<PAGE>
As filed with the Securities and Exchange Commission on June 10, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------------------
REGISTRATION STATEMENT ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
-------------------------
ITLA CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 95-2864759
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7979 IVANHOE AVENUE, LA JOLLA, CALIFORNIA 92307
(Address of principal executive offices) (Zip Code)
ITLA CAPITAL CORPORATION
VOLUNTARY RETAINER STOCK AND DEFERRED
COMPENSATION PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
DAVE M. MUCHNIKOFF, P.C.
SILVER, FREEDMAN & TAFF, L.L.P.
(A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS)
7TH FLOOR, EAST TOWER
1100 NEW YORK AVE., NW
WASHINGTON, DC 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED/(1)/ PER SHARE OFFERING PRICE REGISTRATION FEE
- ------------------------ ---------------- -------------- -------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 125,000 shares $15.25/(2)/ $1,906,250/(2)/ $578/(2)/
====================================================================================================
</TABLE>
/(1)/ Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of certain
events specified in the Plan, may become subject to the Plan.
/(2)/ Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee, based upon the average of the high and
low prices of the Common Stock on the Nasdaq National Market System on
June 5, 1997.
<PAGE>
PURPOSE
-------
The purpose of this registration statement is to register on Form S-8
shares of common stock, par value $.01 per share (the "Common Stock") of ITLA
Capital Corporation (the "Corporation") to be granted under the Voluntary
Retainer Stock and Deferred Compensation Plan for Outside Directors of Imperial
Thrift and Loan Association (the "Association"), which it assumed pursuant to
the terms and conditions of a Merger Agreement and Plan of Reorganization (the
"Reorganization") dated as of May 3, 1996 by and between the Corporation, ITLA
Corp. and the Association, whereby the Association became a wholly-owned
subsidiary of the Corporation. The Reorganization occurred on October 1, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the ITLA Capital Corporation Voluntary
Retainer Stock and Deferred Compensation Plan (the "Plan") as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously or concurrently filed by the Corporation
(the "Corporation") with the Commission are hereby incorporated by reference in
this Registration Statement:
(a) the Annual Report of the Corporation on Form 10-K for the fiscal year ended
December 31, 1996 (File No. 0-26960) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed by the Corporation pursuant to Section 13 or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to above; and
(c) the description of the Common Stock of the Corporation contained in the
Corporation's Registration Statement on Form S-4 (File No. 333-03551) filed
with the Commission on May 10, 1996 and all amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Corporation with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents
incorporated, or deemed to be incorporated, by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Registration
Statement and the Prospectus to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Prospectus.
The Corporation shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Mr.
Michael L. Mayer, Secretary, ITLA Capital Corporation, 7979 Ivanhoe Avenue, La
Jolla, California 92037, (619) 551-0990.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
II-1
<PAGE>
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article ELEVENTH of the Corporation's Certificate of Incorporation provides
for indemnification of directors and officers of the Registrant against any and
all liabilities, judgments, fines and reasonable settlements, costs, expenses
and attorneys' fees incurred in any actual, threatened or potential proceeding,
except to the extent that such indemnification is limited by Delaware law and
such law cannot be varied by contract or bylaw. Article ELEVENTH also provides
for the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith, (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate, (iii) with
respect to a criminal proceeding, had no reasonable cause to believe his conduct
was unlawful, and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the proceeding was brought
determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may
be made (i) by a majority vote of the Board of Directors of the Holding
Corporation who are not parties to such action, suit or proceeding, even though
such directors constitute less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings
II-2
<PAGE>
upon the receipt of an undertaking by the director or officer to repay such
amount if it is ultimately determined that he is not entitled to be indemnified
by the corporation against such expenses.
Under a directors' and officers' liability insurance policy, directors and
officers of the Corporation are insured against certain liabilities.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
II-3
<PAGE>
<TABLE>
<CAPTION>
Item 8. Exhibits.
