sc13d
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.[ ])*
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
(CUSIP Number)
Deborah Alexander, Esq.
Executive Vice President,
General Counsel and Secretary
The Bank of Nova Scotia
Scotia Plaza, 44 King Street West
Toronto, Canada M5H 1H1
Phone: +1 (416) 866-6967
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications)
(Date of Event Which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this schedule because of § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box. o
Note: Schedules filed in
paper format shall include a signed original and five copies of the
schedule, including all exhibits. See
§ 240.13d-7(b) for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
SCHEDULE
13D
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CUSIP No. |
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318672102 |
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10 Pages |
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NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
The Bank of Nova Scotia
66-0175274 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) o |
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SEC USE ONLY |
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SOURCE OF FUNDS (See Instructions) |
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WC |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Canada
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SOLE VOTING POWER |
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| NUMBER OF |
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9,250,450 |
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| SHARES |
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SHARED VOTING POWER |
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| OWNED BY |
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0 |
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| EACH |
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SOLE DISPOSITIVE POWER |
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| PERSON |
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9,250,450 |
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| WITH |
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SHARED DISPOSITIVE POWER |
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0 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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9,250,450 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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10.0% |
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TYPE OF REPORTING PERSON (See Instructions) |
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BK |
Page 3 of 10 Pages
Item 1. Security and Issuer.
This Statement on Schedule 13D (this “Statement”) relates to the common stock, par value $1.00
per share (“Common Stock”), of First BanCorp, a Puerto Rico-chartered financial holding company
(the “Issuer”). The Issuer’s principal executive offices are located at 1519 Ponce de León Ave.,
San Juan, Puerto Rico 00908.
Item 2. Identity and Background.
This Statement is being filed by The Bank of Nova Scotia (“BNS”).
(a) BNS is a chartered bank under the Bank Act (Canada).
(b) The address of the principal office of BNS is Scotia Plaza, 44 King Street West, Toronto,
Canada M5H 1H1.
(c) The principal business activities of BNS are retail, commercial, corporate, investment,
wholesale and other banking and financial services.
(d) During the past five years, BNS has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the last five years, The Bank of Nova Scotia has not been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Set forth on Schedule A to this Statement, and incorporated herein by reference, is the (a)
name, (b) business address, (c) present principal occupation or employment, (d) citizenship, of
each executive officer and director of BNS, and (e) the name of any corporation or other
organization in which such occupation or employment is conducted.
During the last five years, to the best of BNS’ knowledge, none of BNS’ directors or executive
officers, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Considerations.
BNS acquired 9,250,450 shares of Common Stock (the “Shares”) as described in Item 4 below with
available cash on hand. The total amount of funds required by BNS to acquire the Shares was
$94,817,112.50 in the aggregate.
Page 4 of 10 Pages
Item 4. Purpose of Transaction.
On February 15, 2007, BNS and the Issuer entered into an investment agreement (the
“Investment Agreement”), pursuant to which the Issuer agreed to issue and sell to BNS that
number of shares of Common Stock such that immediately after giving effect to the issuance BNS
would own 10% of the outstanding Common Stock. The description of the Investment Agreement set
forth herein is qualified in its entirety by reference to the copy which is included as Exhibit 1
to this Statement and is incorporated herein by reference.
The issuance and sale of the Shares pursuant to the Investment Agreement was consummated on
August 24, 2007 (the “Closing”). Concurrent with the Closing, BNS and the Issuer entered
into a stockholder agreement (the “Stockholder Agreement”), which sets forth certain rights
and obligations of BNS as a significant stockholder of the Issuer. The description of the
Stockholder Agreement set forth herein is qualified in its entirety by reference to the copy which
is included as Exhibit 2 to this Statement and is incorporated herein by reference.
