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As filed with the Securities and Exchange Commission on October 20, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INDYMAC BANCORP, INC.
(FORMERLY INDYMAC MORTGAGE HOLDINGS, INC.)
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 95-3983415
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101-1857
(Address of Principal Executive Offices) (Zip Code)
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2000 STOCK INCENTIVE PLAN
(Full Title of the Plan)
-----------------------
MICHAEL W. PERRY
CHIEF EXECUTIVE OFFICER
INDYMAC BANCORP, INC.
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101
(Name and Address of Agent for Service)
(800) 669-2300
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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================================================================================================================
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price aggregate offering registration fee
per share price
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value. . . . . . . . . . . . 5,000,000 shares (1) $18.72 (2) $93,600,000 (2) $24,711 (3)
================================================================================================================
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(1) Pursuant to Rule 416, this Registration Statement also covers an
indeterminable number of shares of Common Stock that may become subject
to the Plan by reasons of certain events specified in the Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), based on the average of the high and low
sales prices for the Common Stock as reported by the New York Stock
Exchange on October 17, 2000.
(3) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the Plan that are
covered by this Registration Statement. The filing fee has been paid by
wire transfer to the Securities and Exchange Commission's account at
Mellon Bank.
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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 as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which IndyMac Bancorp, Inc. (the "Company")
previously filed with the Securities and Exchange Commission pursuant to Section
13 of the Securities Exchange Act of 1934, as amended, are hereby incorporated
by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000;
(d) The description of the Company's common stock, $0.01 par value per
share (the "Common Stock"), contained in its Registration
Statement on Form 8-B dated April 10, 1987, and any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date hereof and prior to the termination of the offering of the securities
registered pursuant to this Registration Statement shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
The legality of the shares of the Company's Common Stock offered hereby
has been passed upon by Richard L. Sommers, Executive Vice President and General
Counsel of the Company. As of September 30, 2000, Mr. Sommers has been granted
options to purchase 25,000 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation eliminates personal liability
of directors to the Company or its shareholders for monetary damages for breach
of fiduciary duty as a director, except for: (i) any breach of the duty of
loyalty to the Company or its shareholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or knowing violations of law;
(iii) liability under Section 174 of the Delaware General Corporation Law
relating to certain unlawful dividends and stock repurchases; or (iv) any
transaction from which the director derived an improper personal benefit. The
Certificate also provides that the Company shall indemnify and advance expenses
to each director, officer, employee and agent to the fullest extent permitted by
the Delaware General Corporation Law.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
As permitted by Section 145 of the General Corporation Law of Delaware,
the Company's Bylaws provide for indemnification of directors, officers,
employees and agents of the Company to the fullest extent authorized by Delaware
law against expenses (including attorneys' fees) and other amounts paid in
settlement actually and reasonably incurred by them in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, in which any such person was or is a
party or is threatened to be made a party. The right to indemnification includes
the right to be paid the expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding; provided that, if required by
Delaware law, payment of expenses in advance to an officer or director shall be
conditioned upon receipt by the Company of an undertaking by or on behalf of
such director or officer to repay such amount if it is ultimately determined
that he is not entitled to indemnification. The advancement of expenses, as well
as indemnification, pursuant to the Company's Bylaws is not exclusive of any
other rights which those seeking indemnification or advancement of expenses from
the Company may have. The Company also maintains an insurance policy pursuant to
which its directors and officers are insured against certain liabilities that
might arise out of their relationship with the Company as directors and
officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4(a) Certificate of Incorporation of the Company, as amended
(incorporated herein by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2000).
4(b) Bylaws of the Company, as amended (incorporated herein by
reference to Exhibit 3.2 to the Company's Annual Report on Form
10-K for the year ended December 31, 1999).
5 Opinion of Richard L. Sommers, General Counsel of the Company, as
to the legality of the Common Stock being registered.
23(a) Consent of Richard L. Sommers (included as part of Exhibit 5).
23(b) Consent of Grant Thornton LLP.
24 Power of Attorney (included on page 6).
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(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, unless the information required to be
included in such post-effective amendment is contained in periodic
reports filed by the registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the Registration Statement;
(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, unless the
information required to be included in such post-effective
amendment is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the
Registration Statement;
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(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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this 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 in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it 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 Pasadena, State of California, on the 20th day of
October, 2000.
INDYMAC BANCORP, INC.
By:/s/ Michael W. Perry
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Michael W. Perry
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael W. Perry and Richard L. Sommers his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to each
Registration Statement amended hereby, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 20th day of October, 2000.
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Signature Title
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/s/ David S. Loeb
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David S. Loeb Chairman of the Board of Directors
/s/ Michael W. Perry
---------------------------------
Michael W. Perry Vice Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
/s/ Carmella L. Grahn
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Carmella L. Grahn Executive Vice President
and Chief Financial Officer
(Principal Financial and Accounting Officer)
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Signature Title
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/s/ Lyle E. Gramley
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Lyle E. Gramley Director
/s/ Hugh M. Grant
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Hugh M. Grant Director
/s/ Patrick C. Haden
---------------------------------
Patrick C. Haden Director
/s/ Thomas J. Kearns
---------------------------------
Thomas J. Kearns Director
/s/ Frederick J. Napolitano
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Frederick J. Napolitano Director
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EXHIBIT INDEX
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Exhibit No. Description
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4(a) Certificate of Incorporation of the Company, as
amended (incorporated herein by reference to Exhibit
3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2000).
4(b) Bylaws of the Company, as amended (incorporated
herein by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1999).
5 Opinion of Richard L. Sommers, General Counsel of the
Company, as to the legality of the Common Stock being
registered
23(a) Consent of Richard L. Sommers (included as part of Exhibit 5)
23(b) Consent of Grant Thornton LLP
24 Power of Attorney (included on page 6)
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