--------
SEQUENTIAL PAGE
REFERENCE TO PRIOR NUMBER WHERE
REGULATION FILING OR EXHIBIT ATTACHED EXHIBITS
S-K EXHIBIT NUMBER ARE LOCATED IN
NUMBER DOCUMENT ATTACHED HERETO THIS FORM S-8
- ----------- --------------------------- ------------------- -----------------
<S> <C> <C> <C>
4.1 ITLA Capital Corporation Attached as
Voluntary Retainer Stock Exhibit 4.1
and Deferred Compensation Page 12
Plan for Outside Directors
and Election Form
4.2 Specimen form of common * Not applicable
stock certificate of ITLA
Capital Corporation
4.3 ITLA Capital Corporation * Not applicable
Certificate of
Incorporation
4.4 Bylaws of ITLA Capital * Not applicable
Corporation
5 Opinion of Silver, Attached as Page 22
Freedman & Taff, L.L.P. Exhibit 5
23.1 Consent of Silver, Attached as Page 24
Freedman & Taff, L.L.P. Exhibit 23.1
23.2 Consent of Arthur Attached as Page 26
Andersen, LLP Exhibit 23.2
23.3 Consent of Grant Thornton, Attached as Page 28
LLP Exhibit 23.3
24 Power of Attorney Contained on Page 8
Signature Page
</TABLE>
* Filed as an exhibit to the Corporation's S-4 registration statement filed on
May 10, 1996 (File No. 333-03551) pursuant to Section 5 of the Securities Act of
1933. Such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
---- ----
II-4
<PAGE>
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
---- ----
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant of
expenses incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of La Jolla, State of California, on June 5, 1997.
ITLA CAPITAL CORPORATION
By: /s/ George W. Haligowski
----------------------------------------
George W. Haligowski
President, Chief Executive Officer and
Chairman of the Board
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints George W. Haligowski and Michael A. Sicuro and
either of them, as our true and lawful attorneys-in-fact and agents, with full
power of substitution and re-substitution, for him or her in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
said attorneys-in-fact and agents or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ George W. Haligowski /s/ Michael A. Sicuro
- -------------------------------------------- -------------------------------
George W. Haligowski Michael A. Sicuro
President, Chief Executive Officer and Senior Vice President and Chief
Chairman of the Board Financial Officer
(Principal Executive and Operating Officer)
Date: June 5, 1997 Date: June 5, 1997
---------------------------------------- -------------------------
/s/ Sandor X. Mayuga /s/ Hirotaka Oribe
- --------------------------------------------- -------------------------------
Sandor X. Mayuga Hirotaka Oribe
Director Director
Date: June 5, 1997 Date: June 5, 1997
---------------------------------------- -------------------------
/s/ Jeffrey L. Lipscomb /s/ Robert R. Reed
- --------------------------------------------- -----------------------------
Jeffrey L. Lipscomb Robert R. Reed
Director Director
Date: June 5, 1997 Date: June 5, 1997
---------------------------------------- -------------------------
II-6
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ITLA CAPITAL CORPORATION
================================================================================
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
SEQUENTIAL PAGE
REFERENCE TO PRIOR NUMBER WHERE
REGULATION FILING OR EXHIBIT ATTACHED EXHIBITS
S-K EXHIBIT NUMBER ARE LOCATED IN
NUMBER DOCUMENT ATTACHED HERETO THIS FORM S-8
- ----------- --------------------------- ------------------- -----------------
<S> <C> <C> <C>
4.1 ITLA Capital Corporation
Voluntary Retainer Stock Attached as
and Deferred Compensation Exhibit 4.1 Page 12
Plan for Outside Directors
and Election Form
4.2 Specimen form of common * Not applicable
stock certificate of ITLA
Capital Corporation
4.3 ITLA Capital Corporation * Not applicable
Certificate of
Incorporation
4.4 Bylaws of ITLA Capital * Not applicable
Corporation
5 Opinion of Silver, Attached as
Freedman & Taff, L.L.P. Exhibit 5 Page 22
23.1 Consent of Silver, Attached as
Freedman & Taff, L.L.P. Exhibit 23.1 Page 24
23.2 Consent of Arthur Attached as
Andersen, LLP Exhibit 23.2 Page 26
23.3 Consent of Grant Thornton, Attached as
LLP Exhibit 23.3 Page 28
24 Power of Attorney Contained on
Signature Page Page 8
</TABLE>
* Filed as an exhibit to the Corporation's S-4 registration statement filed on
May 10, 1996 (File No. 333-03551) pursuant to Section 5 of the Securities Act of
1933. Such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
<PAGE>
Exhibit 4.1
<PAGE>
ITLA CAPITAL CORPORATION
VOLUNTARY RETAINER STOCK AND DEFERRED
COMPENSATION PLAN FOR OUTSIDE DIRECTORS
ARTICLE I
PURPOSES AND EFFECTIVE DATE
1.1 Purposes. The purposes of the Plan (the "Plan") are to encourage and
enable Outside Directors to receive some or all of their Fees in shares of
Common Stock, and to defer receipt of some or all of their Fees, and thereby
improve the Company's ability to attract and retain highly qualified individuals
to serve as Outside Directors of the Company; provide competitive remuneration
for Board service; enhance the breadth of Outside Director remuneration; and
strengthen the commonality of interest between Outside Directors and
shareholders.
