FORM S-3
As filed
with the Securities and Exchange Commission on May 15,
2009
REGISTRATION
NO. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST MERCURY FINANCIAL
CORPORATION
(Exact Name of Registrant as
Specified in its Charter)
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Delaware
(State or Other
Jurisdiction
of Incorporation or Organization)
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6331
(Primary Standard
Industrial
Classification Code Number)
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38-3164336
(IRS Employer Identification
No.)
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29110
Inkster Road, Suite 100
Southfield, Michigan 48034
(800) 762-6837
(Address,
including zip code, and telephone number, including
area code, of registrants principal executive
offices)
Richard
H. Smith
Chairman, President and Chief Executive Officer
First Mercury Financial Corporation
29110 Inkster Road, Suite 100
Southfield, Michigan 48034
(800) 762-6837
(Name,
address, including zip code, and telephone number,
including area code, of agent for service)
Copy
to:
Scott M. Williams
Heidi J. Steele
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606
(312) 372-2000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large
accelerated filer, accelerated filer and
smaller reporting company in
Rule 12b-2
of the Exchange Act.
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Large accelerated
filer o
Non-accelerated
filer o
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Accelerated
filer þ
Smaller reporting
company o
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Offering
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Aggregate
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Amount of
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Title of Each Class of
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Amount to be
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Price
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Offering
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Registration
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Securities to be Registered(1)
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Registered
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Per Unit
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Price
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Fee
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Primary Offering(2):
Common Stock, par value $0.01 per share
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Debt Securities
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Preferred Stock, par value $0.01 per share
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Depositary Shares(3)
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Warrants to Purchase Debt Securities
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Warrants to Purchase Common Stock
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Warrants to Purchase Preferred Stock
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Stock Purchase Contracts
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Stock Purchase Units
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Total Primary Offering of Other Securities
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$125,000,000
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(4)
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$125,000,000
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$6,975(5)
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Secondary Offering:
Common Stock, par value $0.01 per share
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1,961,459(6)
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$12.24(7)
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$24,008,258
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$1,340
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Total Primary and Secondary Offering(8)
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$149,008,248
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$8,315
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(1)
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These securities may be sold
separately, together or as units with other securities
registered hereby.
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(2)
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With respect to the primary
offering, this registration statement relates to such
indeterminate number or amount of common stock, debt securities,
preferred stock, depositary shares, warrants, stock purchase
contracts and stock purchase units of the Registrant as may from
time to time be issued at indeterminate prices, in U.S. Dollars
or the equivalent thereof denominated in foreign currencies or
units of two or more foreign currencies or composite currencies
(such as the Euro). In no event will the maximum aggregate
offering price of all debt securities, preferred stock,
depositary shares, warrants, stock purchase contracts and stock
purchase units issued in the primary offering pursuant to this
registration statement exceed $125,000,000, or if any debt
securities are issued with original issue discount, such greater
amount as will result in an aggregate offering price of
$125,000,000.
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(3)
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Represents depositary shares,
evidenced by depositary receipts, issued pursuant to a deposit
agreement. In the event the registrant issues fractional
interests in shares of the preferred stock registered hereunder,
depositary receipts will be distributed to purchasers of such
fractional interests, and such shares of preferred stock will be
issued to a depositary under the terms of a deposit agreement.
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(4)
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With respect to the primary
offering, the proposed maximum offering price per security and
the proposed maximum aggregate offering price per class of
security will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the
securities registered hereunder and is not specified as to each
class of security pursuant to General Instruction II.D. of
Form S-3
under the Securities Act.
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(5)
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Calculated pursuant to
Rule 457(o) under the Securities Act.
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(6)
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Consists of shares of common stock
that the selling stockholder identified in the prospectus
contained herein may sell from time to time.
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(7)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c)
under the Securities Act. The proposed maximum offering price
per share, the proposed maximum offering price and the amount of
the registration fee have been computed based upon the average
of the high and low sales prices per share of common stock on
the New York Stock Exchange on May 12, 2009.
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(8)
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This registration statement also
registers such indeterminate amounts of securities as may be
issued upon conversion of, or in exchange for, the securities
registered and pursuant to Rule 416(a) under the Securities
Act, such indeterminable number of shares as may be issued from
time to time upon conversion or exchange as a result of stock
splits, stock dividends or similar transactions.
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The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment that
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to Section 8(a),
may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities or accept an offer to
buy these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED
MAY 15, 2009
PROSPECTUS
FIRST
MERCURY FINANCIAL CORPORATION
$125,000,000
Common Stock
Debt Securities
Preferred Stock
Depositary Shares
Warrants
Stock Purchase Contracts
Stock Purchase Units
Offered by
First Mercury Financial Corporation
1,961,459 Shares
of Common Stock
Offered by
the Selling Stockholder
From time to time, we may sell up to an aggregate of
$125,000,000 of any combination of the other securities
described in this prospectus. We will specify the terms of any
offering of such securities in a prospectus supplement. In
addition, from time to time, the selling stockholder identified
in this prospectus under the heading Selling
Stockholder may sell up to 1,961,459 shares of our
common stock.
You should read this prospectus, the information incorporated by
reference in this prospectus and any prospectus supplement
carefully before you invest.
Investing in our securities involves a high degree of risk.
You should carefully consider the risk factors described in the
applicable prospectus supplement and certain of our filings with
the Securities and Exchange Commission, as described under
Risk Factors on page 2.
This prospectus may not be used to offer or sell any
securities unless accompanied by a prospectus supplement.
Our common stock is quoted and traded on the New York Stock
Exchange under the symbol FMR. On May 12, 2009,
the last reported sale price of our common stock on the New York
Stock Exchange was $12.24. The applicable prospectus supplement
will contain information, where applicable, as to any other
listing on the New York Stock Exchange or any securities market
or exchange of the securities covered by the prospectus
supplement.
The securities may be offered directly by us or the selling
stockholder to investors, to or through underwriters or dealers
or through agents. If any underwriters are involved in the sale
of any securities offered by this prospectus and any prospectus
supplement, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, and
any applicable over-allotment options, will be set forth, or
will be calculable from the information set forth, in the
applicable prospectus supplement. The price to the public of
such securities and the net proceeds we expect to receive from
such sale will also be set forth in a prospectus supplement. We
will not receive any proceeds from the sale of our common stock
by the selling stockholder.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus
is ,
2009
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC, using
a shelf registration process. Under this shelf
registration process, we may, from time to time, sell up to an
aggregate of $125,000,000 of any combination of common stock,
debt securities, preferred stock, depositary shares, warrants,
stock purchase contracts or stock purchase units in one or more
offerings. In addition, the selling stockholder may sell up to
1,961,459 shares of common stock in one or more offerings.
This prospectus provides you with a general description of the
securities that we or the selling stockholder may offer. Each
time we sell common stock, debt securities, preferred stock,
depositary shares, warrants, stock purchase contracts, stock
purchase units or common stock, or the selling stockholder sells
common stock, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
We may also add, update or change in a prospectus supplement any
of the information contained in this prospectus or in documents
we have incorporated by reference into this prospectus. This
prospectus, together with the applicable prospectus supplements
and the documents incorporated by reference into this
prospectus, includes all material information relating to this
offering. To the extent that any statement that we make in a
prospectus supplement is inconsistent with statements made in
this prospectus, the statements made in this prospectus will be
deemed modified or superseded by those made in a prospectus
supplement. You should read both this prospectus and any
prospectus supplement together with additional information
described under the heading Incorporation of Certain
Documents by Reference. Whenever we refer to First
Mercury, we, our or us
in this prospectus, we mean First Mercury Financial Corporation
and its subsidiaries, unless the context indicates otherwise.
You should rely only on the information contained or
incorporated by reference in this prospectus or any applicable
prospectus supplement. Neither we nor the selling stockholder
have authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. Neither we
nor the selling stockholder are making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information contained
in this prospectus or any applicable prospectus supplement is
accurate as of any date other than the date on the front cover
of this prospectus or the prospectus supplement, or that the
information contained in any document incorporated by reference
is accurate as of any date other than the date of the document
incorporated by reference, regardless of the time of delivery of
this prospectus or any sale of a security. Neither we nor the
selling stockholder undertake any obligation to update any
forward-looking statement.
