As filed with the Securities and Exchange Commission on June 7, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
THE FIRST AMERICAN FINANCIAL 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.)
114 East Fifth Street
Santa Ana, California 92701-4642
(Address of Principal Executive Offices)
----------------
THE FIRST AMERICAN FINANCIAL CORPORATION 401(k) SAVINGS PLAN
(Full title of the plan)
----------------
Mark R Arnesen, Esq. (Copy to)
Secretary Neil W. Rust, Esq.
The First American Financial Corporation White & Case
114 East Fifth Street 633 West Fifth Street
Santa Ana, California 92701 Los Angeles, California 90071
(714) 558-3211 (213) 620-7700
(Name, Address and Telephone
Number of Agent For Service)
----------------
<TABLE>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
<CAPTION>
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount Of
Title of Securities To Be Offering Price Offering Registration
To Be Registered Registered (1) Per Share (2) Price (2) Fee (3)
======================================= ======================= ==================== =================== =================
<S> <C> <C> <C> <C>
Common shares, $1.00 par value 2,400,000 shares $15.469 $37,125,600 $10,321
======================================= ======================= ==================== =================== =================
(1) In accordance with Rule 429 under the Securities Act of 1933, as
amended (the "Act"), the prospectus included in this Registration
Statement is a combined prospectus which also relates to Registration
Statement Nos. 33-86398 and 333-32871 pursuant to which 3,375,000
Common shares have previously been registered (after accounting for
the Registrant's 3-for-2 stock split which occurred on January 15,
1998 and the Registrant's 3-for-1 stock split which occurred on July
17, 1998 in accordance with Rule 416 under the Act). Registration fees
of $1,540.95 and $6,259.47 with respect to such previously registered
Common shares have already been paid. This Registration Statement also
covers an indeterminate number of Common shares that may be issuable
by reason of stock splits, stock dividends or similar transactions and
an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan described herein, in each case in accordance
with Rule 416 under the Act.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rules 457(c) and 457(h) under the Act, based on the
average of the high and low prices of the Common shares registered on
the New York Stock Exchange as of June 4, 1999.
(3) Computed in accordance with Section 6(b) of the Act by multiplying
0.000278 by the proposed maximum aggregate offering price.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby states that the documents listed in (1), (2), (3),
(4) and (5) below are incorporated by reference in this Registration Statement
and all documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1998.
(2) Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1999.
(3) Current Reports on Form 8-K dated April 22, 1999 and May 19, 1999.
(4) The description of First American's Common shares, $1.00par 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.
(5) 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.
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 set forth 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 articles of incorporation of the Registrant provide that: "The
liability of the directors of the Corporation for monetary damages shall be
eliminated to the fullest extent permissible under California law." The effect
of this provision is to exculpate directors from any liability to the
Registrant, or anyone claiming on the Registrant's behalf, for breaches of the
directors' duty of care. However, the provision does not eliminate or limit the
liability of a director for actions taken in his capacity as an officer. In
addition, the provision applies only to monetary damages and is not intended to
impair the rights of parties suing on behalf of the Registrant to seek equitable
remedies (such as actions to enjoin or rescind a transaction involving a breach
of the directors' duty of care or loyalty).
The Bylaws of the Registrant provide that, subject to certain
qualifications, "(i) The corporation shall indemnify its Officers and Directors
to the fullest extent permitted by law, including those circumstances in which
indemnification would otherwise be discretionary; (ii) the corporation is
required to advance expenses to its Officers and Directors as incurred,
including expenses relating to obtaining a determination that such Officers and
Directors are entitled to indemnification, provided that they undertake to repay
the amount advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an Officer or Director may bring suit against the
corporation if a claim for indemnification is not timely paid; (iv) the
corporation may not retroactively amend this Section 1 in a way which is adverse
to its Officers and Directors; (v) the provisions of subsections (i) through
(iv) above shall apply to all past and present Officers and Directors of the
corporation." "Officer" includes the following officers of the Registrant:
Chairman of the Board, President, Vice President, Secretary, Assistant
Secretary, Chief Financial Officer, Treasurer, Assistant Treasurer and such
other officers as the board shall designate from time to time. "Director" of the
Registrant means any person appointed to serve on the Registrant's board of
directors either by its shareholders or by the remaining board members.