1.2 Effective Date. The effective date of the Plan (the "Effective Date")
is August 15, 1996, subject to approval of the shareholders of the Company (if
and to the extent such shareholder approval is necessary or required for
purposes of any applicable federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Shares may then be
listed or quoted) by the affirmative vote of a majority of Shares present, or
represented, and entitled to vote on the subject matter, at the 1996 Annual
Meeting of Shareholders of the Company at which a quorum is present.
ARTICLE II
CERTAIN DEFINITIONS
The following terms shall be defined as set forth below:
2.1 "Board" means the Board of Directors of the Company or any successor
thereto.
2.2 "Cash Units" means the credits to a Participant's Cash Account under
Article VII of the Plan, each of which represents the right to receive $1.00
upon settlement of the Cash Accounts.
2.3 "Cash Unit Account" means the bookkeeping account established pursuant
to Section 7.4.
2.4 "Committee" has the meaning set forth in Section 4.1.
2.5 "Common Stock" means common stock of the Company, par value $.01 per
share, or of any successor corporation or other legal entity assuming or
adopting the Plan.
2.6 "Company" means ITLA Capital Corporation, a Delaware corporation.
<PAGE>
2.7 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
References to any provision of the Exchange Act include rules thereunder and
successor provisions and rules thereto.
2.8 "Discounted Market Value" means the closing sales price per share for
the Common Stock on the relevant date, or, if there were no sales on such date,
the closing sales price per share on the nearest day before or the nearest day
after the relevant date, as reported in The Wall Street Journal or a similar
source selected by the Committee, less 5% of such closing sales price per share.
2.9 "Fees" means all or part of any retainer and/or fees (including all
amounts payable with respect to service on a committee of the Board, or as
chairman of the Board or a committee thereof, or for attendance at Board or
committee meetings) payable to an Outside Director in his or her capacity as an
Outside Director.
2.10 "Non-Employee Director" means a director who a) is not currently an
officer or employee of the Company; b) is not a former employee of the Company
who receives compensation for prior services (other than from a tax-qualified
retirement plan); c) has not been an officer of the Company; d) does not receive
remuneration from the Company in any capacity other than as a director; and e)
does not possess an interest in any other transactions or is not engaged in a
business relationship for which disclosure would be required under Item 404(a)
or (b) of Regulation S-K.
2.11 "Outside Director" means any member of the Board of Directors of the
Company who is not also an employee of the Company.
2.12 "Participant" means an Outside Director who shall have elected under
Article VI or Article VII to participate in the Plan.
2.13 "Secretary" means the Corporate Secretary or any Assistant Corporate
Secretary of the Company.
2.14 "Securities Act" means the Securities Act of 1933, as amended.
References to any provision of the Securities Act include rules thereunder and
successor provisions and rules thereto.
2.15 "Shares" means shares of the common stock of the Company, par value
$.01 per share, or of any successor corporation or other legal entity adopting
the Plan.
