As filed with the Securities and Registration No. 333-99597
Exchange Commission on October 4, 2002. Registration No. 333-99597-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IRWIN FINANCIAL CORPORATION IFC CAPITAL TRUST VI
(Exact Name of Co-Registrants as Specified in Charters)
INDIANA 35-1286807 DELAWARE APPLIED FOR
(State or Other Jurisdiction of (I.R.S. Employer (State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number) Incorporation or Organization) Identification Number)
500 WASHINGTON STREET
COLUMBUS, IN 47201
(812) 376-1909
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Co-Registrants' Principal Executive Offices)
ELLEN Z. MUFSON
VICE PRESIDENT-LEGAL
500 WASHINGTON STREET
COLUMBUS, IN 47201
(812) 376-1909
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service for
Co-Registrants)
Copies to:
JENNIFER R. EVANS, ESQ. THOMAS C. ERB, ESQ.
JENNIFER DURHAM KING, ESQ. TOM W. ZOOK, ESQ.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ LEWIS, RICE & FINGERSH, L.C.
222 NORTH LASALLE STREET, SUITE 2600 500 N. BROADWAY, SUITE 2000
CHICAGO, ILLINOIS 60601 ST. LOUIS, MISSOURI 63102-2147
(312) 609-7500 (314) 444-7600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
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. [__]
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. [__]
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. [__]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [__]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
================================================================================
The information in this prospectus is not complete and may be changed. We
cannot sell these securities until the Securities and Exchange Commission
declares our registration statement 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.
SUBJECT TO COMPLETION, DATED OCTOBER 4, 2002
PROSPECTUS
1,000,000 PREFERRED SECURITIES
IFC CAPITAL TRUST VI
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY, IRREVOCABLY AND UNCONDITIONALLY GUARANTEED
ON A SUBORDINATED BASIS, AS DESCRIBED IN THIS PROSPECTUS, BY
[LOGO] IRWIN FINANCIAL CORPORATION
___________________
IFC Capital Trust VI is offering 1,000,000 preferred securities at $25
per security. The preferred securities represent an indirect interest in our %
junior subordinated debentures. The debentures have the same payment terms as
the preferred securities and will be purchased by IFC Capital Trust VI using the
proceeds from its sale of the preferred securities.
The preferred securities have been approved for listing on the New York
Stock Exchange under the symbol "IFC PrM." Trading is expected to commence
within 30 days after the preferred securities are first issued.
___________________
INVESTING IN THE PREFERRED SECURITIES INVOLVES RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 18.
___________________
THE PREFERRED SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK AND ARE NOT INSURED BY ANY BANK INSURANCE FUND OF THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
PER
PREFERRED
SECURITY TOTAL
--------- -----------
Public offering price...................$ 25.00 $25,000,000
Proceeds to the trust...................$ 25.00 $25,000,000
This is a firm commitment underwriting. We will pay underwriting
commissions of $ per preferred security, or a total of $ , to the
underwriters for arranging the investment in our junior subordinated debentures.
The underwriters have been granted a 30-day option to purchase up to an
additional 150,000 preferred securities to cover over-allotments, if any.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
STIFEL, NICOLAUS & COMPANY RBC CAPITAL MARKETS
INCORPORATED
, 2002
IRWIN FINANCIAL CORPORATION
COMMERCIAL MORTGAGE HOME EQUITY COMMERCIAL VENTURE CAPITAL
BANKING BANKING LENDING FINANCE
o Irwin Union Bank o Irwin Mortgage o Irwin Home o Irwin Commercial o Irwin Ventures
and Trust; Irwin Corporation Equity Finance LLC
Union Bank, Corporation Corporation
F.S.B.
o Founded in 1871 o 1981 acquisition o 1994 start-up o 1999 start-up o 1999 start-up
and 2000,
respectively
o 21% of o 64% of o 14% of o 3% of
consolidated net consolidated net consolidated net consolidated net
revenues first revenues first revenues first revenues first six
six months of six months of six months of months of 2002;
2002; 14% of 2002; 57% of 2002; 31% of 2001 1% of 2001
2001 2001 consolidated net consolidated net
consolidated net consolidated net revenues revenues
revenues revenues
o Focuses on o Originates, sells o Originates and o Funding source o Investor in early
commercial and and services services prime- for leasing stage companies
personal banking conforming first quality, high companies, in financial services
needs of small mortgage loans loan-to-value brokers and or financial services-
businesses and home equity vendors related technology
business owners loans
o Locations in o National scope, o National scope, o U.S. and o National scope
Indiana, emphasis on emphasis on debt Canadian focus
Michigan, first-time home consolidation
Arizona, buyers and small products
Missouri, brokers
Nevada, Utah and
Kentucky
o $3.8 billion in o $514 million in o Acquired 78%
originations in originations in ownership
the first six the first six interest in a
months of 2002 months of 2002 Canadian
equipment
leasing company
in July 2000
o Expects to o Began franchise
commence equipment
operations in business in
new August 2001
correspondent
lending division
in fourth
quarter 2002
o Loan portfolio o $13.5 billion o $2.1 billion o Portfolio of $301 o 6 portfolio
of $1.7 billion servicing portfolio as of million as of investments
as of June 30, portfolio as of June 30, 2002 June 30, 2002 totaling $6.2
2002 June 30, 2002 million as of
June 30, 2002
o Headquarters in o Headquarters in o Headquarters in o Headquarters in o Headquarters in
Columbus, IN; Indianapolis, IN San Ramon, CA Vancouver, B.C. Columbus, IN
Louisville, KY
2
SUMMARY
This summary highlights information contained in, or incorporated by
reference into, this prospectus. Because this is a summary, it may not contain
all of the information that is important to you. Therefore, you should also read
the more detailed information set forth in this prospectus, our financial
statements and the other information that is incorporated by reference into this
prospectus before you make an investment decision. Unless otherwise indicated,
the information in this prospectus assumes that the underwriters will not
exercise their option to purchase additional preferred securities to cover
over-allotments.
IRWIN FINANCIAL CORPORATION
We are a diversified financial services company headquartered in
Columbus, Indiana with $3.8 billion in assets at June 30, 2002. We focus
primarily on the extension of credit to consumers and small businesses as well
as providing the ongoing servicing of those customer accounts. We currently
operate five major lines of business through our subsidiaries. Our major lines
of business are: commercial banking, mortgage banking, home equity lending,
commercial finance and venture capital.
The majority of our activities are managed through our banking
subsidiary, Irwin Union Bank and Trust Company, or its direct subsidiaries.
Irwin Union Bank and Trust was organized in 1871, and we formed the holding
company in 1972. Our subsidiaries include Irwin Union Bank and Trust, a
commercial bank, which together with Irwin Union Bank, F.S.B., conducts our
commercial banking activities; Irwin Mortgage Corporation, a mortgage banking
company acquired in 1981; Irwin Home Equity Corporation, a consumer home equity
lending company formed in 1994; Irwin Commercial Finance Corporation (formerly
known as Irwin Capital Holdings Corporation), a commercial finance subsidiary;
and Irwin Ventures LLC, a venture capital company. At June 30, 2002, we and our
subsidiaries had a total of 2,880 employees, including full-time and part-time
employees.
The following table summarizes our financial performance over the past
five years and the first six months of 2002:
AT OR FOR THE SIX MONTHS
ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
------------------------- ---------------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
Net income.......... $ 17,932 $ 21,979 $ 45,516 $ 35,666 $ 33,156 $ 30,503 $ 24,444
Earnings per common
share (diluted).. 0.67 0.97 2.00 1.67 1.51 1.38 1.08
Assets.............. 3,827,582 3,261,739 3,447,693 2,429,154 1,682,992 1,945,341 1,491,771
Loans held for sale. 437,147 1,016,792 502,086 579,788 508,997 936,788 528,739
Loans and leases,
net.............. 2,638,629 1,471,243 2,115,464 1,221,793 724,869 547,103 602,281
Deposits............ 2,257,306 1,928,968 2,309,018 1,443,330 870,318 1,009,211 719,596
Total shareholders'
equity........... 329,275 209,452 231,665 188,870 159,296 145,233 127,983
First mortgage
servicing
portfolio........ 13,466,335 10,474,246 12,875,532 9,196,513 10,488,112 11,242,470 10,713,549
Home equity
portfolio(1)..... 2,098,678 1,826,853 2,064,542 1,625,719 777,934 581,241 358,166
Return on average
assets(2)........ 1.00% 1.57% 1.45% 1.76% 2.01% 1.85% 1.94%
Return on average
equity(2)........ 12.01 22.51 21.82 20.83 21.51 22.77 19.80
Net interest
margin(2)........ 5.94 5.11 5.36 5.36 5.03 4.33 5.15
---------------------------
(1) Includes loans held in portfolio and loans we have securitized where we
retain credit risk. Does not include loans serviced for others.
(2) Annualized for interim periods.
The decline in our net income during the first six months of 2002
largely reflects the elimination of our use of gain-on-sale accounting for
securitized loans in our home equity lending line of business. While this change
has had a negative short-term impact on profitability in this line of business
and will increase loan loss reserves reflected in the financial statements, with
charge-offs recorded through the balance sheet rather than off-balance sheet, we
believe the change in treatment of securitized loans will have little, if any,
long-term effect on the ultimate profitability of this line of business. This
accounting treatment is discussed further in this Summary under "Impact
of Recent Change to Regulatory Capital Rules" beginning on page 9. Given the
current economic and business
3
climate, and after giving effect to this offering, we expect estimated
consolidated net income of at least $36 million in 2002 and approximately $54
million in 2003. These estimates include $2.7 million of after-tax interest
expense on convertible trust preferred securities, which would be added back to
net income for purposes of calculating fully diluted earnings per share under
generally accepted accounting principles. However, these estimates and
projections are inherently uncertain, and our actual earnings may differ
significantly from these estimates due to risks and uncertainties related to our
business that are described in the "Risk Factors" section beginning on page 18.
These estimates constitute forward-looking statements as described under
"Special Note Regarding Forward-Looking Statements" on page 28 of this
prospectus.
STRATEGY
Our strategy is to maintain a diverse revenue stream by focusing on
niches in financial services where we believe we can optimize the productivity
of our capital and where our experience and expertise can provide a competitive
advantage. Our operational objectives are premised on simultaneously achieving
three goals: creditworthiness, profitability and growth. We refer to this as
creditworthy, profitable growth. We believe we must continually balance these
goals in order to deliver long-term value to all of our stakeholders. We have
developed a four-part business plan to meet these goals:
o We focus on product or market niches in financial services
that we believe are underserved and where we believe customers
are willing to pay a premium for value-added services.
o We enter niches only when we have attracted senior managers
who have proven track records in the niche for which they are
responsible.
o We diversify our revenues and allocate our capital across
complementary lines of business as a key part of our risk
management. Our lines of business are affected differently by
interest rates and economic conditions and when combined in an
appropriate mix, we believe they provide sources of
diversification and opportunities for growth in a variety of
economic conditions.
o We reinvest on an ongoing basis in the development of new and
existing opportunities.
We believe our historical growth and profitability is the result of our
endeavors to pursue complementary consumer and commercial lending niches through
our bank holding company structure, our experienced management, our diverse
product and geographic markets, and our willingness and ability to align the
compensation structure of each of our lines of business with the interests of
our stakeholders. Through various economic environments and cycles, we have had
a relatively stable revenue and earnings stream on a consolidated basis
generated primarily through internal growth rather than acquisitions. Over the
five-year and ten-year periods ending December 31, 2001, respectively, our
financial performance has been as follows:
o our return on average equity averaged 21.35% and 22.53%;
o our diluted earnings per common share compounded at an average
annual growth rate of 16.65% and 15.18%;
o our net revenues(1) compounded at an average annual growth
rate of 18.85% and 17.33%;
o our nonperforming assets to total assets averaged 0.60% and
0.57%;
o our annual net charge-offs to average loans and leases
averaged 0.37% and 0.44%; and
o our book value per common share compounded at an average
annual growth rate of 16.80% and 18.15%.
---------------
(1) Net revenues consist of net interest income plus noninterest income.
4
While our financial results for 2002 will likely be significantly
different than our historical performance for the reasons discussed in this
Summary under "Impact of Recent Change to Regulatory Capital Rules" beginning on
page 9, management anticipates that, after 2002, we can again achieve our
long-term financial objectives of annual earnings per share growth of at least
12% and return on common equity of greater than 15%. In addition, as noted
above, our profitability ratios have been negatively affected in 2002 due to our
elimination of gain-on-sale accounting in our home equity lending line of
business. This change will also result in a higher amount of charge-offs in this
line of business relative to periods prior to 2002 as we begin funding our home
equity portfolio using on-balance sheet funding where reserves and charge-offs
are recorded through the balance sheet rather than off-balance sheet.
MAJOR LINES OF BUSINESS
We are a regulated bank holding company. At the parent level, we work
actively to add value to our lines of business by interacting with the
management teams, capitalizing on interrelationships, providing centralized
services and coordinating overall organizational decisions. Under this
organizational structure, our separate businesses currently hold and fund the
majority of their assets through Irwin Union Bank and Trust. This provides
additional liquidity and results in regulatory oversight of each of our lines of
business.
The following table shows our net income (loss) by line of business:
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
--------------- ----------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS)
Commercial banking...................... $ 7,888 $ 3,142 $ 8,918 $ 7,090 $ 7,345 $ 6,509 $ 5,587
Mortgage banking........................ 19,522 14,488 38,100 13,006 23,063 28,853 21,300
Home equity lending..................... (7,441) 9,457 16,248 18,494 12,606 (6,668) 1,710
Commercial finance...................... 508 (761) (4,394) (2,563) (843) -- --
Venture capital......................... (859) (3,007) (6,549) 2,723 656 -- --
Other(1)................................ (1,686) (1,340) (6,807) (3,084) (9,671) 1,809 (4,153)
------- ------- ------- ------- ------- ------- -------
Total consolidated net income........... $17,932 $21,979 $45,516 $35,666 $33,156 $30,503 $24,444
======= ======= ======= ======= ======= ======= =======
---------------------------
(1) Includes parent, medical equipment leasing (which we discontinued in
1998) and consolidating entries.
COMMERCIAL BANKING
Our commercial banking line of business focuses on providing credit,
cash management and personal banking products to small businesses and business
owners. Services include a full line of consumer, mortgage and commercial loans,
as well as personal and commercial checking accounts, savings and time deposit
accounts, personal and business loans, credit card services, money transfer
services, financial counseling, property, casualty, life and health insurance
agency services, trust services, securities brokerage, and safe deposit
facilities. Under the bank's commercial lending policies, at June 30, 2002, our
lending limit is $10 million, and our average size commercial loan is $0.3
million.
We offer commercial banking services through our banking subsidiaries,
Irwin Union Bank and Trust, an Indiana state-chartered commercial bank, and
Irwin Union Bank, F.S.B., a federal savings bank. We have offices throughout
nine counties in central and southern Indiana and in Kalamazoo, Grand Rapids,
Traverse City and Lansing, Michigan; Carson City and Las Vegas, Nevada; St.
Louis, Missouri; Louisville, Kentucky; Salt Lake City, Utah; and Phoenix,
Arizona.
As a result of our expansion into new markets in the last few years,
our earnings have been negatively impacted in this line of business during the
last three years as we added new banking offices. While our newest office,
opened in 2002, is not yet profitable, our other offices outside Indiana, which
we opened in 1999 through 2001, are now operating profitably. In the near term,
our strategy is to continue to grow our commercial banking line of business in
the markets in which we are currently operating. We may also pursue
opportunities to expand into one or two new markets. Our strategy is to target
metropolitan markets with strong economies where we
5
believe recent bank consolidation has negatively impacted customers. We believe
that this consolidation has led to disenchantment with the delivery of financial
services to the small business community among both the owners of those small
businesses and the senior banking officers who had been providing services to
them. In markets that management identifies as attractive opportunities, the
bank seeks to hire senior commercial loan and cash management officers who have
strong local ties and who can focus on providing personalized lending services
to small businesses in that market.
The following table shows selected financial data for our commercial
banking line of business:
AT OR FOR THE SIX MONTHS
ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
------------------------- ----------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------- ---------- --------- ---------- -------- ----------- ----------
(DOLLARS IN THOUSANDS)
Commercial Banking:
Net income................... $ 7,888 $ 3,142 $ 8,918 $ 7,090 $ 7,345 $ 6,509 $ 5,587
Total assets................. 1,813,463 1,443,534 1,648,294 1,167,559 789,560 607,992 539,233
Total loans.................. 1,711,395 1,277,658 1,514,957 1,067,980 720,493 514,950 410,272
Allowance for loan and lease
losses.................... 17,836 11,000 14,643 9,228 7,375 6,680 5,525
Total deposits............... 1,599,119 1,305,352 1,456,376 998,892 710,899 567,526 486,481
Return on average assets..... 0.93% 0.50% 0.64% 0.74% 1.08% 1.15% 1.08%
Return on average equity..... 12.07 8.71 10.45 12.39 13.89 15.49 15.42
Net interest margin.......... 4.09 3.76 3.80 4.25 4.82 4.75 4.61
Efficiency ratio............. 58.43 73.38 65.91 71.00 68.06 66.60 64.62
Nonperforming assets to
total assets.............. 0.24 0.17 0.44 0.23 0.15 0.31 0.60
Allowance for loan losses to
total loans............... 1.04 0.86 0.97 0.86 1.02 1.30 1.35
Net charge-offs to average
loans(1).................. 0.17 0.13 0.19 0.12 0.16 0.13 0.34
---------------------------
(1) Annualized for interim periods.
MORTGAGE BANKING
In our mortgage banking line of business we originate, purchase, sell
and service conventional and government agency-backed residential mortgage loans
throughout the United States. We established this line of business when we
acquired our subsidiary, Irwin Mortgage Corporation, in 1981. We are realigning
Irwin Mortgage within our organizational structure as a subsidiary of Irwin
Union Bank and Trust. Most of our mortgage originations either are insured by an
agency of the federal government, such as the Federal Housing Authority and the
Veterans Administration or, in the case of conventional mortgages, meet
requirements for resale to the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation. This allows us to remove substantially
all of the credit risk of these loans from our balance sheet. We sell mortgage
loans to institutional and private investors but may retain servicing rights to
the loans we originate or purchase from correspondents. We believe this balance
between mortgage loan originations and mortgage loan servicing provides us a
natural hedge against interest rate changes, which has helped stabilize our
revenue stream.
We currently originate mortgage loans through retail offices, direct
marketing, wholesale channels and our Internet website. At June 30, 2002, Irwin
Mortgage operated 99 production and satellite offices in 26 states. Our mortgage
banking line of business is currently our largest contributor to revenue,
comprising 64% of our total revenues for the six months ended June 30, 2002,
compared to 53% for the first six months of 2001. Our mortgage banking line of
business contributed 109% of our net income for the first six months of 2002,
compared to 66% for the same period in 2001.
We have recently developed a correspondent lending distribution channel
in our mortgage banking business. We hired a key manager and team of experienced
mortgage banking professionals previously affiliated with a national mortgage
banking firm where the correspondent lending division was recently dissolved
when that firm was acquired by a competitor. This group has established lending
relationships with correspondent lenders located throughout the United States.
Correspondent lending involves the purchase of loans underwritten and closed by
third parties, usually smaller community banks and mortgage bankers. We expect
our correspondent lending distribution channel to become operational in the
fourth quarter of 2002.
6
The following table shows selected financial data for our mortgage
banking line of business:
AT OR FOR THE SIX MONTHS
ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
--------------------------- --------------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------- ---------- ---------- ---------- ---------- ---------- ---------
(DOLLARS IN THOUSANDS)
Mortgage Banking:
Net income............ $ 19,522 $ 14,488 $ 38,100 $ 13,006 $ 23,063 $ 28,853 $ 21,300
Net interest income... 15,833 9,590 30,261 15,401 21,745 26,244 17,577
Provision for loan
losses............. (202) 76 31 357 (1,998) (1,721) (1,383)
Loan origination fees. 29,431 27,531 61,917 34,688 46,311 59,328 41,045
Gain on sale of loans. 52,971 44,436 113,140 45,601 72,395 97,724 53,332
Loan servicing fees... 28,627 24,798 52,837 50,309 54,247 55,217 50,194
Gain on sale of bulk
servicing.......... 9,716 5,781 8,394 27,528 9,005 829 1,512
Amortization and
impairment of
servicing assets,
net of hedging..... (24,547) (15,606) (42,135) (37,490) (24,566) (29,805) (15,843)
Total net revenue..... 115,036 99,146 229,461 140,932 180,767 207,092 147,657
Total mortgage
originations....... 3,846,556 4,359,940 9,225,991 4,091,573 5,876,750 8,944,615 5,397,338
Refinancings to total
originations....... 46.33% 52.88% 54.10% 16.39% 28.64% 49.54% 22.53%
Servicing sold to
originations....... 53.1 43.5 25.1 99.35 79.89 56.95 71.82
First mortgage
servicing portfolio $13,466,335 $10,474,246 $12,875,532 $9,196,513 $10,488,112 $11,242,470 $10,713,549
Bulk sales of
servicing.......... 1,643,209 610,610 1,030,744 2,526,006 1,216,718 99,929 536,971
Capitalized servicing. 195,455 170,723 211,201 121,555 132,648 113,131 81,610
Capitalized servicing
to servicing
portfolio.......... 1.5% 1.6% 1.6% 1.3% 1.3% 1.0% 0.8%
Weighted average
coupon............. 7.01 7.54 7.23 7.76 7.51 7.56 7.85
HOME EQUITY LENDING
In our home equity lending line of business, we originate, purchase,
securitize and service home equity loans and lines of credit nationwide. We
generally fund the loans through securitization transactions and whole loan
sales. We continue to service the loans we securitize and sell. We target
creditworthy, homeowning consumers who are active, unsecured credit card debt
users. Target customers are underwritten using proprietary models based on
several criteria, including the customers' previous use of credit. We market our
home equity products through direct mail and telemarketing, mortgage brokers and
correspondent lenders nationwide and through Internet-based solicitations.
We established this line of business when we formed Irwin Home Equity
Corporation in 1994 as our subsidiary. Irwin Home Equity is headquartered in San
Ramon, California and became a subsidiary of Irwin Union Bank and Trust in 2001.
In 1997 and 1998, we largely redesigned our product offerings, introducing new
products with origination fees and early repayment options. We also introduced
home equity loans with loan-to-value ratios of up to 125% of their collateral
value. Home equity loans with loan-to-value ratios greater than 100% are priced
with higher coupons than home equity loans with loan-to-value ratios less than
100% to compensate for the increased risk. For the six months ended June 30,
2002, home equity loans with loan-to-value ratios greater than 100% made up
60.3% of our loan originations and 52.8% of our portfolio at June 30, 2002. We
expect to continue to originate new loans in our home equity lending line of
business through the development of new products, the extension of existing
products to new customers, and continued sales through our indirect distribution
channels.
For most of our home equity product offerings, we offer customers the
choice to accept an early repayment fee in exchange for a lower interest rate. A
typical early repayment option provides for a fee equal to up to six months'
interest that is payable if the borrower chooses to repay the loan during the
first three to five years of its term. Approximately 84.9%, or $1.3 billion, of
our home equity loan servicing portfolio at June 30, 2002 has early repayment
fees. This portfolio does not include our floating rate lines of credit.
As described more fully in this Summary under "Impact of Recent Change
to Regulatory Capital Rules," we have eliminated our use of gain-on-sale
accounting and have started using on-balance sheet financing to fund
7
growth in this line of business. Due to this change in financing method, coupled
with the uncertainty in national economic conditions, we have slowed our rate of
production and expect this line of business to show a loss in net income in 2002
and a slower rate of net income growth in 2003 compared to prior years. In
addition, we expect that we will continue to make sizeable additions to our
allowance as a percentage of home equity loans, similar to our increase in loan
loss reserves taken during the third and fourth quarters of 2001 and the first
half of 2002, and expect to experience higher levels of charge-offs and
nonperforming assets in this line of business as we continue to build our
on-balance sheet home equity portfolio and as this portfolio continues to
increase and mature.