Each of the Registrant's 1996 Stock Option Plan, 1997 Directors' Stock
Plan, 401(k) Savings Plan, Pension Plan, Pension Restoration Plan and Employee
Profit Sharing and Stock Ownership Plan (for purposes of this paragraph, 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, 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, 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.
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 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 of 1933 and will be governed by the final adjudication of such
issue.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1. Description of the Registrant's capital stock in article Sixth of
the Restated Articles of Incorporation of The First American
Financial Corporation, incorporated by reference to Exhibit 3.1
of the Registrant's Post-Effective Amendment No. 1 to
Registration Statement on Form S-4 dated July 28, 1998 and
Exhibit 3 of the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1999.
4.2. Rights Agreement, incorporated by reference to Exhibit 4 of the
Registrant's Registration Statement on Form 8-A dated November 7,
1997.
4.3. The First American Financial Corporation 401(k) Savings Plan,
incorporated by reference to Exhibit 4 of the Registrant's
Registration Statement on Form S-8 dated November 14, 1994.
4.4. Amendment No. 1 to The First American Financial Corporation
401(k) Savings Plan, incorporated by reference to Exhibit 4.1 of
the Registrant's Post-Effective Amendment No. 1 to Registration
Statement on Form S-8 dated December 27, 1996.
4.5. Amendment No. 2 to The First American Financial Corporation
401(k) Savings Plan, incorporated by reference to Exhibit 4 of
the Registrant's Registration Statement on Form S-8 dated July
30, 1997.
4.6. Amendment No. 3 to The First American Financial Corporation
401(k) Savings Plan.
4.7. Amendment No. 4 to The First American Financial Corporation
401(k) Savings Plan.
4.8. Amendment No. 5 to The First American Financial Corporation
401(k) Savings Plan.
5. Opinion of White & Case LLP regarding legality.
23.1. Consent of PricewaterhouseCoopers LLP.
23.2. Consent of White & Case LLP (contained in Exhibit 5).
24. Power of Attorney.
Item 9. Undertakings.
A. Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) To file, during any 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 the
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 and 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
a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(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) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 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. Filings Incorporating Subsequent Exchange Act Documents by
Reference. 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. Securities and Exchange Commission Position on Indemnification.
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 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 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 June 7, 1999.
THE FIRST AMERICAN FINANCIAL
CORPORATION
By: /s/ Parker S. Kennedy
-----------------------------------
Parker S. Kennedy, President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Date: June 7, 1999 By: /s/ D.P. Kennedy
------------------------------------
D.P. Kennedy, Chairman and
Director
Date: June 7, 1999 By: /s/ Parker S. Kennedy
------------------------------------
Parker S. Kennedy, President
and Director
Date: June 7, 1999 By: /s/ Thomas A. Klemens
-------------------------------------
Thomas A. Klemens, Executive
Vice President, Chief Financial
Officer
(Principal Financial and
Accounting Officer)
<PAGE>
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:
-------------------------------------
George L. Argyros, Director
Date: By:
-------------------------------------
Gary J. Beban, Director
Date: June 7, 1999 By: /s/ J. David Chatham *
-------------------------------------
J. David Chatham, Director
Date: June 7, 1999 By: /s/ William G. Davis *
-------------------------------------
William G. Davis, Director
Date: June 7, 1999 By: /s/ James L. Doti *
-------------------------------------
James L. Doti, Director
Date: June 7, 1999 By: /s/ Lewis W. Douglas, Jr. *
------------------------------------
Lewis W. Douglas, Jr., Director
Date: By:
------------------------------------
Paul B. Fay, Jr., Director
Date: June 7, 1999 By: /s/ Anthony R. Moiso *
------------------------------------
Anthony R. Moiso, Director
Date: By:
------------------------------------
Frank O'Bryan, Director
Date: June 7, 1999 By: /s/ Roslyn B. Payne *
------------------------------------
Roslyn B. Payne, Director
Date: By:
------------------------------------
D. Van Skilling, Director
Date: June 7, 1999 By: /s/ Virginia Ueberroth *
------------------------------------
Virginia Ueberroth, Director
*By:/s/ Mark R Arnesen
------------------
Mark R Arnesen
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1. Description of the Registrant's capital stock in article
Sixth of the Restated Articles of Incorporation of The First
American Financial Corporation, incorporated by reference to
Exhibit 3.1 of the Registrant's Post-Effective Amendment No. 1 to
Registration Statement on Form S-4 dated July 28, 1998 and
Exhibit 3 of the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1999.
