EXECUTION COPY
Registration Rights Agreement
among
THE FIRST AMERICAN CORPORATION
and
Xxxxxx Brothers Inc.,
X.X. Xxxxxx Securities Inc.,
Xxxxxxx Xxxxx Xxxxxx Inc.,
Xxxxx Fargo Xxx Xxxxxx, LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc. and
Xxxxxxx, Xxxxxxx Securities LLC
and
DATED AS OF APRIL 24, 2001
REGISTRATION RIGHTS AGREEMENT, dated as of April 24, 2001, among The
First American Corporation, a corporation organized under the laws of the State
of California (herein referred to as the "Company"), Xxxxxx Brothers Inc., X.X.
Xxxxxx Securities Inc., Xxxxxxx Xxxxx Barney Inc., Xxxxx Fargo Xxx Xxxxxx, LLC,
U.S. Bancorp Xxxxx Xxxxxxx Inc. and Xxxxxxx, Xxxxxxx Securities LLC
(collectively, the "Initial Purchasers").
Pursuant to the Purchase Agreement, dated April 18, 2001, among the
Company and Xxxxxx Brothers Inc. for themselves and the other Initial Purchasers
(the "Purchase Agreement"), the Initial Purchasers have agreed to purchase from
the Company up to $175,000,000 ($210,000,000 if the Initial Purchasers exercise
the Company-granted option to purchase additional securities in full) in
aggregate principal amount of the Company's 4.50% Senior Convertible Debentures
due 2008 (the "Debentures"). The Debentures will be convertible into fully paid,
nonassessable common shares of common stock (the "Common Stock") of the Company
on the terms, and subject to the conditions, set forth in the Indenture (as
defined herein). To induce the Initial Purchasers to purchase the Debentures,
the Company has agreed to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Advice: As defined in Section 4(c)(ii) hereof.
Additional Amounts: As defined in Section 3(a) hereof.
Affiliate: As such term is defined in Rule 405 under the Securities
Act.
Agreement: This Registration Rights Agreement.
Blue Sky Application: As defined in Section 6(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday or Sunday or any federal
holiday in the United States.
Commission: Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto.
Company: As defined in the preamble hereto.
Damages Payment Date: Each Interest Payment Date. For purposes of this
Agreement, if no Debentures are outstanding, "Damages Payment Date" shall mean
each date that would otherwise be an Interest Payment Date.
Debentures: As defined in the preamble hereto.
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Effectiveness Period: As defined in Section 2(a)(iii) hereof.
Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended.
Holder: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of April 24, 2001, among the
Company and Wilmington Trust Company, as trustee (the "Trustee"), pursuant to
which the Debentures are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture.
Majority of Holders: Holders holding 50% in aggregate principal amount
of the Debentures outstanding at the time of determination of the Majority of
Holders; provided, however, that, for purposes of this definition, a holder of
Common Stock which constitutes Transfer Restricted Securities that were
previously issued upon conversion of Debentures shall be deemed to hold an
aggregate principal amount of Debentures (in addition to the principal amount of
Debentures held by such holder) equal to the product of (x) the number of such
shares of Common Stock held by such holder and (y) the prevailing conversion
price, such prevailing conversion price as adjusted in accordance with Section
12.4 of the Indenture.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in a Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Questionnaire Deadline: As defined in Section 2(b) hereof.
Record Holder: With respect to any Damages Payment Date, each Person
who is a Holder on the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur. In the case of a Holder of Common
Stock issued upon conversion of the Debentures, "Record Holder" shall mean each
Person who is a
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Holder of shares of Common Stock which constitute Transfer Restricted Securities
on the April 1 or October 1, as the case may be, immediately preceding the
Damages Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Sale Notice: As defined in Section 4(e) hereof.
Securities Act: Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.
Shelf Registration Statement: As defined in Section 2(a)(i) hereof.
Suspension Period. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under the TIA.