The following table shows selected financial data for our home equity
lending line of business:
AT OR FOR THE SIX MONTHS
ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
------------------------ ------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------- ---------- ---------- ---------- -------- ---------- ----------
(DOLLARS IN THOUSANDS)
Home Equity Lending:
Net interest income.......... $ 38,590 $ 28,876 $ 61,754 $ 35,593 $ 18,852 $ 5,495 $ 7,129
Provision for loan losses.... (12,460) (300) (2,320) (461) -- (513) (1,404)
Gain on sale of loans........ 7,307 33,308 91,556 46,970 23,725 18,610 15,908
Loan origination fees........ 777 351 1,639 951 273 -- --
Loan servicing fees.......... 7,010 6,287 13,355 7,559 4,907 3,323 2,145
Amortization and impairment
of servicing assets....... (3,242) (1,167) (3,217) (1,583) (1,445) (842) (334)
Trading gains (losses)....... (13,059) (2,546) (38,420) 14,399 2,512 (2,952) (1,961)
Total net revenue............ 25,499 65,018 124,418 103,447 50,566 23,941 21,777
Operating expense............ 37,901 49,256 97,338 72,623 35,557 30,609 20,067
Net income (loss)............ (7,441) 9,457 16,248 18,494 12,606 (6,668) 1,710
Loan and line of credit
volume.................... 514,462 452,161 1,149,409 1,225,955 439,507 389,673 214,518
Secondary market delivery.... 180,780 401,975 1,080,328 774,610 430,743 294,261 210,057
Total portfolio.............. 2,098,678 1,826,853 2,064,542 1,625,719 777,934 581,241 358,166
Residual assets-trading(1)... 183,310 189,788 199,071 152,614 57,883 32,321 22,134
Weighted average yield on
loans..................... 13.57% 13.35% 13.38% 13.09% 12.33% 11.86% 13.97%
Weighted average yield on
lines of credit........... 10.85 12.25 11.11 14.04 12.72 11.89 12.96
Gain on sale to total loans
securitized............... 4.04 8.29 8.47 3.92 5.57 6.32 7.57
Net home equity charge-offs
to home equity
portfolio(2).............. 2.70 1.56 1.58 0.57 0.36 0.37 0.29
Delinquency ratio............ 4.6 4.5 5.1 4.4 2.1 1.3 1.5
---------------------------
(1) Included in trading assets on our consolidated balance sheets.
(2) Annualized for interim periods.
COMMERCIAL FINANCE
In our commercial finance line of business, we originate transactions
with brokers and vendors throughout the United States and Canada and through
direct sales to franchisees involving small- to medium-sized equipment leases
and loans. The majority of our loans and leases are full payout (i.e., no
residual), small-ticket assets secured by commercial equipment. We finance a
variety of commercial and office equipment types and try to limit the industry
and geographic concentrations in our loan and lease portfolio. We established
this line of business in 1999 and had a total loan and lease portfolio of $301.3
million as of June 30, 2002.
VENTURE CAPITAL
In our venture capital line of business, we make minority investments
in early stage companies in the financial services industry and related fields
that intend to use technology as a key component of their competitive strategy.
We established this line of business when we formed Irwin Ventures in the third
quarter of 1999, having made our first investment in 1997. We provide Irwin
Ventures' portfolio companies the benefit of our management experience in the
financial services marketplace. We had investments in six private companies as
of June 30, 2002, with an aggregate investment cost of $11.6 million and a
carrying value of $6.2 million.
8
IMPACT OF RECENT CHANGE TO REGULATORY CAPITAL RULES
The federal banking regulators, including the Federal Reserve, our
principal regulator, have adopted revised regulatory capital standards regarding
the treatment of certain recourse obligations, direct credit substitutes,
residual interests in asset securitizations, and other securitized transactions.
In general, the new rules require a banking institution that has certain
residual interests, including assets commonly referred to as "credit-enhancing
interest-only strips," in an amount that exceeds 25% of its Tier 1 capital, to
deduct the after-tax excess amount of credit-enhancing interest-only strips from
Tier 1 capital for purposes of computing risk-based capital ratios.
The new capital standards became effective on January 1, 2002, for new
residual interests created after December 31, 2001. For transactions settled
before January 1, 2002, application of the new capital treatment to the
residuals created will be delayed until December 31, 2002.
These new rules apply to securitization transactions done by our home
equity line of business prior to 2002. At June 30, 2002, the credit-enhancing
interest-only strips included in our residual interests totaled $122 million,
which comprised 28% of our consolidated Tier 1 capital. Due to anticipated
earnings retention, subsequent accretion of our existing trust preferred
securities into Tier 1 capital throughout the remainder of 2002, residual
amortization throughout 2002, other normal balance sheet changes, and because we
have ceased creating new residual interests, we expect that our credit-enhancing
interest-only strips will have declined to less than 25% of Tier 1 capital by
December 31, 2002. Accordingly, we anticipate that we will have little if any
deduction of Tier 1 capital due to the concentration of credit-enhancing
interest-only strips when the new rules become fully effective at the end of
2002.
Through 2001, we financed our significant growth in our home equity
lending line of business using transaction structures that create residual
assets through "gain-on-sale" accounting-sales transactions accounted for
under SFAS 140. To address the new rules, beginning in the second quarter of
2002 we have eliminated our use of these securitization structures that require
gain-on-sale accounting treatment. We believe using on-balance sheet financing
or whole loan sale transactions rather than transactions accounted for as
gain-on-sale under SFAS 140 will allow continued access to the capital markets
for cost-effective, matched funding of our loan assets, while not meaningfully
affecting or changing our cash flows, nor changing the longer term profitability
of our home equity lending operation.
Changing our securitization practices has significantly affected the
financial results of our home equity line of business in 2002. The key financial
impacts have included:
o By using on-balance sheet financing to fund our home equity
loan originations, we are required to change the timing of
revenue recognition on these assets under generally accepted
accounting principles. For assets funded on-balance sheet, we
record interest income over the life of the loans, as it is
earned, net of interest expense over the life of the bonds and
a provision for credit losses inherent in the portfolio. For
assets funded through securitization transactions accounted
for as a sale under SFAS 140, we have recorded revenue as
trading gains at the time of sale based on the difference
between proceeds and allocated cost basis of the loans sold.
We have also recognized residual interests based on the
discounted present value of anticipated revenue streams over
the expected lives of the loans. This different accounting
treatment does not, however, affect cash flows related to the
loans, and management expects that the ultimate total receipt
of revenues and profitability derived from our home equity
loans will be relatively unchanged by these different
financing structures.
o Due to the extension of the period during which revenue is
recognized under the new financing structures we are pursuing,
we are reducing the rate of growth in production and related
expenses in the home equity lending line of business to more
closely align anticipated revenue recognition and expenses
under this new model.
o After the initial transition period, as the portfolio of
on-balance sheet home equity loans continues to grow, we
should record increased levels of net interest income
sufficient to cover ongoing expenses and credit losses. We
would then expect to be in a position to resume profitable
growth in this line of business. We may also continue to
pursue selective opportunities to sell whole loans in cash
sale transactions if attractive terms can be negotiated. We
completed one sale during the first quarter of
9
2002 and expect to complete another similar transaction by the
end of the third quarter of 2002. We currently anticipate that
our home equity lending line of business will return to
profitability in the third and fourth quarters of 2002,
although total results for the year ended 2002 are expected to
be a loss.
IFC CAPITAL TRUST VI
The trust is a newly formed financing subsidiary of Irwin. Upon
issuance of the preferred securities offered by this prospectus, the purchasers
in this offering will own all of the issued and outstanding preferred securities
of the trust. In exchange for our capital contribution to the trust, we will own
all of the common securities of the trust. The trust exists exclusively for the
following purposes:
o issuing the preferred securities to the public for cash;
o issuing the common securities to us;
o investing the proceeds from the sale of its preferred and
common securities in an equivalent amount of junior
subordinated debentures to be issued by us; and
o engaging in activities that are incidental to those listed
above, such as receiving payments on the debentures and making
distributions to security holders, furnishing notices and
other administrative tasks.
Our principal executive offices, as well as those of the trust, are
located at 500 Washington Street, P.O. Box 929, Columbus, Indiana 47202-0929,
and our telephone number is (812) 376-1909.
10
THE OFFERING
THE ISSUER................... IFC Capital Trust VI.
SECURITIES BEING OFFERED..... 1,000,000 preferred securities, which
represent preferred undivided interests in
the assets of the trust. Those assets will
consist solely of the debentures and
payments received on the debentures. The
trust will sell the preferred securities to
the public for cash. The trust will use that
cash to buy the debentures from us.
OFFERING PRICE............... $25 per preferred security.
WHEN DISTRIBUTIONS WILL BE
PAID TO YOU................ If you purchase the preferred securities,
you are entitled to receive cumulative cash
distributions at a % annual rate.
Distributions will accumulate from the date
the trust issues the preferred securities
and will be paid quarterly on March 31, June
30, September 30 and December 31 of each
year, beginning December 31, 2002. As long
as the preferred securities are represented
by a global security, the record date for
distributions on the preferred securities
will be the business day prior to the
distribution date. We may defer the payment
of cash distributions, as described below.
WHEN THE SECURITIES
MUST BE REDEEMED........... The debentures will mature and the preferred
securities must be redeemed on September 30,
2032. We have the option, however, to
shorten the maturity date to a date not
earlier than September 30, 2007. We will not
shorten the maturity date unless we have
received the prior approval of the Board of
Governors of the Federal Reserve, if
required.
REDEMPTION BEFORE SEPTEMBER
30, 2032 IS POSSIBLE....... The trust must redeem the preferred
securities when the debentures are paid at
maturity, or upon any earlier redemption of
the debentures to the extent the debentures
are redeemed. We may redeem all or part of
the debentures at any time on or after
September 30, 2007.
In addition, we may redeem, at any time, all
of the debentures if:
o there is a change in existing laws
or regulations, or new official
administrative or judicial
interpretation or application of
these laws and regulations, that
causes the interest we pay on the
debentures to no longer be
deductible by us for federal income
tax purposes; or the trust becomes
subject to federal income tax; or
the trust becomes or will become
subject to other taxes or
governmental charges;
o there is a change in existing laws
or regulations that requires the
trust to register as an investment
company; or
o there is a change in the capital
adequacy guidelines of the Federal
Reserve that results in the
preferred securities not being
eligible as Tier 1 capital.
We may also redeem the debentures at any
time, and from time to time, in an amount
equal to the liquidation amount of any
preferred securities we purchase, plus a
proportionate amount
11
of common securities, but only in exchange
for a like amount of the preferred
securities and common securities then owned
by us. Redemption of the debentures prior to
maturity will be subject to the prior
approval of the Federal Reserve, if approval
is then required. If your preferred
securities are redeemed by the trust, you
will receive the liquidation amount of $25
per preferred security, plus any accrued and
unpaid distributions to the date of
redemption.
WE HAVE THE OPTION TO
EXTEND THE INTEREST
PAYMENT PERIOD............. The trust will rely solely on payments
made by us under the debentures to pay
distributions on the preferred securities.
As long as we are not in default under the
indenture relating to the debentures, we
may, at one or more times, defer interest
payments on the debentures for up to 20
consecutive quarters, but not beyond
September 30, 2032. If we defer interest
payments on the debentures:
o the trust will also defer
distributions on the preferred
securities;
o the distributions you are entitled
to will accumulate; and
o these accumulated distributions
will earn interest at an annual
rate of %, compounded quarterly,
until paid.
At the end of any deferral period, we will
pay to the trust all accrued and unpaid
interest under the debentures. The trust
will then pay all accumulated and unpaid
distributions to you.
During an extension period, we are
restricted from making payments on debt that
ranks equally with or junior to the
debentures held by our other subsidiary
trusts, and from paying dividends or
distributions on our capital stock or
redeeming, purchasing or acquiring or making
liquidation payments with respect to our
capital stock, except for some exceptions.
YOU WILL STILL BE TAXED
IF DISTRIBUTIONS ARE
DEFERRED................... If a deferral of payment occurs, you will
still be required to recognize the deferred
amounts as income for federal income
tax purposes in advance of receiving these
amounts, even if you are a cash basis
taxpayer.
OUR GUARANTEE OF PAYMENT..... Our obligations described in this
prospectus, in the aggregate, constitute a
full, irrevocable and unconditional
guarantee on a subordinated basis by us of
the obligations of the trust under the
preferred securities. Under the guarantee
agreement, we guarantee the trust will use
its assets to pay the distributions on the
preferred securities and the liquidation
amount upon liquidation of the trust.
However, the guarantee does not apply when
the trust does not have sufficient funds to
make the payments. If we do not make
payments on the debentures, the trust will
not have sufficient funds to make payments
on the preferred securities. In this event,
your remedy is to institute a legal
proceeding directly against us for
enforcement of payments under the
debentures.
12
WE MAY DISTRIBUTE THE
DEBENTURES DIRECTLY
TO YOU..................... We may, at any time, dissolve the trust and
distribute the debentures to you, subject to
the prior approval of the Federal Reserve,
if required. If we distribute the
debentures, we will use our best efforts to
list them on a national securities exchange
or comparable automated quotation system.
HOW THE SECURITIES WILL
RANK IN RIGHT
OF PAYMENT................. Our obligations under the preferred
securities, debentures and guarantee are
unsecured and will rank as follows with
regard to right of payment:
o the preferred securities will rank
equally with the common securities
of the trust. The trust will pay
distributions on the preferred
securities and the common
securities pro rata. However, if we
default with respect to the
debentures, then no distributions
on the common securities of the
trust or our common stock will be
paid until all accumulated and
unpaid distributions on the
preferred securities have been
paid;
o our obligations under the
debentures and the guarantee are
unsecured and generally will rank:
o junior in priority to our
existing and future senior
and subordinated
indebtedness;
o equal to our subordinated
debentures associated with
$146.7 million of trust
preferred securities that
affiliated trusts of ours
currently have outstanding;
o senior in priority to our
convertible subordinated
debentures associated with
$51.7 million of convertible
trust preferred securities
that an affiliated trust of
ours currently has
outstanding; and
o because we are a holding company,
the debentures and the guarantee
will effectively be subordinated to
all depositors' claims, as well as
existing and future liabilities of
our subsidiaries.
VOTING RIGHTS OF THE
PREFERRED SECURITIES....... Except in limited circumstances, holders
of the preferred securities will have no
voting rights.
NEW YORK STOCK EXCHANGE
SYMBOL..................... IFC PrM.
YOU WILL NOT RECEIVE
CERTIFICATES............... The preferred securities will be represented
by a global security that will be deposited
with and registered in the name of The
Depository Trust Company, New York, New
York, or its nominee. This means that you
will not receive a certificate for the
preferred securities, and your ownership
interests will be recorded through the DTC
book-entry system.
HOW THE PROCEEDS OF THIS
OFFERING WILL BE USED........ The trust will invest all of the proceeds
from the sale of the preferred securities in
the debentures. We estimate that the net
proceeds to us from the sale of the
debentures to the trust, after
13
deducting offering expenses and underwriting
commissions, will be approximately $ .
The purpose of the offering is to increase
our regulatory capital and support the
growth and operations of our subsidiaries.
Before purchasing the preferred securities being offered, you should
carefully consider the "Risk Factors" beginning on page 18.
14
SUMMARY CONSOLIDATED FINANCIAL DATA
The summary consolidated financial data presented below for, and as of
the end of, each of the years in the five-year period ended December 31, 2001,
are derived from our historical financial statements. Our consolidated financial
statements for each of the five years ended December 31, 2001 have been audited
by PricewaterhouseCoopers LLP, independent accountants. The summary data
presented below for the six-month periods ended June 30, 2002 and 2001, are
derived from our unaudited financial statements. In our opinion, all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair statement of results as of or for the six-month periods indicated have been
included. This information should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the consolidated financial statements and the notes thereto included in our
Annual Report on Form 10-K for the year ended December 30, 2001 and our
quarterly report on Form 10-Q for the quarter ended June 30, 2002, which are
incorporated in this prospectus by reference. Results for past periods are not
necessarily indicative of results that may be expected for any future period,
and results for the six-month period ended June 30, 2002, are not necessarily
indicative of results that may be expected for the entire year ending December
31, 2002.
AT OR FOR THE SIX
MONTHS ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
--------------------- -------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENTS OF INCOME DATA:
Net interest income........ $ 92,132 $ 62,953 $ 147,149 $ 90,996 $ 67,122 $ 59,201 $ 50,386
Provision for loan and
lease losses............ (19,832) (4,357) (17,505) (5,403) (4,443) (5,995) (6,238)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income after
provision for loan and
lease losses............ 72,300 58,596 129,644 85,593 62,679 53,206 44,148
---------- ---------- ---------- ---------- ---------- ---------- ----------
Noninterest income:
Loan origination fees... 30,611 28,214 64,303 52,696 41,024 60,013 41,370
Gain on sale of loans... 62,698 81,061 207,538 77,047 74,834 75,201 39,210
Loan servicing fees..... 36,466 31,627 67,362 58,939 60,581 57,284 53,257
Amortization and
impairment of
servicing assets..... (65,550) (16,405) (50,134) (39,529) (15,702) (35,388) (16,355)
Gain on sale of
servicing assets..... 9,716 5,781 8,394 27,528 37,801 43,308 32,631
Trading gains (losses).. (13,059) (2,546) (32,412) 14,399 (8,296) 1,366 (1,961)
Gain from sale of
leasing assets....... -- -- -- -- -- 5,241 --
Other................... 46,125 2,494 6,340 20,631 13,827 11,832 8,696
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total noninterest income 107,007 130,226 271,391 211,711 204,069 218,857 156,848
Noninterest expense........ 150,829 152,975 327,420 237,962 214,111 221,206 158,818
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before income taxes. 28,478 35,847 73,615 59,342 52,637 50,857 42,178
Provision for income taxes. 11,075 14,254 28,624 23,676 19,481 20,354 17,734
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before minority
interest................ 17,403 21,593 44,991 35,666 33,156 30,503 24,444
Minority interest.......... (34) (211) (350) -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before cumulative
effect of change in
accounting principle.... 17,437 21,804 45,341 35,666 33,156 30,503 24,444
Cumulative effect of
change in accounting
principle, net of tax... 495 175 175 -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income available to
common shareholders..... $ 17,932 $ 21,979 $ 45,516 $ 35,666 $ 33,156 $ 30,503 $ 24,444
========== ========== ========== ========== ========== ========== ==========
Mortgage loan originations. $3,846,556 $4,359,940 $9,225,991 $4,091,573 $5,876,750 $8,944,615 $5,397,338
Home equity loan
originations............ 514,462 452,161 1,149,409 1,225,955 439,507 389,673 214,518
15
AT OR FOR THE SIX
MONTHS ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
--------------------- -------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE DATA)
COMMON SHARE DATA:
Earnings per share(1)(2):
Basic................... $ 0.69 $ 1.04 $ 2.15 $ 1.70 $ 1.54 $ 1.40 $ 1.10
Diluted................. 0.67 0.97 2.00 1.67 1.51 1.38 1.08
Cash dividends per share... 0.135 0.13 0.26 0.24 0.20 0.16 0.14
Book value per share....... 11.87 9.82 10.84 8.97 7.55 6.70 5.82
Dividend payout ratio...... 20.76% 12.53% 12.13% 14.13% 12.93% 11.39% 12.74%
Weighted average
shares--basic............ 25,880 21,109 21,175 20,973 21,530 21,732 22,326
Weighted average
shares--diluted.......... 28,780 24,121 24,173 21,593 21,886 22,139 22,722
Shares outstanding--end of
period.................. 27,732 21,192 21,305 21,026 21,105 21,673 22,001
BALANCE SHEET DATA:
Assets..................... $3,827,582 $3,261,739 $3,447,693 $2,429,154 $1,682,992 $1,945,341 $1,491,771
Trading assets............. 183,539 189,948 199,071 154,921 59,025 32,148 22,133
Loans held for sale........ 437,147 1,016,792 502,086 579,788 508,997 936,788 528,739
Loans and leases........... 2,675,915 1,486,461 2,137,747 1,234,922 733,424 556,991 611,093
Allowance for loan and
lease losses............ 37,286 15,218 22,283 13,129 8,555 9,888 8,812
Servicing assets........... 212,453 181,329 228,624 130,522 138,500 117,129 83,044
Deposits................... 2,257,306 1,928,968 2,309,018 1,443,330 870,318 1,009,211 719,596
Short-term borrowings...... 380,612 776,926 487,963 475,502 473,103 644,861 512,275
Long-term debt............. 464,968 30,000 30,000 30,000 30,000 2,839 7,096
Trust preferred securities. 198,500 153,500 198,500 153,500 50,000 50,000 50,000
Shareholders' equity....... 329,275 209,452 231,665 188,870 159,296 145,233 127,983
First mortgage servicing
portfolio............... 13,446,335 10,474,246 12,875,532 9,196,513 10,488,112 11,242,470 10,713,549
Home equity portfolio...... 2,098,678 1,826,853 2,064,542 1,625,719 777,934 581,241 358,166
SELECTED FINANCIAL RATIOS:
Performance Ratios:
Return on average assets(3) 1.00% 1.57% 1.45% 1.76% 2.01% 1.85% 1.94%
Return on average equity(3) 12.01 22.51 21.82 20.83 21.51 22.77 19.80
Net interest
margin(3)(4)(5)......... 5.94 5.11 5.36 5.36 5.03 4.33 5.15
Noninterest income to
revenues(6)............. 53.73 67.41 64.84 69.94 75.25 78.71 75.89
Efficiency ratio(7)........ 75.74 79.19 78.23 78.61 78.95 79.55 76.74
Loans and leases to
deposits(8)............. 118.54 77.06 92.58 85.56 84.27 55.19 84.92
Average interest-earning
assets to average
interest-bearing
liabilities............. 118.40 114.86 117.12 113.51 127.36 121.02 124.00
Asset Quality Ratios:
Allowance for loan and
lease losses to:
Total loans and leases.. 1.39% 1.02% 1.04% 1.06% 1.17% 1.78% 1.45%
Non-performing loans
and leases........... 216.00 154.00 116.34 181.79 189.86 84.28 115.02
Net charge-offs to average
loans and leases(3)..... 0.59 0.36 0.53 0.28 0.27 0.33 0.46
Net home equity
charge-offs to home
equity portfolio(3)..... 2.70 1.56 1.58 0.57 0.36 0.37 0.29
Non-performing assets to
total assets............ 0.57 0.49 0.68 0.42 0.48 0.78 0.64
16
AT OR FOR THE SIX
MONTHS ENDED JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
--------------------- -------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Non-performing assets to
total loans and other
real estate owned........ 0.82% 1.07% 1.10% 0.81% 1.09% 2.77% 1.55%
Capital Ratios:
Average shareholders'
equity to average assets 8.34 6.91 6.65 8.46 9.35 8.09 9.32
Tier 1 capital ratio........ 9.08 7.81 6.81 8.42 11.41 11.63 13.56
Tier 1 leverage ratio....... 11.43 9.84 9.36 12.41 12.77 10.51 12.06
Total risk-based capital
ratio.................... 12.47 11.42 10.82 13.59 13.50 12.25 14.85
Ratios of Earnings to Fixed
Charges(9):
Including deposit interest.. 1.49x 1.54x 1.58x 1.60x 1.81x 1.74x 1.80x
Excluding deposit interest.. 2.10 2.28 2.35 2.27 2.32 2.13 2.28
---------------------------
(1) Earnings per share of common stock before cumulative effect of change
in accounting principle related to SFAS 142, "Goodwill and Other
Intangible Assets," for the six month period ended June 30, 2002 was
$0.67 basic and $0.65 diluted.
(2) Earnings per share of common stock before cumulative effect of change
in accounting principle related to SFAS 133, "Accounting for Derivative
Instruments and Hedging Activities," for the six months ended June
30, 2001 was $1.03 basic and $0.96 diluted, and for the year ended
December 31, 2001 was $2.14 basic and $1.99 diluted.
(3) Certain financial ratios for interim periods have been annualized.
(4) Net interest income divided by average interest-earning assets.
(5) Calculated on a tax-equivalent basis.
(6) Revenues consist of net interest income plus noninterest income.
(7) Noninterest expense divided by net interest income plus noninterest
income.
(8) Excludes loans held for sale.
(9) For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income before income taxes plus interest expense.
Fixed charges consist of interest expense plus distributions on
preferred securities.
17
RISK FACTORS
An investment in the preferred securities involves a number of risks.
We urge you to read all of the information contained in this prospectus. In
addition, we urge you to consider carefully the following factors in evaluating
an investment in Irwin and the trust before you purchase any of the preferred
securities offered by this prospectus.
Because the trust will rely on the payments it receives on the
debentures it owns to fund all payments on the preferred securities and because
the trust may distribute the debentures it owns in exchange for the preferred
securities that it issues, you are making an investment decision that relates to
the debentures being issued by us as well as the preferred securities. You
should carefully review the information in this prospectus about the preferred
securities, the debentures and the guarantee.
