SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Irwin Financial Corporation
(Exact Name of Registrant as Specified in Its Charter)
Indiana 35-1286807
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
500 Washington Street, Columbus, IN 47201
(Address of Principal Executive Officers)
Irwin Financial Corporation
Employees' Stock Purchase Plan III
(Full Title of the Plan)
Ellen Z. Mufson
Irwin Financial Corporation
500 Washington Street, Columbus, IN 47201
(Name and Address of Agent For Service)
(812) 376-1020
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Title Of Proposed Proposed
Securities Amount Maximum Maximum Amount
To Be To Be Offering Aggregate Of
Registered Registered Price Offering Registration
Common 750,000 Per Share(2) Price Fee
Shares (1) Shares $24.28125 $18,210,938 $5,063
(1) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers and
indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan described herein.
(2) The registration fee has been calculated pursuant to Rule
457(c) and (h) based upon the last reported sale price for
the Common Shares on June 15, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following information heretofore filed with the Securities
and Exchange Commission ("Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), is
incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the year
ended December 31, 1998, File No. 0-6835.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
(c) The information set forth under the caption "Description of
Common Shares" in the registrant's Registration Statement on Form
10 filed pursuant to Section 12(g) of the Exchange Act,
Registration No. 0-6835, including any amendments or reports
filed for the purpose of updating that description.
All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement, and prior to the filing of a post-
effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of those documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Indiana Business Corporation Law ("IBCL"), the provisions of
which govern the Registrant, empowers an Indiana corporation to
indemnify present and former directors, officers, employees, or
agents or any person who may have served at the request of the
corporation as a director, officer, employee, or agent of another
corporation ("Eligible Persons") against liability incurred in
any proceeding, civil or criminal, in which the Eligible Person
is made a party by reason of being or having been in any such
capacity, or arising out of his 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 otherwise
provide, an Eligible Person may apply for indemnification to a
court which may order indemnification upon a determination that
the Eligible Person is entitled to mandatory indemnification for
reasonable expenses or that the Eligible Person is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances without regard to whether his actions
satisfied the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against
liability or reasonable expenses under the IBCL, a quorum
consisting of directors who are not parties to the proceeding
must (1) determine that indemnification is permissible in the
specific circumstances because the Eligible Person met the
requisite standard of conduct, (2) authorize the corporation to
indemnify the Eligible Person and (3) if appropriate, evaluate
the reasonableness of expenses for which indemnification is
sought. If it is not possible to obtain a quorum of uninvolved
directors, the foregoing action may be taken by a committee of
two or more directors who are not parties to the proceeding,
special legal counsel selected by the Board or such a committee,
or by the shareholders of the corporation.
In addition to the foregoing, the IBCL states that the
indemnification it provides shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any
provision of the articles of incorporation or bylaws, resolution
of the board of directors or shareholders, or any other
authorization adopted after notice by a majority vote of all the
voting shares then issued and outstanding. The IBCL also
empowers an Indiana corporation to purchase and maintain
insurance on behalf of any Eligible Person against any liability
asserted against or incurred by him 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.
The registrant's Amended Articles of Incorporation provide for
indemnification as a matter of right to any director, officer or
employee of the registrant who has been successful on the merits
of a claim against him, and for indemnification under certain
other circumstances where allowed, by the action of disinterested
members of the Board of Directors.
The registrant has obtained directors' and officers' liability
insurance, the effect of which is to indemnify the directors and
officers of the registrant and its subsidiaries against certain
losses caused by errors, misstatement or misleading statements,
wrongful acts, omissions neglect or breach of duty by them or any
matters claimed against them in their capacities as directors or
officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs 1(i) and l(ii) shall
not apply if the information required to be included in
a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel, the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that is has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Columbus, State of Indiana, on June 15, 1999.
IRWIN FINANCIAL CORPORATION
By: /s/ William I. Miller
William I. Miller,
Chairman of the Board
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints William I. Miller, John A.
Nash and Matthew F. Souza and each or any of them (with full
power to act alone), his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities,
to sign any and all amendments to this Registration Statement,
and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto those attorneys-in-fact and
agents full power and authority to do and perform each and every
act and things requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that
those attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
on the dates and in the capacities indicated:
Signature Capacity With Date
Registrant
/s/ Sally A. Dean
Sally A. Dean Director June 15, 1999
/s/ David W. Goodrich
David W. Goodrich Director June 15, 1999
/s/ John T. Hackett
John T. Hackett Director June 15, 1999
/s/ William H. Kling
William H. Kling Director June 15, 1999
/s/ Brenda J. Lauderback
Brenda J. Lauderback Director June 15, 1999
/s/ John C. McGinty, Jr.