Transfer Restricted Securities: Each Debenture and each share of
Common Stock issued upon conversion of Debentures until the earliest to occur
of:
(i) the date on which such Debenture or such Common Stock issued upon
conversion has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Debenture or such Common Stock issued upon
conversion (A) has been transferred in compliance with Rule 144 under the
Securities Act or (B) may be sold or transferred pursuant to Rule 144 under
the Securities Act without regard to the volume limitations thereof (or any
other similar provision then in force); and
(iii) the date on which such Debenture or such Common Stock issued
upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public; provided, however, that such registration or offering shall be made no
more than two times under this Agreement.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the earliest date of original
issuance of any of the Debentures (the "Shelf Filing Deadline"), cause a
registration statement
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to be filed pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities held by Holders that have
provided the information required pursuant to the terms of Section 2(b)
hereof;
(ii) use its reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as promptly as is
practicable but in no event later than 180 days after the earliest date of
original issuance of any of the Debentures (the "Effectiveness Target
Date"); and
(iii) use its reasonable efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by
the provisions of Section 4(b) hereof to the extent necessary to ensure
that: (A) it is available for resales by the Holders of Transfer Restricted
Securities entitled to the benefit of this Agreement and (B) it conforms
with the requirements of this Agreement and the Securities Act and the
rules and regulations of the Commission promulgated thereunder as announced
from time to time, for a period (the "Effectiveness Period") until the
earliest of:
(1) two years following the last date of original issuance of any
of the Debentures; or
(2) the date when the Holders of the Debentures and the common
shares issuable upon conversion of the Debentures are able to sell all
such securities immediately without restriction pursuant to the volume
limitation provisions of Rule 144 under the Securities Act; or
(3) the date when all of the Debentures and Common Stock into
which the Debentures are convertible that are owned by the Holders who
complete and deliver in a timely manner the selling securityholder
election and questionnaire attached hereto as Exhibit A are registered
under the Shelf Registration Statement and sold in accordance with it.
(b) Not less than 30 calendar days prior to the effectiveness of the
Shelf Registration Statement, the Company shall mail the form of questionnaire
attached hereto as Exhibit A to each Holder, and no Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
the Shelf Registration Statement pursuant to this Agreement unless such Holder
furnishes to the Company in writing, prior to or on the 20th calendar day after
receipt of a request therefor (the "Questionnaire Deadline"), such information
as the Company may reasonably request for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein
and in any application to be filed with or under state securities laws. In
connection with all such requests for information from Holders of Transfer
Restricted Securities, the Company shall notify such Holders of the requirements
set forth in the preceding sentence. No Holder of Transfer Restricted Securities
shall be entitled to Additional
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Amounts pursuant to Section 3 hereof unless such Holder shall have provided all
such reasonably requested information prior to or on the Questionnaire Deadline.
Each Holder as to which the Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make information previously furnished to the Company by
such Holder not materially misleading.
3. Additional Amounts.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) subject to the provisions of Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without being
succeeded within ten Business Days by a post-effective amendment to
the Shelf Registration Statement or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that
cures such failure and, in the case of a post-effective amendment, is
itself immediately declared effective; or
(iv) prior to or on the 45th or 60th day, as the case may be, of
any Suspension Period, such suspension has not been terminated,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Company hereby agrees to pay the following
additional amounts ("Additional Amounts") with respect to the Transfer
Restricted Securities for which the Holders thereof have provided the
information under the terms of Section 2(b) hereof, from and including the day
following the Registration Default up to but excluding the day on which the
Registration Default has been cured:
(A) in respect of the Debentures, to each holder of
Debentures, (x) with respect to the first 90-day period during
which a Registration Default shall have occurred and be
continuing, in an amount per year equal to an additional 0.25% of
the principal amount of the Debentures, and (y) with respect to
the period commencing on the 91st day following the day the
Registration Default shall have occurred and be continuing, in an
amount per year equal to an additional 0.50% of the principal
amount of the Debentures; provided that in no event shall
Additional Amounts accrue at a rate per year exceeding 0.50% of
the principal amount of the Debentures; and
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(B) in respect of any Common Stock issued upon conversion of
Debentures, to each holder of such Common Stock, (x) with respect
to the first 90-day period in which a Registration Default shall
have occurred and be continuing, in an amount per year equal to
0.25% of the principal amount of the Debentures converted into
such Common Stock, and (y) with respect to the period commencing
the 91st day following the day the Registration Default shall
have occurred and be continuing, in an amount per year equal to
0.50% of the principal amount of the Debentures converted into
such Common Stock; provided, however, that in no event shall
Additional Amounts accrue at a rate per year exceeding 0.50% of
the principal amount of the Debentures converted into such Common
Stock.
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Company on each Damages Payment Date in the same manner as
interest is payable pursuant to the Debentures. Following the cure of all
Registration Defaults relating to any particular Debenture or Common Stock
issued upon conversion of Debentures, the accrual of Additional Amounts with
respect to such Debenture or such Common Stock shall cease.