2.16 "Stock Units" means the credits to a Participant's Stock Unit Account
under Article VII of the Plan, each of which represents the right to receive one
Share upon settlement of the Stock Unit Account.
2
<PAGE>
2.17 "Stock Unit Account" means the bookkeeping account established
pursuant to Section 7.6.
2.18 "Termination of Service" means termination, for any reason, of service
as an Outside Director.
ARTICLE III
SHARES AVAILABLE UNDER THE PLAN
Subject to adjustment as provided in Article XI, the maximum number of
Shares that may be distributed in lieu of cash compensation and in settlement of
Stock Unit Accounts under the Plan shall not exceed 125,000 in the aggregate.
Such Shares may include authorized but unissued Shares or treasury Shares.
ARTICLE IV
ADMINISTRATION
4.1 The Plan shall be administered by the Board's Compensation Committee or
such other committee or individual as may be designated by the Board (the
"Committee"). The Committee shall consist of two or more members, each of whom
shall be a Non-Employee Director. Notwithstanding the foregoing, no Non-
Employee Director who is a Participant under the Plan shall participate in any
determination in his or her capacity as a member of the Board relating solely or
primarily to his or her own Shares, Cash Units, Cash Unit Account, Stock Units
or Stock Unit Account.
4.2 It shall be the duty of the Committee to administer the Plan in
accordance with its provisions and to make such recommendations of amendments or
otherwise as it deems necessary or appropriate.
4.3 The Committee shall have the authority to make all determinations it
deems necessary or advisable for administering the Plan, subject to the
limitations in Section 4.1 and other explicit provisions of the Plan. No member
of the Committee shall be liable for any act or omission by such member or by
any other member of the Committee in connection with the Plan, except for such
member's own willful misconduct or as expressly provided by statute.
ARTICLE V
ELIGIBILITY
5.1 Participation in this Plan is limited to Outside Directors.
3
<PAGE>
5.2 If such Outside Director subsequently becomes an employee of the
Company or any of its subsidiaries, but does not incur a Termination of Service,
such Outside Director shall (a) continue as a Participant with respect to Fees
previously deferred and (b) otherwise cease eligibility under the Plan with
respect to all future Fees, if any, earned while an employee.
ARTICLE VI
ELECTION TO RECEIVE STOCK IN LIEU OF CASH COMPENSATION
6.1 General Rule. Pursuant to the Plan, Outside Director Fees otherwise
payable in cash on or after the Effective Date may be received, in increments of
25%, not to exceed an aggregate of 100%, in the form of Common Stock in
accordance with this Article VI.
6.2 Timing of Voluntary Election. Each Outside Director may make a written
election to receive Fees, in increments of 25%, not to exceed an aggregate of
100%, otherwise payable in cash on or after the Effective Date, in the form of
Common Stock in accordance with this Article VI. The percentage of the Fees
elected to be received in the form of Common Stock is not subject to deferral
under Article VII. Such election shall be made at least 30 days prior to the
start of the calendar year for which the Fees would otherwise be paid in cash;
provided, however, that with respect to (a) any elections made before the
Effective Date and (b) any elections made by newly-elected or appointed Outside
Directors within 30 days of their initial election or appointment, the following
special alternative rule as to the permitted time for making the election also
shall be available: the election may be made at least 30 days prior to the date
the Fees would otherwise have been payable to the Outside Director in cash (the
"Payment Date"). An election by a Participant shall be deemed to be continuing,
and therefore applicable to Fees to be paid in future years, unless the
Participant revokes or changes such election by filing a new election form by
the due date for such form specified in this Section 6.2.
6.3 Form of Voluntary Election. An election under Section 6.2 shall be
made in a manner satisfactory to the Committee. Generally, an election shall be
made by completing and filing the specified election form with the Secretary by
the applicable date described in Section 6.2. At a minimum, the form shall
require the Participant to specify a percentage (in increments of 25% up to
100%) of the Fees to be received in Common Stock under the Plan.
In the event Outside Directors' Fees are increased or decreased during any
calendar year, a Participant's election in effect for such year will apply to
the specified percentage of Fees as increased or decreased.