RISKS RELATING TO AN INVESTMENT IN US.
WE HAVE BEEN AND MAY CONTINUE TO BE ADVERSELY AFFECTED BY THE GENERAL
DETERIORATION IN ECONOMIC CONDITIONS.
The risks associated with our business become more acute in periods of
a slowing economy or recession, like we have seen over the last year. Economic
declines are typically accompanied by a decrease in demand for consumer and
commercial credit and declining real estate and other asset values. We have
experienced an increase in delinquencies, foreclosures and losses as generally
occurs during economic slowdowns or recessions and we would expect this to
continue if the economic deterioration persists. Our servicing costs and credit
losses also tend to increase during periods of economic slowdown or recession.
In our home equity lending and commercial banking lines of business, a
material decline in real estate values may reduce the ability of borrowers to
use home equity and commercial real estate to support borrowings and increases
the loan-to-value ratios of loans we have previously made, thereby weakening
collateral coverage and increasing the possibility of a loss in the event of a
default. Material declines in real estate values may also affect our residential
mortgage lending since we sometimes hold mortgages in portfolio until we sell
them.
WE MAY BE ADVERSELY AFFECTED BY INTEREST RATE CHANGES.
We and our subsidiaries are subject to interest rate risk in our
consumer and commercial lending businesses, although interest rate sensitivity
impacts our various lines of business differently. Changes in interest rates
likely will affect the pricing of loans and deposits and the value that we can
recognize on the sale of mortgage and home equity loan originations or servicing
portfolios. Interest rates tend to have opposite effects on the loan production
aspect and the servicing aspect of these two lines of business.
Changes in interest rates affect the valuations used in determining the
market value of our mortgage servicing rights in our mortgage banking line of
business and may cause us to experience additional impairment in the value of
these assets.
In our mortgage banking line of business, we record mortgage servicing
rights at the lower of their cost basis or market value, and a valuation
allowance is recorded for any impairment. Reductions in interest rates expose us
to write-downs in the carrying value of the mortgage servicing and other
servicing assets we hold on our balance sheet. In addition to our practice of
periodically selling servicing rights, we estimate the market value of the
servicing assets each month using a cash flow model to project future expected
cash flows based upon a set of valuation assumptions we believe market
participants would use for similar assets. These valuations involve the judgment
of management regarding a variety of factors, including assumptions regarding
anticipated prepayment speeds of the underlying mortgages, and are not exact. We
recently refined the models that we use to prepare these valuations to better
reflect borrower tendencies given the current interest rate environment and we
expect this to result in additional impairment in the third quarter of 2002.
Although impairment may be offset by increases in revenue due to higher
loan volumes and origination fees during periods of declining interest rates, we
also utilize interest rate instruments to counteract potential servicing asset
impairment. However, if we improperly hedge or mismanage our servicing assets,
our results of operations may be adversely affected during the period in which
the impairment occurs. For example, during the
18
second quarter of 2002, we recorded a gross impairment expense, excluding any
offsetting hedging activities, on our mortgage servicing assets of $48.0 million
compared to $0.3 million during the same period in 2001. This impairment was
offset by hedging gains of $45.4 million during the second quarter of 2002,
compared to hedging losses of $4.1 million recorded during the same period in
2001. In light of the further decline in prevailing mortgage interest rates and
an increase in refinance activity during the third quarter of 2002, we expect to
incur additional impairment on our mortgage servicing portfolio during the third
quarter of 2002.
We may recognize additional trading losses with respect to our residual
interests in our home equity line of business if interest rates continue to
fall.
Reductions in interest rates also cause trading losses related to
residual interests that we own from our prior securitizations. These assets are
reflected on our balance sheet at their fair value with subsequent unrealized
gain or loss recorded in our results of operations for any period in which the
fair value changes. Fair value is based on a discounted cash flow analysis that
takes into account, among other things, prepayment assumptions regarding the
underlying loans. Decreasing interest rates often lead to an increase in actual
and projected prepayments in the underlying loans. This could require that we
recognize a trading loss with respect to our residual interests during the
period in which the interest rates decrease. For example, during the second
quarter of 2002, we recorded an unrecognized trading loss of $5.8 million, due
in part to changes in the valuation assumptions based on prepayment speeds for
residual assets in our home equity lending line of business.
The measures we take to manage interest rate risk in our commercial
banking and commercial finance lines of business may not be sufficient to offset
the effect of fluctuating interest rates on our net interest income.
Our commercial lending and commercial finance lines of business mainly
depend on earnings derived from net interest income. Net interest income is the
difference between interest earned on loans and investments and the interest
expense paid on other borrowings, including deposits at our banks. Our interest
income and interest expense are affected by general economic conditions and by
the policies of regulatory authorities, including the monetary policies of the
Federal Reserve.
Although we have taken measures intended to manage the risks of
operating in changing interest rate environments, we may not be able to mitigate
interest rate sensitivity effectively. Our risk management techniques include
modeling interest rate scenarios, using financial hedging instruments,
match-funding certain loan assets, selling selected servicing rights and
maintaining a strong loan production operation to offset interest rate risk.
There are costs and risks associated with our risk management techniques, and
these could be substantial.
The hedging techniques we use in an attempt to reduce our overall
interest rate exposure may be costly and ineffective.
To reduce the effect interest rates have on our businesses, we invest
in derivatives and other interest-sensitive instruments. While our intent in
purchasing these instruments is to reduce our overall interest rate sensitivity,
the performance of these instruments is, at times, unpredictable. When our
hedges work as anticipated, they serve to reduce other losses. We experienced
this in the second quarter of 2002 when hedging gains offset impairment to the
value of our mortgage servicing assets. However, our investments in derivatives
and other financial instruments we purchase with intent to hedge our interest
rate risks may not always produce results in a highly correlated manner compared
to the assets or liabilities being hedged. As a result, we may incur additional
losses. For example, in the fourth quarter of 2001, hedging losses of $38.6
million exceeded a $31.2 million valuation increase in our mortgage servicing
assets.
WE ARE THE DEFENDANT IN A CLASS ACTION LAWSUIT CALLED CULPEPPER V. INLAND
MORTGAGE CORPORATION THAT COULD SUBJECT US TO MATERIAL LIABILITY.
We and our subsidiaries, especially in our consumer lending business,
are from time to time engaged in various lawsuits, other assertions of improper
or fraudulent loan practices or lending violations, and other matters, and we
may have a number of unresolved claims pending. Numerous class action lawsuits
have been, and continue to be, filed throughout the United States against
mortgage lenders alleging violations of the federal Real Estate Settlement
Procedures Act, commonly known as RESPA.
19
Our subsidiary, Irwin Mortgage Corporation, which was formerly known as
Inland Mortgage Corporation, is the defendant in a class action lawsuit called
Culpepper v. Inland Mortgage Corporation. The plaintiffs originally filed this
lawsuit in 1996 in federal district court in Northern Alabama. The plaintiffs
claim that certain payments that our subsidiary made to the plaintiffs' mortgage
brokers are unlawful under RESPA.
In June 2001, a federal circuit court of appeals upheld the lower
court's grant of class action certification in favor of the plaintiffs in the
Culpepper case. The case is now proceeding in the federal district court. In
response to the court of appeals' decision unfavorable to us, the plaintiffs
filed a motion for partial summary judgment in July 2001 asking the federal
district court to find that our subsidiary is liable for violating RESPA. The
court has not yet ruled on this motion. In November 2001, the parties filed
supplemental briefs upon order of the district court. The briefs addressed the
parties' views on the import of a new policy statement issued by the Department
of Housing and Urban Development, or HUD, on October 18, 2001, after the
appellate court's ruling in this case. HUD is the agency responsible for
interpreting and implementing RESPA. The clarifying policy statement explicitly
disagreed with the court of appeals' interpretation of RESPA in connection with
the types of payments and alleged violation at issue in the Culpepper case.
Irwin Mortgage also filed a motion in the district court seeking a stay of
further proceedings. On March 8, 2002, the district court granted Irwin
Mortgage's motion to stay the proceedings in this case until the appellate court
renders decisions in three other RESPA cases pending in that court. On September
18, 2002, the appellate court reversed the grant of class certification in one
of these cases, which is a result that is favorable to us. The court stated in
that case that HUD's October 18, 2001 policy statement is contrary to and, in
effect, overrules the appellate court's prior decision in the Culpepper case. We
believe this provides grounds to decertify the class in Culpepper. However, the
stay in the proceedings continues in effect in Culpepper and the district court
has not yet taken action.
If the class is not decertified and the district court finds that Irwin
Mortgage violated RESPA, Irwin Mortgage could be liable for damages equal to
three times the amount of that portion of payments made to the mortgage brokers
that is ruled unlawful. Based on notices sent by the Culpepper plaintiffs to
date to potential class members and additional notices that might be sent, we
believe the Culpepper class is not likely to exceed 32,000 borrowers who meet
the class specifications. We also have other class action lawsuits filed against
us alleging RESPA violations and other claims based on payments similar to those
at issue in the Culpepper case, but in one case arguing different RESPA
violations. These related lawsuits filed against us after Culpepper, some of
which are subject to a similar stay of proceedings, seek class certification of
additional borrowers on a different basis than that recently overruled by the
court of appeals.
We intend to vigorously defend these lawsuits and believe we have
available numerous defenses to the claims. At this stage of the litigation we
are unable to reasonably estimate the amount of potential loss we could suffer,
and we have not established any reserves related to these cases.
We expect that an adverse outcome in these litigation matters could
subject us to significant monetary damages and this amount could be material to
our financial position as well as affect the market price of the preferred
securities and our ability to pay distributions on the preferred securities.
OUR BUSINESS MAY BE AFFECTED ADVERSELY BY THE HIGHLY REGULATED ENVIRONMENT IN
WHICH WE OPERATE.
We and our subsidiaries are subject to extensive federal and state
regulation and supervision. In addition, we are subject to class action lawsuits
alleging violations of consumer lending laws, including truth in lending laws
and regulations, which could, among other remedies, result in rights of
rescission for borrowers and penalties. For example, on September 30, 2002, a
federal district court in Massachusetts certified a plaintiff class in a lawsuit
pending against our banking subsidiary in which the plaintinff borrowers claim
that the originator of their home equity loans, which loans we later acquired,
failed to make certain disclosures allegedly required with respect to prepayment
penalty provisions.
Recently enacted, proposed and future legislation and regulations have
had, will continue to have or may have significant impact on the financial
services industry. Regulatory or legislative changes could cause us to change or
limit some of our consumer loan products or the way we operate our different
lines of business. Future changes could affect the profitability of some or all
of our lines of business.
Consumer loan originations are highly regulated and recent regulatory
initiatives have focused on the mortgage and home equity lending markets. HUD
has recently proposed significant changes to its regulations promulgated under
RESPA which, if adopted as proposed, could affect the competitive environment in
the mortgage lending industry. It is uncertain at this time what effect this
would have on our mortgage banking line of business. In addition, federal, state
and local government agencies and/or legislators have been considering, and in
some instances have adopted, legislation to restrict lenders' ability to charge
rates and fees in connection with residential
20
mortgage loans. In general, these proposals involve lowering the existing
federal Homeownership and Equity Protection Act thresholds for defining a
"high-cost" loan, and establishing enhanced protections and remedies for
borrowers who receive these loans. The proposed legislation has also included
various loan term restrictions, such as limits on balloon loan features.
Frequently referred to generally as "predatory lending" legislation, many of
these laws and rules extend beyond curbing predatory lending practices to
restrict commonly accepted lending activities, including some of our activities.
For example, some of these laws and rules prohibit any form of prepayment charge
or severely restrict a borrower's ability to finance the points and fees charged
in connection with his or her loan. It is possible that passage of these laws
could limit our ability to impose various fees and charge what we believe are
risk-based interest rates on various types of consumer loans. Such laws could
impose additional regulatory restrictions on our business in certain states.
Because we originate home equity loans from our banking branch in
Nevada, federal law permits us to conduct our home equity lending business in
compliance with Nevada law regardless of where the borrowers may reside.
Nonetheless, from time to time regulators from other states have questioned our
ability to charge certain fees, such as prepayment penalties, to residents of
their states. In some cases, we have chosen to deal with these issues by
electing not to do business in certain states. A change in federal or state law
or regulation may affect the rates and fees we charge on home equity loans made
to borrowers outside Nevada.
These and other potential changes in government regulation or policies
could increase our costs of doing business and could adversely affect our
operations and the manner in which we conduct our business.
WE MAY FACE CHALLENGES IN MANAGING OUR OPERATIONAL RISKS AS WE GROW.
Like other financial services companies, we face a number of
operational risks, including the potential for processing errors, internal or
external fraud, failure of computer systems, and external events beyond our
control such as natural disasters. Beginning in 2002, we commenced a multi-year
program to provide a more integrated, firm-wide approach to identification,
measurement, monitoring and mitigation of operational risks, but this effort is
not yet complete. Our business is a complex organization, and our home equity
and commercial lending businesses grew rapidly during 2000 and 2001. Our growth
may strain our existing managerial resources and internal monitoring, accounting
and reporting systems.
We have recently added correspondent lending as a new distribution
channel to our mortgage banking line of business, and we expect continued
significant growth in our lines of business as we implement our strategic plans.
For this reason, the financial assets that we manage could increase
significantly following this offering. If we are unable to expand the
capabilities of our internal reporting and monitoring systems or to hire
qualified personnel as needed to keep pace with our growth, our existing risk
management may suffer and we could experience losses. Rapid growth may also
adversely impact our profitability.
WE MAY NEED ADDITIONAL CAPITAL IN THE FUTURE AND ADEQUATE FINANCING MAY NOT BE
AVAILABLE TO US ON ACCEPTABLE TERMS, OR AT ALL.
The capital from this offering and what we expect to generate
internally may not be sufficient to maintain our regulatory capital levels at
desired levels to support the level of growth contemplated under our current
business plan. We may seek additional capital in the future to fund the growth
of our operations and to maintain our regulatory capital above well-capitalized
standards. We may not be able to obtain additional debt or equity financing, or,
if available, it may not be in amounts and on terms acceptable to us. If we are
unable to obtain the funding we need, we may be unable to develop our products
and services, take advantage of future opportunities or respond to competitive
pressures, which could have a material adverse effect on us.
OUR OPERATIONS MAY BE ADVERSELY AFFECTED IF WE ARE UNABLE TO SECURE ADEQUATE
FUNDING; OUR RELIANCE ON WHOLESALE FUNDING SOURCES AND SECURITIZATIONS EXPOSES
US TO LIQUIDITY RISK AND POTENTIAL EARNINGS VOLATILITY.
We rely on wholesale funding, such as short-term credit facilities,
Federal Home Loan Bank borrowings and brokered deposits, to significantly
augment our core deposits to fund our financing businesses. Because wholesale
funding sources are affected by general capital market conditions, the
availability of funding from wholesale lenders may be dependent on the
confidence these investors have in commercial and consumer finance businesses.
The continued availability to us of these funding sources is uncertain, and we
could be adversely
21
impacted if our specialized financial services areas become disfavored by
wholesale lenders. In addition, brokered deposits may be difficult for us to
retain or replace at attractive rates as they mature. Our financial flexibility
will be severely constrained if we are unable to renew our wholesale funding or
if adequate financing is not available in the future at acceptable rates of
interest. We may not have sufficient liquidity to continue to fund new loans or
lease originations and we may need to liquidate loans or other assets
unexpectedly in order to repay obligations as they mature.
We regularly sell the majority of our first and second mortgage loan
originations into the secondary market through the use of securitizations. At
times, some of our financial assets, such as nontraditional, high loan-to-value
home equity loans or residuals, may not be readily marketable, and we may not be
able to sell assets at favorable prices when necessary. This could adversely
affect our liquidity and funding for future originations and purchases of loans.
Additionally, adverse changes in the securitization market could impair our
ability to originate, purchase and sell home equity loans or other assets on a
favorable or timely basis. For these reasons, we may experience earnings
volatility.
WE HAVE CREDIT RISK INHERENT IN OUR ASSET PORTFOLIOS AND IN CERTAIN ASSETS THAT
WE HAVE SOLD BUT CONTINUE TO SERVICE.
In our businesses, some borrowers may not repay loans that we make to
them. As all financial institutions do, we maintain an allowance for loan and
lease losses to absorb the level of losses that we think is probable in our
portfolios. In light of greater uncertainty in the national economy and as we
moved away from gain-on-sale accounting in our home equity lending line of
business, we significantly increased our loss reserve in this line of business
during the third and fourth quarters of 2001 and the first half of 2002. We
expect that we will continue to have sizeable additions to our allowance as a
percentage of home equity loans in this line of business as we continue to build
our on-balance sheet portfolio and as this portfolio continues to increase and
mature. Our allowance for loan and lease losses is based on management's
periodic estimates of probable losses and may not be sufficient to cover the
loan and lease losses that we actually incur, and charge-offs could exceed the
amounts reserved.
In the near term, our strategy in our commercial banking line of
business is to continue to grow this line of business in the markets in which we
are currently operating. We may also pursue opportunities to expand into one or
two new markets outside our traditional markets in south-central Indiana by
establishing offices staffed by senior commercial loan officers who come to us
from other commercial banks in these new markets. As of June 30, 2002, $901.9
million of our total loans, representing 52.7% of our total loan portfolio, were
to borrowers outside of our south-central Indiana markets from branch offices we
opened since 1999. The majority of these loans are commercial loans and many of
these borrowers may not have experienced a complete business or economic cycle
since they have been loan customers of ours. We cannot be sure that our loan
loss experience with these new borrowers in these newer markets will be
consistent with our loan loss experience in our traditional south-central
Indiana markets. Because we have only a limited lending history with these
customers, our ability to assess whether our loan loss reserve is adequate is
less certain. Our actual loan loss experience in these markets may cause us to
increase our reserves.
In our home equity lending line of business, we carry some assets on
our balance sheet at the net present value of the expected future revenue stream
of the instruments, measured at the time we sold the underlying portfolio of
loans. These assets are residual interests in loans we have sold or securitized.
We are exposed to continuing credit risk on these assets. Payment defaults by
borrowers could exceed the default assumptions we used. If we do not collect the
expected amount of interest, the value of our residual interests in the loans
will be impaired. Our future earnings will be affected adversely because we are
required to record a trading loss equal to impairment of the residual. In
addition, we project the expected cash flows over the life of the residual
interest using certain assumptions that are subject to prepayment, credit and
interest rate risks. If our actual experience as to timing, frequency or
security of loans differs materially from the assumptions used, future cash
flows and earnings in our home equity lending line of business could be
negatively impacted. This would also adversely affect our cash flow at the
holding company because our residual interests are held at the holding company.
See "--Our ability to make interest payments on the debentures to the trust may
be restricted if we do not receive dividends from our subsidiaries" on page 24
for a discussion of risks relating to a decrease in cash flow at the holding
company as it relates to our ability to pay distributions on the trust preferred
securities.
22
If we experience defaults by borrowers in any of our businesses to a
greater extent than anticipated, our earnings could be negatively impacted.
WE RELY HEAVILY ON OUR MANAGEMENT TEAM AND KEY PERSONNEL, AND THE UNEXPECTED
LOSS OF KEY MANAGERS AND PERSONNEL MAY AFFECT OUR OPERATIONS ADVERSELY.
Each line of our five lines of business has a separate management team
that operates its niche as a separate business unit. Our overall financial
performance depends heavily on the results of these different specialized
financial services businesses. Our success to date has been influenced strongly
by our ability to attract and to retain experienced senior management to run our
lines of businesses as well as executive management experienced in banking and
financial services to oversee our business units. Our ability to retain
executive officers and the current management teams of each of our lines of
business will continue to be important to implement our strategies successfully.
Our lending officers in our newer banking markets have primary contact
with our new customers in these markets and maintain strong community ties and
personal banking relationships with our customer base, which is a key aspect of
our business strategy and in increasing our market presence. We are dependent on
these new lending officers to maintain and increase our growth in these markets.
The unexpected loss of the services of any key management or personnel,
or the inability to recruit and retain qualified management and key personnel in
the future, could have an adverse effect on our business and financial results.
OWNERSHIP OF OUR COMMON STOCK IS CONCENTRATED IN PERSONS AFFILIATED WITH US.
Our Chairman, William I. Miller, currently has voting control over
approximately 40% of our common shares and, as a result, substantially controls
the vote of a significant portion of our common shares. Together with Mr.
Miller, directors and executive officers of Irwin beneficially own approximately
44% of our common shares. These persons likely have the ability to significantly
influence the outcome of all shareholder votes and to direct our affairs and
business. This voting power would enable them to cause actions to be taken that
may prove to be inconsistent with the interests of non-affiliated shareholders.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO COMPETE EFFECTIVELY IN THE HIGHLY
COMPETITIVE FINANCIAL SERVICES INDUSTRY.
The financial services industry, including commercial banking, mortgage
banking, home equity lending and commercial finance, is highly competitive, and
we and our operating subsidiaries encounter strong competition for deposits,
loans and other financial services in all of our market areas in each of our
lines of business. Our principal competitors include other commercial banks,
savings banks, savings and loan associations, mutual funds, money market funds,
finance companies, trust companies, insurers, leasing companies, credit unions,
mortgage companies, private issuers of debt obligations, venture capital firms,
and suppliers of other investment alternatives, such as securities firms. Many
of our non-bank competitors are not subject to the same degree of regulation as
we and our subsidiaries are and have advantages over us in providing certain
services. Many of our competitors are significantly larger than we are and have
greater access to capital and other resources. Also, our ability to compete
effectively in our lines of business is dependent on our ability to adapt
successfully to technological changes within the banking and financial services
industry generally.
RISKS RELATED TO AN INVESTMENT IN THE PREFERRED SECURITIES.
IF WE DO NOT MAKE INTEREST PAYMENTS UNDER THE DEBENTURES, THE TRUST WILL BE
UNABLE TO PAY DISTRIBUTIONS AND LIQUIDATION AMOUNTS. THE GUARANTEE WOULD NOT
APPLY BECAUSE THE GUARANTEE COVERS PAYMENTS ONLY IF THE TRUST HAS FUNDS
AVAILABLE.
The trust will depend solely on our payments on the debentures to pay
amounts due to you on the preferred securities. If we default on our obligation
to pay the principal or interest on the debentures, the trust will not have
sufficient funds to pay distributions or the liquidation amount on the preferred
securities. In that case, you will not be able to rely on the guarantee for
payment of these amounts because the guarantee only applies if the trust has
23
sufficient funds to make distributions or to pay the liquidation amount.
Instead, you or the property trustee will have to institute a direct action
against us to enforce the property trustee's rights under the indenture relating
to the debentures.
OUR ABILITY TO MAKE INTEREST PAYMENTS ON THE DEBENTURES TO THE TRUST MAY BE
RESTRICTED IF WE DO NOT RECEIVE DIVIDENDS FROM OUR SUBSIDIARIES.
We are a holding company and substantially all of our assets are held
by our subsidiaries. Our ability to make payments on the debentures when due
will depend primarily on available cash resources at the bank holding company
and dividends from our subsidiaries. The ability of our subsidiaries to pay
dividends is subject to their profitability, financial condition, capital
expenditures and other cash flow requirements. Dividends from our banking
subsidiaries are also subject to regulatory restrictions. Our subsidiaries may
not be able to pay dividends in the future.
Our bank subsidiary, Irwin Union Bank and Trust, together with its
subsidiaries, holds the majority of our assets. We currently conduct our
commercial banking line of business as well as portions of our home equity
lending line of business through the bank and its subsidiaries. When we complete
our realignment of Irwin Mortgage Corporation as a subsidiary of the bank in the
fourth quarter of 2002, all of our mortgage banking revenues will also flow
through the bank. Dividend payments or extensions of credit from the bank are
subject to regulatory limitations, generally based on capital levels and current
and retained earnings, imposed by the various regulatory agencies with authority
over the bank. As a state member bank, Irwin Union Bank and Trust may not,
without the approval of the Federal Reserve, declare a dividend if the total of
all dividends declared in a calendar year exceeds the total of its net income
for that year, combined with its retained net income of the preceding two years,
less any required transfers to the surplus account. Under Indiana law, certain
dividends require notice to, or approval by, the Indiana Department of Financial
Institutions, and Irwin Union Bank and Trust may not pay dividends in an amount
greater than its net profits then available, after deducting losses and bad
debts.