Observer to the Board
Pursuant to the Stockholder Agreement, so long as BNS and its affiliates beneficially own at
least 5% of the issued and outstanding Common Stock, BNS will be entitled to designated one
individual to serve as an observer to the Board (the “Observer”). The Observer will be
entitled to (i) attend all meetings of the board of directors of the Issuer, (ii) receive notices
of such meetings concurrently with the members of the board of directors and (iii) receive all
information provided to such members, except for certain information relating to specified matters
that could be of competitive benefit to BNS’s Puerto Rican banking operations.
Registration Rights
Under the Stockholder Agreement, the Issuer is required, upon proper demand, to register under
the U.S. Securities Act of 1933, as amended (the “Securities Act”), shares of Common Stock owned by
BNS. The Stockholder Agreement also provides for certain “piggyback” registration rights for the
benefit of BNS in connection with any public offering of Common Stock registered under the
Securities Act.
Right of First Look
Pursuant to the Stockholder Agreement, for a period of 18 months after the Closing (the
“Look Period”), if the Issuer determines to commence any process that may lead to certain
transactions, including (i) a merger, consolidation, liquidation or dissolution of the Issuer; (ii)
the sale of 10% or more of the assets or revenue of the Issuer; or (iii) any tender offer or
exchange offer for Common Stock or securities convertible into Common Stock (each, an
“Acquisition Transaction”), the Issuer must first notify BNS and negotiate in good faith
with BNS on an exclusive basis for a period of not less than 30 days. In addition, during the Look
Period, if BNS offers to effect an Acquisition Transaction, the Issuer must negotiate in good faith
exclusively with BNS for a period of not less than 30 days.
Page 5 of 10 Pages
Right of Last Look
Pursuant to the Stockholder Agreement, during the Look Period, if the Issuer decides to pursue
an offer from a third party to effect an Acquisition Transaction, the Issuer must first notify BNS
as promptly as practicable. BNS will then have five business days to respond with a counteroffer,
after which time the Issuer may only enter into a definitive agreement with such third party if (i)
it has not received a counteroffer from BNS or (ii) the initial third party offer is determined, in
the good faith judgment of the board of directors of the Issuer, to be more favorable from a
financial point of view to the stockholders of the Issuer and reasonably capable of being
completed.
BNS Right of First Offer
Pursuant to the Stockholder Agreement, as long as BNS and its affiliates beneficially own at
least 5% of the issued and outstanding Common Stock, if the Issuer or any subsidiary proposes to
issue shares of Common Stock or any security convertible into or exchangeable or exercisable for
Common Stock (“New Securities”) to any third party (subject to certain limited exceptions),
the Issuer must first exclusively offer to issue such New Securities to BNS, such offer to remain
open and irrevocable for 15 days after receipt of such offer by BNS. The Issuer may only issue
such New Securities to such third party after the expiration of such notice period and failure of
BNS to consummate the purchase of such New Securities.
Gross-Up
Pursuant to the Stockholder Agreement, as long as BNS and its affiliates beneficially own at
least 5% of the issued and outstanding Common Stock, in the event that the Issuer issues or
proposes to issue New Securities to a third party, BNS will have the right to purchase from the
Issuer a number of New Securities so that BNS would beneficially own the same percentage of the
issued and outstanding Common Stock as it beneficially owned prior to such issuance. Such right of
BNS to purchase New Securities will be exercisable by BNS for 30 days after receipt of notice from
the Issuer.
Issuer Right of First Offer
Pursuant to the Stockholder Agreement, if at any time BNS or any of its affiliates desires to
sell a number of Shares representing the greater of (i) 5% or more of the issued and outstanding
Common Stock or (ii) 75% or more of the remaining Shares owned by BNS and its affiliates to any
single third party, BNS must first exclusively offer to sell such Shares to the Issuer, such offer
to remain open and irrevocable for 15 days after receipt of such offer by the Issuer. BNS may only
sell such Shares to such third party after the expiration of such notice period and failure of the
Issuer consummate the purchase of such Shares. The Issuer’s right of first offer will terminate if
BNS and its affiliates become beneficial owners of 25% or more of the issued and outstanding Common
Stock.