6.4 Issuance of Common Stock. The Company shall cause to be issued and
delivered to such Participant a stock certificate, registered in the name of
such Outside Director, evidencing the number of shares of Common Stock due the
Outside Director, calculated pursuant to Section 6.5, as of and when (a) the
Company shall determine to issue and deliver such certificate or (b) such
Participant shall have requested that such certificate be issued and delivered.
Outside Directors shall be deemed to have rights as shareholders of the Company
with respect to Shares
4
<PAGE>
of Common Stock acquired under this Article VI, as of and from the applicable
Payment Date, including, without limitation, the rights to dividends or
distributions and to vote.
6.5 Amount of Stock. The number of Shares to be issued and delivered to a
Participant who shall have elected to receive Common Stock in lieu of cash
compensation shall be equal to the amount of the Fees otherwise payable in cash
divided by the Discounted Market Value of a Share as of the applicable Payment
Date, with fractional units calculated to at least three decimal places.
6.6 Regulatory Compliance and Listing. The issuance or delivery of any
Shares may be postponed by the Company for such period as may be required to
comply with any applicable requirements under the federal securities laws, any
applicable listing requirements of any national securities exchange, or any
requirements under any other law or regulation applicable to the issuance or
delivery of such shares. The Company shall not be obligated to issue or
delivery any such Shares if the issuance of delivery thereof shall constitute a
violation of any provision of any law or of any regulation of any governmental
authority or any national securities exchange.
ARTICLE VII
ELECTION TO DEFER COMPENSATION
IN THE FORM OF CASH AND/OR STOCK
7.1 General Rule. Pursuant to the Plan, Outside Director Fees otherwise
payable on or after the Effective Date may be deferred, in increments of 25%,
not to exceed an aggregate of 100%, in the form of Cash Units and/or Stock Units
in accordance with this Article VII.
7.2 Timing of Voluntary Election. Each Participant may make an irrevocable
written election to defer Fees, in increments of 25%, not to exceed an aggregate
of 100%, otherwise payable on or after the Effective Date, in the form of Cash
Units and/or Stock Units in accordance with this Article VII. Such election
shall be made at least 30 days prior to the start of the calendar year for which
the Fees would otherwise be paid; provided, however, that with respect to (a)
any elections made before the Effective Date and (b) any elections made by
newly-elected or appointed Outside Directors within 30 days of their initial
election or appointment, the following special alternative rule as to the
permitted time for making the election also shall be available: the election may
be made at least 30 days prior to the date the deferred Fees would otherwise
have been payable to the Outside Director (the "Deferral Date"). An election by
a Participant shall be deemed to be continuing, and therefore applicable to Fees
to be paid in future years, unless the Participant revokes or changes such
election by filing a new election form by the due date for such form specified
in this Section 7.2. Notwithstanding the foregoing, the percentage of the Fees
elected to be received in the form of Common Stock pursuant to Article VI is not
subject to deferral under this Article VII.
7.3 Form of Voluntary Election. An election under Section 7.2 shall be
made in a manner satisfactory to the Committee. Generally, an election shall be
made by completing and filing the
5
<PAGE>
specified election form with the Secretary by the applicable date described in
Section 7.2. At a minimum, the form shall require the Participant to specify the
following:
(a) the percentages (in increments of 25% up to 100% (provided that
the percentage of the Fees elected to be received in the form of Common
Stock pursuant to Article VI is not subject to deferral)) of the Fees to be
deferred under the Plan in the form of Cash Units and/or Stock Units;
(b) the manner of settlement in accordance with Section 8.2.
In the event Outside Directors' Fees are increased or decreased during any
calendar year, a Participant's election in effect for such year will apply to
the specified percentage of Fees as increased or decreased.
7.4 Establishment of Cash Account. The Company will establish a Cash Unit
Account for each Participant who elects to defer Fees in the form of Cash Units.
All Fees deferred in the form of Cash Units shall be credited to the
Participant's Cash Unit Account as of the Deferral Date. The Cash Unit Account
shall be for bookkeeping purposes only and no assets shall be required to be
segregated by the Company from its general funds by reason of such Account.
