Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Form S-3, Amendment No. 1 89 438K
2: EX-4.3 Instrument Defining the Rights of Security Holders 22 94K
3: EX-4.5(A) Instrument Defining the Rights of Security Holders 24 76K
4: EX-4.5(B) Instrument Defining the Rights of Security Holders 17 59K
5: EX-4.5(C) Instrument Defining the Rights of Security Holders 22 73K
6: EX-23.3 Consent of Experts or Counsel 1 8K
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 2001
REGISTRATION NO. 333-67964
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AND POST EFFECTIVE AMENDMENT NO. 2
TO
REGISTRATION STATEMENT NO. 333-41329
[Download Table]
INDYMAC BANCORP, INC. DELAWARE 95-3983415
INDYMAC CAPITAL TRUST I DELAWARE 95-4875880
INDYMAC CAPITAL TRUST II DELAWARE 95-4875881
INDYMAC CAPITAL TRUST III DELAWARE 95-4875882
INDYMAC CAPITAL TRUST IV DELAWARE 95-4875883
(EXACT NAME OF EACH
REGISTRANT (STATE OR OTHER JURISDICTION
AS SPECIFIED IN ITS OF INCORPORATION OR (I.R.S. EMPLOYER
CHARTER) ORGANIZATION) IDENTIFICATION NUMBER)
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101-7211
(800) 669-2300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF EACH
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL W. PERRY
155 NORTH LAKE AVENUE
PASADENA, CALIFORNIA 91101-7211
(800) 669-2300
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE OF PROCESS FOR EACH REGISTRANT)
------------------------
WITH COPIES TO:
[Download Table]
JAMES R. WALTHER, ESQ. KENNETH M. DORAN, ESQ.
KENNETH E. KOHLER, ESQ. GIBSON, DUNN & CRUTCHER LLP
MAYER, BROWN & PLATT 333 SOUTH GRAND AVENUE
350 SOUTH GRAND AVENUE LOS ANGELES, CALIFORNIA 90071-3197
LOS ANGELES, CALIFORNIA 90071-1503 (213) 229-7000
(213) 229-9500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [X]
(Continued on next page)
CALCULATION OF REGISTRATION FEE(1)
[Enlarge/Download Table]
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED(2) REGISTERED(3)(4) UNIT(5) OFFERING PRICE FEE
-------------------------------------------------------------------------------------------------------------------
IndyMac Bancorp, Inc. Debt Securities(6),
Preferred Stock, Depositary Shares, Common
Stock, par value $.01 per share(7),
Securities Warrants and backup
undertakings in connection with the
Preferred Securities of IndyMac Capital
Trust I, IndyMac Capital Trust II, IndyMac
Capital Trust III and IndyMac Capital
Trust IV(8)...............................
-------------------------------------------------------------------------------------------------------------------
IndyMac Capital Trust I Preferred
Securities................................
-------------------------------------------------------------------------------------------------------------------
IndyMac Capital Trust II Preferred
Securities................................
-------------------------------------------------------------------------------------------------------------------
IndyMac Capital Trust III Preferred
Securities................................
-------------------------------------------------------------------------------------------------------------------
IndyMac Capital Trust IV Preferred
Securities................................
-------------------------------------------------------------------------------------------------------------------
Total............................. $500,000,000 $500,000,000(9)(10) $125,000
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(2) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(3) Includes such indeterminate number of shares of Preferred Stock of IndyMac
Bancorp, Inc. as may be issued directly or upon exercise of Securities
Warrants of IndyMac Bancorp, Inc. or in exchange for, or upon conversion
of, Debt Securities of IndyMac Bancorp, Inc. or other Preferred Stock of
IndyMac Bancorp, Inc. registered hereunder, such indeterminate number of
Depositary Shares of IndyMac Bancorp, Inc. as may be issued in the event
IndyMac Bancorp, Inc. elects to offer fractional interests in shares of
Preferred Stock registered hereunder, and such indeterminate number of
shares of Common Stock of IndyMac Bancorp, Inc. as may be issued directly
or upon exercise of Securities Warrants of IndyMac Bancorp, Inc. or in
exchange for, or upon conversion of, Debt Securities or Preferred Stock of
IndyMac Bancorp, Inc. registered hereunder. Also includes such additional
principal amount as may be necessary such that, if Debt Securities of
IndyMac Bancorp, Inc. are issued with an original issue discount, the
aggregate initial offering price of all Debt Securities will equal
$500,000,000 less the dollar amount of other securities previously issued.