FIRST
MERCURY FINANCIAL CORPORATION
We are a provider of insurance products and services to the
specialty commercial insurance markets, primarily focusing on
niche and underserved segments where we believe that we have
underwriting expertise and other competitive advantages. During
our 35 years of underwriting security risks, we have
established
CoverX®
as a recognized brand among insurance agents and brokers and
developed significant underwriting expertise and a
cost-efficient infrastructure. Over the last eight years, we
have leveraged our brand, expertise and infrastructure to expand
into other specialty classes of business, particularly focusing
on smaller accounts that receive less attention from competitors.
Our principal executive offices are located at 29110 Inkster
Road, Suite 100, Southfield, Michigan 48034 and our
telephone number at that address is
(800) 762-6837.
Our website is located at www.firstmercury.com. The
information on our website is not part of, and is not
incorporated by reference into, this prospectus.
RISK
FACTORS
Before you invest in our securities, in addition to the other
information, documents or reports incorporated by reference in
this prospectus and in any prospectus supplement, you should
carefully consider the risk factors set forth in the section
entitled Risk Factors in any prospectus supplement
as well as in Part I, Item 1A. Risk
Factors, in our most recent annual report on
Form 10-K,
and in Part II, Item 1A. Risk Factors, in
our quarterly reports on
Form 10-Q
filed subsequent to such
Form 10-K,
which are incorporated by reference into this prospectus and any
prospectus supplement in their entirety, as the same may be
updated from time to time by our future filings
1
under the Exchange Act. Each of the risks described in these
sections and documents could materially and adversely affect our
business, financial condition, results of operations and
prospects, and could result in a loss of your investment.
FORWARD-LOOKING
STATEMENTS
This prospectus contains forward-looking statements that relate
to future periods and includes statements regarding our
anticipated performance. Generally, the words
anticipates, believes,
expects, intends, estimates,
projects, plans and similar expressions
identify forward-looking statements. These forward-looking
statements involve known and unknown risks, uncertainties and
other important factors that could cause our actual results,
performance or achievements or industry results to differ
materially from any future results, performance or achievements
expressed or implied by these forward-looking statements. These
risks, uncertainties and other important factors include, among
others: recent and future events and circumstances impacting
financial, stock, and capital markets, and the responses to such
events by governments and financial communities; the impact of
catastrophic events and the occurrence of significant severe
weather conditions on our operating results; our ability to
maintain or the lowering or loss of one of our financial or
claims-paying ratings; our actual incurred losses exceeding our
loss and loss adjustment expense reserves; the failure of
reinsurers to meet their obligations; our inability to obtain
reinsurance coverage at reasonable prices; the failure of any
loss limitations or exclusions or changes in claims or coverage;
our ability to successfully integrate acquisitions that we make
such as our acquisition of AMC; our lack of long-term operating
history in certain specialty classes of insurance; our ability
to acquire and retain additional underwriting expertise and
capacity; the concentration of our insurance business in
relatively few specialty classes; the increasingly competitive
property and casualty marketplace; fluctuations and uncertainty
within the excess and surplus lines insurance industry; the
extensive regulations to which our business is subject and our
failure to comply with those regulations; our ability to
maintain our risk-based capital at levels required by regulatory
authorities; our inability to realize our investment objectives;
and the risk factors set forth in the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2008. Given these
uncertainties, prospective investors are cautioned not to place
undue reliance on these forward-looking statements. These
forward-looking statements are made as of the date of the filing
of this prospectus. Except as required by law, we assume no
obligation to update or revise them or provide reasons why
actual results may differ.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings
to fixed charges for the periods indicated.
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Successor
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Predecessor
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Three Months
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August 17,
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January 1,
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Ended
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2005 to
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2005 to
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Year Ended
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March 31,
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Year Ended December 31,
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December 31,
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August 16,
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December 31,
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2009
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2008
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2007
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2006
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2005
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2005
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2004
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Ratio of Earnings to Fixed Charges(1)
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8.92
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4.72
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12.99
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1.51
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2.93
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15.11
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15.08
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(1) |
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The ratios of earnings to fixed charges were computed by
dividing earnings by fixed charges. Earnings means
(i) income from continuing operations before income taxes,
plus (ii) fixed charges (excluding preferred share
dividends). The term fixed charges means the amounts
resulting from the following: (i) interest expenses
(interest expense, amortization of debt issuance costs,
write-off of debt issuance costs, and prepayment penalty), plus
(ii) an estimate of interest included in rental expense,
plus (iii) preferred share dividends. |
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USE OF
PROCEEDS
Unless otherwise indicated in any prospectus supplement, we
intend to use the net proceeds from the sale of securities under
this prospectus for general corporate purposes, including
working capital. We will not receive any proceeds from any sale
of common stock by the selling stockholder.
DESCRIPTION
OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement,
summarizes the material terms and provisions of the debt
securities that we may offer under this prospectus. The debt
securities will be our direct general obligations and may
include debentures, notes, bonds or other evidences of
indebtedness. The debt securities will be either senior debt
securities or subordinated debt securities. The debt securities
will be issued under one or more separate indentures. Senior
debt securities will be issued under a senior debt indenture,
and subordinated debt securities will be issued under a
subordinated debt indenture. We use the term
indentures to refer to both the senior indenture and
the subordinated indenture. A form of each of the senior
indenture and the subordinated indenture is filed as an exhibit
to the registration statement of which this prospectus is a
part. The indentures will be qualified under the
Trust Indenture Act. We use the term indenture
trustee to refer to either the senior trustee or the
subordinated trustee, as applicable.
The following summaries of material provisions of the debt
securities and indentures are subject to, and qualified in their
entirety by reference to, all the provisions of the indenture
applicable to a particular series of debt securities and the
description thereof contained in the prospectus supplement.
General
We will describe in each prospectus supplement the following
terms relating to a series of debt securities:
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the title or designation;
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any limit on the principal amount that may be issued;
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whether or not we will issue the series of debt securities in
global form, the terms and the depository;
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the maturity date;
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the annual interest rate, which may be fixed or variable, or the
method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for
determining such dates;
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whether or not the debt securities will be secured or unsecured,
and the terms of any secured debt;
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the terms of the subordination of any series of subordinated
debt;
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the place where payments will be payable;
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our right, if any, to defer payment of interest and the maximum
length of any such deferral period;
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the date, if any, after which, and the price at which, we may,
at our option, redeem the series of debt securities pursuant to
any optional redemption provisions;
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the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the holders option to
purchase, the series of debt securities;
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whether the indenture will restrict our ability to pay
dividends, or will require us to maintain any asset ratios or
reserves;
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whether we will be restricted from incurring any additional
indebtedness;
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a discussion on any material or special U.S. federal income
tax considerations applicable to the debt securities;
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the denominations in which we will issue the series of debt
securities, if other than denominations of $1,000 and any
integral multiple thereof; and
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any other specific terms, preferences, rights or limitations of,
or restrictions on, the debt securities.
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Conversion
or Exchange Rights
We will set forth in the prospectus supplement the terms on
which a series of debt securities may be convertible into or
exchangeable for common stock or other securities. We will
include provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of
common stock or other securities that the holders of the series
of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
The indentures will not contain any covenant which restricts our
ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of our assets must assume
all of our obligations under the indentures or the debt
securities, as appropriate.
Events of
Default Under the Indenture
The following will be events of default under the indentures
with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues
for a number of days to be stated in the indenture and the time
for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due
and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant contained in
the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and
our failure continues for a number of days to be stated in the
indenture after we receive notice from the indenture trustee or
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization
occur as to us.
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If an event of default with respect to debt securities of any
series occurs and is continuing, the indenture trustee or the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series, by notice to us in
writing, and to the indenture trustee if notice is given by such
holders, may declare the unpaid principal, premium, if any, and
accrued interest, if any, due and payable immediately.
The holders of a majority in principal amount of the outstanding
debt securities of an affected series may waive any default or
event of default with respect to the series and its
consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest, unless we
have cured the default or event of default in accordance with
the indenture. Any waiver will cure the default or event of
default.