7.5 Credit of Interest Equivalents to Cash Account. Credits of interest
equivalents to the Participant's Cash Unit Account shall be made as of the end
of each calendar quarter. Such interest equivalents shall be calculated from
the applicable Deferral Date, and the rate of such interest equivalents shall be
as the Committee shall specify from time to time, but in no event shall the rate
of the interest equivalents for any quarter exceed, on a pre-tax basis, the rate
payable on the 30-year United States Treasury bond as of the end of such
quarter. Nothing contained in this Article VII shall be deemed to confer upon
any Participant any rights of a shareholder of the Company unless and until
Shares are in fact issued or transferred to such Participant in accordance with
Article VIII.
7.6 Establishment of Stock Unit Account. The Company will establish a
Stock Unit Account for each Participant who elects to defer Fees in the form of
Stock Units. All Fees deferred in the form of Stock Units shall be credited to
the Participant's Stock Unit Account as of the applicable Deferral Date and
converted to Stock Units as follows: the number of Stock Units shall equal the
amount of deferred Fees divided by the Discounted Market Value of the applicable
Deferral Date, with fractional units calculated to at least three decimal
places. The Stock Unit Account shall be for bookkeeping purposes only and no
assets shall be required to be segregated by the Company from its general funds
by reason of such Account. Nothing contained in this Article VII shall be
deemed to confer upon any Participant any rights of a shareholder of the Company
unless and until Shares are in fact issued or transferred to such Participant in
accordance with Article VIII.
7.7 Credit of Dividend Equivalents to Stock Unit Account. As of each
dividend payment date with respect to Shares, each Participant shall have
credited to his or her Stock Unit Account
6
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an additional number of Stock Units equal to: the per-share cash dividend
payable with respect to a Share on such dividend payment date multiplied by the
number of Stock Units held in the Stock Unit Account as of the close of business
on the record date for such dividend divided by the fair market value of a Share
on such dividend payment date. If dividends are paid on Shares in a form other
than cash, then such dividends shall be notionally converted to cash, if their
value is readily determinable, and credited in a manner consistent with the
foregoing and, if their value is not readily determinable, shall be credited "in
kind" to the Participant's Stock Unit Account.
7.8 Plan Benefits. If subsequent to an election under Article VI or
Article VII, the Committee determines that a Participant has been or will be
denied any benefit contemplated under this Plan due to an interpretation of the
Internal Revenue Code of 1986 or otherwise, the Committee shall, in its
discretion, and subject to applicable federal or state law or regulation or the
rules of any stock exchange or automated quotation system on which the Shares
may then be listed or quoted, make whole such Participant by such means as it
deems necessary or appropriate.
ARTICLE VIII
SETTLEMENT OF CASH AND STOCK UNITS
8.1 Settlement of Account. The Company will settle a Participant's Cash
Unit Account and/or Stock Unit Account in the manner described in this Article
VIII as soon as administratively feasible following such Participant's
Termination of Service.
8.2 Payment Options. Each Participant's Cash Unit Account shall be settled
by delivering to the Participant (or his or her beneficiary) the dollar amount
equal to the number of Cash Units then credited to the Participant's Cash Unit
Account. Each Participant's Stock Unit Account shall be settled by delivering
to the Participant (or his or her beneficiary) the number of Shares (subject to
adjustment in number or kind in accordance with Article XI) equal to the number
of whole Stock Units then credited to the Participant's Stock Unit Account.
Such Accounts may be settled in either (a) a lump sum or (b) substantially equal
annual installments over a period not to exceed ten years. Elections filed
pursuant to Section 7.3 shall specify the manner of payment upon settlement
(i.e., the lump sum or installment payment option). Cash may be paid in lieu of
fractional Shares otherwise payable in any lump sum or installment distribution.
8.3 Continuation of Interest Equivalents. If payment of Cash Units is
deferred and paid in installments, the Participant's Cash Unit Account shall
continue to be credited with interest equivalents as provided in Section 7.5.
8.4 Continuation of Dividend Equivalents. If payment of Stock Units is
deferred and paid in installments, the Participant's Stock Unit Account shall
continue to be credited with dividend equivalents as provided in Section 7.7.