John C. McGinty, Jr. Director June 15, 1999
/s/ Irwin Miller
Irwin Miller Director June 15, 1999
/s/ William I. Miller
William I. Miller Director June 15, 1999
/s/ John A. Nash
John A. Nash Director June 15, 1999
/s/ Lance R. Odden
Lance R. Odden Director June 15, 1999
/s/ Theodore M. Solso
Theodore M. Solso Director June 15, 1999
/s/ Thomas D. Washburn
Thomas D. Washburn Senior Vice June 15, 1999
President (Principal
Financial Officer)
/s/ Marie S. Ameis
Marie S. Ameis Vice President and June 15, 1999
Controller
(Principal Accounting
Officer)
IRWIN FINANCIAL CORPORATION
Registration Statement
On
Form S-8
INDEX TO EXHBITIS
Exhibit Number
Assigned in
Regulation S-K
Item 601 Description
(4) 4.1 Specimen certificate for Common Shares,
without par value. (Incorporated by reference
to Exhibit 4(a) to Form 10-K Report for year
ended December 31, 1998, File No. 0-6835.)
4.2 Irwin Financial Corporation Employees Stock
Purchase Plan III.
(5) 5.1 Opinion of Ice Miller Donadio & Ryan
(15) No exhibit.
(23) 23.1 Consent of Ice Miller Donadio & Ryan (Included
as a part of Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP.
(24) 24.1 Power of Attorney (see Signature Page)
EXHIBIT 4.2
IRWIN FINANCIAL CORPORATION
EMPLOYEES' STOCK PURCHASE PLAN III
WITNESSETH:
WHEREAS, Irwin Financial Corporation ("Corporation") desires
to provide eligible employees of the Corporation and certain
affiliated companies with an opportunity to acquire a proprietary
interest in the Corporation through the purchase of Common Shares
of the Corporation; and
WHEREAS, the Corporation desires to offer further inducement
to eligible employees to remain as employees by providing a form
of additional compensation, for services which the employees have
rendered or will hereafter render, through the purchase of Common
Shares at a discounted rate.
NOW, THEREFORE, the Corporation hereby establishes this
employee stock purchase plan pursuant to the provisions of
section 423 of the Internal Revenue Code of 1986, as amended, as
follows:
ARTICLE I
ESTABLISHMENT OF PLAN
The 1999 Irwin Financial Corporation Employees' Stock
Purchase Plan (the "Plan") is hereby established effective as of
the date the registration of the Common Shares to be issued
hereunder is declared effective by the Securities and Exchange
Commission, provided however, that this Plan shall not become
effective unless it has received the approval of the holders of a
majority of the issued and outstanding Common Shares of the
Corporation who are either present or represented and are
entitled to vote at a meeting of shareholders of the Corporation
duly held within twelve (12) months before or after the date the
Plan is adopted by the Board of Directors.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
Section 2.01. Definitions. When the initial letter of
a word or phrase is capitalized, the meaning of such word or
phrase shall be as follows:
(a) "Account" means the record of a Participant's interest
in the Plan, as maintained by the Committee or its designee
pursuant to Section 7.01(c), consisting of the sum of the
Participant's payroll deductions under the Plan, the deduction of
the amounts expended on behalf of the Participant to exercise his
or her options under the Plan, the credit of the number of
Common Shares (including fractional shares) purchased under the
Plan for the Participant and held by the Custodian and the
amounts, if any, carried forward on behalf of the Participant
from one Date of Exercise to the next Date of Exercise.
(b) "Affiliate" means a corporation which is a parent or
subsidiary of the Corporation, or a corporation or a parent or
subsidiary corporation of such corporation issuing or assuming an
option in a transaction to which Code Section 425(a) applies.
(c) "Board of Directors" means the board of directors of
the Corporation as it shall exist from time to time.
(d) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Committee" means the committee appointed by the Board
of Directors under Section 7.01 to administer the Plan.
(f) "Common Shares" means the Common Shares of the Corporation.
(g) "Corporation" means Irwin Financial Corporation, an Indiana
corporation, and its successors and assigns.