Subject to the terms of the indentures, if an event of default
under an indenture occurs and is continuing, the indenture
trustee will be under no obligation to exercise any of its
rights or powers under such indenture at the request or
direction of any of the holders of the applicable series of debt
securities, unless such holders have offered the indenture
trustee reasonable indemnity. The holders of a majority in
principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
indenture trustee, or exercising any trust or power conferred on
the indenture trustee, with respect to the debt securities of
that series, provided that:
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the direction given by the holder is not in conflict with any
law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the
indenture trustee need not take any action that might involve it
in personal liability or might be unduly prejudicial to the
holders not involved in the proceeding.
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4
A holder of the debt securities of any series will only have the
right to institute a proceeding under the indentures or to
appoint a receiver or trustee, or to seek other remedies if:
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the holder has given written notice to the indenture trustee of
a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request, and such holders have offered reasonable indemnity to
the indenture trustee to institute the proceeding as
trustee; and
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the indenture trustee does not institute the proceeding, and
does not receive from the holders of a majority in aggregate
principal amount of the outstanding debt securities of that
series other conflicting directions within 60 days after
the notice, request and offer.
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These limitations do not apply to a suit instituted by a holder
of debt securities if we default in the payment of the
principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the indenture trustee
regarding our compliance with specified covenants in the
indentures.
Modification
of Indenture; Waiver
We and the indenture trustee may change an indenture without the
consent of any holders with respect to specific matters,
including:
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to fix any ambiguity, defect or inconsistency in the
indenture; and
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to change anything that does not materially adversely affect the
interests of any holder of debt securities of any series.
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In addition, under the indentures, the rights of holders of a
series of debt securities may be changed by us and the indenture
trustee with the written consent of the holders of at least a
majority in aggregate principal amount of the outstanding debt
securities of each series that is affected. However, we and the
indenture trustee may only make the following changes with the
consent of each holder of any outstanding debt securities
affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending
the time of payment of interest, or any premium payable upon the
redemption of any debt securities; or
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reducing the percentage of debt securities, the holders of which
are required to consent to any amendment.
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Discharge
Each indenture provides that we can elect to be discharged from
our obligations with respect to one or more series of debt
securities, except for obligations to:
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register the transfer or exchange of debt securities of the
series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the indenture trustee; and
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appoint any successor indenture trustee.
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In order to exercise our rights to be discharged, we must
deposit with the indenture trustee money or government
obligations sufficient to pay all the principal of, any premium,
if any, and interest on, the debt securities of the series on
the dates payments are due.
5
Form,
Exchange and Transfer
We will issue the debt securities of each series only in fully
registered form without coupons and, unless we otherwise specify
in the applicable prospectus supplement, in denominations of
$1,000 and any integral multiple thereof. The indentures provide
that we may issue debt securities of a series in temporary or
permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository
Trust Company or another depository named by us and
identified in a prospectus supplement with respect to that
series. See Book-Entry Issuance for a further
description of the terms relating to any book-entry securities.
Subject to the terms of the indentures and the limitations
applicable to global securities described in the applicable
prospectus supplement, the holder of the debt securities of any
series, at its option, can exchange the debt securities for
other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations
applicable to global securities set forth in the applicable
prospectus supplement, holders of the debt securities may
present the debt securities for exchange or for registration of
transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security
registrar, at the office of the security registrar or at the
office of any transfer agent designated by us for this purpose.
Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, no service charge will be
required for any registration of transfer or exchange, but we
may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the
security registrar, and any transfer agent in addition to the
security registrar, that we initially designate for any debt
securities. We may at any time designate additional transfer
agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent
acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each
series.
If we elect to redeem the debt securities of any series, we will
not be required to:
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issue, register the transfer of, or exchange any debt securities
of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the
mailing; or
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register the transfer of or exchange any debt securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any debt securities we are redeeming in
part.
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Payment
and Paying Agents
Unless we otherwise indicate in the applicable prospectus
supplement, we will make payment of the interest on any debt
securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities,
are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium and interest on the
debt securities of a particular series at the office of the
paying agents designated by us, except that unless we otherwise
indicate in the applicable prospectus supplement, we will make
interest payments by check which we will mail to the holder.
Unless we otherwise indicate in a prospectus supplement, we will
designate the corporate trust office of the indenture trustee in
the City of New York as our sole paying agent for payments with
respect to debt securities of each series. We will name in the
applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment
for the debt securities of a particular series.
All money we pay to a paying agent or the indenture trustee for
the payment of the principal of or any premium or interest on
any debt securities which remains unclaimed at the end of two
years after such principal, premium or interest has become due
and payable will be repaid to us, and the holder of the security
thereafter may look only to us for payment thereof.
6
Governing
Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
Subordination
of Subordinated Notes
The subordinated notes will be unsecured and will be subordinate
and junior in priority of payment to certain of our other
indebtedness to the extent described in a prospectus supplement.
The subordinated indenture does not limit the amount of
subordinated notes which we may issue. It also does not limit us
from issuing any other secured or unsecured debt.
Regarding
the Indenture Trustee
We will name the indenture trustee for debt securities issued
under the applicable indenture in the applicable supplement to
this prospectus and, unless otherwise indicated in a prospectus
supplement, the indenture trustee will also act as Transfer
Agent and Paying Agent with respect to the debt securities. The
indenture trustee may be removed at any time with respect to the
debt securities of any series by act of the holders of a
majority in principal amount of the outstanding debt securities
of such series delivered to the indenture trustee and to us.
DESCRIPTION
OF WARRANTS TO PURCHASE DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement,
summarizes the material terms and provisions of the warrants to
purchase debt securities (the debt warrants) that we
may offer under this prospectus. The following statements with
respect to the debt warrants are summaries of, and subject to,
the detailed provisions of a debt warrant agreement to be
entered into by us and a warrant agent to be selected at the
time of issue (the debt warrant agent), a form of
which will be filed with the SEC.
General
The debt warrants, evidenced by debt warrant certificates (the
debt warrant certificates), may be issued under the
debt warrant agreement independently or together with any
securities offered by any prospectus supplement and may be
attached to or separate from such securities. If we offer debt
warrants, the prospectus supplement will describe the terms of
the debt warrants, including the following:
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the offering price, if any;
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the designation, aggregate principal amount, and terms of the
debt securities purchasable upon exercise of the debt warrants;
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if applicable, the designation and terms of the securities with
which the debt warrants are issued and the number of debt
warrants issued with each such security;
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if applicable, the date on and after which the debt warrants and
the related securities will be separately transferable;
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the principal amount of debt securities purchasable upon
exercise of one debt warrant and the price at which such
principal amount of debt securities may be purchased upon such
exercise;
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the date on which the right to exercise the debt warrants shall
commence and the date on which such right shall expire;
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federal income tax consequences;
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whether the debt warrants represented by the debt warrant
certificates will be issued in registered or bearer
form; and
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any other terms of the debt warrants, including terms,
procedures and limitations relating to the exchange and exercise
of such debt warrants.
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7
DESCRIPTION
OF COMMON STOCK AND PREFERRED STOCK
Our authorized capital stock consists of 100,000,000 shares
of common stock, par value $0.01 per share, and
10,000,000 shares of undesignated preferred stock, par
value $0.01 per share. The following description of our capital
stock, including the common stock that the selling stockholder
may sell, is intended as a summary only and is qualified in its
entirety by reference to our amended and restated certificate of
incorporation and amended and restated bylaws filed as exhibits
to the registration statement, of which this prospectus forms a
part, and to Delaware corporate law. We refer in this section to
our amended and restated certificate of incorporation as our
certificate of incorporation and we refer to our amended and
restated bylaws as our bylaws.
Common
Stock
Holders of common stock are entitled to one vote per share in
the election of directors and on all other matters on which
stockholders are entitled or permitted to vote. Subject to the
terms of any outstanding series of preferred stock, the holders
of common stock are entitled to dividends in amounts and at
times as may be declared by the board of directors out of funds
legally available for that purpose. Upon liquidation or
dissolution, holders of common stock are entitled to share
ratably in all net assets available for distribution to
stockholders, after payment in full to creditors and payment of
any liquidation preferences to holders of preferred stock.
Holders of common stock have no redemption, conversion or
preemptive rights. All outstanding shares of common stock are
fully paid and nonassessable, and the shares of common stock to
be issued upon the closing of this offering will be fully paid
and nonassessable. As of May 5, 2009, there were
17,929,837 shares of common stock issued and outstanding.