Due to these regulatory limitations and the sizeable dividend paid to
the holding company in the fourth quarter of 2001, until at least late 2004, we
must obtain prior approval from the Indiana Department of Financial Institutions
and the Federal Reserve Bank of Chicago before Irwin Union Bank and Trust can
pay additional dividends to us. There can be no assurance the regulators will
approve additional dividends by the bank in excess of the regulatory limits.
Consequently, revenues from our commercial lending line of business, portions of
our home equity lending line of business and, after we complete the realignment
in the fourth quarter of 2002, revenues from Irwin Mortgage Corporation will not
be available to the holding company to service interest payments on the
debentures if regulatory approval to pay bank dividends is not obtained.
Subsidiaries not structured in our organization as subsidiaries of our banks,
including the subsidiary that currently holds our residual interests, are not
subject to these regulatory limitations on the amount of dividends they can pay
to us.
In the fourth quarter of 2001 we adopted a policy to maintain total
capital at the bank at a benchmark level equal to 12% of risk-weighted assets,
which is above the regulatory minimum, and so long as our board maintains this
policy we do not expect to pay dividends from the bank to the holding company if
the bank would fall below this benchmark. In addition, if our banking regulators
believe we are not managing our risks acceptably, they have the authority to
impose supervisory directives that could require us to maintain capital at the
bank at higher than minimum required levels and could restrict the bank's
ability to pay dividends, which in turn could affect our ability to pay
distributions on the preferred securities.
CURRENT HOLDING COMPANY CASH FLOWS AVAILABLE TO PAY INTEREST ON THE DEBENTURES
ARE PRIMARILY RELATED TO INTEREST-ONLY STRIPS FROM PRIOR HOME EQUITY LOAN
SECURITIZATIONS.
Since bank dividends are currently restricted, our holding company cash
flows are now primarily from amounts collected on the $183.3 million of residual
interests outstanding as of June 30, 2002 related to prior securitizations in
our home equity lending line of business that the bank dividended to the holding
company in the fourth quarter of 2001 and, to a lesser extent, certain
management fees and direct cost allocations collected from our subsidiaries. We
believe these cash flows will be sufficient to fund interest payments on our
holding company debt, including the debentures offered by this prospectus, as
well as debt related to $146.7 million of trust preferred securities we
currently have outstanding that ranks equal to the debentures, until the bank's
dividend restrictions lapse. However, if losses in the underlying loan
portfolios exceed our current loss assumptions imbedded in the
24
valuation of the residuals, the cash flows on the residuals will be less than
anticipated which could affect our ability to make interest payments on the
debentures. If we do not make the payments on the debentures, you will not
receive distributions on your preferred securities.
OUR REGULATORS COULD IMPOSE RESTRICTIONS ON INTEREST PAYMENTS TO THE TRUST.
We could also be precluded from making interest payments on the
debentures by our regulators if in the future they were to perceive deficiencies
in liquidity or regulatory capital levels at our holding company. If this were
to occur, we may be required to obtain the consent of our regulators prior to
paying dividends on our common stock or interest on the debentures. If consent
became required and our regulators were to withhold their consent, we would
likely exercise our right to defer interest payments on the debentures, and the
trust would not have funds available to make distributions on the preferred
securities during such period.
THE DEBENTURES AND THE GUARANTEE RANK LOWER THAN MOST OF OUR OTHER INDEBTEDNESS
AND OUR HOLDING COMPANY STRUCTURE EFFECTIVELY SUBORDINATES ANY CLAIMS AGAINST US
TO THOSE OF OUR SUBSIDIARIES' CREDITORS.
Our obligations under the debentures and the guarantee are unsecured
and will rank junior in priority of payment to our existing and future senior
and subordinated indebtedness. Holding company debt that ranks senior to the
debentures totaled $45.2 million outstanding principal amount at June 30, 2002.
The debentures also rank equal to the debt related to $146.7 million of our
trust preferred securities currently outstanding, and the instruments governing
the debentures and this indebtedness limit our ability to make interest payments
on the debentures unless payments are also made on the debt ranking equal to the
debentures. The issuance of the debentures and the preferred securities does not
limit our ability or the ability of our subsidiaries to incur additional
indebtedness, guarantees or other liabilities.
Because we are a holding company, the creditors of our subsidiaries,
including depositors, also will have priority over you in any distribution of
our subsidiaries' assets in liquidation, reorganization or otherwise.
Accordingly, the debentures and the guarantee will be effectively subordinated
to all existing and future liabilities of our subsidiaries, and you should look
only to our assets for payments on the preferred securities and the debentures.
WE HAVE THE OPTION TO DEFER INTEREST PAYMENTS ON THE DEBENTURES FOR SUBSTANTIAL
PERIODS.
We may, at one or more times, defer interest payments on the debentures
for up to 20 consecutive quarters. If we defer interest payments on the
debentures, the trust will defer distributions on the preferred securities
during any deferral period. During a deferral period, you will be required to
recognize as income for federal income tax purposes the amount approximately
equal to the interest that accrues on your proportionate share of the debentures
held by the trust in the tax year in which that interest accrues, even though
you will not receive these amounts until a later date.
You will also not receive the cash related to any accrued and unpaid
interest from the trust if you sell the preferred securities before the end of
any deferral period. During a deferral period, accrued but unpaid distributions
will increase your tax basis in the preferred securities. If you sell the
preferred securities during a deferral period, your increased tax basis will
decrease the amount of any capital gain or increase the amount of any capital
loss that you may have otherwise realized on the sale. A capital loss, except in
certain limited circumstances, cannot be applied to offset ordinary income. As a
result, deferral of distributions could result in ordinary income, and a related
tax liability for the holder, and a capital loss that may only be used to offset
a capital gain.
We do not currently intend to exercise our rights to defer interest
payments on the debentures. However, if we do defer interest payments, the
market price of the preferred securities would likely be adversely affected. The
preferred securities may trade at a price that does not fully reflect the value
of accrued but unpaid interest on the debentures. If you sell the preferred
securities during a deferral period, you may not receive the same return on
investment as someone who continues to hold the preferred securities. Because of
our right to defer interest payments, the market price of the preferred
securities may be more volatile than the market prices of other securities
without the deferral feature.
25
WE HAVE MADE ONLY LIMITED COVENANTS IN THE INDENTURE AND THE TRUST AGREEMENT.
The indenture governing the debentures and the trust agreement
governing the trust do not require us to maintain any financial ratios or
specified levels of net worth, revenues, income, cash flow or liquidity. The
instruments do not protect holders of the debentures or the preferred securities
in the event we experience significant adverse changes in our financial
condition or results of operations. In addition, neither the indenture nor the
trust agreement limit our ability or the ability of any subsidiary to incur
additional indebtedness. Therefore, you should not consider the provisions of
these governing instruments as a significant factor in evaluating whether we
will be able to comply with our obligations under the debentures or the
guarantee.
WE MAY REDEEM THE DEBENTURES BEFORE SEPTEMBER 30, 2032.
Under the following circumstances, we may redeem the debentures before
their stated maturity without payment of premium:
o We may redeem the debentures, in whole or in part, at any time
on or after September 30, 2007.
o We may redeem the debentures in whole, but not in part, within
180 days after certain occurrences at any time during the life
of the trust. These occurrences may include adverse tax,
investment company or bank regulatory developments.
You should assume that an early redemption may be attractive to us if
we are able to obtain capital at a lower cost than we must pay on the debentures
or if it is otherwise in our interest to redeem the debentures. If the
debentures are redeemed, the trust must redeem preferred securities having an
aggregate liquidation amount equal to the aggregate principal amount of
debentures, and you may be required to reinvest your principal at a time when
you may not be able to earn a return that is as high as you were earning on the
preferred securities.
WE CAN DISTRIBUTE THE DEBENTURES TO YOU, WHICH MAY HAVE ADVERSE TAX CONSEQUENCES
FOR YOU; THIS RIGHT COULD ALSO ADVERSELY AFFECT THE MARKET PRICE OF THE
PREFERRED SECURITIES.
The trust may be dissolved at any time before maturity of the
debentures. If this happens, the trustee may distribute the debentures to you
under the terms of the trust agreement.
We cannot predict the market price for the debentures that may be
distributed in exchange for preferred securities upon liquidation of the trust.
The preferred securities or the debentures that you may receive if the trust is
liquidated may trade at a discount to the price that you paid to purchase the
preferred securities. Because you may receive debentures, your investment
decision with regard to the preferred securities will also be an investment
decision with regard to the debentures. You should carefully review all of the
information contained in this prospectus regarding the debentures.
Under current interpretations of federal income tax laws supporting
classification of the trust as a grantor trust for tax purposes, a distribution
of the debentures to you upon the dissolution of the trust would not be a
taxable event to you. Nevertheless, if the trust is classified for federal
income tax purposes as an association taxable as a corporation at the time it is
dissolved, the distribution of the debentures would be a taxable event to you.
In addition, if there is a change in law, a distribution of the debentures upon
the dissolution of the trust could be a taxable event to you.
THERE IS NO CURRENT PUBLIC MARKET FOR THE PREFERRED SECURITIES AND THE MARKET
PRICE MAY BE SUBJECT TO SIGNIFICANT FLUCTUATIONS.
There is currently no public market for the preferred securities.
Although the preferred securities have been approved for listing on the New York
Stock Exchange, there is no guarantee that an active or liquid trading market
will develop for the preferred securities or that the listing of the preferred
securities will continue on the New York Stock Exchange. If an active trading
market does not develop, the market price and liquidity of the preferred
securities will be adversely affected. Even if an active public market does
develop, there is no guarantee that the market price for the preferred
securities will equal or exceed the price you pay for the preferred securities.
26
Future trading prices of the preferred securities may be subject to
significant fluctuations in response to prevailing interest rates, our future
operating results and financial condition, the market for similar securities and
general economic and market conditions. The initial public offering price of the
preferred securities has been set at the applicable liquidation amount of the
preferred securities and may be greater than the market price of the security
following the offering.
The market price for the preferred securities and the debentures that
you may receive in a distribution is also likely to decline during any period
that we are deferring interest payments on the debentures.
YOU MUST RELY ON THE PROPERTY TRUSTEE TO ENFORCE YOUR RIGHTS IF THERE IS AN
EVENT OF DEFAULT UNDER THE INDENTURE.
You may not be able to directly enforce your rights against us if an
event of default under the indenture occurs. If an event of default under the
indenture occurs and is continuing, this event will also be an event of default
under the trust agreement. In that case, you must rely on the enforcement by the
property trustee of its rights as holder of the debentures against us. The
holders of a majority in liquidation amount of the preferred securities will
have the right to direct the property trustee to enforce its rights. If the
property trustee does not enforce its rights following an event of default and a
request by the record holders to do so, any record holder may, to the extent
permitted by applicable law, take action directly against us to enforce the
property trustee's rights. If an event of default occurs under the trust
agreement that is attributable to our failure to pay interest or principal on
the debentures, or if we default under the guarantee, you may proceed directly
against us. You will not be able to exercise directly any other remedies
available to the holders of the debentures unless the property trustee fails to
do so.
AS A HOLDER OF PREFERRED SECURITIES YOU HAVE LIMITED VOTING RIGHTS.
Holders of preferred securities have limited voting rights. Your voting
rights pertain primarily to amendments to the trust agreement. In general, only
we can replace or remove any of the trustees. However, if an event of default
under the trust agreement occurs and is continuing, the holders of at least a
majority in aggregate liquidation amount of the preferred securities may replace
the property trustee and the Delaware trustee.
27
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus constitute
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. We intend
such forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995, and are including this statement for purposes of invoking these
safe harbor provisions. You can identify these statements from our use of the
words "plan," "forecast," "estimate," "project," "believe," "intend,"
"anticipate," "expect," "target," "is likely," "will," "may" and similar
expressions. These forward-looking statements may include, among other things:
o statements and assumptions relating to projected growth,
earnings, earnings per share, and other financial performance
measures as well as management's short-term and long-term
performance goals;
o statements relating to the anticipated effects on results of
operations or financial condition from recent and expected
developments or events, including the recently revised
regulatory capital rules relating to residual interests;
o statements relating to our business and growth strategies,
including potential acquisitions; and
o any other statements, projections or assumptions that are not
historical facts.
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 our
expectations of future results, performance or achievements expressed or implied
by these forward-looking statements. In addition, our past results of operations
do not necessarily indicate our future results. We discuss these and other
uncertainties in the "Risk Factors" section of this prospectus beginning on page
18 and elsewhere in this prospectus. We undertake no obligation to update
publicly any of these statements in light of future events.
28
USE OF PROCEEDS
The trust will invest all of the proceeds from the sale of the
preferred securities in the debentures. We anticipate that the net proceeds to
us from the sale of the debentures will be approximately $ million after
deduction of offering expenses, estimated to be $265,000, and deduction of
underwriting commissions.
The purpose of the offering is to provide capital to fund continued
growth at our subsidiaries and for general corporate purposes. We expect to
contribute the majority of the net proceeds to Irwin Union Bank and Trust,
principally to fund loans originated in our commercial banking and mortgage
banking lines of business, including those from our new correspondent mortgage
lending operations.
29
CAPITALIZATION
The following table sets forth our capitalization at June 30, 2002, on
a historical basis and as adjusted for the offering of the preferred securities
(assuming no exercise of the underwriters' over-allotment option) and the
application of the estimated net proceeds from the corresponding sale of the
debentures to the trust as if such sale had been consummated on June 30, 2002.
This data should be read in conjunction with the consolidated financial
statements and notes thereto incorporated by reference into this prospectus from
our Annual Report on Form 10-K for the fiscal year ended December 31, 2001, and
from our Quarterly Report on Form 10-Q for the period ended June 30, 2002. See
"Documents Incorporated by Reference" on page 64.
JUNE 30, 2002
-------------
AS
ACTUAL ADJUSTED
------ --------
(DOLLARS IN THOUSANDS)
Note payable...................................................................... $ 30,000 $ 30,000
========= =========
Company-obligated mandatorily redeemable preferred securities of subsidiary trust. $146,750 $171,750
========= =========
Company-obligated mandatorily redeemable convertible preferred securities of
subsidiary trust............................................................... $ 51,750 $ 51,750
========= =========
SHAREHOLDERS' EQUITY:
Preferred stock, no par value; 4,000,000 shares authorized..................... -- --
Common stock, no par value; 40,000,000 shares authorized; 29,612,080 shares
issued, including 1,879,658 shares in treasury.............................. 112,159 112,159
Additional paid-in capital..................................................... 3,794 3,794
Deferred compensation.......................................................... (359) (359)
Accumulated other comprehensive income (loss).................................. (125) (125)
Retained earnings.............................................................. 255,932 255,932
Less treasury stock, at cost................................................... (42,126) (42,126)
--------- ---------
Total shareholders' equity.................................................. $329,275 $329,275
========= =========
Total capitalization(1)................................................... $557,775 $582,775
========= =========
CAPITAL RATIOS(2)(3):
Leverage ratio(3)(4)(5)........................................................ 11.34% 11.34%
Tier 1 capital ratio(4)(5)..................................................... 9.08 9.08
Total risk based capital ratio(4)(5)........................................... 12.47 13.01
Total shareholders' equity to total assets..................................... 8.60 8.55
---------------------------
(1) Includes total shareholders' equity, note payable and total trust
preferred and convertible trust preferred securities.
(2) The capital ratios, as adjusted, are computed including the estimated
proceeds from the sale of the preferred securities, in a manner
consistent with Federal Reserve regulations.
(3) The leverage ratio is core capital divided by average quarterly assets,
after deducting intangible assets and net deferred tax assets in excess
of regulatory maximum limits.
(4) The preferred securities have been structured to qualify as Tier 1
capital. However, in calculating the amount of Tier 1 qualifying
capital, the preferred securities, together with any other trust
preferred securities or cumulative preferred stock of ours that may be
outstanding in the future, can only be included up to the amount
constituting 25% of total Tier 1 capital. At June 30, 2002, on an actual
and as adjusted basis, our Tier 1 capital included $107.6 million
liquidation amount of trust preferred securities consistent with the
applicable limitations imposed by Federal Reserve regulations. The
excess amounts of our trust preferred securities are included in Tier 2
capital which comprises part of our total capital.
(5) On a pro forma basis giving effect to the new regulatory capital rules
that will become effective December 31, 2002 for credit-enhancing
interest-only strips, at June 30, 2002, our pro forma leverage ratio
would be 11.07%, and 11.07% as adjusted for this offering, our pro forma
Tier 1 capital ratio would be 8.89%, and 8.89% as adjusted for this
offering, and our pro forma total risk-based capital ratio would be
12.28%, and 12.82% as adjusted for this offering.
30
ACCOUNTING AND REGULATORY TREATMENT
The trust will be treated, for financial reporting purposes, as our
subsidiary and, accordingly, the accounts of the trust will be included in our
consolidated financial statements. The preferred securities will be presented as
a separate line item in our consolidated balance sheet under the caption
"Company-obligated mandatorily redeemable preferred securities of subsidiary
trust," or other similar caption. In addition, appropriate disclosures about the
preferred securities, the guarantee and the debentures will be included in the
notes to our consolidated financial statements. For financial reporting
purposes, we will record distributions payable on the preferred securities in
our consolidated statements of income.
Our future reports filed under the Securities Exchange Act of 1934 will
include a footnote to the audited consolidated financial statements stating
that:
o the trust is wholly-owned;
o the sole assets of the trust are the debentures specifying the
debentures' outstanding principal amount, interest rate and
maturity date; and
o our obligations described in this prospectus, in the
aggregate, constitute a full, irrevocable and unconditional
guarantee on a subordinated basis by us of the obligations of
the trust under the preferred securities.
We are not required to include separate financial statements of the
trust in this prospectus because we will own all of the voting securities of the
trust, the trust has no independent operations and we guarantee the payments on
the preferred securities to the extent described in this prospectus.
31
DESCRIPTION OF THE TRUST
IFC Capital Trust VI is a Delaware statutory trust formed pursuant to
the Delaware Statutory Trust Act under a trust agreement executed by us, as
sponsor for the trust, and the trustees, and a certificate of trust has been
filed with the Delaware Secretary of State. The trust agreement will be amended
and restated in its entirety in the form filed as an exhibit to the registration
statement of which this prospectus is a part, as of the date the preferred
securities are initially issued. The trust agreement will be qualified under the
Trust Indenture Act of 1939.
The following discussion contains a description of the material terms
of the trust agreement for the trust and is subject to, and is qualified in its
entirety by reference to, the amended and restated trust agreement.
The holders of the preferred securities issued pursuant to the offering
described in this prospectus will own all of the issued and outstanding
preferred securities of the trust which have certain prior rights over the other
securities of the trust in certain circumstances as specified in this
prospectus. We will not initially own any of the preferred securities. We will
acquire common securities in an amount equal to at least 3% of the total capital
of the trust and will initially own, directly or indirectly, all of the issued
and outstanding common securities. The common securities, together with the
preferred securities, are called the trust securities.
The trust exists exclusively for the purposes of:
o issuing the preferred securities to the public for cash;
o issuing its common securities to us in exchange for our
capitalization of the trust;
o investing the proceeds from the sale of the trust securities
in an equivalent amount of debentures; and
o engaging in other activities that are incidental to those
listed above, such as receiving payments on the debentures and
making distributions to security holders, furnishing notices
and other administrative tasks.
The trust will not have any independent business operations or any
assets, revenues or cash flows other than those related to the issuance and
administration of the trust securities.
The rights of the holders of the trust securities are as set forth in
the trust agreement, the Delaware Statutory Trust Act and the Trust Indenture
Act. The trust agreement does not permit the trust to borrow money or make any
investment other than in the debentures. Other than with respect to payment of
distributions on and the liquidation amount of the trust securities, Irwin has
agreed to pay for all debts and obligations and all costs and expenses of the
trust, including the fees and expenses of the trustees and any income taxes,
duties and other governmental charges, and all costs and expenses related to
these charges, to which the trust may become subject, except for United States
withholding taxes that are properly withheld.
The number of trustees of the trust will initially be five. Three of
the trustees will be persons who are employees or officers of or who are
affiliated with Irwin. They are the administrative trustees. The fourth trustee
will be an entity that maintains its principal place of business in the State of
Delaware. It is the Delaware trustee. Initially, U.S. Bank Trust National
Association, a national banking association, will act as Delaware trustee. The
fifth trustee, called the property trustee, will also initially be U.S. Bank
Trust National Association. The property trustee is the institutional trustee
under the trust agreement and acts as the indenture trustee called for under the
applicable provisions of the Trust Indenture Act. Also for purposes of
compliance with the Trust Indenture Act, U.S. Bank Trust National Association
will act as guarantee trustee and indenture trustee under the guarantee
agreement and the indenture. We, as holder of all of the common securities, will
have the right to appoint or remove any trustee unless an event of default under
the indenture has occurred and is continuing, in which case only the holders of
the preferred securities may remove the Delaware trustee or the property
trustee. The trust has a term of approximately 31 years but may terminate
earlier as provided in the trust agreement.
The property trustee will hold the debentures for the benefit of the
holders of the trust securities and will have the power to exercise all rights,
powers and privileges under the indenture as the holder of the debentures. In
addition, the property trustee will maintain exclusive control of a segregated
noninterest-bearing "payment account"
32
established with U.S. Bank Trust National Association to hold all payments made
on the debentures for the benefit of the holders of the trust securities. The
property trustee will make payments of distributions and payments on
liquidation, redemption and otherwise to the holders of the trust securities out
of funds from the payment account. The guarantee trustee will hold the guarantee
for the benefit of the holders of the preferred securities. We will pay all fees
and expenses related to the trust and the offering of the preferred securities,
including the fees and expenses of the trustees.
DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities will be issued pursuant to the trust
agreement. For more information about the trust agreement, see "Description of
the Trust" beginning on page 32. U.S. Bank Trust National Association will act
as property trustee for the preferred securities under the trust agreement for
purposes of complying with the provisions of the Trust Indenture Act. The terms
of the preferred securities will include those stated in the trust agreement and
those made part of the trust agreement by the Trust Indenture Act.
The following discussion contains a description of the material
provisions of the preferred securities and is subject to, and is qualified in
its entirety by reference to, the trust agreement and the Trust Indenture Act.
We urge you to read the form of trust agreement, as amended, which is filed as
an exhibit to the registration statement of which this prospectus forms a part.
GENERAL
The trust agreement authorizes the administrative trustees, on behalf
of the trust, to issue the trust securities, which are comprised of the
preferred securities to be sold to the public and the common securities. We will
own all of the common securities issued by the trust. The trust is not permitted
to issue any securities other than the trust securities or incur any other
indebtedness.
The preferred securities will represent preferred undivided beneficial
interests in the assets of the trust, and the holders of the preferred
securities will be entitled to a preference over the common securities upon an
event of default with respect to distributions and amounts payable on redemption
or liquidation. The preferred securities will rank equally, and payments on the
preferred securities will be made proportionally, with the common securities,
except as described under "--Subordination of Common Securities" on page 37.
The property trustee will hold legal title to the debentures in trust
for the benefit of the holders of the trust securities. We will guarantee the
payment of distributions out of money held by the trust, and payments upon
redemption of the preferred securities or liquidation of the trust, to the
extent described under "Description of the Guarantee" on page 52. The guarantee
agreement does not cover the payment of any distribution or the liquidation
amount when the trust does not have sufficient funds available to make these
payments.
DISTRIBUTIONS
Source of Distributions. The funds of the trust available for
distribution to holders of the preferred securities will be limited to payments
made under the debentures, which the trust will purchase with the proceeds from
the sale of the trust securities. Distributions will be paid through the
property trustee, which will hold the amounts received from our interest
payments on the debentures in the payment account for the benefit of the holders
of the trust securities. If we do not make interest payments on the debentures,
the property trustee will not have funds available to pay distributions on the
preferred securities.
Payment of Distributions. Distributions on the preferred securities
will be payable at the annual rate of % of the $25 stated liquidation amount,
payable quarterly on March 31, June 30, September 30 and December 31 of each
year, to the holders of the preferred securities on the relevant record dates.
So long as the preferred securities are represented by a global security, as
described below, the record date will be the business day immediately preceding
the relevant distribution date. The first distribution date for the preferred
securities will be December 31, 2002.
33
Distributions will accumulate from the date of issuance, will be
cumulative and will be computed on the basis of a 360-day year of twelve 30-day
months. If the distribution date is not a business day, then payment of the
distributions will be made on the next day that is a business day, without any
additional interest or other payment for the delay. However, if the next
business day is in the next calendar year, payment of the distribution will be
made on the business day immediately preceding the scheduled distribution date.