(h) "Custodian" means any party designated by the Board of
Directors pursuant to Section 7.02 to act as custodian under the
Plan.
(i) "Date of Exercise" means the first business day
following a Payday and/or such other date or dates as may be
established by the Committee as a date upon which options granted
under the Plan are to be exercised.
(j) "Effective Date" means the effective date of this Plan,
which is the date the registration under the Securities Act of
1933, as amended, of Common Shares to be issued hereunder is
declared effective by the Securities and Exchange Commission.
(k) "Eligible Employee" means any person employed by the
Corporation as a common law employee or any of its Affiliates
except for:
(1) employees who have been employed less than six
months (other than former Participants re-employed by the
Company);
(2) employees who customary employment is less than
twenty (20) hours per week; and
(3) employees whose customary employment is for not
more than five (5) months in any calendar year.
(l) "Option Price" means the price to be paid by
Participants upon the exercise of options granted under this
Plan, determined as provided in Section 5.02.
(m) "Participant" means an Eligible Employee who (i)
authorizes the Corporation or an Affiliate to make payroll
deductions from Plan Compensation for the purpose of purchasing
Common Shares pursuant to the Plan, (ii) has commenced
participation in the Plan pursuant to Section 3.01, and (iii) has
not incurred a voluntary or involuntary withdrawal, pursuant to
Article VI or Section 7.04 since his or her most recent
commencement of participation pursuant to Section 3.01.
(n) "Payday" means the date on which an Eligible Employee
receives any Plan Compensation.
(o) "Plan" means the 1999 Irwin Financial Corporation
Employees' Stock Purchase Plan, as amended from time to time.
(p) "Plan Compensation" means all cash payments made by the
Corporation or any Affiliate to an Employee through its payroll
system for services as an employee including, without limitation,
wages, salary, incentive compensation, bonuses and profit sharing
payments.
(q) "Section," when not preceded by the word "Code," means
a section of this Plan.
Section 2.02. Construction and Governing Law
(a) This Plan shall be construed, enforced and administered
and the validity thereof determined in accordance with the Code
and the regulations thereunder, and in accordance with the laws
of the State of Indiana when such laws are not inconsistent with
the Code.
(b) This Plan is intended to qualify as an employee stock
purchase plan under Code Section 423 and the regulations
thereunder. The provisions of the Plan shall be construed so as
to fulfill this intention.
ARTICLE III
PARTICIPATION
Section 3.01. Participation.
(a) Any person who is an Eligible Employee on the Effective
Date may become a Participant in the Plan as of the first Payday
after the Effective Date, by completing and delivering to the
Committee such forms as the Committee shall require to authorize
payroll deductions and to request participation in the Plan,
within the time period established by the Committee.
(b) After the Effective Date, an Eligible Employee who is
not a participant may become a Participant in the Plan as of the
first day of a calendar quarter, by completing and returning to
the Committee at least thirty (30) days before such date such
forms as the Committee shall require to authorize payroll
deductions and request participation in the Plan.
Section 3.02. Payroll Deductions.
(a) Payroll deductions for a Participant shall commence on
the first Payday after an Eligible Employee becomes a Participant
and shall continue until the earlier of (i) the termination of
the Plan or (ii) the date the Participant suspends his or her
payroll deductions or ceases participation pursuant to subsection
(b) of this Section 3.02. Each Participant shall authorize his
or her employer to make deductions from his or her Plan
Compensation on each Payday during the time he or she is a
Participant in the Plan in a specified whole dollar amount;
provided, however, the minimum amount of the payroll deduction
authorized by the Participant must be at least $5.00 per Payday.
(b) A Participant may suspend or change his or her payroll
deduction in the Plan effective as of any Payday by filing
written notice with the Committee at least ten (10) days prior to
such Payday. A Participant's suspension of his or her payroll
deductions shall not automatically result in his or her
withdrawal from participation in the Plan.
Section 3.03. Participant's Account. On each Payday, the
Corporation or its Affiliate, as the case may be, shall deduct
the authorized amount from each Participant's Plan Compensation
and shall credit the Account of each Participant with the amount
of the Participant's payroll deduction under the Plan effective
as of the Payday on which it was deducted.