Undesignated
Preferred Stock
In addition, our certificate of incorporation provides that we
may issue up to 10,000,000 shares of preferred stock in one
or more series as may be determined by our board of directors.
Our board of directors has broad discretionary authority with
respect to the rights of any new series of preferred stock and
may take several actions without any vote or action of the
stockholders, including:
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to determine the number of shares to be included in each series;
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to fix the designation, voting powers, preferences and relative
rights of the shares of each series and any qualifications,
limitations or restrictions; and
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to increase or decrease the number of shares of any series.
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We believe that the ability of our board of directors to issue
one or more series of preferred stock will provide us with
flexibility in structuring possible future financings and
acquisitions, and in meeting other corporate needs that might
arise. The authorized shares of preferred stock, as well as
shares of common stock, will be available for issuance without
action by our stockholders, unless such action is required by
applicable law or the rules of any stock exchange or automated
quotation system on which our securities may be listed or traded.
The board of directors may authorize, without stockholder
approval, the issuance of preferred stock with voting and
conversion rights, that could adversely affect the voting power
and other rights of holders of common stock. Preferred stock
could be issued quickly with terms designed to delay or prevent
a change in the control of our company or to make the removal of
our management more difficult. This could have the effect of
decreasing the market price of our common stock.
Although our board of directors has no intention at the present
time of doing so, it could issue a series of preferred stock
that could, depending on the terms of such series, impede the
completion of a merger, tender offer or other takeover attempt
of our company. Our board of directors will make any
determination to issue such shares based on its judgment as to
our companys best interest and the best interests of our
stockholders. Our board of directors could issue preferred stock
having terms that could discourage an acquisition attempt
through which an acquirer may be able to change the composition
of the board of directors, including a tender offer or other
transaction that some, or a majority, of our stockholders might
believe to be in their best interests or in which stockholders
might receive a premium for their stock over the then-current
market price.
8
We have no present plans to issue any shares of our preferred
stock.
Listing
Our shares of common stock are listed on the New York Stock
Exchange under the symbol FMR.
Delaware
Law and Charter and Bylaw Provisions Anti-Takeover
Effects
We have elected to be governed by the provisions of
Section 203 of the Delaware General Corporation Law, which
we refer to as Section 203. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in
a business combination with an interested
stockholder for a three-year period following the time
that this stockholder becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. A
business combination includes, among other things, a
merger, asset sale or other transaction resulting in a financial
benefit to the interested stockholder. An interested
stockholder is a person who, together with affiliates and
associates, owns (or, in some cases, within three years prior,
did own) 15% or more of the corporations voting stock, or
is an affiliate of the corporation and owned 15% or more of the
corporations voting stock at any time during the three
years prior to the time that the determination of an interested
stockholder is made. Under Section 203, a business
combination between the corporation and an interested
stockholder is prohibited unless it satisfies one of the
following conditions:
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before the stockholder became interested, the board of directors
approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder; or
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upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced
(excluding, for purposes of determining the number of our shares
outstanding, shares owned by (a) persons who are directors
and also officers and (b) employee stock plans, in some
instances); or
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after the stockholder became interested, the business
combination was approved by the board of directors of the
corporation and authorized at an annual or special meeting of
the stockholders by the affirmative vote of at least two-thirds
of the outstanding voting stock which is not owned by the
interested stockholder.
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Our bylaws provide for the division of our board of directors
into three classes as nearly equal in size as possible with
staggered three-year terms. Approximately one-third of our board
will be elected each year. In addition, our bylaws provide that
directors may be removed only for cause and then only by the
affirmative vote of the holders of a majority of the outstanding
voting power of our capital stock outstanding and entitled to
vote generally in the election of directors. Under our bylaws,
any vacancy on our board of directors, however occurring,
including a vacancy resulting from an enlargement of our board,
may only be filled by vote of a majority of our directors then
in office even if less than a quorum. The classification of our
board of directors and the limitations on the removal of
directors and filling of vacancies could have the effect of
making it more difficult for a third party to acquire, or of
discouraging a third party from attempting to acquire, control
of us.
Our bylaws provide that special meetings of the stockholders may
only be called by the chairman of the board of directors or by
the board of directors. Our bylaws further provide that
stockholders at an annual meeting may only consider proposals or
nominations specified in the notice of meeting or brought before
the meeting by or at the direction of the board or by a
stockholder who was a stockholder of record on the record date
for the meeting, who is entitled to vote at the meeting and who
has given to our corporate secretary the required written
notice, in proper form, of the stockholders intention to
bring that proposal or nomination before the meeting. In
addition to other applicable requirements, for a stockholder
proposal or nomination to be properly brought before an annual
meeting by a stockholder, the stockholder generally must have
given notice in proper written form to the corporate secretary
not less than 90 days nor more than 120 days prior to
the anniversary date of the immediately preceding annual meeting
of stockholders, unless the date of the annual meeting is
advanced by more than 30 days or delayed by more than
60 days from the anniversary date, in which case the notice
must be delivered no later than the 10th day following the
day on which public announcement of the meeting is first made.
Although our bylaws do not give the board the power to approve
or disapprove stockholder nominations of candidates or proposals
regarding other
9
business to be conducted at a special or annual meeting, our
bylaws may have the effect of precluding the consideration of
some business at a meeting if the proper procedures are not
followed or may discourage or defer a potential acquiror from
conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempting to obtain control of us.
Our certificate of incorporation also provides that any action
required or permitted to be taken by our stockholders at an
annual meeting or special meeting of stockholders may only be
taken at a stockholders meeting and may not be taken by written
consent in lieu of a meeting. Our certificate of incorporation
includes a constituency provision that permits (but
does not require) a director of our company in taking any action
(including an action that may involve or relate to a change or
potential change in control of us) to consider, among other
things, the effect that our actions may have on other interests
or persons (including our employees, clients, suppliers,
customers and the community) in addition to our stockholders.
The Delaware corporate law provides generally that the
affirmative vote of a majority of the shares entitled to vote on
any matter is required to amend a corporations certificate
of incorporation or bylaws or to approve mergers, consolidations
or the sale of all or substantially all its assets, unless a
corporations certificate of incorporation or bylaws, as
the case may be, requires a greater percentage. Our certificate
of incorporation requires the affirmative vote of the holders of
at least two-thirds of the shares of common stock outstanding at
the time such action is taken to amend or repeal the
constituency provision of our certificate of incorporation. Our
bylaws may be amended or repealed by a majority vote of the
board of directors, subject to any limitations set forth in the
bylaws, and may also be amended by the stockholders by the
affirmative vote of the holders of at least two-thirds of the
total voting power of all outstanding shares of capital stock.
The two-thirds stockholder vote would be in addition to any
separate class vote that might in the future be required
pursuant to the terms of any series of preferred stock that
might be outstanding at the time any of these amendments are
submitted to stockholders.
Limitation
of Liability and Indemnification
Our certificate of incorporation and bylaws provide that:
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we must indemnify our directors and officers to the fullest
extent permitted by Delaware law, as it may be amended from time
to time;
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we may indemnify our other employees and agents to the same
extent that we indemnify our officers and directors, unless
otherwise required by law, our certificate of incorporation or
our bylaws; and
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we must advance expenses, as incurred, to our directors and
officers in connection with legal proceedings to the fullest
extent permitted by Delaware law, subject to very limited
exceptions.
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In addition, our certificate of incorporation provides that our
directors will not be liable for monetary damages to us for
breaches of their fiduciary duty as directors, except for:
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any breach of their duty of loyalty to us or our stockholders;
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acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
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under Section 174 of the Delaware General Corporation Law,
with respect to unlawful dividends or redemptions; or
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any transaction from which the director derived an improper
personal benefit.
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We also plan to obtain director and officer insurance providing
for indemnification for our directors and officers for certain
liabilities, including liabilities under the Securities Act of
1933.