All obligations of the Company set forth in this Section 3 with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
The Additional Amounts set forth above shall be the exclusive remedy
available to the Holders of Transfer Restricted Securities for Registration
Defaults.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use its
reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold thereunder, and pursuant thereto,
shall as expeditiously as practicable prepare and file with the Commission a
Shelf Registration Statement relating to the registration on any appropriate
form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D), use its reasonable efforts to keep the Shelf
Registration Statement continuously effective during the Effectiveness
Period; upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not be effective and usable for
the resale of Transfer Restricted Securities during the
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Effectiveness Period, the Company shall file promptly an appropriate
amendment to the Shelf Registration Statement or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its reasonable
efforts to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Company may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for a period not to
exceed an aggregate of 45 days in any 90-day period (each such period, a
"Suspension Period") if:
(x) an event occurs and is continuing as a result of which the
Shelf Registration Statement would, in the Company's reasonable
judgment, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(y) the Company reasonably determines that the disclosure of such
event at such time would have a material adverse effect on the
business of the Company (and its subsidiaries, taken as a whole);
provided, however, that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 45 days to 60
days; provided, however, that Suspension Periods shall not exceed an
aggregate of 120 days in any 360-day period.
(ii) Except during a Suspension Period, (A) use its reasonable efforts
to prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
the Shelf Registration Statement effective during the Effectiveness Period;
(B) cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and (C)
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders promptly
(but in any event within five Business Days) and, if requested by such
Persons, to confirm such advice in writing:
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(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) except during a Suspension Period, of the existence of any
fact or the happening of any event, during the Effectiveness Period,
that makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the Shelf
Registration Statement or the Prospectus in order to make the
statements therein not misleading.
(iv) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or any
state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, use
its reasonable efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(v) Furnish to each of the selling Holders upon request by such
selling Holders and to each of the underwriter(s), if any, before filing
with the Commission, a copy of the Shelf Registration Statement and copies
of any Prospectus included therein or any amendments or supplements to the
Shelf Registration Statement or Prospectus (other than documents
incorporated by reference after the initial filing of the Shelf
Registration Statement), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at least five
Business Days, and the Company will not file the Shelf Registration
Statement or Prospectus or any amendment or supplement to the Shelf
Registration Statement or Prospectus (other than documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement or the underwriter(s), if any,
shall reasonably object within five Business Days after the receipt
thereof. The objection of a selling Holder or underwriter, if any, shall be
deemed to be reasonable if the Shelf
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Registration Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or omission.
(vi) If reasonably requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may from time to time reasonably request to have
included therein, including, without limitation: (A) information concerning
such Holder and the underwriter(s), if any, and the distribution of the
Transfer Restricted Securities of such Holders or underwriters(s), if any;
(B) information relating to the "Plan of Distribution" of the Transfer
Restricted Securities; (C) information with respect to the principal amount
of Debentures or number of shares Common Stock being sold to such
underwriter(s); (D) the purchase price being paid therefor; and (E) any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably practicable
after the Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(vii) Furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Shelf Registration
Statement, as first filed with the Commission, and of each amendment
thereto (and any documents incorporated by reference therein or exhibits
thereto (or exhibits incorporated in such exhibits by reference) as such
Person may request).
(viii) Deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of
the kind described in Section 4(b)(iii)(D), the Company hereby consents to
the use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(ix) If an underwriting agreement is entered into and the registration
is an Underwritten Registration, the Company shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
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(1) a certificate, dated the date of such closing, signed by
a Chief Executive Officer and the Chief Financial Officer of the
Company confirming, as of the date thereof, the matters set forth
in Section 6(g) of the Purchase Agreement and such other matters
as such parties may reasonably request;
(2) opinions, each dated the date of such closing, of
counsel to the Company covering such of the matters as are
customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the independent accountants of the Company (and
from any other accountants whose report is contained or
incorporated by reference in the Shelf Registration Statement),
in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings of securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to
all parties to be indemnified; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (x).
(x) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register
or qualify as a foreign corporation or a dealer of securities where it is
not now so qualified or to take any action that would subject it to the
service of process in any jurisdiction where it is not now so subject or
(B) to subject itself to taxation in any such jurisdiction if it is not now
so subject.
(xi) Cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless
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required by applicable securities laws) and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business
Days before any sale of Transfer Restricted Securities made by such
underwriter(s).
(xii) Use its reasonable efforts to cause the Transfer Restricted
Securities covered by the Shelf Registration Statement to be registered
with or approved by such other U.S. governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred,
use its reasonable efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(xiv) Provide CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture with certificates for the
Debentures that are in a form eligible for deposit with The Depository
Trust Company.