Also includes an indeterminate number of Preferred Securities of IndyMac
Capital Trust I, IndyMac Capital Trust II, IndyMac Capital Trust III and
IndyMac Capital Trust IV (the "Trusts") as may be issued at indeterminate
prices and Junior Subordinated Debt Securities that may be issued by
IndyMac Bancorp, Inc. to evidence a loan by a Trust to IndyMac Bancorp,
Inc. of the proceeds from the sale of the Preferred Securities of such
Trust. Junior Subordinated Debt Securities evidencing the loan to IndyMac
Bancorp, Inc. may later be distributed to the holders of a Trust's
Preferred Securities upon dissolution of the Trust.
(4) The amount being registered does not include $500,000,000 of common stock,
preferred stock, depositary shares and debt securities previously
registered and as yet not sold under our Form S-3 registration statement
no. 333-41329 and being carried forward pursuant to Rule 429. We previously
paid a registration fee of approximately $147,500 with respect to such
securities.
(5) Omitted pursuant to General Instruction II.D of Form S-3.
(6) The Debt Securities to be offered hereunder will consist of one or more
series of Senior Debt Securities, Subordinated Debt Securities or Junior
Subordinated Debt Securities, as more fully described herein.
(7) Common Stock may be issued directly or upon conversion, exchange or
exercise of Senior Debt Securities, Subordinated Debt Securities, Preferred
Stock, Depositary Shares or Securities Warrants.
(8) Includes the obligations of IndyMac Bancorp, Inc. under a declaration of
trust, a preferred securities guarantee issued with respect to Preferred
Securities issued by a Trust, the Junior Subordinated Debt Securities
purchased by a Trust, and the Junior Subordinated Indenture, including
IndyMac Bancorp, Inc.'s agreement to pay all trust obligations other than
the Common and Preferred Securities.
(9) No separate consideration will be received for Debt Securities, Common
Stock, Preferred Stock or Depositary Shares of IndyMac Bancorp, Inc. that
are issued upon conversion or exchange of Debt Securities, Preferred Shares
or Depositary Shares of IndyMac Bancorp, Inc. or Preferred Securities of a
Trust.
(10) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or composite currencies.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
POST-EFFECTIVE AMENDMENT
Pursuant to Rule 429, the prospectus included in this registration
statement is a combined prospectus which also relates to IndyMac Bancorp, Inc.'s
Form S-3 registration statement no. 333-41329. This registration statement also
constitutes a post-effective amendment to Form S-3 registration statement no.
333-41329, and such post-effective amendment shall hereafter become effective
concurrently with the effectiveness of this registration statement in accordance
with Section 8(c) of the Securities Act of 1933.
EXPLANATORY NOTE
This registration statement contains two forms of prospectuses to be used
in connection with offerings of the following securities:
- debt securities, preferred stock, common stock, depositary shares,
securities warrants, warrants and units of IndyMac Bancorp, Inc; and
- preferred securities of IndyMac Capital Trust I, preferred securities of
IndyMac Capital Trust II, preferred securities of IndyMac Capital Trust
III, preferred securities of IndyMac Capital Trust IV, junior
subordinated debt securities of IndyMac Bancorp, Inc. and guarantees by
IndyMac Bancorp, Inc. of the preferred securities of IndyMac Capital
Trust I, IndyMac Capital Trust II, IndyMac Capital Trust III and IndyMac
Capital Trust IV.