ARTICLE IV
COMMON SHARES
The shares subject to options granted under this Plan shall
be Common Shares. The total number of Common Shares on which
options may be granted under this Plan shall not exceed in the
aggregate Seven Hundred Fifty Thousand (750,000) Common Shares,
except as such number of Common Shares shall be adjusted in
accordance with Section 8.01 of this Plan. Common Shares
required to satisfy purchases pursuant to the Plan may be
provided out of the Corporation's treasury shares or its
authorized and unissued Common Shares.
ARTICLE V
GRANTING AND EXERCISE OF OPTIONS
Section 5.01. Grant of Options.
(a) On each Payday, there shall be granted automatically by
the Corporation to each Participant, except those identified in
subsection (b) of this Section 5.01, an option to purchase on the
next succeeding Date of Exercise at the Option Price such number
of the Common Shares, including fractional shares, reserved for
issuance pursuant to this Plan as the balance in such
Participant's Account on such Date of Exercise enables him or her
to purchase.
(b) Notwithstanding any provision in this Plan to the
contrary, no Participant shall be granted an option:
(1) if the Participant, immediately after the option
is granted, would own shares possessing five percent (5%) or more
of the total combined voting power or value of all classes of
shares of the Corporation or its Affiliates, provided that (i)
the rules of Code Section 425(d) shall apply in determining the
share ownership of an individual, and (ii) shares which the
Participant may purchase under outstanding options shall be
deemed to be owned by the Participant; or
(2) which permits his or her rights to purchase shares
under all employee stock purchase plans of the Corporation and
its Affiliates to accrue at a rate which exceeds Twenty-five
Thousand Dollars ($25,000) of fair market value of Common Shares
(determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
Section 5.02. Option Price. The option price for
Common Shares purchased as of each Date of Exercise shall be
eighty-five percent (85%) of the closing price of the Common
Shares as reported by the National Association of Securities
Dealers Automated Quotation/National Market System ("Nasdaq/NMS")
for the last trading day prior to such Date of Exercise or, if
not so reported, as reported by such other source as the
Committee shall designate.
Section 5.03. Exercise of Option; Limitations. As of each
Date of Exercise, each Participant's option to purchase Common
Shares shall be exercised automatically for his or her Account.
The Participant shall purchase the number of shares, including
fractional shares, which the amount of cash credited to his or
her Account on that Date of Exercise shall enable him or her to
purchase at the Option Price. As soon as administratively
reasonable after each Date of Exercise, the Corporation shall
notify the Custodian of the number of Common Shares purchased for
the Account of each Participant on such Date of Exercise.
Section 5.04. Interest in Shares. A Participant shall have
no interest in or rights as a shareholder with respect to Common
Shares subject to an option granted under this Plan until such
option has been exercised and the number of Common Shares
purchased has been credited to the Participant's Account. Upon
written request directed to the Committee, a Participant shall be
entitled to receive a certificate representing the number of
whole Common Shares and/or cash in lieu of any fractional shares
credited to the Participant's Account. Upon receipt of any such
request, the Committee shall promptly direct the Custodian to
distribute such certificates, if any, and the Corporation to pay
such cash, if any, to the Participant.
Section 5.05. Fractional Shares. A Participant shall be
entitled to participate in any dividend or other distribution
with respect to any fractional share credited to the
Participant's Account, but shall have no right to vote any
fractional share. No certificates will be issued representing
fractional shares purchased pursuant to the Plan. Upon a
Participant's withdrawal from the Plan under Article VI or
Section 7.04 or upon the Committee's receipt of a request to
issue certificates pursuant to Section 5.04, there shall be paid
in lieu of any fractional share held in a Participant's Account
an amount in cash equal to the product of (i) the amount of the
fraction, multiplied by (ii) the closing price of the Common
Shares as reported by the NASDAQ/NMS for the effective date of
the Participant's withdrawal from the Plan or the date on which
the Committee receives the request pursuant to Section 5.04,
whichever applies.
ARTICLE VI
WITHDRAWAL
Section 6.01. Voluntary Withdrawal. A Participant may
withdraw from participation in the Plan as of any Payday by
delivering written notice to the Committee at least ten (10) days
prior to such Payday. The Committee shall promptly notify the
Custodian of the withdrawal of any Participant. As soon as
administratively reasonable after the effective date of a
Participant's withdrawal from the Plan, the Corporation shall
cause the balance of the Participant's Account, including without
limitation certificates representing the number of whole Common
Shares therein and cash in lieu of any fractional shares, to be
paid to him or her. A Participant's withdrawal from
participation in the Plan shall not prevent his or her further
participation in the Plan. Any Eligible Employee who withdraws
from the Plan shall be entitled to resume payroll deductions and
become a Participant as of the next quarterly enrollment period,
as provided in Section 3.01(b).