(xv) Cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules
and regulations of the NASD.
(xvi) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and all reporting requirements
under the rules and regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not later
than the effective date of the Shelf Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the holders of Debentures to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA, and execute and use its reasonable efforts to cause
the Trustee thereunder to execute all documents that may be required to
effect such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a timely
manner.
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(xviii) Cause all Transfer Restricted Securities covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted.
(xix) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act after the effective date of the Shelf
Registration Statement.
(xx) If reasonably requested by the underwriters, if any, make
appropriate officers of the Company reasonably available to the
underwriters for meetings with prospective purchasers of the Transfer
Restricted Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new
issuances of other securities similar to the Transfer Restricted
Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 4(b)(iii)(D) hereof, such Holder will,
and will use its reasonable efforts to cause any underwriter(s) in an
Underwritten Offering to, (A) hold any such notice in confidence and (B)
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement shall furnish to the Company in writing, within 20
Business Days after receipt of a request therefor as set forth in a
questionnaire, such information regarding such Holder and the proposed
distribution by such Holder of its Transfer Restricted Securities as the Company
may reasonably request for use in connection with the Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. (The form of
the questionnaire is attached hereto as Exhibit A.) Holders that do not complete
the questionnaire and deliver it to the Company shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to
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sell any Transfer Restricted Securities pursuant to the Shelf Registration
Statement. Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall promptly furnish to the Company in writing such
other information as the Company may from time to time reasonably request in
writing.
(e) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Company at least three Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "Sale Notice"), which notice shall be effective for
five Business Days. Each Holder of this Security, by accepting the same, agrees
to hold any communication by the Company in response to a Sale Notice in
confidence.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including filings
made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses and
certificates for Common Stock to be issued upon conversion of the
Debentures), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company and, subject
to Section 5(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof;
and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company shall reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and disbursements
of not more than one counsel (which fees shall be
13
subject to a maximum amount to be mutually agreed upon among the Company, the
Initial Purchasers and the Holders of Transfer Restricted Securities), which
shall be Cleary, Gottlieb, Xxxxx & Xxxxxxxx, or such other counsel as may be
chosen by a Majority of Holders for whose benefit the Shelf Registration
Statement is being prepared.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each, an "Indemnified Holder"),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to resales of the Transfer Restricted
Securities), to which such Indemnified Holder may become subject, insofar as any
such loss, claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained in (A) the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto or (B) any Blue Sky Application or other
document or any amendment or supplement thereto prepared or executed by the
Company (or based upon written information furnished by or on behalf of the
Company expressly for use in such Blue Sky Application or other document or
amendment on supplement) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities
under the securities law of any state or other jurisdiction (such
application or document being hereinafter called a "Blue Sky Application");
or
(ii) the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Holder (or its related Indemnified Holder) specifically for use therein. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company and its officers, directors, managers and employees and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any
14
such officer, director, manager, employee or controlling person may become
subject, insofar as any such loss, claim, damage or liability or action arises
out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Company and any such officer, director, manager,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by the Company or any such officer, director,
manager, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to the Company and
any such officer, director, manager, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if
a Majority of Holders shall have reasonably concluded that there may be one or
more legal defenses available to them and their respective officers, employees
and controlling persons that are different from or additional to those available
to the Company and its officers, directors, managers, employees and controlling
persons, the reasonable fees and expenses of a single separate counsel shall be
paid by the Company. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld or delayed) settle or
compromise or
15
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering and sale of the Transfer
Restricted Securities on the one hand and a Holder with respect to the sale
by such Holder of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 6(d)(i) but also the relative
fault of the Company on the one hand and the Holder on the other in
connection with the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale or proposed sale of Transfer Restricted
Securities on the other. The relative fault of the parties shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Holders on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not
16
take into account the equitable considerations referred to in the first sentence
of this paragraph (d). The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6 shall be deemed to include, for purposes of
this Section 6, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to
defend any such action or claim. Notwithstanding the provisions of this Section
6, no Holder shall be required to contribute any amount in excess of the amount
by which the total price at which the Transfer Restricted Securities purchased
by it were resold exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute as provided
in this Section 6(d) are several and not joint.
7. Rule 144A. In the event the Company is not subject to Section 3 or
15(d) of the Exchange Act, the Company hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless at least 20% of
the Holders of the Transfer Restricted Securities outstanding at the time of the
Underwritten Registration participate in such Underwritten Registration and such
Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, however, that such investment bankers and managers must be
reasonably satisfactory to the Company.