BNS intends to review its investment on a regular basis and, as a result thereof, may at any
time or from time to time determine, either alone or as part of a group, (a) to acquire additional
securities of the Issuer, through open market purchases, privately negotiated transactions or
otherwise, (b) to dispose of all or a portion of the securities of the Issuer owned
Page 6 of 10 Pages
by it in the open market, in privately negotiated transactions or otherwise, or (c) to take
any other available course of action, which could involve one or more of the types of transactions
or have one or more of the results described in the next paragraph of this Item 4. Any such
acquisition or disposition or other transaction would be made in compliance with all applicable
laws and regulations. Notwithstanding anything contained herein, BNS specifically reserves the
right to change its intention with respect to any or all of such matters. In reaching any decision
as to its course of action (as well as to the specific elements thereof), BNS currently expects
that it would take into consideration a variety of factors, including, but not limited to, the
following: the Issuer’s business and prospects; other developments concerning the Issuer and its
businesses generally; other business opportunities available to BNS; changes in law and government
regulations; general economic conditions; and money and stock market conditions, including the
market price of the securities of the Issuer.
As of the date of this Statement, except as set forth in this Statement, BNS have no present
plans or proposals which relate to or would result in:
(a) The acquisition by any person of additional securities of the Issuer, or the disposition of
securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or of any of its subsidiaries;
(d) Any change in the present board of directors or management of the Issuer, including any plans
or proposals to change the number or term of directors or to fill any existing vacancies on the
board;
(e) Any material change in the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the Issuer’s business or corporate structure;
(g) Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions
which may impede the acquisition of control of the Issuer by any person;
(h) A class of securities of the Issuer being delisted from a national securities exchange or
ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the Issuer becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Page 7 of 10 Pages
Item 5. Interest in Securities of the Issuer.
(a) The responses of BNS to Rows (11) through (13) of the cover pages of this Statement are
incorporated herein by reference.
Except as disclosed in this Item 5(a), neither BNS nor, to the best of BNS’ knowledge, any of
the persons listed on Schedule A to this Statement beneficially owns any shares of Common Stock or
has the right to acquire any shares of Common Stock.
(b) The responses of BNS to (i) Rows (7) through (10) of the cover pages of this Statement and (ii)
Item 5(a) hereof are incorporated herein by reference.
Except as disclosed in this Item 5(b), neither BNS nor, to the best of BNS’ knowledge, any of
the persons listed on Schedule A to this Statement presently has the power to vote or to direct the
vote or to dispose or direct the disposition of any shares of Common Stock which they may be deemed
to beneficially own.
(c) Except as disclosed in this Statement, neither BNS nor, to the best of BNS’ knowledge, any of
the persons listed on Schedule A to this Statement has effected any transaction in shares of Common
Stock during the past 60 days.
(d) To the best of BNS’ knowledge, no other person has the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, the Shares.
(e) Not applicable.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer. |
Except as described above or elsewhere in this Statement or incorporated by reference in this
Statement, there are no contracts, arrangements, understandings or relationships (legal or
otherwise) between BNS or, to the best of BNS’ knowledge, any of the persons named in Schedule A to
this Statement or between BNS and any other person or, to the best of BNS’ knowledge, any person
named in Schedule A to this Statement and any other person with respect to any securities of the
Issuer, including, but not limited to, transfer or voting of any securities, finder’s fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or
losses, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
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| Exhibit No. |
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Description |
1
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Investment Agreement, dated as of February 15, 2007, between
The Bank of Nova Scotia and First Bancorp. |
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2
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Stockholder Agreement, dated as of August 24, 2007, between
The Bank of Nova Scotia and First Bancorp. |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated: September 4, 2007
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THE BANK OF NOVA SCOTIA |
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By:
Name:
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/s/ Deborah Alexander
Deborah Alexander
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Title:
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Executive Vice President, |
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General Counsel and Secretary |
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SCHEDULE A
The following table sets forth certain information as to the Directors and Executive Officers of BNS.