These provisions may discourage stockholders from bringing a
lawsuit against our directors for breach of their fiduciary
duty. These provisions may also have the effect of reducing the
likelihood of derivative litigation against directors and
officers, even though such an action, if successful, might
otherwise benefit us and our stockholders. Furthermore, a
stockholders investment may be adversely affected to the
extent we pay the costs of settlement and damage awards against
directors and officers pursuant to these indemnification
provisions. We believe that these
10
provisions, the insurance and the indemnity agreements are
necessary to attract and retain talented and experienced
directors and officers.
At present, there is no pending litigation or proceeding
involving any of our directors or officers where indemnification
will be required or permitted. We are not aware of any
threatened litigation or proceeding that might result in a claim
for such indemnification.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A.
DESCRIPTION
OF DEPOSITARY SHARES
The following description, together with the additional
information we include in any applicable prospectus supplement,
summarizes the material terms and provisions of the depositary
shares that we may offer under this prospectus. The following
statements with respect to the depositary shares and depositary
receipts are summaries of, and subject to, the detailed
provisions of a deposit agreement to be entered into by First
Mercury and a depositary to be selected at the time of issue
(the depositary) and the form of depositary receipt.
The form of deposit agreement and the form of depositary receipt
will be filed with the SEC.
General
We may, at our option, elect to issue fractional shares of
preferred stock, rather than full shares of preferred stock. In
the event such option is exercised, we may elect to have a
depositary issue receipts for depositary shares, each receipt
representing a fraction, to be set forth in the prospectus
supplement relating to a particular series of preferred stock,
of a share of a particular series of preferred stock as
described below.
The shares of any series of preferred stock represented by
depositary shares will be deposited under a deposit agreement
between us and a bank or trust company that we select. Subject
to the terms of the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the
applicable fraction of a share of preferred stock represented by
such depositary share, to all the rights and preferences of the
preferred stock represented by the depositary share, including
dividend, voting, redemption and liquidation rights.
Depositary
Receipts
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Depositary receipts
will be distributed to those persons purchasing the fractional
shares of preferred stock in accordance with the terms of an
offering of the preferred stock.
Withdrawal
of Preferred Stock
Upon surrender of depositary receipts at the office of the
depositary and upon payment of the charges provided in the
deposit agreement, a holder of depositary receipts may have the
depositary deliver to the holder the whole shares of preferred
stock relating to the surrendered depositary receipts. Holders
of depositary shares may receive whole shares of the related
series of preferred stock on the basis set forth in the related
prospectus supplement for such series of preferred stock, but
holders of such whole shares will not after the exchange be
entitled to receive depositary shares for their whole shares. If
the depositary receipts delivered by the holder evidence a
number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of the
related series of preferred stock to be withdrawn, the
depositary will deliver to the holder at the same time a new
depositary receipt evidencing such excess number of depositary
shares.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received for the preferred stock to the record
holders of depositary shares relating to the preferred stock in
proportion to the numbers of such depositary shares owned by
such holders.
11
In the event of a distribution other than in cash, the
depositary will distribute property received by it to the record
holders of depositary shares entitled thereto, unless the
depositary determines that it is not feasible to make
distribution of the property. In that case the depositary may,
with our approval, sell such property and distribute the net
proceeds from the sale to such holders.
Redemption
of Depositary Shares
If a series of preferred stock represented by depositary shares
is subject to redemption, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from the
redemption, in whole or in part, of the series of preferred
stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the
redemption price per share payable with respect to the series of
the preferred stock. Whenever we redeem shares of preferred
stock held by the depositary, the depositary will redeem as of
the same redemption date the number of depositary shares
representing shares of preferred stock redeemed by us. If less
than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the depositary.
Voting
the Preferred Stock
Upon receipt of notice of any meeting at which the holders of
the preferred stock are entitled to vote, the depositary will
mail the information contained in such notice of meeting to the
record holders of the depositary shares relating to such
preferred stock. Each record holder of such depositary shares on
the record date, which will be the same date as the record date
for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to
the amount of the preferred stock represented by such
holders depositary shares. The depositary will endeavor,
insofar as practicable, to vote the amount of the preferred
stock represented by such depositary shares in accordance with
such instructions, and we will agree to take all action which
may be deemed necessary by the depositary in order to enable the
depositary to do so. The depositary will not vote the preferred
stock to the extent it does not receive specific instructions
from the holders of depositary shares representing such
preferred stock.
Amendment
and Termination of the Deposit Agreement
We and the depositary at any time may amend the form of
depositary receipt evidencing the depositary shares and any
provision of the deposit agreement. However, any amendment which
materially and adversely alters the rights of the holders of
depositary shares will not be effective unless such amendment
has been approved by the holders of at least a majority of the
depositary shares then outstanding. We or the depositary may
terminate the deposit agreement only if all outstanding
depositary shares have been redeemed, or there has been a final
distribution in respect of the preferred stock in connection
with any liquidation, dissolution or winding up of First Mercury
and such distribution has been distributed to the holders of
depositary receipts.
Charges
of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock and
any redemption of the preferred stock. Holders of depositary
receipts will pay other transfer and other taxes and
governmental charges and such other charges as are expressly
provided in the deposit agreement to be for their accounts.
Miscellaneous
The depositary will forward to the record holders of the
depositary shares relating to such preferred stock all reports
and communications from us which are delivered to the depositary.
Neither we nor the depositary will be liable if either one is
prevented or delayed by law or any circumstance beyond their
control in performing the obligations under the deposit
agreement. The obligations of First Mercury and the depositary
under the deposit agreement will be limited to performance in
good faith of their duties thereunder, and they will not be
obligated to prosecute or defend any legal proceeding in respect
of any depositary
12
shares or preferred stock unless satisfactory indemnity is
furnished. The depositary may rely upon written advice of
counsel or accountants, or information provided by persons
presenting preferred stock for deposit, holders of depositary
receipts or other persons believed to be competent and on
documents believed to be genuine.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering to us notice
of its election to do so, and we may at any time remove the
depositary, any such resignation or removal to take effect upon
the appointment of a successor depositary and its acceptance of
such appointment. Such successor depositary must be appointed
within 60 days after delivery of the notice of resignation
or removal.
DESCRIPTION
OF WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED
STOCK
The following description, together with the additional
information we include in any applicable prospectus supplement,
summarizes the material terms and provisions of the warrants to
purchase common stock or preferred stock (the stock
warrants) that we may offer under this prospectus. The
following statements with respect to the stock warrants are
summaries of, and subject to, the detailed provisions of a stock
warrant agreement to be entered into by First Mercury and a
warrant agent to be selected at the time of issue (the
stock warrant agent), a form of which will be filed
with the SEC.
General
The stock warrants, evidenced by stock warrant certificates, may
be issued under the stock warrant agreement independently or
together with any securities offered by any prospectus
supplement and may be attached to or separate from such
securities. If stock warrants are offered, the prospectus
supplement will describe the terms of the stock warrants,
including the following:
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the offering price, if any;
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the number of shares of preferred stock or common stock
purchasable upon exercise of each stock warrant and the initial
price at which such shares may be purchased upon exercise;
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if applicable, the designation and terms of the securities with
which the stock warrants are issued and the number of stock
warrants issued with each such security;
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if applicable, the date on and after which the stock warrants
and the related preferred stock or common stock will be
separately transferable;
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the date on which the right to exercise the stock warrants shall
commence and the date on which such right shall expire;
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federal income tax consequences;
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call provisions of such stock warrants, if any;
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anti-dilution provisions of the stock warrants, if any;
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whether the stock warrants represented by the stock warrant
certificates will be issued in registered or bearer
form; and
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any additional or other rights, preferences, privileges,
limitations and restrictions relating to the stock warrants,
including terms, procedures and limitations relating to the
exchange and exercise of the stock warrants.
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The shares of preferred stock or common stock issuable upon the
exercise of the stock warrants will, when issued in accordance
with the stock warrant agreement, be fully paid and
non-assessable.