4.2. Rights Agreement, incorporated by reference to Exhibit
4 of the Registrant's Registration Statement on Form 8-A dated
November 7, 1997.
4.3. The First American Financial Corporation 401(k)Savings
Plan, incorporated by reference to Exhibit 4 of the Registrant's
Registration Statement on Form S-8 dated November 14, 1994.
4.4. Amendment No. 1 to The First American Financial Corporation
401(k) Savings Plan, incorporated by reference to Exhibit 4.1 of
the Registrant's Post-Effective Amendment No. 1 to Registration
Statement on Form S-8 dated December 27, 1996.
4.5. Amendment No. 2 to The First American Financial Corporation
401(k) Savings Plan, incorporated by reference to Exhibit 4 of
the Registrant's Registration Statement on Form S-8 dated July
30, 1997.
4.6. Amendment No. 3 to The First American Financial Corporation
401(k) Savings Plan.
4.7. Amendment No. 4 to The First American Financial Corporation
401(k) Savings Plan.
4.8. Amendment No. 5 to The First American Financial Corporation
401(k) Savings Plan.
5. Opinion of White & Case LLP regarding legality.
23.1. Consent of PricewaterhouseCoopers LLP.
23.2. Consent of White & Case LLP (contained in Exhibit 5).
24. Power of Attorney.
EXHIBIT 4.6
AMENDMENT NO. 3
TO
THE FIRST AMERICAN FINANCIAL CORPORATION
401(k) SAVINGS PLAN
The following amendment is hereby made to The First American Financial
Corporation 401(k) Savings Plan (Effective as of January 1, 1995) (hereinafter
referred to as the "Plan"). This amendment is effective as of July 1, 1998.
1. Plan section 5.3, relating to transfer and credit of matching
contributions, is amended in its entirety to read as follows:
5.3 Transfer and Crediting of Matching Contributions. Matching
Contributions may be made in either cash, Company Stock, or a
combination of the two as determined by the Committee in its sole
discretion. Matching Contributions shall be transferred to the
TrustFund in accordance with procedures established by the Committee,
but in no event later than the due date (including extensions) for
filing the Company's federal income tax return for the taxable year in
which ends the Plan Year to which the Matching Contribution relates.
Basic Matching Contributions shall be credited to the Participant's
Matching Account as of the date for which the Pretax Deferrals are
credited. Discretionary Matching Contributions shall be credited as of
the last day of the Plan Year for which they are made. However, no
Matching Contributions shall be eligible to share in investment
results until received by the Trust Fund.
2. Except as amended above, the Plan as in effect prior to this amendment
shall continue unchanged.
IN WITNESS WHEREOF, The First American Financial Corporation has caused its
duly authorized officers to execute this Plan amendment on this 7TH day of July,
1998.
The First American Financial Corporation
By /s/ Parker S. Kennedy
-----------------------------------------------
Its President
-----------------------------------------------
By /s/ Mark R Arnesen
-----------------------------------------------
Its Secretary
-----------------------------------------------
EXHIBIT 4.7
AMENDMENT NO. 4
TO
THE FIRST AMERICAN FINANCIAL CORPORATION
401(k) SAVINGS PLAN
The following amendment is hereby made to The First American Financial
Corporation 401(k) Savings Plan (effective as of January 1, 1995) (hereinafter
referred to as the "Plan"). Except as otherwise specified, this amendment is
effective as of January 1, 1998.
1. Plan section 2.1(b), relating to the definition of "Affiliate", is
amended as follows:
(b) "Affiliate" means:
(1) A corporation or other business organization while it is
controlled by or under common control with the Company within the
meaning of Code sections 414 and 1563, or
(2) Except for purposes of Article 14, any corporation or partnership
in which the Company owns, directly or indirectly, less than 80
percent but more than 50 percent of:
(A) the total voting stock or total value of the classes of
stock, or
(B) the profits or capital of the partnership.
For purposes of paragraph (1) and solely for the purpose of
applying the limitations of Article 7, the phrase "more than 50
percent" shall be substituted for the phrase "at least 80
percent" each place it appears in Code section 1563(a)(1).
