------------
Frank E. O'Bryan, Director
By:
--------------------------------
Roslyn B. Payne, Director
Date: July 26, 2005 By: *
--------------------------------
D. Van Skilling, Director
Date: July 26, 2005 By: *
--------------------------------
Herbert B. Tasker, Director
Date: July 26, 2005 By: *
--------------------------------
Virginia M. Ueberroth, Director
*By: /s/ Kenneth D. DeGiorgio
----------------------------------------
Kenneth D. DeGiorgio
Attorney-in-Fact
II-5
Exhibit Index
Exhibit
Number Description
--------------------------------------------------------------------------------
4.1 Description of Registrant's capital stock in Article Sixth
of Registrant's Restated Articles of Incorporation, 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) (contained
in Certificate of Amendment of Restated Articles of
Incorporation of Registrant, dated April 23, 1999 and
Certificate of Amendment of Restated Articles of
Incorporation of Registrant, dated May 11, 2000).
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.
23.2* Consent of White & Case LLP (contained in Exhibit 5.1).
24.1* Power of Attorney.
------------------------------------
*Previously filed.
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