Section 6.02. Involuntary Withdrawal. Upon termination of
a Participant's employment with the Corporation or its Affiliates
for any reason, including resignation, discharge, disability or
retirement, the balance of the Participant's Account, including
without limitation certificates representing the number of whole
Common Shares therein and cash in lieu of any fractional shares,
shall be paid to him or her, or, in the case of his or her death,
to his or her beneficiary as provided in Section 6.04. The
Corporation shall cause such amount to be paid as soon as
administratively reasonable after such termination of employment.
Section 6.03. Interest. No interest shall be payable in
amounts held in a Participant's Account, or on amounts payable to
a Participant or a beneficiary.
Section 6.04. Participant's Beneficiary
(a) A Participant may file with the Committee a written
designation of a beneficiary who is to receive any Common Shares
or cash credited to the Participant's Account under the Plan in
the event of the Participant's death. Such designation of
beneficiary may be changed by the Participant at any time by
written notice.
(b) On the death of a Participant, and on receipt by the
Committee of reasonable proof of the identity and existence of
the Participant's designated beneficiary, the Corporation shall
cause the shares or cash provided in Section 6.04(a), if any, to
be delivered to such beneficiary as soon as administratively
reasonable. If a Participant dies without a surviving designated
beneficiary, the Corporation shall cause such shares or cash to
be delivered to the estate or a representative of the estate of
the Participant.
(c) No designated beneficiary, and no heir or beneficiary
of the estate, of a deceased Participant shall acquire any
interest in the Common Shares or cash credited to the
Participant's Account under the Plan prior to the death of the
Participant.
ARTICLE VII
PLAN ADMINISTRATION
Section 7.01. Administrative Committee.
(a) The Plan shall be administered, at the expense of the
Corporation, by the Committee. The Committee shall consist of
not less than three (3) members, who shall be appointed by the
Board of Directors. Each member of the Committee shall be either
a director, officer or employee of the Corporation. Each member
of the Committee shall serve until removed by the Board of
Directors and such removal may be without cause and without
advance notice.
(b) The Committee shall be vested with full authority to
make, administer and interpret such rules and regulations as it
deems necessary to administer the Plan. Any determination,
decision or action of the Committee in connection with the
construction, interpretation, administration, or application of
the Plan shall be final, conclusive and binding on all
Participants, beneficiaries and any and all other persons
claiming under or through any Participant.
(c) The Committee shall keep or cause to be kept accurate
and detailed accounts of all contributions, receipts,
disbursements and purchases of Common Shares, and all accounts,
books and records relating thereto shall be open to inspection
and audit at all reasonable times by any person designated by the
Board of Directors or the Committee.
Section 7.2. Custodian
(a) The Board of Directors, in its sole discretion, shall
appoint a Custodian. The custodian may, but need not, be an
Affiliate of the Corporation. The Custodian may be removed by
the Board of Directors at any time with thirty (30) days prior
notice in writing to the Custodian.
(b) The Custodian shall maintain complete and accurate
records of the number of whole and fractional shares in each
Participant's Account and shall deliver certificates
representing such whole shares to the Participant upon receipt
of written direction from the Committee.
Section 7.03. Registration of Shares; Dividends
(a) Common Shares purchased for a Participant's Account
under this Plan may, in the discretion of the Custodian, be
registered in the name of its nominee. The certificates for
Common Shares to be delivered to Participants under the Plan
shall be registered in the name of the Participant or, if the
Participant so directs by written notice delivered to the
Committee at least ten (10) days prior to the Date of Exercise,
in the names of the Participant and one other person designated
by the participant, as joint tenants with rights of survivorship,
to the extent permitted by applicable law. The Committee shall
timely notify the Custodian of its receipt of any such written
notice.
(b) All dividends paid with respect to the whole and
fractional shares in a Participant's Account shall be credited to
his or her Account and used to purchase Common Shares on the next
Date of Exercise.
