As filed with the Securities and Exchange Commission on January 7, 2004
Registration No. 333-[_________]
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST ADVANTAGE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 61-1437565
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
One Progress Plaza, Suite 2400
St. Petersburg, Florida 33701
(Address, Including Zip Code, of Registrant's Principal Executive Offices)
FIRST ADVANTAGE CORPORATION 401(K) SAVINGS PLAN
(Full Title of Plan)
Kenneth D. DeGiorgio, Esq. With a copy to:
Vice President, General Counsel, Assistant Secretary Neil W. Rust, Esq.
1 First American Way White & Case LLP
Santa Ana, California 92707 633 West Fifth Street
(714) 800-3000 Los Angeles, California 90071
(Name, Address and Telephone Number, (213) 620-7700
Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
========================= ====================== ======================= ====================== ======================
Title Of Each Class Of Amount Proposed Proposed Maximum Amount of
Securities To Be To Be Maximum Offering Aggregate Registration
Registered Registered(1) Price Per Share(2) Offering Price(3) Fee(4)
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class A Common stock,
$.001 par value... 2,000,000 shares $18.60 $37,200,000 $3010
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Interests in the Plan
(5) (5) (5) (5)
========================= ====================== ======================= ====================== ======================
(1) Pursuant to Rule 416 under the Securities Act, this Registration Statement
will include any additional shares of First Advantage Class A common stock
that may become issuable as a result of any stock split, stock dividend,
recapitalization or other similar transaction effected without the receipt
of consideration that results in an increase in the number of outstanding
shares of First Advantage Class A common stock.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and 457(h) under the Securities Act, based on the
average of the high and low prices of the Class A common stock quoted on
the Nasdaq National Market on January 5, 2004.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act.
(4) Calculated in accordance with Section 6 of the Securities Act and Rule 457
under the Securities Act by multiplying 0.00008090 and the proposed maximum
aggregate offering price.
(5) Pursuant to Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the Plan described herein for which no separate fee is
required.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is
omitted from this Registration Statement on Form S-8 in accordance with Rule 428
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows First Advantage to "incorporate by reference" information
into this Registration Statement which means that First Advantage can disclose
important information to you by referring you to another document or documents
filed separately with the SEC. This Registration Statement incorporates by
reference the documents set forth below that First Advantage has previously
filed with the SEC. These documents contain important business and financial
information about First Advantage, including information concerning its
financial performance.
Each of First Advantage and the plan incorporates by reference into this
Registration Statement the following documents:
o First Advantage's Pre-Effective Amendment No. 5 to Registration
Statement on Form S-4 (Registration No. 333-102565) filed May 14,
2003;
o First Advantage's quarterly reports on Form 10-Q for the periods ended
June 30, 2003 and September 30, 2003;
o First Advantage's current reports on Form 8-K filed June 6, 2003, June
10, 2003, June 19, 2003, July 22, 2003, July 28, 2003, and September
16, 2003;
o the description of the First Advantage Class A Common Stock, $.001 par
value, contained in a Registration Statement on Form 8-A, filed May
12, 2003, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by First Advantage and the plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities registered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents, except as to
any portion of any future report or other document that is not deemed filed with
the SEC. For purposes of this Registration Statement, any statement in a
document incorporated by reference shall be deemed to be modified or superseded
to the extent that a statement contained in this Registration Statement modifies
or supersedes a statement in such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL") provides for the power to
indemnify any directors, officers, employees and agents and to purchase and
maintain insurance with respect to liability arising out of their
capacity or status as directors, officers, employees and agents. The
indemnification provisions are not exclusive of any other rights to which
directors and officers may be entitled under a corporation's certificate of
incorporation or bylaws, any agreement, a vote of stockholders or otherwise.
The Registrant's certificate of incorporation provides that its directors
will not be personally liable to the Registrant or its stockholders for damages
for breach of any duty owed to the Registrant or its stockholders except for
liability:
o for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
o for any acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
o under section 174 of the DGCL regarding negligent or wilful unlawful
payment of dividends and stock redemption; or
o for any transaction from which a director derived an improper personal
benefit.
The Bylaws of the Registrant provide that:
o subject to applicable law and certain qualifications, each person who was
or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director or officer of the Registrant or is or
was serving at the request of the Registrant as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the
Registrant to the fullest extent permitted by the DGCL (but, in the case of any
future amendment to the DGCL, only to the extent that such amendment permits the
Registrant to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith, and such indemnification shall continue as to an indemnitee who has
ceased to be a director or officer, and shall inure to the benefit of the
indemnitee's heirs, executors and administrators. The right to indemnification
described in this paragraph is a contract right and, to the extent not
prohibited by applicable law, includes the right to be paid by the Registrant
the expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, however, that,
if the DGCL so requires, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer shall be made only upon delivery to
the Registrant of an undertaking, by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such indemnitee is
not entitled to be indemnified for such expenses; and
o the Registrant is permitted to secure insurance on behalf of any
director, officer, employee or agent of the Registrant or another business
entity for any expense, liability or loss, regardless of whether the DGCL would
permit indemnification.