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8.5 In Kind Dividends. If any "in kind" dividends are credited to the
Participant's Stock Unit Account under Section 7.7, such dividends shall be
payable to the Participant in full on the date of the first distribution of
Shares under Section 8.2.
ARTICLE IX
UNFUNDED STATUS
The interest of each Participant in any Fees deferred under the Plan (and
any Cash Units, Cash Unit Account, Stock Units or Stock Unit Account relating
thereto) shall be that of a general creditor of the Company. Cash Unit
Accounts, Cash Units credited thereto, Stock Unit Accounts and Stock Units (and,
if any, "in kind" dividends) credited thereto, shall at all times be maintained
by or on behalf of the Company as bookkeeping entries evidencing unfunded and
unsecured general obligations of the Company.
ARTICLE X
DESIGNATION OF BENEFICIARY
Each Participant may designate, on a form provided by or otherwise
satisfactory to the Committee, one or more beneficiaries to receive the cash or
Shares described in Section 8.2 in the event of such Participant's death. The
Company may rely upon the beneficiary designation last filed with the Committee,
provided that such form was executed by the Participant or his or her legal
representative and filed with the Committee prior to the Participant's death.
ARTICLE XI
ADJUSTMENT PROVISIONS
In the event any recapitalization, reorganization, merger, consolidation,
spin-off, combination, repurchase, exchange of shares or other securities of the
Company, stock split or reverse split, or similar corporate transaction or event
affects Shares such that an adjustment is determined by the Committee to be
appropriate to prevent dilution or enlargement of Participants' rights under the
Plan, then the Committee will, in a manner that is proportionate to the effect
on the Shares and is otherwise equitable, adjust the number and/or kind of
Shares (and/or substitute in place thereof cash or other consideration) to be
issued in lieu of cash compensation under Article VI or delivered upon
settlement of Stock Unit Accounts under Article VIII.
ARTICLE XII
GENERAL PROVISIONS
13.1 No Right to Continue as an Outside Director. Nothing contained in the
Plan shall be deemed to confer upon any Participant any right to continue to
serve as an Outside Director.
8
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13.2 Changes to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of shareholders or
Participants, except that any such action will be subject to the approval of the
Company's shareholders if, when and to the extent such shareholder approval is
necessary or required for purposes of any applicable federal or state law or
regulation or the rules of any stock exchange or automated quotation system on
which the Shares may then be listed or quoted, or if the Board in its discretion
determines to seek such shareholder approval.
13.3 Consideration. The consideration for Shares issued or delivered in
lieu of payment of Fees will be the Outside Director's service during the period
to which the Fees paid in the form of Shares related.
13.4 Compliance with Laws and Obligations. The Company will not be
obligated to issue or deliver Shares in connection with the Plan in a
transaction subject to the registration requirements of the Securities Act any
other federal or state securities or other law or regulation, any requirement
under any listing agreement between the Company and any national securities
exchange or automated quotation system or any other contractual obligation of
the Company, until the Company is satisfied that such laws, regulations,
requirements and other obligations have been complied with in full.
Certificates representing Shares delivered under the Plan will be subject to
such stop-transfer orders and other restrictions as may be applicable under such
laws, regulations, requirements and other obligations, including any requirement
that a legend or legends be placed thereon.
13.5 Limitations on Transferability. Cash Units, Stock Units and any other
right under the Plan (including rights that may constitute a "derivative
security" as generally defined in Rule 16a-1(c) under the Exchange Act) may not
be anticipated, assigned (either at law or in equity), alienated, pledged,
mortgaged, hypothecated, subject to attachment, garnishment, levy, execution or
other legal or equitable process or otherwise encumbered, and shall not be
subject to the claims of creditors of the Participant or his or her
beneficiaries.
13.6 Governing Law. The validity, construction, and effect of the Plan and
all rights hereunder will be determined in accordance with the laws of the State
of Delaware.
13.7 Plan Termination. Unless earlier terminated by action of the Board,
the Plan will remain in effect until such time as no Shares remain available for
delivery under the Plan and the Company has no further rights or obligations
under the Plan.
