INDIANA 35-1286807
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED SHARE PRICE REGISTRATION FEE
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Common Shares, without par
value*(1) 200,000 Shares $19.71(2) $3,942,000.00(2) $986.00
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(1) In addition, pursuant to Rule 416(c), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Irwin Financial Corporation Employees' Savings Plan described herein.
(2) The registration fee has been calculated pursuant to Rule 457(c) and (h) under the Securities Act of 1933 based upon the average of the high and low prices for the Common Stock as reported by the Nasdaq National Market on September 5, 2001.
The documents containing the information required by this section will be given to those persons who participate in the Irwin Financial Corporation Employees' Savings Plan, all of whom are employees of Irwin Financial Corporation and its subsidiaries. Such documents are not required to be filed with the Commission as a part of the Registration Statement or as an Exhibit.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission ("SEC") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference:
(a) Irwin's Annual Report on Form 10-K for the year ended December 31, 2000, File No. 0-6835.
(b) Irwin's Quarterly Reports on Form 10-Q and 10-Q/A for the periods ending March 31, 2001 and June 30, 2001, File No. 0-6835.
(c) Irwin's Current Reports on Form 8-K dated January 2, 2001, January 23, 2001 (as amended by Form 8-K/A filed on January 24, 2001), March 1, 2001, April 19, 2001, April 26, 2001, May 2, 2001, May 24, 2001, June 22, 2001, July 27, 2001 and August 30, 2001 (as amended by Form 8-K/A filed on August 31, 2001), File No. 0-6835.
(d) The descriptions of (a) our Common Shares contained in our Registration Statement on Form 10 filed with the SEC on or about March 31, 1973, and (b) the associated preferred share purchase rights contained in our Registration Statement on Form 8-A filed March 2, 2001, File No. 0-6835.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment indicating that all of the securities offered hereby have been sold or deregistering all such securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Indiana Business Corporation Law ("IBCL"), the provisions of which govern the Registrant, empowers an Indiana corporation to indemnify present and former directors, officers, employees, or agents or any person who may have served at the request of the corporation as a director, officer, employee, or agent of another corporation ("Eligible Persons") against liability incurred in any proceeding, civil or criminal, in which the Eligible Person is made a party by reason of being or having been in any such capacity, or arising out of his or her status as such, if the individual acted in good faith and reasonably believed that (a) the individual was acting in the best interests of the corporation, or (b) if the challenged action was taken other than in the individual's official capacity as an officer, director, employee or agent, the individual's conduct was at least not opposed to the corporation's best interests, or (c) if in a criminal proceeding, either the individual had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.
The IBCL further empowers a corporation to pay or reimburse the reasonable expenses incurred by an Eligible Person in connection with the defense of any such claim, including counsel fees; and, unless limited by its Articles of Incorporation, the corporation is required to indemnify an Eligible Person against reasonable expenses if he or she is wholly successful in any such proceeding, on the merits or otherwise. Under certain circumstances, a corporation may pay or reimburse an Eligible Person for reasonable expenses prior to final disposition of the matter. Unless a corporation's articles of incorporation otherwise provide, an Eligible Person may apply for indemnification to a court which may order indemnification upon a determination that the Eligible Person is entitled to mandatory indemnification for reasonable expenses or that the Eligible Person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances without regard to whether his or her actions satisfied the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or reasonable expenses under the IBCL, a quorum consisting of directors who are not parties to the proceeding must (1) determine that indemnification is permissible in the specific circumstances because the Eligible Person met the requisite standard of conduct, (2) authorize the corporation to indemnify the Eligible Person and (3) if appropriate, evaluate the reasonableness of expenses for which indemnification is sought. If it is not possible to obtain a quorum of uninvolved directors, the foregoing action may be taken by a committee of two or more directors who are not parties to the proceeding, special legal counsel selected by the Board or such a committee, or by the shareholders of the corporation.
In addition to the foregoing, the IBCL states that the indemnification it provides shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any provision of the articles of incorporation or bylaws, resolution of the board of directors or shareholders, or any other authorization adopted after notice by a majority vote of all the voting shares then issued and outstanding. The IBCL also empowers an Indiana corporation to purchase and maintain insurance on behalf of any Eligible Person against any liability asserted against or incurred by him or her in any capacity as such, or arising out of his or her status as such, whether or not the corporation would have had the power to indemnify him or her against such liability.
The registrant's Amended Articles of Incorporation provide for indemnification as a matter of right to any director, officer or employee of the registrant who has been successful on the merits of a claim against him or her, and for indemnification under certain other circumstances where allowed, by the action of disinterested members of the Board of Directors.
The registrant has purchased $10 million in directors' and officers' liability insurance, the effect of which is to indemnify the directors and officers of the registrant and its subsidiaries against certain losses caused by errors, misstatement or misleading statements, wrongful acts, omissions, neglect or breach of duty by them or similar matters claimed against them in their capacities as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index which is incorporated herein by reference.
The Registrant has received a favorable IRS Determination letter dated April 12, 1988 for the Plan from the Internal Revenue Service ("IRS") and has amended the Plan subsequent thereto. The Registrant hereby undertakes to submit any future amendments to the IRS in a timely manner and has made or will make any changes required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
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;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs 1(i) and 1(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing of Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Columbus, State of Indiana, on August 30, 2001.