13
DESCRIPTION
OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, representing contracts
obligating holders to purchase from us, and we may sell to the
holders, a specified number of shares of common stock at a
future date or dates. The price per share of common stock may be
fixed at the time the stock purchase contracts are issued or may
be determined by reference to a specific formula set forth in
the stock purchase contracts. Stock purchase contracts may be
issued separately or as a part of units (stock purchase
units) consisting of a stock purchase contract and either
(i) senior debt securities or subordinated debt securities
or (ii) debt obligations of third parties, including
U.S. Treasury securities, securing the holders
obligations to purchase the common stock under the stock
purchase contracts. The stock purchase contracts may require us
to make periodic payments to the holders of the stock purchase
units or vice versa, and such payments may be unsecured or
prefunded on some basis. The stock purchase contracts may
require holders to secure their obligations thereunder in a
specified manner and in certain circumstances we may deliver
newly issued prepaid stock purchase contracts (prepaid
securities) upon release to a holder of any collateral
securing such holders obligations under the original stock
purchase contract.
The applicable prospectus supplement will describe the terms of
any stock purchase contracts or stock purchase units and, if
applicable, prepaid securities. Certain material United States
Federal income tax considerations applicable to the stock
purchase units and stock purchase contracts will be set forth in
the prospectus supplement relating thereto.
BOOK-ENTRY
ISSUANCE
Unless otherwise indicated in a prospectus supplement, the debt
securities of a series offered by us will be issued in the form
of one or more fully registered global securities. We anticipate
that these global securities will be deposited with, or on
behalf of, the Depository Trust Company and registered in
the name of its nominee. Except as described below, the global
securities may be transferred, in whole and not in part, only to
DTC or to another nominee of DTC.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York
Banking Law;
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a banking organization within the meaning of the New
York Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New
York Uniform Commercial Code; and
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a clearing agency registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of
1934.
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DTC was created to hold securities for institutions that have
accounts with DTC (participants) and to facilitate
the clearance and settlement of securities transactions among
its participants through electronic book-entry changes in
participants accounts. Participants include securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom
(and/or their representatives) own DTC. Access to DTCs
book-entry system is also available to others that clear through
or maintain a custodial relationship with a participant, either
directly or indirectly. DTC administers its book-entry system in
accordance with its rules and bylaws and legal requirements.
Upon issuance of a global security representing offered
securities, DTC will credit on its book-entry registration and
transfer system the principal amount to participants
accounts. Ownership of beneficial interests in the global
security will be limited to participants or to persons that hold
interests through participants. Ownership of interests in the
global security will be shown on, and the transfer of those
ownership interests will be effected only through, records
maintained by DTC (with respect to participants interests)
and the participants (with respect to the owners of beneficial
interests in the global security). The laws of some
jurisdictions may require that certain purchasers of securities
take physical delivery of those securities in definitive form.
These limits and laws may impair the ability to transfer
beneficial interests in a global security.
14
So long as DTC (or its nominee) is the registered holder and
owner of a global security, DTC (or its nominee) will be
considered, for all purposes under the applicable indenture, the
sole owner and holder of the related offered securities. Except
as described below, owners of beneficial interests in a global
security will not:
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be entitled to have the securities registered in their
names; or
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receive or be entitled to receive physical delivery of
certificated securities in definitive form.
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Purchases of securities under the DTC system must be made by or
through direct participants, which will receive a credit for the
securities on DTCs records. The ownership interest of each
actual purchaser of each debt security (beneficial
owner) is in turn recorded on the direct and indirect
participants records. A beneficial owner does not receive
written confirmation from DTC of its purchase, but is expected
to receive a written confirmation providing details of the
transaction, as well as periodic statements of its holdings,
from the direct or indirect participants through which such
beneficial owner entered into the action. Transfers of ownership
interests in securities are accomplished by entries made on the
books of participants acting on behalf of beneficial owners.
Beneficial owners do not receive certificates representing their
ownership interests in securities, except in the event that use
of the book-entry system for the securities is discontinued.
To facilitate subsequent transfers, the securities are
registered in the name of DTCs partnership nominee,
Cede & Co. The deposit of the securities with DTC and
their registration in the name of Cede & Co. will
effect no change in beneficial ownership. DTC has no knowledge
of the actual beneficial owners of the securities; DTC records
reflect only the identity of the direct participants to whose
accounts securities are credited, which may or may not be the
beneficial owners. The participants remain responsible for
keeping account of their holdings on behalf of their customers.
Delivery of notice and other communications by DTC to direct
participants, by direct participants to indirect participants,
and by direct participants and indirect participants to
beneficial owners are governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Neither DTC nor Cede & Co. consents or votes with
respect to the securities. Under its usual procedures, DTC mails
a proxy (an Omnibus Proxy) to the issuer as soon as
possible after the record date. The Omnibus Proxy assigns
Cede & Co.s consenting or voting rights to those
direct participants to whose accounts the securities are
credited on the record date (identified on a list attached to
the Omnibus Proxy).
Redemption proceeds, distributions and dividend payments, if
any, on the securities will be made to DTC. DTCs practice
is to credit direct participants accounts on the payment
date in accordance with their respective holdings as shown on
DTCs records, unless DTC has reason to believe that it
will not receive payment on the payment date. Payments by
participants to beneficial owners are governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in street name, and are the
responsibility of such Participant and not of DTC, the trustee
or us, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and
interest, if any, to DTC is our or the trustees
responsibility, disbursement of such payments to direct
participants is DTCs responsibility, and disbursement of
such payments to the beneficial owners is the responsibility of
direct and indirect participants.
DTC may discontinue providing its services as securities
depository with respect to the securities at any time by giving
reasonable notice to us or the trustee. Under such
circumstances, in the event that a successor securities
depository is not appointed, debt security certificates are
required to be printed and delivered.
We may decide to discontinue use of the system of book-entry
transfers through DTC or a successor securities depository. In
that event, debt security certificates will be printed and
delivered.
We have obtained the information in this section concerning DTC
and DTCs book-entry system from sources that we believe to
be reliable, but we take no responsibility for the accuracy of
this information.
None of us, any underwriter or agent, the trustee or any
applicable paying agent will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial interests in a global security, or
for maintaining, supervising or reviewing any records relating
to such beneficial interest.
15
SELLING
STOCKHOLDERS
We are registering for resale pursuant to this prospectus
1,961,459 shares of our common stock held by the selling
stockholder identified below.
The table below presents information regarding the beneficial
ownership of outstanding shares of common stock by the selling
stockholder and the shares that it may sell or otherwise dispose
of from time to time under this prospectus. Information
concerning the selling stockholder may change from time to time,
and any changed information will be presented in a prospectus
supplement if and when necessary and required. The shares set
forth below may also be sold by certain transferees or
successors-in-interest
of the selling stockholder.
The number of shares of common stock in the column Number
of Shares Offered Hereby represents all of the shares of
common stock that the selling stockholder may offer under this
prospectus. In addition, the table assumes that the selling
stockholder will sell all of such shares. However, because the
selling stockholder may offer from time to time all or some of
its shares under this prospectus, or in another permitted
manner, we cannot assure you as to the actual number of shares
that will be sold or otherwise disposed of by the selling
stockholder or that will be held by the selling stockholder
after completion of such sales.
We have determined beneficial ownership in accordance with the
rules of the SEC. In computing the number of shares beneficially
owned by the selling stockholder and the percentage ownership of
the selling stockholder, shares of common stock subject to
options held by the selling stockholder that are currently
exercisable or exercisable within 60 days of the date
hereof are deemed outstanding. Except as otherwise indicated or
pursuant to applicable community property laws, the selling
stockholder has sole voting and investment power with respect to
the shares set forth below. The percentage of beneficial
ownership is based on 17,929,837 shares of common stock
outstanding on May 5, 2009. The address for the selling
stockholder is
c/o First
Mercury Financial Corporation, 29110 Inkster Road,
Suite 100, Southfield, Michigan 48034.
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Shares Beneficially
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Owned After
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Number of
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Sale of Shares
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Shares Beneficially Owned
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Shares Offered
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Offered Hereby
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Name of Stockholder
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Number(1)
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Percent
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Hereby
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Number
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Percent
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Jerome M. Shaw
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1,961,459
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10.9
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%
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1,961,459
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(1) |
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Includes 1,957,837 shares held by the Jerome M. Shaw
Revocable Trust, which is controlled by Mr. Shaw.