Pursuant to the Agreement and Plan of Merger, dated December 13, 2002,
among the Registrant, US SEARCH.com Inc. and the other parties thereto, the
Registrant has agreed to indemnify and hold harmless the then present and former
officers, directors, employees and agents of US SEARCH and its subsidiaries
(each, an "Indemnified Party") in respect of acts or omissions occurring on or
prior to the effective time of the mergers contemplated thereby to the extent
provided under US SEARCH's and its subsidiaries' certificates of incorporation
(or equivalent organizational documents) and bylaws or any indemnification
agreement with US SEARCH's and its subsidiaries' officers and directors to which
US SEARCH and/or its subsidiaries is a party, in each case in effect on the date
of the merger agreement; provided that such indemnification shall be subject to
any limitation imposed from time to time under applicable law. The Registrant
also agreed under the merger agreement that for a period of six years after the
effective time of the mergers, the Registrant will use its reasonable best
efforts to procure officers'
and directors' liability insurance in respect of acts or omissions occurring on
or prior to the effective time of the mergers covering each Indemnified Party
previously covered by US SEARCH's and/or its subsidiaries' officers' and
directors' liability insurance policy on terms substantially similar to those of
such policy in effect on the date of the merger agreement (the "D&O Insurance"),
provided that the Registrant shall not be required to maintain the D&O Insurance
with respect to a specific officer or director if the premium for obtaining the
D&O Insurance exceeds 200% of the amount per annum US SEARCH paid in fiscal year
2002 (the "Premium Limit"). If the Registrant is unable to obtain the D&O
Insurance, it will obtain as much comparable insurance as possible for an annual
premium equal to the Premium Limit. In the event the Registrant would be
required to spend in excess of the Premium Limit per year to obtain the D&O
Insurance, the Registrant will notify each Indemnified Party who would be
covered thereby and permit any such Indemnified Party to pay the excess amount
over the Premium Limit that may be necessary to maintain such D&O Insurance
covering such Indemnified Party.
The Registrant's 2003 Incentive Compensation Plan (for purposes of this
paragraph only, the "Plan") provides that, "Each person who is or shall have
been a member of the Committee or of the Board, shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him or her in connection with
or resulting from any claim, action, suit, or proceeding to which he or she may
be a party or in which he or she may be involved by reason of any action taken
or failure to act under the Plan and against and from any and all amounts paid
by him or her in settlement thereof, with the Company's approval, or paid by him
or her in satisfaction of any judgment in any such action, suit, or proceeding
against him or her, provided he or she shall give the Company an opportunity, at
its own expense, to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company's Certificate of
Incorporation or By-Laws, as a matter of law, or otherwise, or any power that
the Company may have to indemnify them or hold them harmless."
Present and future directors and officers of the Registrant are covered by
a policy of liability insurance obtained by First American which insures against
the cost of defense, settlement or payment of a judgment under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Exhibit
Number Description
- ----- -----------
4.1 Form of certificate representing shares of First Advantage's Class A
common stock (incorporated by reference from Exhibit 4.1 to the
Registration Statement on Form S-8 (333-105847) filed June 5, 2003).
4.2 Description of First Advantage's capital stock in Article IV of First
Advantage's First Amended and Restated Certificate of Incorporation
(included in Exhibit 3.1 of First Advantage's Registration Statement
on Form S-4 filed January 17, 2003 and incorporated by reference
herein).
4.3 First Advantage Corporation 401(k) Savings Plan
5.1 Opinion of White & Case LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to The
First American Corporation Screening Technology Division.
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants to US
SEARCH.com Inc.
23.3 Consent of White & Case LLP (contained in Exhibit 5.1).
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during the period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) to include any additional or changed material information on the
plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by First American pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
* * *
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of St. Petersburg, state of Florida, on this 7th day of
January, 2004.
FIRST ADVANTAGE CORPORATION
By: /s/ John Long
--------------------------------------------------
John Long
Chief 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: January 7, 2004 By: /s/ John Long
--------------------------------------------------
John Long
Chief Executive Officer
(Principal Executive Officer)
Date: January 7, 2004 By: /s/ John Lamson
--------------------------------------------------
John Lamson
Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, the committee
responsible for administering the First Advantage Corporation 401(k) Savings
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of St. Petersburg, State
of Florida, on January 7, 2004.
THE FIRST AMERICAN CORPORATION
401(K) SAVINGS PLAN
By: /s/ John Lamson
----------------------------------------
Name: John Lamson
(Authorized Individual)
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: January 7, 2004 By: *
---------------------------------------------------------------------------
Parker S. Kennedy, Chairman
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
John Long, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
J. David Chatham, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
Barry Connelly, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
Lawrence D. Lenihan, Jr., Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
Donald Nickelson, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
Donald Robert, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
Alex Sink, Director
Date: January 7, 2004 By: *
---------------------------------------------------------------------------
David Walker, Director
* By: /s/ Kenneth D. DeGiorgio
-------------------------------
Kenneth D. DeGiorgio
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
Number Description
- ----- -----------
4.1 Form of certificate representing shares of First Advantage's Class A
common stock (incorporated by reference from Exhibit 4.1 to the
Registration Statement on Form S-8 (333-105847) filed June 5, 2003).
4.2 Description of First Advantage's capital stock in Article IV of First
Advantage's First Amended and Restated Certificate of Incorporation
(included in Exhibit 3.1 of First Advantage's Registration Statement
on Form S-4 filed January 17, 2003 and incorporated by reference
herein).
4.3 First Advantage Corporation 401(k) Savings Plan
5.1 Opinion of White & Case LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to The
First American Corporation Screening Technology Division.
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants to US
SEARCH.com Inc.
23.3 Consent of White & Case LLP (contained in Exhibit 5.1).
24.1 Power of Attorney.