Each offering of securities made under this registration statement will be
made pursuant to one of these two prospectuses, with the specific terms of the
securities offered thereby to be set forth in an accompanying prospectus
supplement.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 28, 2001
PROSPECTUS
Up to $500,000,000
INDYMAC BANCORP, INC.
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Securities Warrants
-------------------------
We may also issue common stock or other securities upon conversion,
exchange or exercise of any of the securities listed above. We will provide the
specific terms of these securities in supplements to this prospectus. You should
read this prospectus and the applicable supplement carefully before you invest.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------
THESE SECURITIES ARE OUR UNSECURED OBLIGATIONS AND ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY SUBSIDIARY OF INDYMAC BANCORP,
INC. AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
-------------------------
This prospectus is dated , 2001.
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND
THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering in
three separate documents that provide progressively more detail:
- this prospectus, which provides general information, some of which may
not apply to the securities being offered to you;
- an accompanying prospectus supplement, which describes the terms of the
type or types of securities then being offered directly by us or by an
underwritten public offering, some of which may not apply to the
securities you are considering; and
- if necessary, a pricing supplement, which describes the specific terms of
your securities.
If the descriptions of the terms of your securities vary between the
pricing supplement, the prospectus supplement and the accompanying prospectus,
you should rely on the information in the following order of priority:
- the pricing supplement, if any;
- the prospectus supplement; and
- this prospectus.
Unless indicated in the applicable prospectus supplement, neither we nor
the underwriters have taken any action that would permit us to publicly sell
these securities in any jurisdiction outside the United States. If you are an
investor outside the United States, you should inform yourself about and comply
with any restrictions as to the offering of the securities and the distribution
of this prospectus.
TABLE OF CONTENTS
[Download Table]
PAGE
----
About this Prospectus................. 1
Where You Can Find More Information... 1
Incorporation of Certain Information
by Reference........................ 1
Forward-Looking Statements............ 2
IndyMac Bancorp, Inc.................. 3
Regulatory Matters.................... 4
Use of Proceeds....................... 5
Ratio of Earnings to Fixed Charges.... 5
[Download Table]
PAGE
----
Description of Debt Securities........ 6
Description of Preferred Stock........ 15
Description of Depositary Shares...... 21
Description of Common Stock........... 23
Description of Securities Warrants.... 25
Global Securities..................... 28
Plan of Distribution.................. 32
Legal Matters......................... 33
Experts............................... 33
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that IndyMac Bancorp,
Inc. and IndyMac Capital Trust I and IndyMac Capital Trust II, or the "trusts,"
filed with the Securities and Exchange Commission, or "SEC" using a "shelf"
registration process. Under this shelf registration process, we may sell either
separately or in units debt securities, preferred stock, depositary shares,
common stock, and securities warrants in one or more offerings up to a total
dollar amount of $500,000,000. We may also issue common stock upon conversion,
exchange or exercise of any of the securities mentioned above.
This prospectus provides you with a general description of some of the
securities. Each time we or a trust sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about us
and the securities offered under this prospectus. The registration statement can
be read at the SEC, web site or at the SEC offices mentioned under the heading
"Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the offices of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents in this prospectus. The information incorporated by
reference is an important part of this prospectus. Some information contained in
this prospectus updates the information incorporated by reference, and
information that we file subsequently with the SEC will automatically update
this prospectus. In other words, in the case of a conflict or inconsistency
between information set forth in this prospectus and information incorporated by
reference into this prospectus, you should rely on the information contained in
the document that was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 after the initial filing of
the registration statement that contains this prospectus and prior to the time
that we sell all the securities offered by this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 2000,
including information specifically incorporated by reference into our
Form 10-K from our definitive Proxy Statement for our 2001 Annual Meeting
of Stockholders;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and
June 30, 2001; and
- The description of IndyMac Bancorp, Inc.'s common stock contained in its
Registration Statement on Form 8-A dated August 8, 1985, including any
amendment or report filed to update such
1
description. (Such registration statement is filed under our former name,
INMC Mortgage Holdings, Inc.)