Affiliate also means any member of an affiliated service group
(within the meaning of Code section 414(m) and the related
regulations promulgated by the Untied States Department of the
Treasury ("Treasury regulations") of which the Company or any
Affiliate is a member; and any entity which, pursuant to Code
section 414(o) and related Treasury regulations, must be
aggregated with the Company or any Affiliate for plan
qualification purposes.
2. The second to the last paragraph of Plan section 2.1(i), relating
to family aggregation rules, is deleted, effective as of January
1, 1997.
3. Plan section 2.1(o), relating to the definition of "Employer", is
amended as follows:
(o) "Employer" means the Company and any Affiliate which, with
the approval of the Company or the Committee, if so
empowered by the Company, has adopted or adopts this Plan
for the benefit of its Eligible Employees. Each Employer
agrees to be bound by such terms and conditions relating to
the Plan as the Company or the Committee may reasonably
require. For the period prior to January 1, 1998, an
Affiliate described only in Plan section 2.1(c)(2) could not
be an Employer under the Plan. Employers under the Plan are
listed in Appendix A.
4. Plan section 2.1(q), relating to the definition of "Highly
Compensated Employee" is amended, effective January 1, 1997, as
follows:
(q) "Highly Compensated Employee" means an Employee described in
Code section 414(q) and includes any Employee of the Company
or an Affiliate who:
(1) Was a five-percent owner (as defined in Plan section
14.2) at any time during the year or the preceding
year, or
(2) For the preceding year, received Compensation in excess
of $80,000 (as adjusted by reference to Code section
414(q)(1)) and if the Company elects the application of
this clause for such preceding year, was in the
top-paid group (as defined in Code section 414(q)) of
Employees for such preceding year.
Employees who are nonresident aliens and who receive no
U.S.-source income from the Company or an Affiliate shall
not be counted as Employees when identifying Highly
Compensated Employees.
The rules of this Plan section 2.1(q) shall be applied
separately to each Employer controlled group, as determined
after any aggregation required pursuant to Code subsections
414(b), (c), (m), (n) and (o).
5. Plan section 4.2(a), relating to Excess Deferrals, is amended by
adding the following new paragraph at the end thereof:
The rules of this Plan section 4.2(a) shall be applied
separately to each Employer controlled group, as determined
after any aggregation required pursuant to Code subsections
414(b), (c), (m), (n) and (o).
6. Plan section 4.5, relating to the Transfer and Crediting of
Pretax Deferrals, is amended, effective February 3, 1997, as
follows:
4.5 Transfer and Crediting of Pretax Deferrals. Pretax Deferrals
shall be transferred to the Trust Fund as soon as
practicable after each payroll payment date and in no event
later than the fifteenth business day after the end of the
calendar month in which the corresponding amount would have
been paid to the Participant in the absence of the Pretax
Deferral election, unless an extension is available pursuant
to relevant law. Pretax Deferrals shall be credited to the
Participant's Pretax Deferral Account as of the payroll
payment date on which the amount deferred would have been
paid in the absence of the Pretax Deferral election under
Plan section 4.1. Such amounts, however, shall not be
eligible to share in investment results until received by
the Trust Fund.
7. Plan section 4.6, relating to Restrictions on Pretax Deferrals,
is amended to add the following new sentence at the beginning
thereof:
The rules of this Plan section 4.6 shall be applied
separately to each Employer controlled group, as determined
after any aggregation required pursuant to Code subsections
414(b), (c), (m), (n) and (o).
8. The final paragraph of Plan section 4.6, relating to family
aggregation, is deleted, effective as of January 1, 1997.
9. The second paragraph of Plan section 4.7, relating to Refunds of
Excess Pretax Deferrals, is amended, effective January 1, 1997,
as follows:
Within 12 months after the end of the Plan Year, the excess
amount of Pretax Deferrals, along with income and investment
gains and losses attributable thereto, for the Highly
Compensated Employees shall be distributed to such
Participants in the order of their deferral amounts,
beginning with the Highly Compensated Employees with the
highest deferral amount, until the limitations of Plan
section 4.6 and this Plan section 4.7 are met.
10. The second to last paragraph of Plan section 4.7, relating to
family aggregation, is deleted, effective as of January 1, 1997.