10. Miscellaneous.
17
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 2 hereof.
(b) Adjustments Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not grant to any of its security holders (other than the holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. Except as described in the
Offering Memorandum dated April 18, 2001 relating to the Debentures and in the
Purchase Agreement, the Company has not previously entered into any agreement
(which has not expired or been terminated) granting any registration rights with
respect to its securities to any Person, which rights conflict with the
provisions hereof.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of Common Stock, as the
case may be; and
(ii) if to the Company:
The First American Corporation
0 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X Xxxxxxx
Fax: (000) 000-0000
with a copy to:
18
White & Case LLP
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxx, Esq.
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given at: the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
(i) this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder and (ii) nothing
contained herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Securities Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity,
19
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
The First American Corporation
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Xxxxx Fargo Xxx Xxxxxx, LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxxxx, Xxxxxxx Securities LLC
By: Xxxxxx Brothers Inc.
By /s/ Xxxx X. Post
------------------------------------------
Xxxx X. Post
Vice President
21
Exhibit A
Form of Selling Securityholder Notice and Questionnaire
The undersigned beneficial holder of 4.50% Senior Convertible
Debentures due 2008 (the "Senior Convertible Debentures") of The First American
Corporation ("First American"), or common shares, $1.00 par value (the "Common
Shares" and together with the Senior Convertible Debentures, the "Registrable
Securities"), of First American understands that First American has filed or
intends to file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities in accordance with the
terms of the Registration Rights Agreement (the "Registration Rights Agreement")
dated as of April 24, 2001, between First American and the initial purchasers
named therein. The Registration Rights Agreement is available from First
American upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of the Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related Prospectus,
deliver a Prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related Prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, First American will, within ten business days
of such receipt, file such amendments to the Shelf Registration Statement or
supplements to the related Prospectus as are necessary to permit such holder to
deliver such Prospectus to purchasers of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus.
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to First American of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise
A-1
specified under Item 3) pursuant to the Shelf Registration Statement. The
undersigned, by signing and returning this Notice and Questionnaire, understands
that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement.
The undersigned hereby provides the following information to First
American and represents and warrants that such information is accurate and
complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
---------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in Item 3 below are held:
---------------------------------------------------------------------
(c) Full Legal name of DTC Participant (if applicable and if not the same
as (b) above) through which Registrable Securities listed in Item 3
below are held:
---------------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
---------------------------------------------------------------------
---------------------------------------------------------------------
Telephone:
---------------------------------------------------------
Fax:
---------------------------------------------------------------
Contact Person:
----------------------------------------------------
3. (a) Type and Principal Amount of Registrable Securities beneficially owned:
----------------------------------------------------------------------
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
----------------------------------------------------------------------
4. Beneficial Ownership of First American securities owned by the Selling
Securityholder:
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of First American other
than the Registrable Securities listed above in Item 3.
A-2
(a) Type and Amount of Other Securities beneficially owned by the Selling
Securityholder:
---------------------------------------------------------------------
(b) CUSIP No(s). of such Other Securities beneficially owned:
---------------------------------------------------------------------
5. Relationship with First American:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with First
American (or its predecessors or affiliates) during the past three years.
State any exceptions here:
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item 3 pursuant to the Shelf Registration Statement only as follows (if at
all): Such Registrable Securities may be sold from time to time directly by
the undersigned or alternatively through underwriters or broker-dealers or
agents. If the Registrable Securities are sold through underwriters or
broker-dealers or agents, the Selling Securityholder will be responsible
for underwriting discounts or commissions or agent's commissions. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve block transactions) (i) on any
national securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, or (iii) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities, short and
deliver Registrable Securities to close out such short positions, or loan
or pledge Registrable Securities to broker-dealers that in turn may sell
such securities.
A-3
State any exceptions here:
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of First American.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), and the provisions of the
Securities Act of 1933, as amended, relating to Prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
Pursuant to the Registration Rights Agreement, First American has
agreed under certain circumstances to indemnify the Selling Securityholders
against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify First American of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained in its answers to Items 1 through 6 above and the
inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by First American in connection with the preparation or amendment of
the Shelf Registration Statement and the related Prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its authorized agent.
Beneficial Owner
By:
----------------------------------------
Name:
Title:
Dated:
--------------------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE
AND QUESTIONNAIRE TO:
THE FIRST AMERICAN CORPORATION
0 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X Xxxxxxx, Esq., Secretary
A-5