You may request a copy of these filings, other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing,
at no cost, by writing to or telephoning us at the following address:
IndyMac Bancorp, Inc.
155 North Lake Avenue
Pasadena, California 91101-7211
Attention: Investor Relations
Telephone: (800) 669-2300
You should rely only on the information incorporated by reference or
presented in this prospectus or the applicable prospectus supplement. Neither
we, nor any underwriters or agents, have authorized anyone else to provide you
with any different information. We may only use this prospectus to sell
securities if it is accompanied by a prospectus supplement. We are only offering
these securities in states where the offer is permitted by applicable state law.
You should not assume that the information in this prospectus or the applicable
prospectus supplement is accurate as of any date other than the dates on the
front of those documents.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus may be deemed to be
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements include statements regarding liquidity, provisions
for loan losses, capital resources, anticipated future earnings and expense
levels and other anticipated aspects of future operations. Forward-looking
statements typically include the words "anticipate," "believe," "estimate,"
"expect," "project," "plan," "forecast," "intend," and other similar
expressions. These statements reflect our current views with respect to future
events and financial performance. They are subject to risks and uncertainties,
including those identified below, which could cause future results to differ
materially from historical results or from the results anticipated. Readers are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of their respective dates or as of the date hereof if no other
date is identified. We undertake no obligation to update or revise any forward-
looking statements, whether as a result of new information, future events or
otherwise.
The following factors, among others, could cause future results to differ
materially from historical results or those anticipated in any forward-looking
statements herein:
(1) the level of demand for consumer loans, mortgage loans and
construction loans, which can be affected by such external factors as (a)
the level of interest rates, (b) tax laws, (c) the strength of various
segments of the economy (including the strength of the stock market), and
(d) the demographics of our lending markets;
(2) the direction of interest rates and the relationship between
interest rates and our assets, liabilities, and hedging strategies;
(3) the accuracy of our estimates used in determining the fair value
of certain assets such as AAA rated interest only securities, mortgage
servicing rights, non-investment grade securities and residual securities;
(4) the rate of loan losses we incur, the level of loss reserves we
maintain, and our management's judgments regarding the collectibility of
loans;
(5) our liquidity requirements, which may change as a result of
fluctuations in our assets and liabilities and off-balance sheet exposures;
2
(6) the implementation of recently issued Financial Accounting
Standards Board pronouncements (SFAS 133, SFAS 137 and SFAS 138) may cause
increased volatility in our earnings reported in accordance with accounting
principles generally accepted in the United States of America;
(7) federal and state regulation of our consumer lending and banking
operations -- our principal subsidiary is a regulated federal savings bank;
(8) actions undertaken by our current and potential competitors, many
of which have lower costs of funds or other competitive advantages over us;
(9) the availability of funds from our lenders and other sources of
financing that support our lending activities;
(10) decisions to securitize, sell or purchase loans or securities;
(11) our management of the borrower, industry, product and geographic
concentrations represented in our loan portfolio;
(12) the degree of our success in executing upon our growth plans for
our consumer and mortgage banking operations;
(13) economic downturns or natural disasters in our principal lending
markets, including California, Florida, New Jersey and New York; and
(14) other risks and uncertainties detailed in our Annual Report on
Form 10-K for the year ended December 31, 2000, and in our Quarterly Report
on Form 10-Q for the quarter ended June 30, 2001, in each case under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
In addition, the banking industry in general is subject to various monetary
and fiscal policies and regulations, which include those determined by the
Federal Reserve Board, the Federal Deposit Insurance Corporation, or "FDIC," and
the Office of Thrift Supervision, or "OTS," which policies and regulations could
affect our results.
Also, our operations are centered in the State of California and are
heavily dependent upon the steady supply of electrical power. Although we have
not experienced energy shortages to date, at the date of this prospectus, there
exists uncertainty as to the steady availability of electrical power throughout
the State of California in the foreseeable future. Extended shortages of energy
could have an adverse impact on us.