11. Plan section 5.4, relating to Restrictions on Matching
Contributions, is amended by adding the following new paragraph
at the beginning thereof:
The rules of this Plan section 5.4 shall be applied
separately to each Employer controlled group, as determined
after any aggregation required pursuant to Code subsections
414(b), (c), (m), (n) and (o).
12. The second to last paragraph of Plan section 5.4, relating to
family aggregation, is deleted, effective January 1, 1997.
13. The first sentence of the last paragraph of Plan section 5.4,
relating to Restrictions on Matching Contributions, is amended,
effective as of January 1, 1997, as follows:
In addition to the limitation on Pretax Deferrals specified
in Plan section 4.6 and the limitation on Matching
Contributions specified in this Plan section 5.4, Pretax
Deferrals and Matching Contributions with respect to Highly
Compensated Employees shall be subject to compliance with
applicable Treasury regulations that prevent the multiple
use of the alternative percentage limitations in Code
sections 401(k)(3)(A)(ii)(II) and 401(m)(2)(A)(ii).
14. The second paragraph of Plan section 5.5, relating to Correction
of Excess Matching Contributions, is amended, effective as of
January 1, 1997, as follows:
Within 12 months after the end of the Plan Year, the excess
Matching Contributions (along with income and investment
gains and losses attributable thereto) for Highly
Compensated Employees shall be distributed to such
Participants in the order of each Highly Compensated
Employee's matching contributions amount, beginning with the
Highly Compensated Employee with the highest matching
contributions amount, until the limitations of Plan section
5.4 and this Plan section 5.5 are met. The income and
investment gains and losses attributable to excess Matching
Contributions for the Plan Year shall be determined by the
same procedure as set forth in Plan section 4.7 for
determining income attributable to excess Pretax Deferrals.
15. The second to last paragraph of Plan section 5.5, relating to
family aggregation, is deleted, effective as of January 1, 1997.
16. Plan section 14.1, relating to Top-Heavy Provision Applications,
is amended as follows:
14.1 Application. The provisions of this Article shall be
interpreted and administered in accordance with the
requirements of Code section 416 and related Treasury
regulations. Because, effective January 1, 1998, the Plan is
a multiple employer plan, as described in Code section
413(c), the top heavy requirements of Code section 416 and
related Treasury regulations apply to each controlled group
Employer separately to the extent that benefits under the
Plan are provided to Employees with respect to service for
that controlled group Employer. For purposes of this
Article, the term "Employer" includes the business entity
which sponsors the Plan and only those Affiliates of such
entity that must be aggregated and treated as a single
employer for purposes of Code section 414 and related
Treasury regulations.
If, as of the Determination Date in any Plan Year, the sum
of the Account balances of Employees who are "Key Employees"
of a controlled group Employer for such Plan Year exceeds 60
percent of the sum of the Account balances of all Employees
of the controlled group Employer and their Beneficiaries, or
the Plan is part of a Top-Heavy Group, then the following
provisions under this Article shall apply for such Plan
Year. The foregoing notwithstanding, the provisions of this
Article shall not apply to the Plan in any Plan Year during
which it is part of an Aggregation Group (as defined in Plan
section 14.3(a)) with respect to a controlled group
Employer, whether or not it is top-heavy as a single plan,
unless the Aggregation Group of which it is a part is
top-heavy with respect to the controlled group Employer in
such Plan Year.
The "Determination Date", which is the date for determining
the applicability of this Article, is:
(1) For the first Plan Year, the last day of the Plan Year;
and
(2) For any other Plan Year, the last day of the preceding
Plan Year.
17. Plan section 14.2(a)(1)(B), relating to Key Employees, is amended
as follows:
(B) The greater of three Employees or ten percent of all
Employees (determined separately for each controlled
group Employer) shall be treated as officers;
18. Plan section 14.2(a)(2), relating to Key Employees, is amended as
follows:
(2) One of the ten Employees having Compensation for the
relevant Plan Year in excess of the dollar limitation in
effect under Code section 415(c)(1)(A) and owning (or
considered as owning within the meaning of Code section 318,
as modified by Code section 416(i)(1)(B)) the largest
interests in the controlled group Employer; provided,
however, that if two Employees have the same interest in the
controlled group Employer, then the Employee with the
greater Compensation shall be treated as having the larger
interest;
19. Plan section 14.3(a), relating to the Aggregation Group, is
amended as follows:
Aggregation Group. The Aggregation Group shall include any
plan which covers a Key Employee and any other plan which
enables a plan covering a Key Employee to meet the
requirements of Code section 401(a)(4) or 410.