When we use the term "business day" we mean any day other than a Saturday, a
Sunday, a day on which banking institutions in New York, New York are authorized
or required by law, regulation or executive order to remain closed or a day on
which the corporate trust office of the property trustee or the indenture
trustee is closed for business.
Extension Period. As long as no event of default under the indenture
has occurred and is continuing, we have the right to defer the payment of
interest on the debentures at any time for a period not exceeding 20 consecutive
quarters. We refer to this period of deferral as an "extension period." No
extension period may extend beyond September 30, 2032 or end on a date other
than an interest payment date, which dates are the same as the distribution
dates. If we defer the payment of interest, quarterly distributions on the
preferred securities will also be deferred during any such extension period. Any
deferred distributions under the preferred securities will accumulate additional
amounts at the annual rate of %, compounded quarterly from the relevant
distribution date. The term "distributions" as used in this prospectus includes
those accumulated amounts.
During an extension period, we may not:
o declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect
to, any of our capital stock (other than stock dividends,
non-cash dividends in connection with the implementation of a
shareholder rights plan, purchases of common stock in
connection with employee benefit plans or in connection with
the reclassification of any class of our capital stock into
another class of capital stock);
o make any payment of principal, interest or premium on or
repay, repurchase or redeem any debt securities that rank
equally with (including the debentures issued to our other
affiliated Delaware trusts), or junior in interest to, the
debentures;
o make any guarantee payments with respect to any other
guarantee by us of any other debt securities of any of our
subsidiaries if the guarantee ranks equally with or junior to
the debentures (other than payments under the guarantee for
the preferred securities); or
o redeem, purchase or acquire less than all of the debentures or
any of the preferred securities.
After the termination of any extension period and the payment of all
amounts due, we may elect to begin a new extension period, subject to the above
requirements.
We do not currently intend to exercise our right to defer distributions
on the preferred securities by deferring the payment of interest on the
debentures.
REDEMPTION OR EXCHANGE
General. Subject to the prior approval of the Federal Reserve, if
required, we will have the right to redeem the debentures:
o in whole at any time, or in part from time to time, on or
after September 30, 2007;
o at any time, in whole, within 180 days following the
occurrence of a Tax Event, an Investment Company Event or a
Capital Treatment Event, which terms we define below; or
o at any time, and from time to time, to the extent of any
preferred securities we purchase, plus a proportionate amount
of the common securities we hold.
34
Mandatory Redemption. Upon our repayment or redemption, in whole or in
part, of any debentures, whether on September 30, 2032 or earlier, the property
trustee will apply the proceeds to redeem the same amount of the trust
securities, upon not less than 30 days' nor more than 60 days' notice, at the
redemption price. The redemption price will equal 100% of the aggregate
liquidation amount of the trust securities plus accumulated but unpaid
distributions to the date of redemption. If less than all of the debentures are
to be repaid or redeemed on a date of redemption, then the proceeds from such
repayment or redemption will be allocated to redemption of preferred securities
and common securities proportionately.
Distribution of Debentures in Exchange for Preferred Securities. Upon
prior approval of the Federal Reserve, if required by law or regulation, we will
have the right at any time to dissolve, wind-up or terminate the trust and,
after satisfaction of the liabilities of creditors of the trust as provided by
applicable law, including, without limitation, amounts due and owing the
trustees of the trust, cause the debentures to be distributed directly to the
holders of trust securities in liquidation of the trust. See "--Liquidation
Distribution Upon Termination" on page 37.
After the liquidation date fixed for any distribution of debentures in
exchange for preferred securities:
o those trust securities will no longer be deemed to be
outstanding;
o certificates representing debentures in a principal amount
equal to the liquidation amount of those preferred securities
will be issued in exchange for the preferred securities;
o we will use our best efforts to list the debentures on the New
York Stock Exchange or similar national exchange or automated
quotation system;
o any certificates representing trust securities that are not
surrendered for exchange will be deemed to represent
debentures with a principal amount equal to the liquidation
amount of those preferred securities, accruing interest at the
rate provided for in the debentures from the last distribution
date on the preferred securities; and
o all rights of the trust securityholders other than the right
to receive debentures upon surrender of a certificate
representing trust securities will terminate.
We cannot assure you that the market prices for the preferred
securities or the debentures that may be distributed if a dissolution and
liquidation of the trust were to occur would be favorable. The preferred
securities that an investor may purchase, or the debentures that an investor may
receive on dissolution and liquidation of the trust, may trade at a discount to
the price that the investor paid to purchase the preferred securities.
Redemption upon a Tax Event, Investment Company Event or Capital
Treatment Event. If a Tax Event, an Investment Company Event or a Capital
Treatment Event occurs, we will have the right to redeem the debentures in
whole, but not in part, and thereby cause a mandatory redemption of all of the
trust securities at the redemption price described above. If one of these events
occurs and we do not elect to redeem the debentures, or to dissolve the trust
and cause the debentures to be distributed to holders of the trust securities,
then the preferred securities will remain outstanding and additional interest
may be payable on the debentures.
"Tax Event" means the receipt by the trust and us of an opinion of
counsel experienced in such matters stating that, as a result of any change or
prospective change in the laws or regulations of the United States or any
political subdivision or taxing authority of the United States, or as a result
of any official administrative pronouncement or judicial decision interpreting
or applying the tax laws or regulations, there is more than an insubstantial
risk that:
o interest payable by us on the debentures is not, or within 90
days of the date of the opinion will not be, deductible by us,
in whole or in part, for federal income tax purposes;
o the trust is, or will be within 90 days after the date of the
opinion, subject to federal income tax with respect to income
received or accrued on the debentures; or
35
o the trust is, or will be within 90 days after the date of
opinion, subject to more than an immaterial amount of other
taxes, duties, assessments or other governmental charges.
"Investment Company Event" means the receipt by the trust and us of an
opinion of counsel experienced in such matters to the effect that the trust is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act, as a result of a change in law or regulation
or a change in interpretation or application of law or regulation.
"Capital Treatment Event" means the receipt by the trust and us of an
opinion of counsel experienced in such matters to the effect that there is more
than an insubstantial risk of impairment of our ability to treat the preferred
securities as Tier 1 capital for purposes of the current capital adequacy
guidelines of the Federal Reserve, as a result of any amendment to any laws or
any regulations.
For all of the events described above, we or the trust must request and
receive an opinion with regard to the event within a reasonable period of time
after we become aware of the possible occurrence of an event of this kind.
Redemption of Debentures in Exchange for Preferred Securities We
Purchase. Upon prior approval of the Federal Reserve, if required by law or
regulation, we will also have the right at any time, and from time to time, to
redeem debentures in exchange for any preferred securities we may have purchased
in the market. If we elect to surrender any preferred securities beneficially
owned by us in exchange for redemption of a like amount of debentures, we will
also surrender a proportionate amount of common securities in exchange for
debentures. Preferred securities owned by other holders will not be called for
redemption at any time when we elect to exchange trust securities we own for
debentures.
The common securities we surrender will be in the same proportion to
the preferred securities we surrender as is the ratio of common securities
purchased by us to the preferred securities issued by the trust. In exchange for
the trust securities surrendered by us, the property trustee will cause to be
released to us for cancellation debentures with a principal amount equal to the
liquidation amount of the trust securities, plus any accumulated but unpaid
distributions, if any, then held by the property trustee allocable to those
trust securities. After the date of redemption involving an exchange by us, the
trust securities we surrender will no longer be deemed outstanding and the
debentures redeemed in exchange will be cancelled.
REDEMPTION PROCEDURES
Preferred securities will be redeemed at the redemption price with the
applicable proceeds from our contemporaneous redemption of the debentures.
Redemptions of the preferred securities will be made, and the redemption price
will be payable, on each redemption date only to the extent that the trust has
funds available for the payment of the redemption price.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the date of redemption to each holder of trust securities to
be redeemed at its registered address. Unless we default in payment of the
redemption price on the debentures, interest will cease to accumulate on the
debentures called for redemption on and after the date of redemption.
If the trust gives notice of redemption of its trust securities, then
the property trustee, to the extent funds are available, will irrevocably
deposit with the depositary for the trust securities funds sufficient to pay the
aggregate redemption price and will give the depositary for the trust securities
irrevocable instructions and authority to pay the redemption price to the
holders of the trust securities. If the preferred securities are no longer in
book-entry only form, the property trustee, to the extent funds are available,
will deposit with the designated paying agent for such preferred securities
funds sufficient to pay the aggregate redemption price and will give the paying
agent irrevocable instructions and authority to pay the redemption price to the
holders upon surrender of their certificates evidencing the preferred
securities. Notwithstanding the foregoing, distributions payable on or prior to
the date of redemption for any trust securities called for redemption will be
payable to the holders of the trust securities on the relevant record dates for
the related distribution dates.
If notice of redemption has been given and we have deposited funds as
required, then on the date of the deposit all rights of the holders of the trust
securities called for redemption will cease, except the right to receive the
36
redemption price, but without interest on such redemption price after the date
of redemption. The trust securities will also cease to be outstanding on the
date of the deposit. If any date fixed for redemption of trust securities is not
a business day, then payment of the redemption price payable on that date will
be made on the next day that is a business day without any additional interest
or other payment in respect of the delay. However, if the next business day is
in the next succeeding calendar year, payment of the interest will be made on
the immediately preceding business day.
If payment of the redemption price in respect of trust securities
called for redemption is improperly withheld or refused and not paid by the
trust, or by us pursuant to the guarantee, distributions on the trust securities
will continue to accumulate at the applicable rate from the date of redemption
originally established by the trust for the trust securities to the date the
redemption price is actually paid. In this case, the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
redemption price.
Payment of the redemption price on the preferred securities and any
distribution of debentures to holders of preferred securities will be made to
the applicable recordholders as they appear on the register for the preferred
securities on the relevant record date. As long as the preferred securities are
represented by a global security, the record date will be the business day
immediately preceding the date of redemption or liquidation date, as applicable.
If less than all of the trust securities are to be redeemed, then the
aggregate liquidation amount of the trust securities to be redeemed will be
allocated proportionately to those trust securities based upon the relative
liquidation amounts. The particular preferred securities to be redeemed will be
selected by the property trustee from the outstanding preferred securities not
previously called for redemption by a method the property trustee deems fair and
appropriate. This method may provide for the redemption of portions equal to $25
or an integral multiple of $25 of the liquidation amount of the preferred
securities. The property trustee will promptly notify the registrar for the
preferred securities in writing of the preferred securities selected for
redemption and, in the case of any preferred securities selected for partial
redemption, the liquidation amount to be redeemed. If the redemption relates to
preferred securities purchased by us and being exchanged for a like amount of
debentures, then the preferred securities we own will be the ones selected for
redemption.
Subject to applicable law, and if we are not exercising our right to
defer interest payments on the debentures, we may, at any time, purchase
outstanding preferred securities.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the redemption price of, the preferred
securities and common securities will be made based on the liquidation amount of
these securities. However, if an event of default under the indenture has
occurred and is continuing, no distributions on or redemption of the common
securities may be made unless payment in full in cash of all accumulated and
unpaid distributions on all of the outstanding preferred securities for all
distribution periods terminating on or before that time, or in the case of
payment of the redemption price, payment of the full amount of the redemption
price on all of the outstanding preferred securities then called for redemption,
has been made or provided for. All funds available to the property trustee will
first be applied to the payment in full in cash of all distributions on, or the
redemption price of, the preferred securities then due and payable.
In the case of the occurrence and continuance of any event of default
under the trust agreement resulting from an event of default under the
indenture, we, as holder of the common securities, will be deemed to have waived
any right to act with respect to that event of default under the trust agreement
until the effect of the event of default has been cured, waived or otherwise
eliminated. Until the event of default under the trust agreement has been so
cured, waived or otherwise eliminated, the property trustee will act solely on
behalf of the holders of the preferred securities and not on our behalf, and
only the holders of the preferred securities will have the right to direct the
property trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
We will have the right at any time to dissolve, wind-up or terminate
the trust and cause debentures to be distributed to the holders of the preferred
securities. This right is subject, however, to us receiving approval of the
Federal Reserve, if required by law or regulation.
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In addition, the trust will automatically terminate upon expiration of
its term and will terminate earlier on the first to occur of:
o our bankruptcy, dissolution or liquidation;
o the distribution of a like amount of the debentures to the
holders of trust securities, if we have given written
direction to the property trustee to terminate the trust;
o redemption of all of the preferred securities as described
under "--Redemption or Exchange--Mandatory Redemption" on page
35; or
o the entry of a court order for the dissolution of the trust.
With the exception of a redemption as described under "--Redemption or
Exchange--Mandatory Redemption" on page 35, if an early termination of the trust
occurs, the trust will be liquidated by the administrative trustees as
expeditiously as they determine to be possible. After satisfaction of
liabilities to creditors of the trust as provided by applicable law, the
trustees will distribute to the holders of trust securities, debentures:
o in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of the trust securities;
o with an interest rate identical to the distribution rate on
the trust securities; and
o with accrued and unpaid interest equal to accumulated and
unpaid distributions on the trust securities.
However, if the property trustee determines that the distribution is
not practical, then the holders of trust securities will be entitled to receive,
instead of debentures, a proportionate amount of the liquidation distribution.
The liquidation distribution will be the amount equal to the aggregate of the
liquidation amount plus accumulated and unpaid distributions to the date of
payment. If the liquidation distribution can be paid only in part because the
trust has insufficient assets available to pay in full the aggregate liquidation
distribution, then the amounts payable directly by the trust on the trust
securities will be paid on a proportional basis, based on liquidation amounts,
to us, as the holder of the common securities, and to the holders of the
preferred securities. However, if an event of default under the indenture has
occurred and is continuing, the preferred securities will have a priority over
the common securities. See "--Subordination of Common Securities" on page 37.
Under current United States federal income tax law and interpretations
and assuming that the trust is treated as a grantor trust, as is expected, a
distribution of the debentures should not be a taxable event to holders of the
preferred securities. Should there be a change in law, a change in legal
interpretation, a Tax Event or another circumstance, however, the distribution
could be a taxable event to holders of the preferred securities. See "Federal
Income Tax Consequences--Receipt of Debentures or Cash Upon Liquidation of the
Trust" on page 59 for more information regarding a taxable distribution.
If we do not elect to redeem the debentures prior to maturity or to
liquidate the trust and distribute the debentures to holders of the preferred
securities, the preferred securities will remain outstanding until the repayment
of the debentures. If we elect to dissolve the trust and thus cause the
debentures to be distributed to holders of the trust securities in liquidation
of the trust, we will continue to have the right to shorten the maturity of the
debentures.
LIQUIDATION VALUE
The amount of the liquidation distribution payable on the preferred
securities in the event of any liquidation of the trust is $25 per preferred
security plus accumulated and unpaid distributions to the date of payment, which
may be in the form of a distribution of debentures having a liquidation value
and accrued interest of an equal amount.
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EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under
the trust agreement with respect to the preferred securities:
o the occurrence of an event of default under the indenture;
o a default by the trust in the payment of any distribution when
it becomes due and payable, and continuation of the default
for a period of 30 days;
o a default by the trust in the payment of any redemption price
of any of the trust securities when it becomes due and
payable;
o a default in the performance, or breach, in any material
respect, of any covenant or warranty of the trustees in the
trust agreement, other than those defaults covered in the
previous two points, and continuation of the default or breach
for a period of 60 days after there has been given, by
registered or certified mail, to the trustee(s) by the holders
of at least 25% in aggregate liquidation amount of the
outstanding preferred securities, a written notice specifying
the default or breach and requiring it to be remedied and
stating that the notice is a "Notice of Default" under the
trust agreement; or
o the occurrence of events of bankruptcy or insolvency with
respect to the property trustee and our failure to appoint a
successor property trustee within 60 days.
Within five business days after the occurrence of any event of default
actually known to the property trustee, the property trustee will transmit
notice of the event of default to the holders of the preferred securities, the
administrative trustees and to us, unless the event of default has been cured or
waived. Irwin and the administrative trustees are required to file annually with
the property trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under the trust
agreement.
If an event of default under the indenture has occurred and is
continuing, the preferred securities will have preference over the common
securities upon termination of the trust. The existence of an event of default
under the trust agreement does not entitle the holders of preferred securities
to accelerate the maturity thereof, unless the event of default is caused by the
occurrence of an event of default under the indenture and both the indenture
trustee and holders of at least 25% in principal amount of the debentures fail
to accelerate the maturity thereof.
REMOVAL OF THE TRUSTEES
Unless an event of default under the indenture has occurred and is
continuing, we may remove any trustee at any time. If an event of default under
the indenture has occurred and is continuing, only the holders of a majority in
liquidation amount of the outstanding preferred securities may remove the
property trustee or the Delaware trustee. The holders of the preferred
securities have no right to vote to appoint, remove or replace the
administrative trustees. These rights are vested exclusively with us as the
holder of the common securities. No resignation or removal of a trustee and no
appointment of a successor trustee will be effective until the successor trustee
accepts the appointment in accordance with the trust agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an event of default under the indenture has occurred and is
continuing, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the trust property may
at the time be located, we will have the power to appoint at any time or times,
and upon written request of the property trustee will appoint, one or more
persons or entities either (1) to act as a co-trustee, jointly with the property
trustee, of all or any part of the trust property, or (2) to act as separate
trustee of any trust property. In either case these trustees will have the
powers that may be provided in the instrument of appointment, and will have
vested in them any property, title, right or power deemed necessary or
desirable, subject to the provisions of the trust agreement. In case an event of
default under the indenture has occurred and is continuing, the property trustee
alone will have power to make the appointment.
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MERGER OR CONSOLIDATION OF TRUSTEES
Generally, any person or successor to any of the trustees may be a
successor trustee to any of the trustees, including a successor resulting from a
merger or consolidation. However, any successor trustee must meet all of the
qualifications and eligibility standards to act as a trustee.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other person, except
as described below. For these purposes, if we consolidate or merge with another
entity, or transfer or sell substantially all of our assets to another entity,
in some cases that transaction may be considered to involve a replacement of the
trust, and the conditions set forth below would apply to such transaction. The
trust may, at our request, with the consent of the administrative trustees and
without the consent of the holders of the preferred securities, the property
trustee or the Delaware trustee, undertake a transaction listed above if the
following conditions are met:
o the successor entity either (a) expressly assumes all of the
obligations of the trust with respect to the preferred
securities, or (b) substitutes for the preferred securities
other securities having substantially the same terms as the
preferred securities (referred to as "successor securities")
so long as the successor securities rank the same in priority
as the preferred securities with respect to distributions and
payments upon liquidation, redemption and otherwise;
o we appoint a trustee of the successor entity possessing
substantially the same powers and duties as the property
trustee in its capacity as the holder of the debentures;
o the successor securities are listed or traded or will be
listed or traded on any national securities exchange or other
organization on which the preferred securities are then
listed, if any;
o the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the
preferred securities (including any successor securities) in
any material respect;
o the successor entity has a purpose substantially identical to
that of the trust;
o prior to the merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, we have received
an opinion from independent counsel that (a) any transaction
of this kind does not adversely affect the rights, preferences
and privileges of the holders of the preferred securities
(including any successor securities) in any material respect,
and (b) following the transaction, neither the trust nor the
successor entity will be required to register as an
"investment company" under the Investment Company Act; and
o we own all of the common securities of the successor entity
and guarantee the obligations of the successor entity under
the successor securities at least to the extent provided by
the guarantee, the debentures, the trust agreement and the
expense agreement.
Notwithstanding the foregoing, the trust may not, except with the consent of
every holder of the preferred securities, enter into any transaction of this
kind if the transaction would cause the trust or the successor entity not to be
classified as a grantor trust for federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as described below and under "Description of the
Guarantee--Amendments" on page 53 and as otherwise required by the Trust
Indenture Act and the trust agreement, the holders of the preferred securities
will have no voting rights.
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The trust agreement may be amended from time to time by us and the
trustees, without the consent of the holders of the preferred securities, in the
following circumstances:
o with respect to acceptance of appointment by a successor
trustee;
o to cure any ambiguity, correct or supplement any provisions in
the trust agreement that may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under the trust agreement, as
long as the amendment is not inconsistent with the other
provisions of the trust agreement and does not have a material
adverse effect on the interests of any holder of trust
securities; or
o to modify, eliminate or add to any provisions of the trust
agreement if necessary to ensure that the trust will be
classified for federal income tax purposes as a grantor trust
at all times that any trust securities are outstanding or to
ensure that the trust will not be required to register as an
"investment company" under the Investment Company Act.
With the consent of the holders of a majority of the aggregate
liquidation amount of the outstanding trust securities, we and the trustees may
amend the trust agreement if the trustees receive an opinion of counsel to the
effect that the amendment or the exercise of any power granted to the trustees
in accordance with the amendment will not affect the trust's status as a grantor
trust for federal income tax purposes or the trust's exemption from status as an
"investment company" under the Investment Company Act. However, without the
consent of each holder of trust securities, the trust agreement may not be
amended to (a) change the amount or timing of any distribution on the trust
securities or otherwise adversely affect the amount of any distribution required
to be made in respect of the trust securities as of a specified date, or (b)
restrict the right of a holder of trust securities to institute suit for the
enforcement of the payment on or after that date.
As long as the property trustee holds any debentures, the trustees will
not, without obtaining the prior approval of the holders of a majority in
aggregate liquidation amount of all outstanding preferred securities:
o direct the time, method and place of conducting any proceeding
for any remedy available to the indenture trustee, or
executing any trust or power conferred on the property trustee
with respect to the debentures;
o waive any past default that is waivable under the indenture;
o exercise any right to rescind or annul a declaration that the
principal of all the debentures will be due and payable; or
o consent to any amendment or termination of the indenture or
the debentures, where the property trustee's consent is
required. However, where a consent under the indenture
requires the consent of each holder of the affected
debentures, no consent will be given by the property trustee
without the prior consent of each holder of the preferred
securities.
The trustees may not revoke any action previously authorized or approved by a
vote of the holders of the preferred securities except by subsequent vote of the
holders of the preferred securities. The property trustee will notify each
holder of preferred securities of any notice of default with respect to the
debentures. In addition to obtaining the foregoing approvals of the holders of
the preferred securities, prior to taking any of the foregoing actions, the
trustees must obtain an opinion of counsel experienced in these matters to the
effect that the trust will not be classified as an association taxable as a
corporation for federal income tax purposes on account of the action.
Any required approval of holders of trust securities may be given at a
meeting or by written consent. The property trustee will cause a notice of any
meeting at which holders of the trust securities are entitled to vote, or of any
matter upon which action by written consent of the holders is to be taken, to be
given to each holder of record of trust securities.
No vote or consent of the holders of preferred securities will be
required for the trust to redeem and cancel its preferred securities in
accordance with the trust agreement.
41
Notwithstanding the fact that holders of preferred securities are
entitled to vote or consent under any of the circumstances described above, any
of the preferred securities that are owned by Irwin, the trustees or any
affiliate of Irwin or any trustee, will, for purposes of the vote or consent, be
treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The preferred securities will be represented by one or more global
preferred securities registered in the name of The Depository Trust Company, New
York, New York ("DTC"), or its nominee. A global preferred security is a
security representing interests of more than one beneficial holder. Ownership of
beneficial interests in the global preferred securities will be reflected in DTC
participant account records through DTC's book-entry transfer and registration
system. Participants are brokers, dealers, or others having accounts with DTC.
Indirect beneficial interests of other persons investing in the preferred
securities will be shown on, and transfers will be effected only through,
records maintained by DTC participants. Except as described below, preferred
securities in definitive form will not be issued in exchange for the global
preferred securities.
No global preferred security may be exchanged for preferred securities
registered in the names of persons other than DTC or its nominee unless:
o DTC notifies the indenture trustee that it is unwilling or
unable to continue as a depositary for the global preferred
security and we are unable to locate a qualified successor
depositary;
o we execute and deliver to the indenture trustee a written
order stating that we elect to terminate the book-entry system
through DTC; or
o there shall have occurred and be continuing an event of
default under the indenture.
Any global preferred security that is exchangeable pursuant to the preceding
sentence will be exchangeable for definitive certificates registered in the
names as DTC directs. It is expected that the instructions will be based upon
directions received by DTC with respect to ownership of beneficial interests in
the global preferred security. If preferred securities are issued in definitive
form, the preferred securities will be in denominations of $25 and integral
multiples of $25 and may be transferred or exchanged at the offices described
below.