INDYMAC BANCORP, INC.
IndyMac Bancorp, Inc. conducts a diversified mortgage banking business,
manages an investment portfolio, and offers commercial lending and retail
banking products. Our mortgage banking group is our core business. It is a
technology based, highly scalable operation that includes the following distinct
channels: (1) a business-to-business ("B2B") channel, with mortgage brokers,
small mortgage bankers and community financial institutions effectively provide
us with access to a variable cost, nationwide "virtual" branch network, (2) a
branchless, technology driven, business-to-consumer ("B2C") channel and (3) a
business-to-realtor ("B2R" or "LoanWorks") channel, which allows real estate
professionals to utilize our technology to fulfill the mortgage loan process for
their customers in the process of purchasing a home. We have been able to
successfully expand and leverage our proprietary loan approval and pricing
system, e-MITS(R)(1), across our mortgage banking channels. These channels
provide us with comprehensive coverage of the consumer mortgage market.
On July 1, 2000, we acquired SGV Bancorp, Inc., or SGVB. SGVB was the
parent of First Federal Savings and Loan Association of San Gabriel Valley, a
federal savings bank. As of the acquisition date, SGVB had assets of $490.8
million, deposits of $355.7 million, and shareholders' equity of $37.5 million.
---------------
(1) Patent Pending
3
We paid $25.00 per share, or $59.5 million, to acquire SGVB. We contributed
substantially all of our assets and operations to our new subsidiary bank, which
is now known as IndyMac Bank, F.S.B., or "IndyMac Bank."
We invest in residential loans and mortgage securities retained in
connection with the issuance of mortgage-backed securities, purchased in the
secondary mortgage market, or originated through B2C. We act as primary servicer
and master servicer with respect to substantially all the mortgage loans we sell
pursuant to private-label securitizations and loans sold to government sponsored
entities.
We conduct our builder construction lending activities through our
Construction Lending Corporation of America division, which offers a variety of
residential construction, land and lot loan programs for builders and
developers.
REGULATORY MATTERS
GENERAL
As a savings and loan holding company, IndyMac Bancorp, Inc. is subject to
regulation by the OTS under the holding company provisions of the federal Home
Owners' Loan Act, or "HOLA." As a federally chartered and insured stock savings
association, IndyMac Bank is subject to regulation and supervision by the OTS,
which is the primary federal regulator of savings associations, and the FDIC, in
its role as federal deposit insurer. The primary purpose of the statutory and
regulatory scheme is to protect depositors, the financial institutions and the
financial system as a whole rather than the shareholders of financial
institutions or their holding companies. The following summary is not intended
to be a complete description of the applicable laws and regulations or their
effects on IndyMac Bancorp, Inc., and it is qualified in its entirety by
reference to the particular statutory and regulatory provisions described.
HOLDING COMPANY REGULATION
IndyMac Bancorp, Inc. is classified as a unitary savings and loan holding
company under HOLA, meaning generally that it owns only one savings association.
In contrast to bank holding companies, only limited restrictions apply to the
business activities of a unitary savings and loan holding company and its
non-savings association subsidiaries. Recently enacted federal legislation,
known as the Gramm-Leach-Bliley Act, or the "G-L-B Act," imposes new activity
restrictions upon newly registered unitary savings and loan holding companies
that are not "grandfathered" under the G-L-B Act. Notwithstanding its status as
a "grandfathered" unitary savings and loan holding company under the G-L-B Act,
if IndyMac Bank fails to meet the Qualified Thrift Lender, or "QTL," Test (as
discussed under "Regulation of IndyMac Bank" in our Annual Report on Form 10-K
for the year ended December 31, 2000), IndyMac Bancorp, Inc. will become subject
to the activities restrictions applicable to multiple savings and loan holding
companies and, unless IndyMac Bank requalifies as a QTL within one year, will be
required to register as a bank holding company and become subject to the
restrictions applicable thereto.