Mr. Shaw, our founder and former Chief Executive Officer,
is currently a director of the Company. |
PLAN OF
DISTRIBUTION
We may sell securities to or through underwriters, through
agents, or directly to one or more purchasers. We will name the
underwriter or agent involved in the offer or sale of securities
in the applicable prospectus supplement. We are also registering
the shares of common stock covered by this prospectus for the
selling stockholder. The selling stockholder may from time to
time, directly or through one or more underwriters,
broker-dealers or agents, sell, transfer or otherwise dispose of
any or all of its shares of common stock on the New York Stock
Exchange or any other stock exchange, market or trading facility
on which the shares are traded, or in private transactions.
These dispositions may be at fixed prices that may be changed,
at market prices prevailing at the time of sale, at prices
related to prevailing market prices, at varying prices
determined at the time of sale or at prices otherwise
negotiated. The selling stockholder will act independently of
First Mercury in making decisions with respect to the timing,
manner and size of each sale by the selling stockholder.
We or the selling stockholder may negotiate and pay
underwriters or broker-dealers commissions,
discounts or concessions for their services as applicable.
Underwriters or broker-dealers engaged by us or the selling
stockholder may allow other underwriters or broker-dealers to
participate in resales.
16
The securities may be sold by us and the common stock may be
sold by the selling stockholder in one or more of the following
types of transactions:
(a) A sale to one or more underwriters for resale to the
public or to institutional investors in one or more transactions;
(i) If we enter into a material arrangement with an
underwriter or the selling stockholder notifies us of any
material arrangement that it has entered into with an
underwriter(s), we will execute an underwriting agreement with
such underwriter(s) and file a supplemental prospectus, if
required, pursuant to Rule 424(b) under the Securities Act
of 1933. In that supplemental prospectus, we will disclose the
name of each such underwriter, the type of securities to be
sold, the amount of securities to be sold, the price at which
such securities were sold, the commissions paid or discounts or
concessions allowed to such underwriter(s), where applicable,
and any other facts material to the transaction.
(ii) The selling stockholder and any underwriters involved
in the sale or resale of the common stock may qualify as
underwriters within the meaning of
Section 2(a)(11) of the Securities Act. In addition, the
underwriters commissions, discounts or concessions may
qualify as underwriters compensation under the Securities
Act. If the selling stockholder qualifies as an
underwriter, it will be subject to the prospectus
delivery requirements of Section 5(b)(2) of the Securities
Act.
(b) A block trade in which we or the selling stockholder
will engage a broker-dealer as agent, who will then attempt to
sell the securities or common stock, as applicable, or position
and resell a portion of the block, as principal, in order to
facilitate the transaction;
(c) Derivative transactions with third parties;
(i) If the applicable prospectus supplement indicates, in
connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable
prospectus supplement, including in short sale transactions. If
so, the third party may use securities pledged by us or the
selling stockholder or borrowed from us, the selling stockholder
or others to settle those sales or to close out any related open
borrowings of securities, and may use securities received from
us or selling stockholder in settlement of those derivatives to
close out any related open borrowings of securities. The third
party in such sale transactions will be an underwriter and, if
not identified in this prospectus, will be identified in the
applicable prospectus supplement (or a post-effective amendment).
(d) Other hedging transactions, whereby we or the selling
stockholder may:
(i) enter into transactions with a broker-dealer or
affiliate thereof in connection with which such broker-dealer or
affiliate will engage in short sales of the securities pursuant
to this prospectus, in which case such broker-dealer of
affiliate may use securities received from us or selling
stockholder to close out its short positions;
(ii) sell securities short itself and redeliver such
securities to close out its short positions;
(iii) enter into option or other types of transactions that
require us or the selling stockholder, as applicable, to deliver
securities to a broker-dealer or an affiliate thereof, who will
then resell or transfer the securities under this
prospectus; or
(iv) loan or pledge the securities to a broker-dealer or an
affiliate thereof, who may sell the loaned securities or, in an
event of default in the case of a pledge, sell the pledged
securities pursuant to this prospectus; or
(e) Sales to third parties who may deliver the securities
upon exchange of exchangeable securities issued by such third
parties or their affiliates, which in either case may deliver
this prospectus in connection with the sale of those
exchangeable securities. Such transactions may be combined with
other transactions of the types described above. In particular,
such third parties or their affiliates may engage in sales of
securities (including short sales) to hedge their position prior
to the exchange of their exchangeable securities, may deliver
this prospectus in connection with some or all of those sales
and may deliver securities covered by this prospectus to close
out any short positions created in connection with those sales.
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In addition to selling its common stock under this prospectus,
the selling stockholder may:
(a) transfer its common stock in other ways not involving a
market maker or established trading markets, including directly
by gift, distribution, or other transfer;
(b) sell its common stock under Rule 144 of the
Securities Act rather than under this prospectus, if the
transaction meets the requirements of Rule 144; or
(c) sell its common stock by any other legally available
means.
For any particular offering pursuant to this shelf registration
statement:
(a) an underwriter may allow, and dealers may reallow,
concessions on sales to certain other dealers; and
(b) we and the selling stockholder may agree to indemnify
an underwriter against certain liabilities, including
liabilities under the Securities Act, or to contribute to
payments an underwriter may be required to make in connection
with these liabilities.
In connection with any particular offering pursuant to this
shelf registration statement, an underwriter may engage in
stabilizing transactions, short sales, syndicate covering
transactions and penalty bids.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum price.
Short selling involves sales by an underwriter of securities in
excess of the number of securities an underwriter is obligated
to purchase. The short position may be either a covered short
position or a naked short position. In a covered short position,
the number of securities sold by an underwriter is not greater
than the number of securities that it may purchase in its option
to purchase additional securities. In a naked short position,
the number of securities involved is greater than the number of
securities in its option to purchase additional securities. An
underwriter may close out any short position by either
exercising its option to purchase additional securities
and/or
purchasing securities in the open market.
Syndicate covering transactions involve purchases of securities
in the open market after the distribution has been completed in
order to cover syndicate short positions. In determining the
source of securities to close out the short position, an
underwriter will consider, among other things, the price of
securities available for purchase in the open market as compared
to the price at which they may purchase securities through its
option to purchase additional securities. If an underwriter
sells more securities than could be covered by its option to
purchase additional securities, a naked short position, the
position can only be closed out by buying securities in the open
market. A naked short position is more likely to be created if
an underwriter is concerned that there could be downward
pressure on the price of the securities in the open market after
pricing that could adversely affect investors who purchase in
the offering.
Penalty bids permit representatives to reclaim a selling
concession from a syndicate member when the securities
originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
These stabilizing transactions, syndicate covering transactions
and penalty bids may have the effect of raising or maintaining
the market price of our securities or preventing or retarding a
decline in the market price of the securities. As a result, the
price of our securities may be higher than the price that might
otherwise exist in the open market. These transactions may be
effected on the New York Stock Exchange, if the securities are
listed on that exchange, or otherwise and, if commenced, may be
discontinued at any time.
A prospectus in electronic format may be made available on the
websites maintained by an underwriter, or selling group member,
if any, participating in any particular offering and an
underwriter participating in any particular offering may
distribute prospectuses electronically. Any representatives may
agree to allocate a number of securities to an underwriter and
selling group members for sale to their online brokerage account
holders. Internet distributions will be allocated by an
underwriter and selling group members that will make internet
distributions on the same bases as other allocations.
18
Any selling stockholder who is a broker dealer will
be deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act, unless such selling
stockholder purchased its shares in the ordinary course of
business, and at the time of its purchase of the shares to be
resold, did not have any view to or arrangements or
understandings, directly or indirectly, with any person to
distribute the shares.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplements, certain legal matters in connection with the
securities will be passed upon for us by McDermott
Will & Emery LLP, Chicago, Illinois.
EXPERTS
The consolidated financial statements of First Mercury Financial
Corporation appearing in First Mercury Financial
Corporations Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 which are
incorporated by reference in this prospectus have been audited
by BDO Seidman, LLP, an independent registered public accounting
firm, as stated in its report which is incorporated by reference
in this prospectus, and are incorporated by reference in this
prospectus in reliance upon such report given on the authority
of such firm as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-3,
including exhibits and schedules, under the Securities Act with
respect to the securities to be sold in this offering. This
prospectus, which constitutes a part of the registration
statement, does not contain all of the information set forth in
the registration statement or the exhibits and schedules that
are part of the registration statement. For further information
about us and the securities to be sold in this offering, you
should refer to the registration statement.