Unless and until it is exchanged in whole or in part for the individual
preferred securities represented thereby, a global preferred security may not be
transferred except as a whole by DTC to a nominee of DTC, by a nominee of DTC to
DTC or another nominee of DTC or by DTC or any nominee to a successor depositary
or any nominee of the successor.
Payments on global preferred securities will be made to DTC, as the
depositary for the global preferred securities. If the preferred securities are
issued in definitive form, distributions will be payable by check mailed to the
address of record of the persons entitled to the distribution, and the transfer
of the preferred securities will be registrable, and preferred securities will
be exchangeable for preferred securities of other denominations of a like
aggregate liquidation amount, at the corporate office of the property trustee,
or at the offices of any paying agent or transfer agent appointed by the
administrative trustees. In addition, if the preferred securities are issued in
definitive form, the record dates for payment of distributions will be the 15th
day of the month in which the relevant distribution date occurs. For a
description of the terms of DTC arrangements relating to payments, transfers,
voting rights, redemptions and other notices and other matters, see "Book-Entry
Issuance" on page 56.
Upon the issuance of one or more global preferred securities, and the
deposit of the global preferred security with or on behalf of DTC or its
nominee, DTC or its nominee will credit, on its book-entry registration and
transfer system, the respective aggregate liquidation amounts of the individual
preferred securities represented by the global preferred security to the
designated accounts of persons that participate in the DTC system. These
participant accounts will be designated by the dealers, underwriters or agents
selling the preferred securities. Ownership of beneficial interests in a global
preferred security will be limited to persons or entities having an account with
DTC or who may hold interests through participants. With respect to interests of
any person or entity that is a DTC participant, ownership of beneficial
interests in a global preferred security will be shown on, and the transfer of
that ownership will be effected only through, records maintained by DTC or its
nominee. With respect to persons or entities who hold interests in a global
preferred security through a participant, the interest and any
42
transfer of the interest will be shown only on the participant's records. The
laws of some states require that certain purchasers of securities take physical
delivery of securities in definitive form. These laws may impair the ability to
transfer beneficial interests in a global preferred security.
So long as DTC or another depositary, or its nominee, is the registered
owner of the global preferred security, the depositary or the nominee, as the
case may be, will be considered the sole owner or holder of the preferred
securities represented by the global preferred security for all purposes under
the trust agreement. Except as described in this prospectus, owners of
beneficial interests in a global preferred security will not be entitled to have
any of the individual preferred securities represented by the global preferred
security registered in their names, will not receive or be entitled to receive
physical delivery of any the preferred securities in definitive form and will
not be considered the owners or holders of the preferred securities under the
trust agreement.
None of us, the property trustee, any paying agent or the securities
registrar for the preferred securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of the global preferred security representing the
preferred securities or for maintaining, supervising or reviewing any records
relating to the beneficial ownership interests.
We expect that DTC or its nominee, upon receipt of any payment of the
liquidation amount or distributions in respect of a global preferred security,
immediately will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the aggregate
liquidation amount of the global preferred security as shown on the records of
DTC or its nominee. We also expect that payments by participants to owners of
beneficial interests in the global preferred security held through the
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name." The payments will be the responsibility of
the participants.
PAYMENT AND PAYING AGENCY
Payments in respect of the preferred securities will be made to DTC,
which will credit the relevant accounts of participants on the applicable
distribution dates, or, if any of the preferred securities are not held by DTC,
the payments will be made by check mailed to the address of the holder as listed
on the register of holders of the preferred securities. The paying agent for the
preferred securities will initially be the property trustee and any co-paying
agent chosen by the property trustee and acceptable to us and the administrative
trustees. The paying agent for the preferred securities may resign as paying
agent upon 30 days' written notice to the administrative trustees, the property
trustee and us. If the property trustee no longer is the paying agent for the
preferred securities, the administrative trustees will appoint a successor to
act as paying agent. The successor must be a bank or trust company acceptable to
us and the property trustee.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as the registrar and the transfer agent
for the preferred securities. Registration of transfers of preferred securities
will be effected without charge by or on behalf of the trust, but upon payment
of any tax or other governmental charges that may be imposed in connection with
any transfer or exchange. The trust and its registrar and transfer agent will
not be required to register or cause to be registered the transfer of preferred
securities after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee undertakes to perform only the duties set forth in
the trust agreement. After the occurrence of an event of default that is
continuing, the property trustee must exercise the same degree of care and skill
as a prudent person exercises or uses in the conduct of its own affairs. The
property trustee is under no obligation to exercise any of the powers vested in
it by the trust agreement at the request of any holder of preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred. If no event of default under the trust
agreement has occurred and is continuing and the property trustee is required to
decide between alternative causes of action, construe ambiguous or inconsistent
provisions in the trust agreement or is unsure of the application of any
provision of the trust agreement, and the matter is not one on which holders of
preferred securities are entitled to vote upon, then the property trustee will
take the action directed in writing by us. If the property trustee is not so
directed, then it will take the action it deems advisable and in the best
interests of the
43
holders of the trust securities and will have no liability except for its own
bad faith, negligence or willful misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trust in such a way that:
o the trust will not be deemed to be an "investment company"
required to be registered under Investment Company Act;
o the trust will not be classified as an association taxable as
a corporation for federal income tax purposes; and
o the debentures will be treated as indebtedness of Irwin for
federal income tax purposes.
In this regard, we and the administrative trustees are authorized to take any
action not inconsistent with applicable law, the certificate of trust or the
trust agreement, that we and the administrative trustees determine to be
necessary or desirable for these purposes.
We are required to use our best efforts to maintain the listing of the
preferred securities on the New York Stock Exchange or a similar national
securities exchange or automated quotation system, but this requirement will not
prevent us from redeeming all or a portion of the preferred securities in
accordance with the trust agreement.
Holders of the preferred securities have no preemptive or similar
rights. The trust agreement and the trust securities will be governed by
Delaware law.
DESCRIPTION OF THE DEBENTURES
Concurrently with the issuance of the preferred securities, the trust
will invest the proceeds from the sale of the trust securities in the debentures
issued by us. The debentures will be issued as unsecured debt under the
indenture between us and U.S. Bank Trust National Association, as indenture
trustee. The indenture will be qualified under the Trust Indenture Act.
The following discussion contains a description of the material
provisions of the indenture and is subject to, and is qualified in its entirety
by reference to, the indenture and to the Trust Indenture Act. We urge
prospective investors to read the form of the indenture, which is filed as an
exhibit to the registration statement of which this prospectus forms a part.
GENERAL
The debentures will be limited in aggregate principal amount to
$25,773,200, or $29,639,200 if the underwriters' over-allotment option is
exercised in full. This amount represents the sum of the aggregate stated
liquidation amounts of the trust securities. The debentures will bear interest
at the annual rate of % of the principal amount. The interest will be payable
quarterly on March 31, June 30, September 30 and December 31 of each year,
beginning December 31, 2002, to the person in whose name each debenture is
registered at the close of business on the 15th day of the last month of the
calendar quarter. It is anticipated that, until the liquidation, if any, of the
trust, the debentures will be held in the name of the property trustee in trust
for the benefit of the holders of the trust securities.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. If any date on which interest
is payable on the debentures is not a business day, then payment of interest
will be made on the next day that is a business day without any additional
interest or other payment in respect of the delay. However, if the next business
day is in the next calendar year, payment of interest will be made on the
immediately preceding business day. Accrued interest that is not paid on the
applicable interest payment date will bear additional interest on the amount due
at the annual rate of %, compounded quarterly.
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The debentures will mature on September 30, 2032, the stated maturity
date. We may shorten this date once at any time to any date not earlier than
September 30, 2007, subject to the prior approval of the Federal Reserve, if
required by law or regulation.
We will give notice to the indenture trustee and the holders of the
debentures, no more than 180 days and no less than 30 days prior to the
effectiveness of any change in the stated maturity date. We will not have the
right to redeem the debentures from the trust until after September 30, 2007,
except if (a) a Tax Event, an Investment Company Event or a Capital Treatment
Event, which terms are defined on pages 35 and 36, has occurred, or (b) we
repurchase preferred securities in the market, in which case we can elect to
redeem debentures specifically in exchange for a like amount of preferred
securities owned by us plus a proportionate amount of common securities.
The debentures will be unsecured and will rank junior to all of our
senior and subordinated debt, including indebtedness we may incur in the future.
Because we are a holding company, our right to participate in any distribution
of assets of any of our subsidiaries, upon any subsidiary's liquidation or
reorganization or otherwise, and thus the ability of holders of the debentures
to benefit indirectly from any distribution by a subsidiary, is subject to the
prior claim of creditors of the subsidiary, except to the extent that we may be
recognized as a creditor of the subsidiary. The debentures will, therefore, be
effectively subordinated to all existing and future liabilities of our
subsidiaries, and holders of debentures should look only to our assets for
payment. The indenture does not limit our ability to incur or issue secured or
unsecured senior and junior debt. See "--Subordination" on page 47, and
"--Miscellaneous" on page 52.
The indenture does not contain provisions that afford holders of the
debentures protection in the event of a highly leveraged transaction or other
similar transaction involving us, nor does it require us to maintain or achieve
any financial performance levels or to obtain or maintain any credit rating on
the debentures.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
As long as no event of default under the indenture has occurred and is
continuing, we have the right under the indenture to defer the payment of
interest on the debentures at any time for a period not exceeding 20 consecutive
quarters. However, no extension period may extend beyond the stated maturity of
the debentures or end on a date other than a date interest is normally due. At
the end of an extension period, we must pay all interest then accrued and
unpaid, together with interest thereon at the annual rate of %, compounded
quarterly. During an extension period, interest will continue to accrue and
holders of debentures, or the holders of preferred securities if they are then
outstanding, will be required to accrue and recognize as income for federal
income tax purposes the accrued but unpaid interest amounts in the year in which
such amounts accrued. See "Federal Income Tax Consequences --Interest Payment
Period and Original Issue Discount" on page 58.
During an extension period, we may not:
o declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect
to, any of our capital stock (other than stock dividends,
non-cash dividends in connection with the implementation of a
shareholder rights plan, purchases of common stock in
connection with employee benefit plans or in connection with
the reclassification of any class of our capital stock into
another class of capital stock);
o make any payment of principal, interest or premium on, or
repay, repurchase or redeem any debt securities issued by us
that rank equally with or junior to the debentures;
o make any guarantee payments with respect to any other
guarantee by us of any other debt securities of any of our
subsidiaries if the guarantee ranks equally with or junior to
the debentures (other than payments under the guarantee
relating to the preferred securities); or
o redeem, purchase or acquire less than all of the debentures or
any of the preferred securities.
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Prior to the termination of any extension period, so long as no event
of default under the indenture is continuing, we may further defer the payment
of interest subject to the above stated requirements. Upon the termination of
any extension period and the payment of all amounts then due, we may elect to
begin a new extension period at any time. We do not currently intend to exercise
our right to defer payments of interest on the debentures.
We must give the property trustee, the administrative trustees and the
indenture trustee notice of our election of an extension period at least two
business days prior to the earlier of (a) the next date on which distributions
on the trust securities would have been payable except for the election to begin
an extension period, or (b) the date we are required to give notice of the
record date, or the date the distributions are payable, to the New York Stock
Exchange, or other applicable self-regulatory organization, or to holders of the
preferred securities, but in any event at least one business day prior to the
record date. If the property trustee is not the only registered holder of the
debentures, then notice must also be given to the holders of the debentures.
Other than as described above, there is no limitation on the number of
times that we may elect to begin an extension period.
ADDITIONAL SUMS TO BE PAID AS A RESULT OF ADDITIONAL TAXES
If the trust or the property trustee is required to pay any additional
taxes, duties, assessments or other governmental charges as a result of the
occurrence of a Tax Event, we will pay as additional interest on the debentures
any amounts which may be required so that the net amounts received and retained
by the trust after paying any additional taxes, duties, assessments or other
governmental charges will not be less than the amounts the trust would have
received had the additional taxes, duties, assessments or other governmental
charges not been imposed.
REDEMPTION
Subject to prior approval of the Federal Reserve, if required, we may
redeem the debentures prior to maturity:
o on or after September 30, 2007, in whole at any time or in
part from time to time; or
o in whole at any time within 180 days following the occurrence
of a Tax Event, an Investment Company Event or a Capital
Treatment Event; or
o at any time, and from time to time, in an amount not to exceed
the liquidation amount of any preferred securities we own,
plus the liquidation amount of a proportionate amount of the
common securities we hold.
In each case we will pay a redemption price equal to the accrued and unpaid
interest on the debentures so redeemed to the date fixed for redemption, plus
100% of the principal amount of the redeemed debentures. We may not partially
redeem the debentures if it would result in the delisting of the preferred
securities on the New York Stock Exchange.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of debentures to be
redeemed at its registered address. Redemption of less than all outstanding
debentures must be effected proportionately, by lot or in any other manner
deemed to be fair and appropriate by the indenture trustee. Unless we default in
payment of the redemption price for the debentures, on and after the redemption
date interest will no longer accrue on the debentures or the portions of the
debentures called for redemption.
The debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred
Securities--Liquidation Distribution Upon Termination" on page 37, under certain
circumstances and with the Federal Reserve's approval, if required by law or
regulation,
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debentures may be distributed to the holders of the trust securities in
liquidation of the trust after satisfaction of liabilities to creditors of the
trust. If this occurs, we will use our best efforts to list the debentures on
the New York Stock Exchange or other national stock exchange or automated
quotation system on which the preferred securities are then listed, if any.
There can be no assurance as to the market price of any debentures that may be
distributed to the holders of preferred securities.
RESTRICTIONS ON PAYMENTS
We are restricted from making certain payments (as described below) if
we have chosen to defer payment of interest on the debentures, if an event of
default has occurred and is continuing under the indenture, or if we are in
default with respect to our obligations under the guarantee.
If any of these events occur, we will not:
o declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of our capital stock (other than stock dividends,
non-cash dividends in connection with the implementation of a
shareholder rights plan, purchases of common stock in
connection with employee benefit plans or in connection with
the reclassification of any class of our capital stock into
another class of capital stock);
o make any payment of principal, interest or premium on, or
repay or repurchase or redeem any of our debt securities that
rank equally with or junior to the debentures;
o make any guarantee payments with respect to any guarantee by
us of the debt securities of any of our subsidiaries if the
guarantee ranks equally with or junior to the debentures
(other than payments under the guarantee relating to the
preferred securities); or
o redeem, purchase or acquire less than all of the debentures or
any of the preferred securities.
SUBORDINATION
The debentures are subordinated and junior in right of payment to all
of our senior and subordinated debt, as defined below. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up or reorganization of Irwin, whether voluntary or involuntary in bankruptcy,
insolvency, receivership or other proceedings in connection with any insolvency
or bankruptcy proceedings, the holders of our senior and subordinated debt will
first be entitled to receive payment in full of principal and interest before
the holders of debentures will be entitled to receive or retain any payment in
respect of the debentures.
If the maturity of any debentures is accelerated, the holders of all of
our senior and subordinated debt outstanding at the time of the acceleration
will also be entitled to first receive payment in full of all amounts due to
them, including any amounts due upon acceleration, before the holders of the
debentures will be entitled to receive or retain any principal or interest
payments on the debentures.
No payments of principal or interest on the debentures may be made if
there has occurred and is continuing a default in any payment with respect to
any of our senior or subordinated debt or an event of default with respect to
any of our senior or subordinated debt resulting in the acceleration of the
maturity of the senior or subordinated debt, or if any judicial proceeding is
pending with respect to any default.
The term "debt" means, with respect to any person, whether recourse is
to all or a portion of the assets of the person and whether or not contingent:
o every obligation of the person for money borrowed;
o every obligation of the person evidenced by bonds, debentures,
notes or other similar instruments, including obligations
incurred in connection with the acquisition of property,
assets or businesses;
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o every reimbursement obligation of the person with respect to
letters of credit, bankers' acceptances or similar facilities
issued for the account of the person;
o every obligation of the person issued or assumed as the
deferred purchase price of property or services, excluding
trade accounts payable or accrued liabilities arising in the
ordinary course of business;
o every capital lease obligation of the person; and
o every obligation of the type referred to in the first five
points of another person and all dividends of another person
the payment of which, in either case, the first person has
guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
The term "senior debt" means the principal of, and premium and
interest, including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to us, on, debt, whether incurred on
or prior to the date of the indenture or incurred after the date. However,
senior debt will not be deemed to include:
o any debt where it is provided in the instrument creating the
debt that the obligations are not superior in right of payment
to the debentures or to other debt which is equal with, or
subordinated to, the debentures, including our 9.25%
Subordinated Debentures of IFC Capital Trust I due 2027, the
10.50% Junior Subordinated Debentures of IFC Capital Trust II
due 2030, the 8.75% Convertible Junior Subordinated Debentures
of IFC Capital Trust III due 2030, the 10.25% Junior
Subordinated Debentures of IFC Capital Trust IV due 2031 and
the 9.95% Junior Subordinate Debentures of IFC Capital Trust V
due 2031;
o any of our debt that when incurred and without regard to any
election under the federal bankruptcy laws, was without
recourse to us;
o any debt of ours to any of our subsidiaries;
o any debt to any of our employees;
o any debt that by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course
of business to the extent that payments made to the holders of
the debt by the holders of the debentures as a result of the
subordination provisions of the indenture would be greater
than they otherwise would have been as a result of any
obligation of the holders to pay amounts over to the obligees
on the trade accounts payable or accrued liabilities arising
in the ordinary course of business as a result of
subordination provisions to which the debt is subject; and
o debt which constitutes subordinated debt.
The term "subordinated debt" means the principal of, and premium and
interest, including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to us, on, debt. Except as described
below, subordinated debt includes debt incurred on or prior to the date of the
indenture or thereafter incurred, which is by its terms expressly provided to be
junior and subordinate to other debt of ours. Subordinated debt will not be
deemed to include:
o any of our debt which when incurred and without regard to any
election under the federal bankruptcy laws was without
recourse to us;
o any debt of ours to any of our subsidiaries;
o any debt to any of our employees;
o any debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course
of business to the extent that payments made to the holders of
the debt by the holders of the debentures as a result of the
subordination provisions of the indenture would be greater
than they otherwise would have been as a result of any
obligation of the holders to pay amounts over to
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the obligees on the trade accounts payable or accrued
liabilities arising in the ordinary course of business as a
result of subordination provisions to which the debt is
subject;
o debt which constitutes senior debt;
o any debt of ours under debt securities (and guarantees in
respect of these debt securities) initially issued to any
trust, or a trustee of a trust, partnership or other entity
affiliated with us that is, directly or indirectly, our
financing subsidiary in connection with the issuance by that
entity of preferred securities or other securities which are
intended to qualify for "Tier 1" capital treatment, such as
the approximately $50 million of 9.25% Subordinated Debentures
due 2027 that we issued to IFC Capital Trust I, the
approximately $53 million of 10.50% Junior Subordinated
Debentures due 2030 that we issued to IFC Capital Trust II,
the approximately $53 million of 8.75% Convertible Junior
Subordinated Debentures due 2030 that we issued to Capital
Trust III, the approximately $15 million of 10.25% Junior
Subordinated Debentures due 2031 that we issued to IFC Capital
Trust IV and the approximately $31 million of 9.95% Junior
Subordinated Debentures due 2031 that we issued to IFC Capital
Trust V.
We expect from time to time to incur additional indebtedness, and there
is no limitation under the indenture on the amount of indebtedness we may incur.
Holding company debt that ranks senior to the debentures totaled $45.2 million
outstanding principal amount at June 30, 2002.
PAYMENT AND PAYING AGENT
Generally, payment of principal of and interest on the debentures will
be made at the office of the indenture trustee in Wilmington, Delaware. However,
we have the option to make payment of any interest by (a) check mailed to the
address of the person entitled to payment at the address listed in the register
of holders of the debentures, or (b) wire transfer to an account maintained by
the person entitled thereto as specified in the register of holders of the
debentures, provided that proper transfer instructions have been received by the
applicable record date. Payment of any interest on debentures will be made to
the person in whose name the debenture is registered at the close of business on
the regular record date for the interest payment, except in the case of
defaulted interest.
Any moneys deposited with the indenture trustee or any paying agent for
the debentures, or then held by us in trust, for the payment of the principal of
or interest on the debentures and remaining unclaimed for two years after the
principal or interest has become due and payable, will be repaid to us on
September 30 of each year. If we hold any of this money in trust, then it will
be discharged from the trust to us and the holder of the debenture will
thereafter look, as a general unsecured creditor, only to us for payment.
REGISTRAR AND TRANSFER AGENT
The indenture trustee will act as the registrar and the transfer agent
for the debentures. Debentures may be presented for registration of transfer,
with the form of transfer endorsed thereon, or a satisfactory written instrument
of transfer, duly executed, at the office of the registrar. Provided that we
maintain a transfer agent in Wilmington, Delaware, we may rescind the
designation of any transfer agent or approve a change in the location through
which any transfer agent acts. We may at any time designate additional transfer
agents with respect to the debentures.
If we redeem any of the debentures, neither we nor the indenture
trustee will be required to (a) issue, register the transfer of or exchange any
debentures during a period beginning at the opening of business 15 days before
the day of the mailing of and ending at the close of business on the day of the
mailing of the relevant notice of redemption, or (b) transfer or exchange any
debentures so selected for redemption, except, in the case of any debentures
being redeemed in part, any portion not to be redeemed.
MODIFICATION OF INDENTURE
We and the indenture trustee may, from time to time without the consent
of the holders of the debentures, amend, waive our rights under or supplement
the indenture for purposes which do not materially adversely affect the rights
of the holders of the debentures. Other changes may be made by us and the
indenture trustee with the consent
49
of the holders of a majority in principal amount of the outstanding debentures.
However, without the consent of the holder of each outstanding debenture
affected by the proposed modification, no modification may:
o extend the maturity date of the debentures;
o reduce the principal amount or the rate or extend the time of
payment of interest; or
o reduce the percentage of principal amount of debentures
required to amend the indenture.
As long as any of the preferred securities remain outstanding, no modification
of the indenture may be made that requires the consent of the holders of the
debentures, no termination of the indenture may occur, and no waiver of any
event of default under the indenture may be effective, without the prior consent
of the holders of a majority of the aggregate liquidation amount of the
preferred securities.
DEBENTURE EVENTS OF DEFAULT
The indenture provides that any one or more of the following events
with respect to the debentures that has occurred and is continuing constitutes
an event of default under the indenture:
o our failure to pay any interest on the debentures for 30 days
after the due date, except where we have properly deferred the
interest payment;
o our failure to pay any principal on the debentures when due
whether at maturity, upon redemption or otherwise;
o our failure to observe or perform in any material respect any
other covenants or agreements contained in the indenture for
90 days after written notice to us from the indenture trustee
or the holders of at least 25% in aggregate outstanding
principal amount of the debentures; or
o our bankruptcy, insolvency or reorganization or dissolution of
the trust other than in connection with a distribution of the
debentures in connection with such dissolution, redemption of
the trust securities or certain transactions permitted under
the trust agreement.
The holders of a majority of the aggregate outstanding principal amount
of the debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the indenture trustee. The
indenture trustee, or the holders of at least 25% in aggregate outstanding
principal amount of the debentures, may declare the principal due and payable
immediately upon an event of default under the indenture. The holders of a
majority of the outstanding principal amount of the debentures may rescind and
annul the declaration if the default has been cured and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the indenture trustee and any and all
events of default have been remedied or waived by the holders of a majority of
the outstanding principal amount of the debentures. The holders may not annul
the declaration and waive a default if the default is the non-payment of the
principal of the debentures which has become due solely by the acceleration.
So long as the property trustee is the holder of the debentures, an
event of default under the indenture has occurred and is continuing, the
property trustee will have the right to declare the principal of and the
interest on the debentures, and any other amounts payable under the indenture,
to be immediately due and payable and to enforce its other rights as a creditor
with respect to the debentures.
We are required to file annually with the indenture trustee a
certificate as to whether or not we are in compliance with all of the conditions
and covenants applicable to us under the indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If an event of default under the indenture has occurred and is
continuing and the event is attributable to the failure by us to pay interest on
or principal of the debentures on the date on which the payment is due and
payable, then a holder of preferred securities may institute a direct action
against us to compel us to make the payment. We
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may not amend the indenture to remove the foregoing right to bring a direct
action without the prior written consent of all of the holders of the preferred
securities. If the right to bring a direct action is removed, the trust may
become subject to the reporting obligations under the Securities Exchange Act of
1934.