Section 7.04. Transferability. Neither payroll deductions
credited to a Participant's Account nor any rights with regard to
the exercise of an option or to receive Common Shares under the
Plan may be assigned, transferred, pledged, or otherwise disposed
of in any way by the Participant, except with respect to the
death of the Participant as provided in Sections 6.02 and 6.04 or
pursuant to a qualified domestic relations order as defined by
the Code, Title I of the Employee Retirement Income Security Act
of 1974, as amended, or the rules thereunder. Any such attempted
assignment, transfer, pledge, or other disposition shall be
without effect, except that the Committee, in it sole discretion,
may treat such act as an election to withdraw from the Plan.
Section 7.05. Separate Accounting for Payroll Deductions.
No payroll deductions received or held by the Corporation or any
Affiliate under this Plan may be used by the Corporation or the
Affiliate for any corporate purpose, and the Corporation and the
Affiliate shall separately account for such payroll deductions.
Section 7.06. Only Employees Eligible to Participate.
Notwithstanding any other provision of this Plan, to be eligible
to exercise an option a Participant shall be an employee of the
Corporation or its Affiliates at all times during the period
beginning with the date the option is granted and ending on the
Date of Exercise.
Section 7.07. Equal Rights and Privileges. Notwithstanding
any other provision of the Plan, all Eligible Employees shall
have the same rights and privileges under the Plan, as required
by Code Section 423 and the regulations thereunder, and the
Committee shall administer the Plan and interpret and apply the
provisions of the Plan accordingly.
Section 7.08. Claims Procedures.
(a) Any person who believes that he or she is entitled to
any benefits under this Plan shall present such claim in writing
to the Committee. The Committee shall within sixty (60) days
provide adequate notice in writing to any claimant as to the
decision on any such claim. If such claim has been denied, in
whole or in part, such notice shall set forth: (i) the specific
reasons for such denial; (ii) specific reference to any pertinent
provisions of the Plan on which denial is based; (iii) a
description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and (iv) an
explanation of the Plan's review procedure. Such notice shall be
written in a manner calculated to be understood by the claimant.
Within sixty (60) days after receipt by the claimant of
notification of denial, the claimant shall have the right to
present a written appeal to the Committee. If such appeal is not
filed within said sixty (60) day period, the decision of the
committee shall be final and binding. The Committee shall act as
a fiduciary in making a full and fair review of such denial. The
claimant or his or her duly authorized representative may review
any Plan documents, which are pertinent to the claim and may
submit issues and comments to the Committee in writing.
(b) A decision by the Committee shall be made promptly, and
in any event not later than sixty (60) days after its receipt of
the appeal, provided, however, if the Committee decides a hearing
at which the claimant or his or her duly authorized
representative may be present is necessary and such a hearing is
held, such decision shall be rendered as soon as possible, but no
later than one hundred twenty (120) days after its receipt of the
appeal. Any such decision of the Committee shall be in writing
and provide adequate notice to the claimant setting forth the
specific reasons for any denial and written in a manner
calculated to be understood by a Participant. Any such decision
by the Committee shall be final.
ARTICLE VIII
AMENDMENT AND TERMINATION
Section 8.01. Recapitalization. The aggregate number of
Common Shares which may be issued hereunder shall be
proportionately adjusted for any increase or decrease in the
number of issued and outstanding Common Shares resulting from a
subdivision or consolidation of shares of the Corporation or any
other capital adjustment of the Corporation, the payment of a
share dividend, a share split or any other increase or decrease
in the Common Shares effected without receipt of consideration by
the Corporation. In the event that, prior to the purchase of all
of the Common Shares provided for herein, there shall be a
capital reorganization or reclassification of the capital of the
Corporation resulting in a substitution of other shares for the
common shares, there shall be substituted the number of
substitute shares which would have been issued pursuant to the
option in exchange for the Common Shares then subject to the
option as if such Common Shares had been then issued and
outstanding.
Section 8.02. Amendment and Termination.
(a) Except as provided in subsection (c) of this Section
8.02, the Board of Directors of the Corporation, except any
members participating in the Plan, may from time to time, alter,
amend, suspend or discontinue the Plan with respect to any Common
Shares for which an option has not been granted; provided,
however, that the Board of Directors may not, without further
approval by the holders of a majority of the issued and
outstanding Common Shares of the Corporation who are either
present or represented and are entitled to vote at a meeting of
shareholders of the Corporation:
(1) increase the maximum number of Common Shares that may be
issued under the Plan;
(2) change the class of shares, which may be issued
under the Plan;
(3) change the designation of the persons or class of
persons eligible to receive Common Shares under the Plan; or
(4) change the provisions of Section 5.02 concerning the option
price.
