As filed with the Securities and Exchange Commission on April 30, 2004
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
1999 OUTSIDE DIRECTOR
RESTRICTED STOCK COMPENSATION PLAN
ELLEN Z. MUFSON, ESQ.
IRWIN FINANCIAL CORPORATION
500 WASHINGTON STREET
P.O. BOX 929
COLUMBUS, IN 47201
812-376-1909
(Name, Address and Telephone Number of Agent For Service)
Copies to:
JENNIFER R. EVANS, ESQ.
JENNIFER DURHAM KING, ESQ.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ, P.C.
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(1) PRICE(1) REGISTRATION FEE
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Common Shares, without par value* 84,282 Shares $24.01 $2,023,611 $257
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* Including the preferred share purchase rights associated therewith.
(1) Estimated solely for purposes of calculating the registration fee
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 New York Stock Exchange on April 29, 2004.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement relates to the registration of 84,282
shares of Common Stock of Irwin Financial Corporation (the "Registrant")
reserved for issuance under the Irwin Financial Corporation 1999 Outside
Director Restricted Stock Compensation Plan (the "Plan"). The increase in the
number of shares authorized to be issued under the Plan was approved by the
Registrant's shareholders on April 8, 2004.
The documents containing the information required by this section will
be given to those persons who participate in the Plan, all of whom are
non-employee members of the Board of Directors of the Registrant or 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) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003, File No. 0-6835.
(b) The Registrant's Current Reports on Form 8-K dated January 23,
2004, January 23, 2004, February 20, 2004, February 20, 2004,
March 22, 2004, and April 9, 2004, File No. 0-6835.
(c) The descriptions of our Common Shares and the associated
preferred share purchase rights contained in our Registration
Statement on Form S-1 (File No. 333-68586) filed with the SEC
on September 18, 2001.
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
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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.
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 3.3 to Form 10-K report for the year ended December
31, 2003, File No. 0-6835).
4.4 Irwin Financial Corporation 1999 Outside Director Restricted
Stock Compensation Plan (incorporated by reference to Exhibit
2 to the Company's proxy statement for its 2004 Annual
Meeting, filed with the Commission on March 18, 2004).
4.5 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).
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4.6 Appointment of Successor Rights Agent dated as of May 11,
2001, between Irwin Financial Corporation and National City
Bank (incorporated by reference to Exhibit 4.5 to Form S-8
filed on September 7, 2001, File No. 333-69156).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz, P.C. regarding
the legality of any original issuance of Common Stock.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vedder, Price, Kaufman & Kammholz, P.C. (included
in Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Pages of the
Registration Statement).
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;
(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
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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 April 30, 2004.
IRWIN FINANCIAL CORPORATION
By: /s/ William I. Miller
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William I. Miller,
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints William I. Miller 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 April 30, 2004
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Sally A. Dean
/s/ David W. Goodrich Director April 30, 2004
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David W. Goodrich
/s/ R. David Hoover Director April 30, 2004
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R. David Hoover
/s/ William H. Kling Director April 30, 2004
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William H. Kling
/s/ Brenda J. Lauderback Director April 30, 2004
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Brenda J. Lauderback
/s/ John C. McGinty, Jr. Director April 30, 2004
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John C. McGinty, Jr.
/s/ William I. Miller Director, Chairman of the Board, Chief April 30, 2004
------------------------------------------- Executive Officer (Principal Executive
William I. Miller Officer)
/s/ Lance R. Odden Director April 30, 2004
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Lance R. Odden
/s/ Theodore M. Solso Director April 30, 2004
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Theodore M. Solso
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/s/ Gregory F. Ehlinger Senior Vice President and Chief Financial April 30, 2004
------------------------------------------- Officer (Principal Financial Officer)
Gregory F. Ehlinger
/s/ Jody A. Littrell Vice President and Controller (Principal April 30, 2004
------------------------------------------- Accounting Officer)
Jody A. Littrell
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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 3.3 to Form 10-K report for the year ended December
31, 2003, File No. 0-6835).
4.4 Irwin Financial Corporation 1999 Outside Director Restricted
Stock Compensation Plan (incorporated by reference to Exhibit
2 to the Company's proxy statement for its 2004 Annual
Meeting, filed with the Commission on March 18, 2004).
4.5 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).
4.6 Appointment of Successor Rights Agent dated as of May 11,
2001, between Irwin Financial Corporation and National City
Bank (incorporated by reference to Exhibit 4.5 to Form S-8
filed on September 7, 2001, File No. 333-69156).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz, P.C. regarding
the legality of any original issuance of Common Stock.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vedder, Price, Kaufman & Kammholz, P.C. (included
in Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Pages of the
Registration Statement).
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