The holders of the preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the debentures unless there has been an event of
default under the trust agreement.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
We may not consolidate with or merge into any other entity or convey or
transfer our properties and assets substantially as an entirety to any entity,
and no entity may be consolidated with or merged into us or sell, convey,
transfer or otherwise dispose of its properties and assets substantially as an
entirety to us, unless:
o if we consolidate with or merge into another person or convey
or transfer our properties and assets substantially as an
entirety to any person, the successor person is organized
under the laws of the United States or any state or the
District of Columbia, and the successor person expressly
assumes by supplemental indenture our obligations on the
debentures, and the ultimate parent entity of the successor
entity expressly assumes our obligations under the guarantee,
to the extent the preferred securities are then outstanding;
o immediately after the transaction, no event of default under
the indenture, and no event which, after notice or lapse of
time, or both, would become an event of default under the
indenture, has occurred and is continuing; and
o other conditions as prescribed in the indenture are met.
Under certain circumstances, if we consolidate or merge with another
entity, or transfer or sell substantially all of our assets to another entity,
such transaction may be considered to involve a replacement of the trust, and
the provisions of the trust agreement relating to a replacement of the trust
would apply to such transaction. See "Description of the Preferred Securities --
Mergers, Consolidations, Amalgamations or Replacements of the Trust" on page 40.
SATISFACTION AND DISCHARGE
The indenture will cease to be of further effect and we will be deemed
to have satisfied and discharged our obligations under the indenture when all
debentures not previously delivered to the indenture trustee for cancellation:
o have become due and payable; and
o will become due and payable at their stated maturity within
one year or are to be called for redemption within one year,
and we deposit or cause to be deposited with the indenture
trustee funds, in trust, for the purpose and in an amount
sufficient to pay and discharge the entire indebtedness on the
debentures not previously delivered to the indenture trustee
for cancellation, for the principal and interest due to the
date of the deposit or to the stated maturity or redemption
date, as the case may be.
We may still be required to provide officers' certificates, opinions of
counsel and pay fees and expenses due after these events occur.
GOVERNING LAW
The indenture and the debentures will be governed by and construed in
accordance with Indiana law.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The indenture trustee is subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
Subject to these provisions, the indenture trustee is under no obligation to
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exercise any of the powers vested in it by the indenture at the request of any
holder of debentures, unless offered reasonable security or indemnity by the
holder against the costs, expenses and liabilities which might be incurred. The
indenture trustee is not required to expend or risk its own funds or otherwise
incur personal financial liability in the performance of its duties if the
indenture trustee reasonably believes that repayment or adequate indemnity is
not reasonably assured to it.
MISCELLANEOUS
We have agreed, pursuant to the indenture, for so long as preferred
securities remain outstanding:
o to maintain directly or indirectly 100% ownership of the
common securities of the trust, except that certain successors
that are permitted pursuant to the indenture may succeed to
our ownership of the common securities;
o not to voluntarily terminate, wind up or liquidate the trust
without prior approval of the Federal Reserve, if required by
law or regulation;
o to use our reasonable efforts to cause the trust (a) to remain
a Delaware statutory trust (and to avoid involuntary
termination, winding up or liquidation), except in connection
with a distribution of debentures, the redemption of all of
the trust securities of the trust or mergers, consolidations
or amalgamations, each as permitted by the trust agreement;
and (b) to otherwise continue not to be treated as an
association taxable as a corporation or partnership for
federal income tax purposes;
o to use our reasonable efforts to cause each holder of trust
securities to be treated as owning an individual beneficial
interest in the debentures; and
o not to issue or incur, directly or indirectly, any additional
indebtedness in connection with the issuance of additional
trust preferred securities or similar securities that are
senior in right of payment to the debentures.
DESCRIPTION OF THE GUARANTEE
The preferred securities guarantee agreement will be executed and
delivered by us concurrently with the issuance of the preferred securities for
the benefit of the holders of the preferred securities. The guarantee agreement
will be qualified as an indenture under the Trust Indenture Act. U.S. Bank Trust
National Association, the guarantee trustee, will act as trustee for purposes of
complying with the provisions of the Trust Indenture Act, and will also hold
each guarantee for the benefit of the holders of the preferred securities. The
following discussion contains a description of the material provisions of the
guarantee and is qualified in its entirety by reference to the guarantee
agreement and the Trust Indenture Act. Prospective investors are urged to read
the form of the guarantee agreement, which has been filed as an exhibit to the
registration statement of which this prospectus forms a part.
GENERAL
We agree to pay in full on a subordinated basis, to the extent
described in the guarantee agreement, the guarantee payments (as defined below)
to the holders of the preferred securities as and when due, regardless of any
defense, right of set-off or counterclaim that the trust may have or assert
other than the defense of payment.
The following payments with respect to the preferred securities are
called the "guarantee payments" and, to the extent not paid or made by the trust
and to the extent that the trust has funds available for those distributions,
will be subject to the guarantee:
o any accumulated and unpaid distributions required to be paid
on the preferred securities;
o with respect to any preferred securities called for
redemption, the redemption price; and
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o upon a voluntary or involuntary dissolution, winding up or
termination of the trust (other than in connection with the
distribution of debentures to the holders of preferred
securities in exchange for preferred securities), the lesser
of:
(a) the amount of the liquidation distribution; and
(b) the amount of assets of the trust remaining available
for distribution to holders of preferred securities
in liquidation of the trust.
We may satisfy our obligations to make a guarantee payment by making a
direct payment of the required amounts to the holders of the preferred
securities or by causing the trust to pay the amounts to the holders.
The guarantee agreement is a guarantee, on a subordinated basis, of the
guarantee payments, but the guarantee only applies to the extent the trust has
funds available for those distributions. If we do not make interest payments on
the debentures purchased by the trust, the trust will not have funds available
to make the distributions and will not pay distributions on the preferred
securities.
STATUS OF THE GUARANTEE
The guarantee constitutes our unsecured obligation that ranks
subordinate and junior in right of payment to all of our senior and subordinated
debt in the same manner as the debentures. We expect to incur additional
indebtedness in the future, although we have no specific plans in this regard
presently, and neither of the indenture nor the trust agreement limits the
amounts of the obligations that we may incur.
The guarantee constitutes a guarantee of payment and not of collection.
If we fail to make guarantee payments when required, holders of preferred
securities may institute a legal proceeding directly against us to enforce their
rights under the guarantee without first instituting a legal proceeding against
any other person or entity.
The guarantee will not be discharged except by payment of the guarantee
payments in full to the extent not paid by the trust or upon distribution of the
debentures to the holders of the preferred securities. Because we are a bank
holding company, our right to participate in any distribution of assets of any
subsidiary upon the subsidiary's liquidation or reorganization or otherwise is
subject to the prior claims of creditors of that subsidiary, except to the
extent we may be recognized as a creditor of that subsidiary. Our obligations
under the guarantee, therefore, will be effectively subordinated to all existing
and future liabilities of our subsidiaries, and claimants should look only to
our assets for payments under the guarantee.
AMENDMENTS
Except with respect to any changes that do not materially adversely
affect the rights of holders of the preferred securities, in which case no vote
will be required, the guarantee may not be amended without the prior approval of
the holders of a majority of the aggregate liquidation amount of the outstanding
preferred securities.
EVENTS OF DEFAULT; REMEDIES
An event of default under the guarantee agreement will occur upon our
failure to make any required guarantee payments or to perform any other
obligations under the guarantee. If the guarantee trustee has actual knowledge
that an event of default has occurred and is continuing, the guarantee trustee
must enforce the guarantee for the benefit of the holders of the preferred
securities. The holders of a majority in aggregate liquidation amount of the
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of the guarantee and may direct the exercise of any power conferred upon
the guarantee trustee under the guarantee agreement.
Any holder of preferred securities may institute and prosecute a legal
proceeding directly against us to enforce its rights under the guarantee without
first instituting a legal proceeding against the trust, the guarantee trustee or
any other person or entity.
We are required to provide to the guarantee trustee annually a
certificate as to whether or not we are in compliance with all of the conditions
and covenants applicable to us under the guarantee agreement.
53
TERMINATION OF THE GUARANTEE
The guarantee will terminate and be of no further force and effect
upon:
o full payment of the redemption price of the preferred
securities;
o full payment of the amounts payable upon liquidation of the
trust; or
o distribution of the debentures to the holders of the preferred
securities.
If at any time any holder of the preferred securities must restore
payment of any sums paid under the preferred securities or the guarantee, the
guarantee will continue to be effective or will be reinstated with respect to
such amounts.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance
of our default in performance of the guarantee, undertakes to perform only those
duties as are specifically set forth in the guarantee. When an event of default
has occurred and is continuing, the guarantee trustee must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to those provisions, the guarantee
trustee is under no obligation to exercise any of the powers vested in it by the
guarantee at the request of any holder of any preferred securities, unless it is
offered reasonable security and indemnity against the costs, expenses and
liabilities that might be incurred thereby; but this does not relieve the
guarantee trustee of its obligation to exercise the rights and powers under the
guarantee in the event of a default.
EXPENSE AGREEMENT
We will, pursuant to the separate Agreement as to Expenses and
Liabilities entered into by us and the trust under the trust agreement,
irrevocably and unconditionally guarantee to each person or entity to whom the
trust becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the trust, other than obligations of the trust to pay to the
holders of the preferred securities or other similar interests in the trust of
the amounts due to the holders pursuant to the terms of the preferred securities
or other similar interests, as the case may be. Third party creditors of the
trust may proceed directly against us under the expense agreement, regardless of
whether they had notice of the expense agreement.
GOVERNING LAW
The guarantee will be governed by Indiana law.
RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE
DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
We irrevocably guarantee, as and to the extent described in this
prospectus, payments of distributions and other amounts due on the preferred
securities, to the extent the trust has funds available for the payment of these
amounts. We and the trust believe that, taken together, our obligations under
the debentures, the indenture, the trust agreement, the expense agreement and
the guarantee agreement provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of payment of distributions
and other amounts due on the preferred securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes a guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of the obligations of the trust under the preferred securities.
If and to the extent that we do not make payments on the debentures,
the trust will not pay distributions or other amounts due on the preferred
securities. The guarantee does not cover payment of distributions when the trust
does not have sufficient funds to pay the distributions. In this event, the
remedy of a holder of preferred securities is
54
to institute a legal proceeding directly against us for enforcement of payment
of the distributions to the holder. Our obligations under the guarantee are
subordinated and junior in right of payment to all of our other indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
the debentures, these payments will be sufficient to cover distributions and
other payments due on the preferred securities, primarily because:
o the aggregate principal amount of the debentures will be equal
to the sum of the aggregate stated liquidation amount of the
trust securities;
o the interest rate and interest and other payment dates on the
debentures will match the distribution rate and distribution
and other payment dates for the preferred securities;
o we will pay for any and all costs, expenses and liabilities of
the trust, except the obligations of the trust to pay to
holders of the preferred securities the amounts due to the
holders pursuant to the terms of the preferred securities; and
o the trust will not engage in any activity that is not
consistent with the limited purposes of the trust.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any preferred security may institute a legal proceeding
directly against us to enforce its rights under the guarantee without first
instituting a legal proceeding against the guarantee trustee, the trust or any
other person. A default or event of default under any of our senior or
subordinated debt would not constitute a default or event of default under the
trust agreement. In the event, however, of payment defaults under, or
acceleration of, our senior or subordinated debt, the subordination provisions
of the indenture provides that no payments may be made in respect of the
debentures, until the obligations have been paid in full or any payment default
has been cured or waived. Failure to make required payments on the debentures
would constitute an event of default under the trust agreement.
LIMITED PURPOSE OF THE TRUST
The preferred securities evidence preferred undivided beneficial
interests in the assets of the trust. The trust exists for the exclusive
purposes of issuing the trust securities, investing the proceeds thereof in
debentures, and engaging in only those other activities necessary, advisable or
incidental thereto. A principal difference between the rights of a holder of a
preferred security and the rights of a holder of a debenture is that a holder of
a debenture is entitled to receive from us the principal amount of and interest
accrued on debentures held, while a holder of preferred securities is entitled
to receive distributions from the trust (or from us under the guarantee) if and
to the extent the trust has funds available for the payment of the
distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of the trust involving the liquidation of the debentures, the
holders of the preferred securities will be entitled to receive, out of assets
held by the trust, the liquidation distribution in cash. See "Description of the
Preferred Securities -- Liquidation Distribution Upon Termination" on page 37.
Upon our voluntary or involuntary liquidation or bankruptcy, the
property trustee, as holder of the debentures, would be a subordinated creditor
of ours. Therefore, the property trustee would be subordinated in right of
payment to all of our senior and subordinated debt, but is entitled to receive
payment in full of principal and interest before any of our shareholders receive
payments or distributions. Since we are the guarantor under the guarantee and
have agreed to pay for all costs, expenses and liabilities of the trust other
than the obligations of the trust to pay to holders of the preferred securities
the amounts due to the holders pursuant to the terms of the preferred
securities, the positions of a holder of the preferred securities and a holder
of the debentures relative to our other creditors and to our shareholders in the
event of liquidation or bankruptcy are expected to be substantially the same.
55
BOOK-ENTRY ISSUANCE
GENERAL
DTC will act as securities depositary for each of the preferred
securities and may act as securities depositary for all of the debentures in the
event of the distribution of the debentures to the holders of preferred
securities. Except as described below, the preferred securities will be issued
only as registered securities in the name of Cede & Co. (DTC's partnership
nominee) or such other name as may be requested by DTC. One or more global
preferred securities will be issued for the preferred securities and will be
deposited with DTC.
DTC, the world's largest depository, is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its participants
deposit with DTC. DTC also facilitates the settlement among participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is a
wholly-owned subsidiary of the Depository Trust & Clearing corporation ("DTCC").
DTCC, in turn, is owned by a number of its direct participants and members of
the National Securities Clearing Corporation, Government Securities Clearing
Corporation, MBS Clearing Corporation and Emerging Markets Clearing Corporation,
as well as by the New York Stock Exchange, the American Stock Exchange and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to indirect participants, such as securities brokers and dealers,
banks and trust companies that clear through or maintain custodial relationships
with direct participants, either directly or indirectly. The rules applicable to
DTC and its participants are on file with the SEC.
Purchases of preferred securities under the DTC system must be made by
or through direct participants, which will receive a credit for the preferred
securities on DTC's records. The ownership interest of each actual purchaser of
each preferred security ("beneficial owner") is in turn to be recorded on the
direct and indirect participants' records. Beneficial owners will not receive
written confirmation from DTC of their purchases, but beneficial owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the direct or indirect
participants through which the beneficial owners purchased preferred securities.
Transfers of ownership interests in the preferred securities are to be
accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing
their ownership interest in preferred securities except if use of the
book-entry-only system for the preferred securities is discontinued.
DTC will have no knowledge of the actual beneficial owners of the
preferred securities; DTC's records reflect only the identity of the direct
participants to whose accounts the preferred securities are credited, which may
or may not be the beneficial owners. The participants will remain responsible
for keeping account of their holdings on behalf of their customers.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be reliable, but we and
the trust assume no responsibility for the accuracy thereof. Neither we nor the
trust have any responsibility for the performance by DTC or its participants of
their respective obligations as described in this prospectus or under the rules
and procedures governing their respective operations.
NOTICES AND VOTING
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct and
indirect participants to beneficial owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder
of the preferred securities. If less than all of the preferred securities are
being redeemed, the amount to be redeemed will be determined in accordance with
the trust agreement.
56
Although voting with respect to the preferred securities is limited to
the holders of record of the preferred securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to preferred securities. Under its usual procedures, DTC would mail an
omnibus proxy to the property trustee 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 preferred securities are credited on
the record date.
DISTRIBUTION OF FUNDS
The property trustee will make distribution payments on the preferred
securities to DTC. DTC's practice is to credit direct participants' accounts on
the relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive payments
on the payment date. Payments by participants to beneficial owners will be
governed by standing instructions and customary practices and will be the
responsibility of the participant and not of DTC, the property trustee, the
trust or us, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to DTC is the responsibility
of the property trustee, disbursement of the payments to direct participants is
the responsibility of DTC, and disbursements of the payments to the beneficial
owners is the responsibility of direct and indirect participants.
SUCCESSOR DEPOSITARIES AND TERMINATION OF BOOK-ENTRY SYSTEM
DTC may discontinue providing its services with respect to any of the
preferred securities at any time by giving reasonable notice to the property
trustee or us. If no successor securities depositary is obtained, definitive
certificates representing the preferred securities are required to be printed
and delivered. We also have the option to discontinue use of the system of
book-entry transfers through DTC (or a successor depositary). After an event of
default under the indenture, the holders of a majority in liquidation amount of
preferred securities may determine to discontinue the system of book-entry
transfers through DTC. In these events, definitive certificates for the
preferred securities will be printed and delivered.
FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following summary of the material federal income tax considerations
that may be relevant to the purchasers of preferred securities, insofar as the
discussion relates to matters of law and legal conclusions, represents the
opinion of Vedder, Price, Kaufman & Kammholz, counsel to Irwin and the trust.
The conclusions expressed herein are based upon current provisions of the
Internal Revenue Code of 1986, as amended, regulations thereunder and current
administrative rulings and court decisions, all of which are subject to change
at any time, with possible retroactive effect. Subsequent changes may cause tax
consequences to vary substantially from the consequences described below.
Furthermore, the authorities on which the following summary is based are subject
to various interpretations, and it is therefore possible that the federal income
tax treatment of the purchase, ownership and disposition of preferred securities
may differ from the treatment described below.
No attempt has been made in the following discussion to comment on all
federal income tax matters affecting purchasers of preferred securities.
Moreover, the discussion generally focuses on holders of preferred securities
who are individual citizens or residents of the United States and trust and
estates whose federal taxable income is taxed in the same manner as individual
citizens or residents of the United States, and who acquire preferred securities
on their original issue at their initial offering price and hold preferred
securities as capital assets. The discussion has only limited application to
dealers in securities, corporations, partnerships, or nonresident aliens and
does not address all the tax consequences that may be relevant to holders who
may be subject to special tax treatment, such as, for example, banks, thrifts,
real estate investment trusts, regulated investment companies, insurance
companies, dealers in securities or currencies, tax-exempt investors or persons
that will hold the preferred securities as a position in a "straddle," as part
of a "synthetic security" or "hedge," as part of a "conversion transaction" or
other integrated investment, or as other than a capital asset. The following
discussion also does not address the tax consequences to persons that have a
functional currency other than the U.S. dollar or the tax consequences to
shareholders, partners or beneficiaries of a holder of preferred securities.
Further, it does not include any description of any alternative minimum tax
consequences or the tax laws of any state or local
57
government or of any foreign government that may be applicable to the preferred
securities. Accordingly, each prospective investor should consult, and should
rely exclusively on, the investor's own tax advisors in analyzing the federal,
state, local and foreign tax consequences of the purchase, ownership or
disposition of preferred securities.
CLASSIFICATION OF THE DEBENTURES
Based on advice of counsel, we intend to take the position that the
debentures will be classified for federal income tax purposes as indebtedness of
Irwin under current law, and, by acceptance of a preferred security, you, as a
holder, covenant to treat the debentures as indebtedness and the preferred
securities as evidence of an indirect beneficial ownership interest in the
debentures. No assurance can be given, however, that this position will not be
challenged by the Internal Revenue Service ("IRS") or, if challenged, that it
will not be successful. The remainder of this discussion assumes that the
debentures will be classified for federal income tax purposes as indebtedness of
Irwin.
CLASSIFICATION OF THE TRUST
Vedder, Price, Kaufman & Kammholz, counsel for Irwin and the trust, has
rendered its opinion that, under current law and assuming full compliance with
the terms of the trust agreement and indenture, the trust will be classified for
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation. Accordingly, for federal income tax purposes, you, as a holder
of preferred securities will be treated as owning an undivided beneficial
interest in the debentures and you will be required to include in your gross
income any interest with respect to such debentures at the time such interest is
accrued or is received, in accordance with your method of accounting. If such
debentures were determined to be subject to the original issue discount ("OID")
rules, you as a holder would instead be required to include in your gross income
any OID accrued with respect to your allocable share of such debentures whether
or not cash was actually distributed to you.
INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Under the applicable Treasury regulations, debt instruments such as the
debentures, which are issued at face value will not be considered issued with
OID, even if their issuer can defer payments of interest, if the likelihood of
any deferral is remote. Assuming the accuracy of our conclusion as set forth
below that the likelihood of exercising our option to defer payments is remote,
the debentures will not be treated as issued with OID. Accordingly, except as
set forth below, stated interest on the debentures generally will be included in
income by a holder as ordinary income at the time it is paid or accrued in
accordance with such holder's regular method of accounting.
A debt instrument will generally be treated as issued with OID if the
stated interest on the instrument does not constitute "qualified stated
interest." Qualified stated interest is generally any one of a series of stated
interest payments on an instrument that are unconditionally payable at least
annually at a single fixed rate. In determining whether stated interest on an
instrument is unconditionally payable and thus constitutes qualified stated
interest, remote contingencies as to the timely payment of stated interest are
ignored. In the case of the debentures, we have concluded that the likelihood of
exercising our option to defer payments of interest is remote. This is in part
because we have a history of paying dividends on our common stock and intend to
continue to do so, and we would be unable to continue paying these dividends,
which could adversely affect the market for our common stock, if we deferred our
payments under the debentures.
If the likelihood that we would exercise the option to defer any
payment of interest was determined not to be "remote" or if we actually
exercise our option to defer the payment of interest, the debentures would be
treated as issued with OID at the time of issuance or at the time of such
exercise, as the case may be, and all stated interest would thereafter be
treated as OID as long as the debentures remained outstanding. In such event,
all of a holder's taxable interest income in respect of the debentures would
constitute OID that would have to be included in income on a constant yield
method before the receipt of the cash attributable to such income, regardless of
such holder's method of tax accounting, and actual distributions of stated
interest would not be reported as taxable income. Consequently, a holder of
preferred securities would be required to include such OID in gross income even
though we would not make any actual cash payments during an extension period.
58
The Treasury regulations referred to above have not been interpreted by
any court decisions or addressed in any ruling or other pronouncements of the
IRS, and it is possible that the IRS could take a position contrary to the
conclusions herein.
Because income on the preferred securities will constitute interest,
corporate holders of preferred securities will not be entitled to a
dividends-received deduction with respect to any income recognized with respect
to the preferred securities.
MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of preferred securities other than a holder who purchased the
preferred securities upon original issuance or who purchased for a price other
than the first price at which a substantial amount of the preferred securities
were sold for money other than to a bond house, broker, or other person acting
as an underwriter, placement agent or wholesaler may be considered to have
acquired their undivided interests in the debentures with "market discount" or
"acquisition premium" as these phrases are defined for federal income tax
purposes. Such holders are advised to consult their tax advisors as to the
income tax consequences of the acquisition, ownership and disposition of the
preferred securities.
RECEIPT OF DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUST
Under the circumstances described under "Description of the Preferred
Securities -- Redemption or Exchange" and "Description of the Preferred
Securities -- Liquidation Distribution Upon Termination," the debentures may be
distributed to holders of preferred securities upon a liquidation of the trust.
Under current federal income tax law, such a distribution would be treated as a
nontaxable event to the holder and would result in the holder having an
aggregate tax basis in the debentures received in the liquidation equal to the
holder's aggregate tax basis in the preferred securities immediately before the
distribution. A holder's holding period in debentures received in liquidation of
the trust would include the period for which the holder held the preferred
securities.
If, however, a Tax Event occurs which results in the trust being
treated as an association taxable as a corporation, the distribution would
likely constitute a taxable event to holders of the preferred securities. Under
certain circumstances described herein, the debentures may be redeemed for cash
and the proceeds of the redemption distributed to holders in redemption of their
preferred securities. Under current law, such a redemption should, to the extent
that it constitutes a complete redemption, constitute a taxable disposition of
the redeemed preferred securities, and, for federal income tax purposes, a
holder should therefore recognize gain or loss as if the holder sold the
preferred securities for cash.
DISPOSITION OF PREFERRED SECURITIES
A holder that sells preferred securities will recognize gain or loss
equal to the difference between the amount realized on the sale of the preferred
securities and the holder's adjusted tax basis in the preferred securities. A
holder's adjusted tax basis in the preferred securities generally will be its
initial purchase price increased by OID, if any, previously includible in the
holder's gross income to the date of disposition and decreased by payments, if
any, received on the preferred securities in respect of OID to the date of
disposition. A gain or loss of this kind will generally be a capital gain or
loss and will be a long-term capital gain or loss if the preferred securities
have been held for more than one year at the time of sale.