20. The first sentence of Plan section 14.3(b), relating to the
Top-Heavy Group, is amended as follows:
An Aggregation Group is a Top-Heavy Group if, with respect
to the controlled group Employer, the sum of the account
balances of Key Employees under all defined contribution
plans included in the group and the present value of the
accumulated accrued benefits for Key Employees under all
defined benefit plans in the group exceeds 60 percent of a
similar sum determined for all Employees and their
Beneficiaries under all such plans in the group.
21. The last sentence of Plan section 14.3(b), relating to Top-Heavy
Groups, is amended as follows:
In any Plan Year, in testing for top-heaviness under this
Article, the controlled group Employer may, in its
discretion, take into account accumulated accrued benefits
and account balances in any other plan maintained by it, so
long as such expanded Aggregation Group continues to meet
the requirements of Code sections 401(a)(4) and 410.
22. The second sentence of the last paragraph of Plan section 14.4,
relating to Additional Rules, is amended as follows:
The Account balance or accrued benefit of any Employee or
former Employee who has not performed any services for the
controlled group Employer at any time during the five-year
period ending on the Determination Date, shall not be taken
into account to determine whether the Plan or Aggregation
Group is top-heavy.
23. Plan sections 14.5(a), relating to Minimum Contribution
Requirements, is amended as follows:
(a) General Rules. If this Plan is part of a Top-Heavy Group in
any Plan Year, then Employees covered only by defined
contribution plans of a controlled group Employer shall
receive the basic defined contribution minimum described
below in subsection (b), and Employees covered by both a
defined benefit plan and a defined contribution plan of a
controlled group Employer shall receive the enhanced defined
contribution minimum described below in subsection (c).
24. Plan sections 14.5(b), relating to Minimum Contribution
Requirements, is amended as follows:
(b) Basic Defined Contribution Minimum. The basic defined
contribution minimum is a sum of controlled group
Employer contributions plus forfeitures for each
non-Key Employee, determined as a percentage of his
or her Compensation for the Plan Year, that is the
equal to the lesser of 3%, or the highest percentage
of Compensation contributed by the controlled group
Employer on behalf of any Key Employee for the Plan
Year, as determined under Code section 416(c).
25. Plan sections 14.5(c), relating to Minimum Contribution
Requirements, is amended as follows:
(c) Enhanced Defined Contribution Minimum. The enhanced defined
contribution minimum is a sum of controlled group Employer
contributions plus forfeitures that is determined as
described in subsection (b) above, but substituting 5% for
3% for the percentage of Compensation to be provided.
26. Except as amended above, the Plan as in effect prior to this
amendment shall continue unchanged.
* * * * * * * * * *
In Witness Whereof, the Company has caused this Amendment to be signed on its
behalf and attested by its duly authorized officers this 7th day of July, 1998.
The First American Financial Corporation
By: /s/ Parker S. Kennedy
----------------------------------------------
Its: President
----------------------------------------------
By: /s/ Mark R Arnesen
----------------------------------------------
Its: Secretary
----------------------------------------------
EXHIBIT 4.8
AMENDMENT NO. 5
TO
THE FIRST AMERICAN FINANCIAL CORPORATION
401(k) SAVINGS PLAN
The following amendment is hereby made to The First American Financial
Corporation 401(k) Savings Plan (effective as of January 1, 1995) (hereinafter
referred to as the "Plan"). Except as otherwise specified, this amendment is
effective as of July 1, 1998.
Plan section 2.1(s)(4), relating to the definition of "Small Cap Stock
Fund," is amended to read in full as follows:
A "Small or Mid-Cap Stock Fund" which invests primarily in common
stock and securities convertible into common stock of small or
mid-sized capitalization companies, as well as such other similar
property as the investment manager, acting in accordance with the
terms of the Trust Agreement, considers advisable to meet the
fund's objective of long-term capital growth.
Except as amended above, the Plan as in effect prior to this amendment
shall continue unchanged.