13.8 Headings. The headings of sections and subsections herein are included
solely for convenience of reference and shall not affect the meaning of any of
the provisions of the Plan.
9
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ELECTION FORM
PURSUANT TO THE
VOLUNTARY RETAINER STOCK AND
DEFERRED COMPENSATION PLAN FOR
OUTSIDE DIRECTORS
Capitalized terms used herein are as defined in the Plan
ELECTION OF STOCK. I hereby elect that the following percentage of Fees
payable to me shall be paid to me in the form of Common Stock pursuant to the
Plan.
_____ % (in increments of 25%)
[The percentage of Fees elected to be payable in the form of Common Stock
is not subject to deferral]
DEFERRAL OF FEES. I hereby elect that the following percentage of Fees
payable to me shall be deferred and credited to my Cash Account pursuant to the
Plan:
_____ % (in increments of 25%)
I hereby elect that the following percentage of Fees payable to me shall be
deferred and credited to my Stock Unit Account pursuant to the Plan:
_____ % (in increments of 25%)
PAYMENT OPTION. I hereby specify that the manner of payment upon
settlement of my Cash and Stock Unit Accounts shall be as follows:
Check one: [_] Lump sum [_] Equal installments for ___ years (maximum of
ten years)
I understand that the election of stock, election to defer and manner of
payment specified above are irrevocable, and shall continue for future years'
Fees unless revoked or changed in writing in accordance with the Plan. To be
effective, revocations or changes for any future year's Fees must be filed with
the Secretary at least 30 days prior to such year.
- --------------------------------------
Participant's signature
- --------------------------------------
Print name
Date: , 199
------------------------- --
10
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Exhibit 5
<PAGE>
June 6, 1997
Board of Directors
ITLA Capital Corporation
7979 Ivanhoe Avenue
La Jolla, California 92037
Members of the Board:
We have acted as counsel to ITLA Capital Corporation (the "Corporation") in
connection with the preparation and filing with the Securities and Exchange
Commission of a registration statement on Form S-8 under the Securities Act of
1933 (the "Registration Statement") relating to 125,000 shares of the
Corporation's Common Stock, $.01 par value per share (the "Common Stock"), to be
offered pursuant to the Voluntary Retainer Stock and Deferred Compensation Plan
for Outside Directors of the Corporation (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements thereto,
the Corporation's Certificate of Incorporation, Bylaws, resolutions of its Board
of Directors and such other documents and corporate records as we deem
appropriate for the purpose of rendering this opinion.
Based upon the foregoing, it is our opinion that:
1. The shares of Common Stock being so registered have been duly authorized.
2. The shares of Common Stock to be offered by the Corporation will be, when
and if issued, sold and paid for as contemplated by the Plan, legally
issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
----------------------------------
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
Exhibit 23.1
<PAGE>
June 6, 1997
Board of Directors
ITLA Capital Corporation
7979 Ivanhoe Avenue
La Jolla, California 92037
Members of the Board:
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement and the reference to our firm in the Prospectus. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
-----------------------------------
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
Exhibit 23.2
<PAGE>
ARTHUR ANDERSEN LLP
Board of Directors
ITLA Capital Corporation
7979 Ivanhoe Avenue
La Jolla, California 92037
Members of the Board:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 19, 1997
included in ITLA Capital Corporation's Form 10-K for the year ended December 31,
1996 and to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
----------------------
ARTHUR ANDERSEN LLP
Los Angeles, California
June 9, 1997
<PAGE>
Exhibit 23.3
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 23, 1996 (except for the sixth
paragraph of Note 13, as to which the date is March 11, 1996), accompanying the
consolidated financial statements incorporated by reference in the Annual Report
of ITLA Capital Corporation on Form 10-K for the year ended December 31, 1996.
We hereby consent to the incorporation by reference of said report in the
Registration Statement of ITLA Capital Corporation on Form S-8 (effective June
9, 1997).
/s/ Grant Thornton LLP
---------------------
Grant Thornton LLP
Los Angeles, California
June 9, 1997