We file annual, quarterly, and current reports, proxy statements
and other information with the SEC in accordance with the
Securities Exchange Act of 1934. You may read, without charge,
and copy, at prescribed rates, all or any portion of the
registration statement or any reports, statements or other
information in the files at the Public Reference Room at the
SECs principal office at 100 F Street, N.E.,
Washington, D.C. 20549. You can request copies of these
documents upon payment of a duplicating fee by writing to the
SEC. You may call the SEC at
1-800-SEC-0330
for further information on the operation of its public reference
room. Our filings, including the registration statement, are
also available to you on the internet website maintained by the
SEC at
http://www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating by reference in this prospectus the
documents we file with the SEC. This means that we are
disclosing important information to you by referring you to
those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede the
information contained in this prospectus. We are incorporating
by reference the following documents:
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our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 filed with the
SEC on March 11, 2009;
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our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2009, filed with the SEC on
May 7, 2009;
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our Proxy Statement relating to our annual meeting held on
May 13, 2009, filed on April 13, 2009 (other than any
portions of such Proxy Statement that are furnished rather than
filed under the Exchange Act);
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our Current Report on
Form 8-K,
filed with the SEC on April 29, 2009; and
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the description of our common stock set forth in our
Registration Statement on
Form 8-A,
including all amendments and reports filed for the purpose of
updating such description.
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We do not incorporate portions of any document that is either
(a) described in paragraphs (d)(1) through (3) and
(e)(5) of Item 407 of
Regulation S-K
promulgated by the SEC or (b) furnished under
Item 2.02 or Item 7.01 of any Current Report on
Form 8-K.
We hereby incorporate by reference all future filings by us made
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of
this prospectus.
We will provide without charge upon written or oral request, a
copy of any or all of the documents which are incorporated by
reference to this prospectus, other than exhibits which are
specifically incorporated by reference into those documents.
Requests should be directed to Corporate Secretary, First
Mercury Financial Corporation, 29110 Inkster Road,
Suite 100, Southfield, Michigan 48034, telephone:
(800) 762-6837.
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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Our estimated expenses in connection with the distribution of
the securities being registered are as set forth in the
following table:
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SEC Registration Fee
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$
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8,315
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*
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Printing and Engraving Expenses
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30,000
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*
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Legal Fees and Expenses
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50,000
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*
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Accounting Fees and Expenses
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50,000
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*
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Miscellaneous
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50,000
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*
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Total
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$
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188,315
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*
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The selling stockholder will not bear any of the expenses set
forth above.
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Item 15.
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Indemnification
of Directors and Officers
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Section 145 of the Delaware General Corporation Law, or the
DGCL, provides, among other things, that a corporation may
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is
or was serving at the corporations request as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses,
including attorneys fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by the
person in connection with the action, suit or proceeding. The
power to indemnify applies (i) if such person is successful
on the merits or otherwise in defense of any action, suit or
proceeding or (ii) if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The power to indemnify applies
to actions brought by or in the right of the corporation as
well, but only to the extent of defense expenses, (including
attorneys fees but excluding amounts paid in settlement)
actually and reasonably incurred and not to any satisfaction of
judgment or settlement of the claim itself, and with the further
limitation that in such actions no indemnification shall be made
in the event of any adjudication of negligence or misconduct in
the performance of his duties to the corporation, unless a court
believes that in light of all the circumstances indemnification
should apply.
Our amended and restated certificate of incorporation provides
that we shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal,
administrative or investigative, any or all of which may be
referred to as a proceeding, by reason of the fact that he or
she, or a person for whom he or she is the legal representative,
is or was at any time a director or officer of the corporation
or, while a director or officer of the corporation, is or was at
any time serving at the written request of the corporation as a
director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses
(including attorneys fees) reasonably incurred by such
person; provided, however, that we shall be required to
indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the commencement of
such proceeding (or part thereof) was authorized by our board of
directors.
Section 102 of the DGCL permits the limitation of
directors personal liability to the corporation or its
stockholders for monetary damages for breach of fiduciary duties
as a director except for (i) any breach of the
directors duty of loyalty to the corporation or its
stockholders, (ii) acts or omissions not in good faith or
which
II-1
involve intentional misconduct or a knowing violation of the
law, (iii) breaches under Section 174 of the DGCL,
which relates to unlawful payments of dividends or unlawful
stock repurchase or redemptions, and (iv) any transaction
from which the director derived an improper personal benefit.
Our amended and restated certificate of incorporation limits the
personal liability of our directors to the fullest extent
permitted by Section 102 of the DGCL.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling the registrant pursuant to the foregoing
provisions, the registrant has been informed 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.
We maintain directors and officers liability
insurance for our officers and directors.
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Exhibit
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Number
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Description
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1.1*
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Form of Underwriting Agreement for Debt Securities and Debt
Warrants.
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1.2*
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Form of Underwriting Agreement for Equity Securities.
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1.3*
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Form of Underwriting Agreement for Depositary Shares, Stock
Purchase Contracts or Stock Purchase Units.
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3.1
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Amended and Restated Certificate of Incorporation (filed as an
exhibit to the Companys
Form 10-Q
for the quarterly period ended September 30, 2006
(Commission File
No. 001-33077)
and incorporated herein by reference).
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3.2
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Amended and Restated Bylaws (filed as an exhibit to Amendment
No. 2 to the Companys
Form S-1
filed on October 17, 2006 (Registration
No. 333-134573)
and incorporated herein by reference).
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4.1
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Form of Stock Certificate (filed as an exhibit to Amendment
No. 2 to the Companys
Form S-1
filed on October 17, 2006 (Registration
No. 333-134573)
and incorporated herein by reference).
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4.2*
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Form of Indenture for Senior Debt Securities.
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4.3*
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Form of Indenture for Subordinated Debt Securities.
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4.4*
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Form of Debt Security.
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4.5*
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Form of Deposit Agreement.
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4.6*
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Form of Depositary Receipt.
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4.7*
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Form of Stock Warrant Agreement.
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4.8*
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Form of Debt Warrant Agreement.
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5*
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Opinion of McDermott Will & Emery LLP.
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12.1
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Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
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23.1
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Consent of BDO Seidman, LLP.
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23.2
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Consent of McDermott Will & Emery LLP (included in the
opinion filed as Exhibit 5).
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24
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Powers of Attorney (included on the signature page hereto).
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25*
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Statement of Eligibility of the Trustee on
Form T-1
with respect to the Indentures for Senior Debt Securities and
Subordinated Debt Securities.
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* |
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To be filed by amendment or as an exhibit to a Current Report on
Form 8-K. |
II-2
(a) 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, as amended, or the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table
in the effective registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the registration statement, or is
contained is a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for purposes 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 the purpose of determining liability under
the Securities Act to any purchaser,
(i) each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i)(x) for the purpose of
providing the information required by section 10(a) of the
Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
II-3
(5) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser,
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and;
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act 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 SEC 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.
(d) (1) For purposes of determining any liability
under the Securities Act, the information omitted from the form
of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act will be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus will be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the
Trust Indenture Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Southfield, State of Michigan, on May 14, 2009.
FIRST MERCURY FINANCIAL CORPORATION
Name: Richard H. Smith
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Title:
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Chairman, President and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints, Richard H.
Smith and John A. Marazza, and each of them, his or her true and
lawful attorneys-in-fact and agents, for him or her and in his
or her name, place and stead in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this registration statement, and to sign any registration
statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act, and all
post-effective amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any
other regulatory authority, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities indicated on May 14,
2009.
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Signature
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Title
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/s/ Richard
H. Smith
Richard
H. Smith
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Chairman, President, Chief Executive Officer and Director
(Principal Executive Officer of the Registrant)
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/s/ John
A. Marazza
John
A. Marazza
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Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer of the Registrant)
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/s/ Thomas
Kearney
Thomas
Kearney
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Director
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/s/ Louis
J. Manetti
Louis
J. Manetti
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Director
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/s/ Hollis
W. Rademacher
Hollis
W. Rademacher
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Director
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/s/ Steven
A. Shapiro
Steven
A. Shapiro
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Director
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/s/ Jerome
M. Shaw
Jerome
M. Shaw
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Director
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/s/ William
C. Tyler
William
C. Tyler
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Director
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II-5