As filed with the Securities and Exchange Commission on September 7, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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IRWIN FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
INDIANA 35-1286807
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
500 WASHINGTON STREET, COLUMBUS, INDIANA 47201
(Address of Principal Executive Offices) (Zip Code)
IRWIN FINANCIAL CORPORATION
EMPLOYEES' SAVINGS PLAN
(Full Title of the Plan)
ELLEN Z. MUFSON, ESQ.
IRWIN FINANCIAL CORPORATION
500 WASHINGTON STREET
COLUMBUS, IN 47201
812-376-1909
(Name, Address and Telephone Number of Agent For Service)
Copies to:
JENNIFER R. EVANS, ESQ.
MARY C. WAGHORNE, ESQ.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET
CHICAGO, IL 60601
(312) 609-7500
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CALCULATION OF REGISTRATION FEE
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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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* Including the preferred share purchase rights associated therewith.
(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.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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
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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;
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(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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.
IRWIN FINANCIAL CORPORATION
By: /s/William I. Miller
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William I. Miller,
Chairman of the Board
POWER OF ATTORNEY
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
--------- ----- ----
/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
--------- ----- ----
/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.
IRWIN FINANCIAL CORPORATION
EMPLOYEES' SAVINGS PLAN
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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