By: /s/William I. Miller
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William I. Miller,
Chairman of the Board
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Know all men by these presents, that each person whose signature appears below constitutes and appoints William I. Miller, John A. Nash and Matthew F. Souza, and each or any of them (with full power to act alone), his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto those 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 rectifying and confirming all that those attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on the dates and in the capacities indicated:
SIGNATURE TITLE DATE
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/s/Sally A. Dean
--------------------------- Director August 30, 2001
Sally A. Dean
/s/David W. Goodrich
--------------------------- Director August 30, 2001
David W. Goodrich
/s/John T. Hackett
--------------------------- Director August 30, 2001
John T. Hackett
/s/William H. Kling
--------------------------- Director August 30, 2001
William H. Kling
/s/Brenda J. Lauderback
--------------------------- Director August 30, 2001
Brenda J. Lauderback
/s/John C. McGinty, Jr.
--------------------------- Director August 30, 2001
John C. McGinty, Jr.
/s/William I. Miller Director, Chairman of the Board
--------------------------- (Principal Executive Officer) August 30, 2001
William I. Miller
/s/John A. Nash Director, President and Chairman
--------------------------- of the Executive Committee August 30, 2001
John A. Nash
/s/Lance R. Odden
--------------------------- Director August 30, 2001
Lance R. Odden
/s/Theodore M. Solso
--------------------------- Director August 30, 2001
Theodore M. Solso
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SIGNATURE TITLE DATE
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/s/Gregory F. Ehlinger Senior Vice President
--------------------------- (Principal Financial Officer) August 30, 2001
Gregory F. Ehlinger
/s/Jody A. Littrell Vice President and Controller
--------------------------- (Principal Accounting Officer) August 30, 2001
Jody A. Littrell
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Pursuant to the requirements of the Securities Act of 1933, as amended, the administrator, Irwin Financial Corporation, has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Columbus, State of Indiana on the 30th day of August, 2001.
By: /s/ Theresa L. Hall
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Theresa L. Hall
Vice President Human Resources
Irwin Financial Corporation
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INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Articles of Incorporation. (Incorporated by reference
to Exhibit 3(a) to Form 10-K report for the year ended December
31, 2000, File No. 0-6835).
4.2 Articles of Amendment to Restated Articles of Incorporation
dated March 2, 2001. (Incorporated by reference to Exhibit 3(b)
to Form 10-K report for the year ended December 31, 2000, File
No. 0-6835).
4.3 Code of By-Laws as amended to date. (Incorporated by reference
to Exhibit 3 to Form 10-Q report for the period ended March 31,
2001, File No. 0-6835).
4.4 Rights Agreement between Irwin Financial Corporation and Irwin
Union Bank and Trust Company, as Rights Agent, dated as of March
1, 2001 (incorporated by reference to Exhibit 4.1 to the
Company's Form 8-A Registration Statement filed March 2, 2001,
File No. 0-6835).
4.5 Appointment of successor Rights Agent, dated as of May 11, 2001,
appointing National City Bank as successor Rights Agent.
5.1 Opinion of Vedder, Price, Kaufman & Kammholz regarding the
legality of any original issuance of Common Stock.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Pages of the
Registration Statement).
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EXHIBIT 4.5
Pursuant to resolutions adopted by the Board of Directors of Irwin Financial Corporation on April 26, 2001, Irwin Financial Corporation hereby appoints National City Bank as successor Rights Agent, effective June 1, 2001, under the Rights Agreement between Irwin Financial Corporation and Irwin Union Bank and Trust Company, as Rights Agent, dated as of March 1, 2001. Beginning on June 1, 2001, all references in the Rights Agreement to the Rights Agent shall mean National City Bank, and the address for purposes of notices pursuant to Section 26 of the Rights Agreement for National City Bank shall be:
National City Bank Corporate Trust Administration 1900 East Ninth Street Cleveland, Ohio 44114 Attn: Ms. Sherry L. Damore
National City Bank hereby accepts appointment as successor Rights Agent.
Dated as of May 11, 2001:
IRWIN FINANCIAL CORPORATION
By: /s/ William I. Miller -------------------------- Name: William I. Miller Title: Chairman |
NATIONAL CITY BANK
By: /s/ Sherry L. Damore -------------------------- Name: Sherry L. Damore Title: Vice President |
EXHIBIT 5.1
Irwin Financial Corporation
500 Washington Street
Columbus, IN 47202
Ladies and Gentlemen:
Reference is hereby made to the Registration Statement on Form S-8 (the "Registration Statement") being filed by Irwin Financial Corporation, an Indiana corporation (the "Company"), relating to the registration of 200,000 of the Company's common shares (the "Common Shares"), reserved for issuance under the Irwin Financial Corporation Employees' Savings Plan (the "Plan"). We have acted as counsel for the Company in connection with the Registration Statement.
In connection with our opinion, we have examined originals, or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Restated Articles of Incorporation of the Company, as amended, the Code of By-Laws of the Company, as amended to date, as well as such other corporate records, documents and other papers as we deemed necessary to examine for purposes of this opinion. We have assumed the authenticity, accuracy and completeness of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as certified, conformed or photostatic copies and the genuineness of all signatures.
Based upon the foregoing, it is our opinion that such shares of Common Shares, when issued by the Company in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
The opinion expressed herein is limited to Federal securities laws and the laws of the State of Illinois currently in effect.
We hereby consent to the use of this opinion in connection with said Registration Statement and to the references to our firm therein.
Very truly yours,
/s/ Vedder, Price, Kaufman & Kammholz |
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 23, 2001 relating to the financial statements of Irwin Financial Corporation, which appears in Irwin Financial Corporation's Annual Report on Form 10-K for the year ended December 31, 2000.
/s/ PricewaterhouseCoopers LLP Chicago, Illinois September 7, 2001 |