(b) Unless earlier terminated by the Board of Directors
pursuant to subsection (a) of this Section 8.02, this Plan will
terminate on the Date of Exercise on which the remaining Common
Shares reserved for the grant of options under this Plan are not
sufficient to enable each Participant on such date to purchase at
least one share. No option may be granted after the termination
of the Plan.
(c) Notwithstanding the provisions of subsection (a) of
this Section 8.02, the provisions of Sections 2.01(k) defining
"Eligible Employee," Section 3.01 concerning participation in the
Plan, Section 5.01(a) concerning the timing and amount of the
options granted to Participants, and Section 5.02 concerning the
Option Price, shall not be amended more than once every six
months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices. All notices or other communications
by a Participant to the Committee under or in connection with the
Plan shall be deemed to have been duly given when received by the
Secretary of the Corporation, or when received in the form and at
the location or by the person specified by the Committee. Any
notices or other communications by the Committee to a Participant
under or in connection with the Plan shall be deemed to have been
duly given when mailed by the Committee to the address of the
Participant on the business records of the Corporation or its
Affiliates.
Section 9.02. No Right to Continued Employment. Neither
the establishment nor the maintenance of the Plan nor any
amendment thereof nor any act or omission under the Plan or
resulting from the operation of the Plan shall be construed as
giving any Eligible Employee the right to be retained in the
service of the Corporation or to interfere with the right of the
Corporation to discharge any Eligible Employee or any other
person at any time in its discretion.
EXHIBIT 5.1
June 10, 1999
Board of Directors
Irwin Financial Corporation
500 Washington Street
Columbus, IN 47201
Ladies and Gentlemen:
We have acted as counsel to Irwin Financial Corporation, an
Indiana corporation (the "Company"), in connection with the
filing of a Registration Statement on Form S-8 (the "Registration
Statement"), with the Securities and Exchange Commission (the
"Commission") for the purposes of registering under the
Securities Act of 1933, as amended (the "Securities Act"),
750,000 of the Company's authorized but unissued Common Shares
(the "Common Shares") issuable under the Irwin Financial
Corporation Employees' Stock Purchase Plan III (the "Plan").
In connection therewith, we have investigated those questions of
law as we have deemed necessary or appropriate for purposes of
this opinion. We have also examined originals, or copies
certified or otherwise identified to our satisfaction, of those
documents, corporate or other records, certificates and other
papers that we deemed necessary to examine for purposes of this
opinion, including:
1. The Company's Articles of Incorporation, together with
all amendments thereto;
2. The Bylaws of the Company, as amended to date;
3. Resolutions relating to the Plan and the Common Shares
adopted by the Company's Board of Directors (the
"Resolutions");
4. A specimen certificate representing the Common Shares;
5. The Registration Statement; and
6. The Plan.
We have also relied, without investigation as to the accuracy
thereof, on other certificates of, and oral and written
communications from, public officials and officers of the
Company.
For purposes of this opinion, we have assumed (i) the genuineness
of all signatures of all parties other than the Company; (ii) the
authenticity of all documents submitted to us as originals and
the conformity to authentic originals of all documents submitted
to us as certified or photostatic copies; (iii) that the Common
Shares will be issued pursuant to the terms of the Registration
Statement; (iv) that the Resolutions will not be amended, altered
or superseded prior to the issuance of the Common Shares; and (v)
that no changes will occur in the applicable law or the pertinent
facts prior to the issuance of the Common Shares.
Based upon the foregoing and subject to the qualifications set
forth in this letter, we are of the opinion that the Common
Shares to be issued pursuant to the terms of the Plan are validly
authorized and, when (a) the pertinent provisions of the
Securities Act and all relevant state securities laws have been
complied with and (b) the Common Shares have been delivered
against payment therefor as contemplated by the Registration
Statement and the Plan, the Common Shares will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. 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 or under the rules
and regulations of the Commission relating thereto.
Very truly yours,
/S/
ICE MILLER DONADIO & RYAN
EXHIBIT 23.2
Consent of Independent Public Accountants
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report, dated January 21, 1999, on
our audits of the consolidated financial statements of Irwin
Financial Corporation as of December 31, 1998 and 1997 and for
each of the three years in the period ended December 31, 1998,
appearing in the Annual Report on Form 10k.
/s/ PricewaterhouseCoopers LLP
Cincinnati, Ohio
June 14, 1999