**********
In Witness Whereof, the Company has caused this Amendment to be signed on its
behalf and attested by its duly authorized officers this 27th day of August,
1998.
The First American Financial Corporation
By: /s/ Parker S. Kennedy
------------------------------------
Parker S. Kennedy
Its: President
By: /s/ Mark R Arnesen
------------------------------------
Mark R Arnesen
Its: Secretary
EXHIBIT 5
[LETTERHEAD OF WHITE & CASE LLP]
June 7, 1999
The First American Financial Corporation
114 East Fifth Street
Santa Ana, CA 92701
Ladies and Gentlemen:
We have acted as counsel to The First American Financial Corporation,
a California corporation (the "Company"), and are familiar with the proceedings
and documents relating to the proposed registration by the Company, through a
Registration Statement on Form S-8 (the "Registration Statement"), to be filed
by the Company with the Securities and Exchange Commission, of 2,400,000 Common
shares, $1.00 par value, of the Company and an equal number of Rights to
purchase $1.00 par value Series A Junior Participating Preferred Shares
(collectively, the "Shares"), to be issued under The First American Financial
Corporation 401(k) Savings Plan, as amended (the "Plan") and the interests in
the Plan to be issued to those employees of the Company and its subsidiaries who
are eligible and elect to participate in the plan (the "Plan Interests").
For the purposes of rendering this opinion, we have examined originals
or photostatic copies of certified copies of such corporate records, agreements
and other documents of the Company as we have deemed relevant and necessary as a
basis for the opinion hereinafter set forth.
Based on the foregoing, we are of the opinion that the Shares, when
issued in accordance with the terms and conditions set forth in the Plan, will
be duly authorized, validly issued, fully paid and nonassessable and that the
Plan Interests, when issued in accordance with the terms and conditions set
forth in the Plan, will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ White & Case LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the prospectus
constituting part of this Registration Statement on Form S-8 of The First
American Financial Corporation of our report dated February 9, 1999, appearing
on page 24 of The First American Financial Corporation's Annual Report on Form
10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Costa Mesa, California
June 7, 1999
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors of The
First American Financial Corporation, a California corporation (the
"Corporation"), hereby constitute and appoint Parker S. Kennedy and Mark R
Arnesen, and each of them, the true and lawful agents and attorneys-in-fact of
the undersigned, with full power and authority in said agents and
attorneys-in-fact, and in either or both of them, to sign for the undersigned
and in their respective names as directors of the Corporation the Registration
Statement on Form S-8 to be filed with the United States Securities and Exchange
Commission, Washington, D.C., under the Securities Act of 1933, as amended, and
any amendment or amendments to such Registration Statement, relating to the
Common shares, par value $1.00 per share, of the Corporation to be offered
thereunder, and the undersigned ratify and confirm all acts taken by such agents
and attorneys-in-fact, or either or both of them, as herein authorized. This
Power of Attorney may be executed in one or more counterparts.
Date: February 25, 1999 By:
------------------------------------------
George L. Argyros, Director
Date: February 25, 1999 By:
------------------------------------------
Gary J. Beban, Director
Date: February 25, 1999 By: /s/ J. David Chatham
------------------------------------------
J. David Chatham, Director
Date: February 25, 1999 By: /s/ William G. Davis
------------------------------------------
William G. Davis, Director
Date: February 25, 1999 By: /s/ James L. Doti
------------------------------------------
James L. Doti, Director
Date: February 25, 1999 By: /s/ Lewis W. Douglas, Jr.
------------------------------------------
Lewis W. Douglas, Jr., Director
Date: February 25, 1999 By:
------------------------------------------
Paul B. Fay, Jr., Director
Date: February 25, 1999 By: /s/ Dale F. Frey
------------------------------------------
Dale F. Frey
Date: February 25, 1999 By: /s/ Anthony R. Moiso
------------------------------------------
Anthony R. Moiso, Director
Date: February 25, 1999 By:
------------------------------------------
Frank O'Bryan, Director
Date: February 25, 1999 By: /s/ Roslyn B. Payne
------------------------------------------
Roslyn B. Payne, Director
Date: February 25, 1999 By:
------------------------------------------
D. Van Skilling, Director
Date: February 25, 1999 By: /s/ Virginia Ueberroth
------------------------------------------
Virginia Ueberroth, Director
401(k) Savings Plan