The preferred securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
debentures. A holder using the accrual method of tax accounting (and a cash
method holder, during a period where the interest would constitute OID) that
disposes of its preferred securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest on
the debentures through the date of disposition in income as ordinary income, and
to add the amount to its adjusted tax basis in its proportionate share of the
underlying debentures deemed disposed of. Any OID included in income will
increase a holder's adjusted tax basis as discussed above. To the extent the
selling price is less than the holder's adjusted tax basis a holder will
recognize a capital loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for federal income tax purposes.
59
EFFECT OF POSSIBLE CHANGES IN TAX LAWS
Recent administrative and legislative proposals have considered certain
proposed tax law changes that would, among other things, generally deny
corporate issuers a deduction for interest in respect of certain debt
obligations if the debt obligations have a maximum term in excess of 15 years
and are not shown as indebtedness on the issuer's applicable consolidated
balance sheet. Other proposed tax law changes would have denied interest
deductions if the term was in excess of 20 years. Although these proposed tax
law changes have not been enacted into law, there can be no assurance that tax
law changes will not be reintroduced into future legislation which, if enacted
after the date hereof, may adversely affect the federal income tax deductibility
of interest payable on the debentures.
In addition, in a case filed in the U.S. Tax Court, Enron Corp. v.
Commissioner, Tax Court Docket No. 6149-98, the IRS challenged the deductibility
for federal income tax purposes of interest paid on securities which are
similar, but not identical to, the preferred securities. The parties filed a
stipulation of settled issues, a portion of which stipulated there shall be no
adjustment for the interest deducted by the taxpayer with respect to the
securities.
The IRS may also challenge the deductibility of interest paid on the
debentures, which, if such challenge were litigated resulting in the IRS's
position being sustained, would trigger a Tax Event and possibly a redemption of
the preferred securities. Accordingly, there can be no assurance that a Tax
Event will not occur. A Tax Event would permit us, upon approval of the Federal
Reserve, if then required, to cause a redemption of the preferred securities
before, as well as after, September 30, 2007.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Interest paid, or, if applicable, OID accrued, on the preferred
securities held of record by individual citizens or residents of the United
States, or certain trusts, estates and partnerships, will be reported to the
Internal Revenue Service on Forms 1099-INT, or, where applicable, Forms
1099-OID, which forms should be mailed to the holders by January 31 following
each calendar year. Payments made on, and proceeds from the sale of, the
preferred securities may be subject to a "backup" withholding tax (at a rate of
30% for tax years 2002 and 2003) unless the holder complies with certain
identification and other requirements. Any amounts withheld under the backup
withholding rules will be allowed as a credit against the holder's federal
income tax liability, provided the required information is provided to the
Internal Revenue Service.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR
GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE PARTICULAR
SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED SECURITIES
SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED SECURITIES,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS
AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
60
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement
Income Security Act of 1974, or Section 4975 of the Internal Revenue Code,
generally may purchase preferred securities, subject to the investing
fiduciary's determination that the investment in preferred securities satisfies
ERISA's fiduciary standards and other requirements applicable to investments by
the plan.
In any case, we and/or any of our affiliates may be considered a "party
in interest" (within the meaning of ERISA) or a "disqualified person" (within
the meaning of Section 4975 of the Internal Revenue Code) with respect to
certain plans. These plans generally include plans maintained or sponsored by,
or contributed to by, any such persons with respect to which we or any of our
affiliates are a fiduciary or plans for which we or any of our affiliates
provide services. The acquisition and ownership of preferred securities by a
plan (or by an individual retirement arrangement or other plans described in
Section 4975(e)(1) of the Internal Revenue Code) with respect to which we or any
of our affiliates are considered a party in interest or a disqualified person
may constitute or result in a prohibited transaction under ERISA or Section 4975
of the Internal Revenue Code, unless the preferred securities are acquired
pursuant to and in accordance with an applicable exemption.
As a result, plans with respect to which we or any of our affiliates or
any of its affiliates is a party in interest or a disqualified person should not
acquire preferred securities unless the preferred securities are acquired
pursuant to and in accordance with an applicable exemption. Any other plans or
other entities whose assets include plan assets subject to ERISA or Section 4975
of the Internal Revenue Code proposing to acquire preferred securities should
consult with their own counsel.
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UNDERWRITING
Subject to the terms and conditions of the underwriting agreement among
Irwin, the trust and the underwriters named below, for whom Stifel, Nicolaus &
Company, Incorporated and RBC Dain Rauscher Inc. are acting as representatives,
the underwriters have severally agreed to purchase from the trust, and the trust
has agreed to sell to them, an aggregate of 1,000,000 preferred securities in
the amounts set forth below opposite their respective names.
NUMBER OF
UNDERWRITERS PREFERRED SECURITIES
------------ --------------------
Stifel, Nicolaus & Company, Incorporated......
RBC Dain Rauscher Inc......................... ---------
Total................................... 1,000,000
=========
In the underwriting agreement, the obligations of the underwriters are
subject to approval of certain legal matters by their counsel and to various
other conditions. Under the terms and conditions of the underwriting agreement,
the underwriters are committed to accept and pay for all of the preferred
securities if any are taken.
The underwriters propose to offer the preferred securities directly to
the public at the public offering price set forth on the cover page of this
prospectus, and to certain securities dealers (who may include the underwriters)
at this price, less a concession not in excess of $ per preferred security.
The underwriters may allow, and the selected dealers may reallow, a concession
not in excess of $ per preferred security to certain brokers and dealers.
After the preferred securities are released for sale to the public, the offering
price and other selling terms may from time to time be changed by the
underwriters.
The trust has granted to the underwriters an option, exercisable within
30 days after the date of this prospectus, to purchase up to 150,000 additional
preferred securities at the same price per security to be paid by the
underwriters for the other securities being offered as set forth in the table
below. If the underwriters purchase any of the additional securities under the
option, each underwriter will be committed to purchase the additional securities
in approximately the same proportion allocated to them in the table above. The
underwriters may exercise the option only for the purpose of covering
over-allotments, if any, made in connection with the distribution of the
securities being offered.
If the underwriters exercise their option to purchase additional
securities, the trust will issue and sell to us additional common securities and
we will issue and sell to the trust additional debentures in an aggregate
principal amount equal to the total aggregate liquidation amount of the
additional securities being purchased under the option and the additional common
securities sold to us.
The table below shows the price and proceeds on a per security and
aggregate basis. The proceeds to be received by the trust as shown in the table
below do not reflect estimated offering expenses of $265,000 payable by us.
PER PREFERRED TOTAL WITH
SECURITY TOTAL OVER-ALLOTMENT
-------- ----- --------------
Public offering price........................ $ 25.00 $25,000,000 $28,750,000
Proceeds, before expenses, to the trust...... $ 25.00 $25,000,000 $28,750,000
Underwriting commission...................... $ $ $
Net proceeds to us........................... $ $ $
The offering of the preferred securities is made for delivery when, as
and if accepted by the underwriters and subject to prior sale and to withdrawal,
cancellation or modification of the offering without notice. The underwriters
reserve the right to reject any order for the purchase of the preferred
securities.
Irwin and the trust have agreed to indemnify the several underwriters
against several liabilities, including liabilities under the Securities Act of
1933.
62
The preferred securities have been approved for listing on the New York
Stock Exchange under the symbol "IFC PrM," and trading is expected within 30
days after initial delivery of the preferred securities. The representatives
have advised us that they presently intend to make a market in the securities
prior to the commencement of trading on the New York Stock Exchange, but are not
obligated to do so and may discontinue market making at any time without notice.
However, we cannot assure you as to the liquidity of the securities or that an
active and liquid market will develop or, if developed, that the market will
continue. The offering price and distribution rate has been determined by
negotiations among representatives of the underwriters and us, and the offering
price of the securities may not be indicative of the market price following the
offering.
In connection with the offering, the underwriters may engage in
transactions that are intended to stabilize, maintain or otherwise affect the
price of the securities during and after the offering, such as the following:
o the underwriters may over-allot or otherwise create a short
position in the securities for their own account by selling
more securities than have been sold to them;
o the underwriters may elect to cover any short position by
purchasing securities in the open market or by exercising the
over-allotment option;
o the underwriters may stabilize or maintain the price of the
securities by bidding; and
o the underwriters may impose penalty bids, under which selling
concessions allowed to syndicate members or other
broker-dealers participating in the offering are reclaimed if
securities previously distributed in the offering are
repurchased in connection with stabilization transactions or
otherwise.
The effect of these transactions may be to stabilize or maintain the
market price at a level above that which might otherwise prevail in the open
market. The imposition of a penalty bid may also affect the price of the
securities to the extent that it discourages resales. No representation is made
as to the magnitude or effect of any such stabilization or other transactions.
Such transactions may be effected on the New York Stock Exchange or otherwise
and, if commenced, may be discontinued at any time.
Because the National Association of Securities Dealers, Inc. may view
the preferred securities as interests in a direct participation program, the
offer and sale of the securities is being made in compliance with the provisions
of Rule 2810 under the NASD Conduct Rules. The underwriters have advised us that
they will not make any sales to any accounts over which they exercise
discretionary authority without the prior specific written approval of the
customer.
Certain of the underwriters and their affiliates have, from time to
time, performed investment banking and other services for us and our affiliates
in the ordinary course of business and have received fees from us for their
services.
We have agreed not to sell or otherwise dispose of any securities
substantially similar to those offered by this prospectus for a period of 30
days after the effective date of the registration statement of which this
prospectus forms a part (other than securities sold pursuant to this
prospectus), without the prior written consent of Stifel, Nicolaus & Company,
Incorporated.
LEGAL MATTERS
Certain legal matters, including matters relating to federal income tax
considerations, for Irwin and the trust will be passed upon by Vedder, Price,
Kaufman & Kammholz, Chicago, Illinois, special counsel to Irwin and the trust.
Certain legal matters for Irwin will be passed upon by Ellen Z. Mufson, Vice
President--Legal. Certain legal matters will be passed upon for the underwriters
by Lewis, Rice & Fingersh, L.C., St. Louis, Missouri. Vedder, Price, Kaufman &
Kammholz and Lewis, Rice & Fingersh, L.C. will rely on the opinion of Richards,
Layton & Finger, P.A. as to matters of Delaware law.
63
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from our Annual Report on Form 10-K for the year ended December 31,
2001, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND INFORMATION
This prospectus is a part of a Registration Statement on Form S-3 filed
by us and the trust with the SEC under the Securities Act, with respect to the
preferred securities, the debentures, and the guarantee. This prospectus does
not contain all the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. For further information with respect to us and the securities offered by
this prospectus, reference is made to the registration statement, including the
exhibits to the registration statement and documents incorporated by reference.
Statements contained in this prospectus concerning the provisions of such
documents are necessarily summaries of such documents and each such statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the SEC.
We file periodic reports, proxy statements and other information with
the SEC. Our filings are available to the public over the Internet at the SEC's
web site at http://www.sec.gov. You may also inspect and copy these materials at
the public reference facilities of the SEC at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information.
Each holder of the trust securities will receive a copy of our annual
report at the same time as we furnish the annual report to the holders of our
common stock.
DOCUMENTS INCORPORATED BY REFERENCE
We "incorporate by reference" into this prospectus the information in
documents we file with the SEC, which means that we can disclose important
information to you through those documents. The information incorporated by
reference is an important part of this prospectus. Some information contained in
this prospectus updates the information incorporated by reference and some
information that we file subsequently with the SEC will automatically update
this prospectus. We incorporate by reference the documents listed below:
(a) our Annual Report on Form 10-K for the year ended December 31,
2001, filed with the SEC on March 29, 2002, as amended on Form
10-K/A filed with the SEC on September 30, 2002 (File No.
001-16691);
(b) our Quarterly Report on Form 10-Q for the quarter ended March
31, 2002, filed with the SEC on May 14, 2002 (File No.
001-16691);
(c) our Quarterly Report on Form 10-Q for the quarter ended June
30, 2002, filed with the SEC on August 13, 2002 (File No.
001-16691);
(d) our Current Reports on Form 8-K filed with the SEC on the
following dates (File No. 001-16691):
(1) January 18, 2002;
(2) January 23, 2002;
(3) February 15, 2002;
(4) February 27, 2002;
(5) April 19, 2002;
64
(6) April 23, 2002;
(7) April 25, 2002;
(8) July 10, 2002;
(9) July 19, 2002;
(10) July 23, 2002;
(11) August 29, 2002; and
(12) October 4, 2002.
We also incorporate by reference any filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the initial filing of the registration statement that contains this prospectus
and before the time that all of the securities offered in this prospectus are
sold.
You may request, and we will provide, a copy of these filings at no
cost by contacting Ellen Z. Mufson, our Vice President -- Legal, at Irwin
Financial Corporation, 500 Washington Street, Columbus, Indiana 47201, or by
calling (812) 376-1020.
65
===================================================== ====================================================
TABLE OF CONTENTS 1,000,000 PREFERRED SECURITIES
PAGE IFC CAPITAL TRUST VI
----
Summary................................................3 % CUMULATIVE TRUST
Risk Factors..........................................18 PREFERRED SECURITIES
Special Note Regarding Forward-Looking Statements.....28
Use of Proceeds.......................................29 (LIQUIDATION AMOUNT $25 PER
Capitalization........................................30 PREFERRED SECURITY)
Accounting and Regulatory Treatment...................31
Description of the Trust..............................32 FULLY, IRREVOCABLY AND UNCONDITIONALLY
Description of the Preferred Securities...............33 GUARANTEED ON A SUBORDINATED BASIS, AS
Description of the Debentures.........................44 DESCRIBED IN THIS PROSPECTUS, BY
Description of the Guarantee..........................52
Relationship Among the Preferred IRWIN FINANCIAL
Securities, the Debentures and the CORPORATION
Guarantee........................................54
Book-Entry Issuance...................................56 [LOGO]
Federal Income Tax Consequences.......................57 -------------------
ERISA Considerations..................................61 $25,000,000
Underwriting..........................................62 % JUNIOR SUBORDINATED
Legal Matters.........................................63 DEBENTURES
Experts...............................................64 OF
Where You Can Find Information........................64
Documents Incorporated by Reference...................64 IRWIN FINANCIAL
CORPORATION
o YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. ______________
WE HAVE NOT, AND OUR UNDERWRITERS HAVE NOT,
AUTHORIZED ANY PERSON TO PROVIDE YOU WITH DIFFERENT PROSPECTUS
INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT
OR INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON
IT.
, 2002
o WE ARE NOT, AND OUR UNDERWRITERS ARE NOT, MAKING ______________
AN OFFER TO SELL THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. STIFEL, NICOLAUS & COMPANY
INCORPORATED
o YOU SHOULD ASSUME THAT THE INFORMATION APPEARING
IN THIS PROSPECTUS IS ACCURATE AS OF THE DATE RBC CAPITAL MARKETS
ON THE FRONT COVER OF THIS PROSPECTUS ONLY.
o THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR THE SOLICITATION OF AN OFFER TO BUY, ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT
RELATES.
===================================================== ====================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable in
connection with the sale and distribution of the securities being registered,
other than underwriting discounts and commissions. All of such expenses will be
paid by Irwin. All amounts shown are estimates, except the SEC registration fee
and the NASD and the New York Stock Exchange filing fees:
SEC registration fee........................................................ $ 2,645
NASD filing fee............................................................. 3,375
New York Stock Exchange filing fee.......................................... 14,750
Trustees' fees.............................................................. 17,250
Printing and mailing expenses............................................... 40,000
Fees and expenses of counsel................................................ 130,000
Accounting and related expenses............................................. 50,000
Blue Sky fees and expenses.................................................. 2,000
Miscellaneous............................................................... 4,980
--------
Total................................................................. $265,000
========
Item 15. Indemnification of Directors and Officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to our
directors, officers, and controlling persons pursuant to the following
provisions, or otherwise, we have 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.
The Indiana Business Corporation Law ("IBCL"), the provisions of which
we are governed by, 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
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
conduct was lawful or no reasonable cause to believe his 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 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 provide otherwise, 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 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 the
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
II-1
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 in any capacity as such, or
arising out of his status as such, whether or not the corporation would have had
the power to indemnify him against such liability.
Our Amended and Restated Articles of Incorporation provide for
indemnification as a matter of right to any of our directors, officers or
employees who have been successful on the merits of a claim against them, and
for indemnification under certain other circumstances where allowed, by the
action of disinterested members of the Board of Directors.
We have purchased $10 million in directors' and officers' liability
insurance, the effect of which is to indemnify the directors and officers of us
and our 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.
The Amended and Restated Trust Agreement will provide for
indemnification of the Delaware Trustee and each of the administrative trustees
by us against any loss, damage, claims, liability, penalty or expense of any
kind incurred by the trustees in connection with the performance of their duties
or powers under the agreement in a manner reasonably believed by the trustee to
be within the scope of its authority under the agreement, except that none of
these trustees will be so indemnified for any loss, damage or claim incurred by
reason of such trustee's gross negligence, bad faith or willful misconduct.
Similarly, the agreement provides for indemnification of the Property Trustee
except that the Property Trustee is not indemnified from liability for its own
negligent action, negligent failure to act or willful misconduct. Under the
agreement, we agree to advance those expenses incurred by any trustee in
defending any such claim, demand, action, suit or proceeding.
II-2
Item 16. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
1.1 Form of Underwriting Agreement.+
4.1 Restated Articles of Incorporation of Irwin Financial Corporation.
(Incorporated by reference to Exhibit 3(a) to Form 10-K Report for the
year ended December 31, 2000, File No. 0-06835).
4.2 Articles of Amendment to Restated Articles of Incorporation of Irwin
Financial Corporation 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. 0-06835).
4.3 Code of By-Laws, as amended to date.+
4.4 Rights Agreement, dated as of March 1, 2001, between Irwin Financial
Corporation and Irwin Union Bank and Trust. (Incorporated by reference
to Exhibit 4.1 to Form 8-A filed with the SEC on March 2, 2001, File
No. 0-06835).
4.5 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 with the SEC on September 7,
2001, File No. 333-69156).
4.6 Certain instruments defining the rights of the holders of long-term
debt of Irwin Financial Corporation and certain of its subsidiaries,
none of which authorize a total amount of indebtedness in excess of 10%
of the total assets of the Company and its subsidiaries on a
consolidated basis, have not been filed as Exhibits. The Company hereby
agrees to furnish a copy of any of these agreements to the SEC upon
request.
4.7 Form of Indenture.+
4.8 Certificate of Trust.+
4.9 Trust Agreement.+
4.10 Form of Amended and Restated Trust Agreement.+
4.11 Form of Preferred Securities Certificate (included as Exhibit D to
Exhibit 4.10).
4.12 Form of Preferred Securities Guarantee Agreement.+
4.13 Form of Agreement as to Expenses and Liabilities (included as Exhibit C
to Exhibit 4.10).
4.14 Form of Junior Subordinated Debenture (included as Exhibit A to Exhibit
4.7).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz.+
5.2 Opinion of Richards, Layton & Finger, P.A.+
8.1 Opinion of Vedder, Price, Kaufman & Kammholz as to certain tax
matters.+
12.1 Calculation of ratios of earnings to fixed charges.+
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in opinions
filed as Exhibits 5.1 and 8.1).
23.3 Consent of Richards, Layton & Finger, P.A. (included in opinion filed
as Exhibit 5.2).
24.1 Powers of Attorney (included as part of signature pages).+
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as trustee
under the Indenture.+
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as property
trustee under the Amended and Restated Trust Agreement.+
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as trustee
under the Guarantee Agreement.+
---------------------------
*Filed herewith.
+Previously filed.
II-3
Item 17. Undertakings.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's 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 plan's annual report pursuant to
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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrants pursuant to the foregoing provisions, or
otherwise, the Registrants have been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in that
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director,
officer, or controlling person of the Registrants 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, each 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.
(i) The undersigned Registrants hereby undertake that:
(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
Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall 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 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, IFC Capital
Trust VI certifies that it has reasonable grounds to believe that it meets all
of the requirements of 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 Columbus, State of Indiana, on October 4, 2002.
IFC CAPITAL TRUST VI
By: IRWIN FINANCIAL CORPORATION
as Depositor
By: /s/ William I. Miller
-----------------------------------
William I. Miller
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, Irwin
Financial Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements of 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 Columbus, State of Indiana, on October 1, 2002.
IRWIN FINANCIAL CORPORATION
By: /s/ William I. Miller
-----------------------------------
William I. Miller
Chairman of the Board
S-1
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Sally A. Dean*
------------------------------------
Sally A. Dean Director October 4, 2002
/s/ Gregory F. Ehlinger
------------------------------------
Gregory F. Ehlinger Senior Vice President and Chief October 4, 2002
Financial Officer (Principal
Financial Officer)
/s/ David W. Goodrich*
------------------------------------
David W. Goodrich Director October 4, 2002
/s/ John T. Hackett*
------------------------------------
John T. Hackett Director October 4, 2002
/s/ William H. Kling*
------------------------------------
William H. Kling Director October 4, 2002
/s/ Brenda J. Lauderback*
------------------------------------
Brenda J. Lauderback Director October 4, 2002
/s/ John C. McGinty, Jr.*
------------------------------------
John C. McGinty, Jr. Director October 4, 2002
/s/ William I. Miller
------------------------------------
William I. Miller Director, Chairman of the Board
(Principal Executive Officer) October 4, 2002
/s/ John A. Nash*
------------------------------------
John A. Nash Director and President October 4, 2002
/s/ Lance R. Odden*
------------------------------------
Lance R. Odden Director October 4, 2002
------------------------------------
Theodore M. Solso Director October 4, 2002
/s/ Jody A. Littrell
------------------------------------
Jody A. Littrell Vice President and Controller
(Principal Accounting Officer) October 4, 2002
______________
*Signed pursuant to power of attorney.
By: /s/ William I. Miller
---------------------
William I. Miller
S-2
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
1.1 Form of Underwriting Agreement.+
4.1 Restated Articles of Incorporation of Irwin Financial Corporation.
(Incorporated by reference to Exhibit 3(a) to Form 10-K Report for the
year ended December 31, 2000, File No. 0-06835).
4.2 Articles of Amendment to Restated Articles of Incorporation of Irwin
Financial Corporation 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. 0-06835).
4.3 Code of By-Laws, as amended to date.+
4.4 Rights Agreement, dated as of March 1, 2001, between Irwin Financial
Corporation and Irwin Union Bank and Trust. (Incorporated by reference
to Exhibit 4.1 to Form 8-A filed with the SEC on March 2, 2001, File
No. 0-06835).
4.5 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 with the SEC on September 7,
2001, File No. 333-69156).
4.6 Certain instruments defining the rights of the holders of long-term
debt of Irwin Financial Corporation and certain of its subsidiaries,
none of which authorize a total amount of indebtedness in excess of 10%
of the total assets of the Company and its subsidiaries on a
consolidated basis, have not been filed as Exhibits. The Company hereby
agrees to furnish a copy of any of these agreements to the SEC upon
request.
4.7 Form of Indenture.+
4.8 Certificate of Trust.+
4.9 Trust Agreement.+
4.10 Form of Amended and Restated Trust Agreement.+
4.11 Form of Preferred Securities Certificate (included as Exhibit D to
Exhibit 4.10).
4.12 Form of Preferred Securities Guarantee Agreement.+
4.13 Form of Agreement as to Expenses and Liabilities (included as Exhibit C
to Exhibit 4.10).
4.14 Form of Junior Subordinated Debenture (included as Exhibit A to Exhibit
4.7).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz.+
5.2 Opinion of Richards, Layton & Finger, P.A.+
8.1 Opinion of Vedder, Price, Kaufman & Kammholz as to certain tax
matters.+
12.1 Calculation of ratios of earnings to fixed charges.+
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in opinions
filed as Exhibits 5.1 and 8.1).
23.3 Consent of Richards, Layton & Finger, P.A. (included in opinion filed
as Exhibit 5.2).
24.1 Powers of Attorney (included as part of signature pages).+
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as trustee
under the Indenture.+
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as property
trustee under the Amended and Restated Trust Agreement.+
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as trustee
under the Guarantee Agreement.+
---------------------------
*Filed herewith.
+Previously filed.