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Present Principle Occupation |
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Citizenship |
Directors* |
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Ronald A. Brenneman
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President and Chief Executive Officer of Petro-Canada
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Canada |
C.J. Chen
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Counsel to Rajah & Tann
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Singapore |
N. Ashleigh Everett
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President, Corporate Secretary and director of Royal
Canadian Securities Limited
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Canada |
John C. Kerr
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Chairman of Lignum Investments Ltd.
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Canada |
Michael J.L. Kirby
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Corporate Director and retired Member of the Senate
of Canada
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Canada |
Laurent Lemaire
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Executive Vice-Chairman of the Board of Cascades Inc.
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Canada |
John T. Mayberry
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Retired Chair of the Board and Chief Executive
Officer of Dofasco Inc.
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Canada |
Barbara J. McDougall
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Advisor to Aird & Berlis LLP
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Canada |
Elizabeth Parr-Johnston
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President of Parr Johnston Economic and Policy
Consultants
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Canada |
Alexis E. Rovzar de la Torre
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Executive Partner in charge of the Latin American
practice of White & Case LLP
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Mexico |
Arthur R.A. Scace
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Corporate Director
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Canada |
Gerald W. Schwartz
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Chairman and Chief Executive Officer of Onex
Corporation
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Canada |
Allan C. Shaw
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Non-Executive Chairman of The Shaw Group Holding
Limited
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Canada |
Paul D. Sobey
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President and Chief Executive Officer of Empire
Company Limited
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Canada |
Barbara S. Thomas
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Corporate Director
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United States |
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Executive Officers** |
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Richard Waugh
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President, Chief Executive Officer, Director
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Canada |
Sarabjit S. Marwah
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Vice-Chair, Chief Administrative Officer
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Canada |
Robert L. Brooks
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Vice-Chair, Group Treasurer
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Canada, Ireland |
Deborah M. Alexander
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EVP, General Counsel & Secretary
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Canada |
Peter C. Cardinal
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EVP, Latin America
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Canada |
Alberta G. Cefis
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EVP & Group Head, Global Transaction Banking
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Canada |
Robert H. Pitfield
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EVP, International Banking
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Canada |
Sylvia D. Chrominska
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EVP, HR & Public, Corporate & Government Affairs
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Canada |
Brian J. Porter
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EVP & Chief Risk Officer
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Canada |
Kim McKenzie
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EVP, Information Technology & Solutions
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Canada |
Dieter W. Jentsch
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EVP, Domestic Commercial Banking
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Canada |
Wendy Hannam
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EVP, Domestic Personal Banking & Distribution
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Canada |
Timothy P. Hayward
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EVP & Chief Administrative
Officer, International Banking
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Canada |
Barbara Mason
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EVP, Wealth Management
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Canada |
Christopher J. Hodgson
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EVP, Head of Domestic Personal Banking
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Canada |
Luc Vanneste
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EVP & Chief Financial Officer
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Canada |
Robin S. Hibberd
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EVP, Domestic Personal Lending & Insurance
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Canada |
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The business address for each of the Directors of BNS is: c/o Corporate Secretary’s Department, Scotia Plaza, 44 King St. West, Toronto, Ontario,
Canada M5H 1H1 |
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The business address for each of the Executive Officers of BNS is: Scotia Plaza, 44 King St. West, Toronto, Ontario, Canada M5H 1H1. |
EXHIBIT INDEX
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| Exhibit No. |
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Description |
Exhibit 1
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Investment Agreement, dated as of February 15, 2007, between
The Bank of Nova Scotia and First Bancorp. |
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Exhibit 2
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Stockholder Agreement, dated as of August 24, 2007, between
The Bank of Nova Scotia and First Bancorp. |