Transactions between a savings association and its "affiliates" are subject
to quantitative and qualitative restrictions under Sections 23A and 23B of the
Federal Reserve Act. Affiliates of a savings association include, among other
entities, the savings association's holding company and non-banking companies
that are under common control with the savings association. In general, the
restrictions of Sections 23A and 23B do not apply to transactions between a
savings association and its subsidiaries, or its sister organizations that
themselves are banks or savings associations.
LIMITATIONS ON CAPITAL DISTRIBUTIONS FROM INDYMAC BANK
The ability of IndyMac Bancorp, Inc. to make payments with respect to the
securities offered by this prospectus will depend in part upon the receipt of
funds from its principal subsidiary, IndyMac Bank. The OTS capital regulations
contain "prompt corrective action" provisions that require certain mandatory
remedial actions and authorize certain other discretionary actions to be taken
by the OTS against a savings
4
association that falls within specified categories of capital deficiency. The
relevant regulation establishes five categories of capital classification for
this purpose, ranging from "well capitalized" or "adequately capitalized"
through "undercapitalized", "significantly undercapitalized" and "critically
undercapitalized." IndyMac Bank is currently a "well capitalized" institution.
In general, the prompt corrective action regulations prohibit an
OTS-regulated institution from declaring any dividends, making any other capital
distribution or paying a management fee to a controlling person, such as its
parent holding company, if, following the distribution or payment, the
institution would be within any of the three undercapitalized categories.
In addition to the prompt corrective action restriction on paying dividends
described above, OTS regulations limit "capital distributions" by savings
associations, which term includes, among other things, dividends and payments
for stock repurchases.
Under the capital distribution regulations, a savings association that is a
subsidiary of a savings and loan holding company must notify the OTS of a
proposed capital distribution at least 30 days prior to the declaration of the
capital distribution. The 30-day period provides the OTS an opportunity to
object to the proposed distribution if it believes that the distribution would
not be advisable.
An application to the OTS for specific approval to pay a dividend, rather
than the notice procedure described above, is required if: (a) the total of all
capital distributions made during a calendar year (including the proposed
distribution) exceeds the sum of the institution's year-to-date net income and
its retained income for the preceding two years, (b) the institution is not
entitled under OTS regulations to "expedited treatment" (which is generally
available to institutions the OTS regards as well run and adequately
capitalized), (c) the institution would not be at least "adequately capitalized"
following the proposed capital distribution or (d) the distribution would
violate an applicable statute, regulation, agreement or condition imposed on the
institution by the OTS.
USE OF PROCEEDS
IndyMac Bancorp, Inc. intends to use the net proceeds from the sale of the
securities for general corporate purposes unless otherwise indicated in the
prospectus supplement or pricing supplement relating to a specific issue of
securities. Our general corporate purposes may include acquisitions of other
companies, repurchasing shares of our common stock, extending credit to, or
funding investments in, our subsidiaries and such other purposes as may be
indicated in the applicable prospectus supplement or pricing supplement. The
precise amounts and timing of our use of the net proceeds will depend upon our,
and our subsidiaries', funding requirements and the availability of other funds.
Until we use the net proceeds from the sale of any securities for general
corporate purposes, we will use the net proceeds to reduce our short-term
indebtedness or for temporary investments.
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for
the five fiscal years ended December 31, 2000 and the six months ended June 30,
2000 and June 30, 2001:
[Enlarge/Download Table]
SIX MONTHS
FISCAL YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------ --------------
1996 1997 1998 1999 2000 2000 2001
---- ---- ---- ---- ---- ----- -----
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits......... 1.31 1.02 1.26 1.61 1.62 1.53 2.09
Including interest on deposits......... 1.31 1.02 1.26 1.61 1.48 1.53 1.50
For purposes of computing these ratios, earnings represent income from
continuing operations before extraordinary items and cumulative effects of
changes in accounting principals plus income taxes and fixed charges (excluding
capitalized interest). Fixed charges, excluding interest on deposits, represent
interest
5
(other than on deposits, but including capitalized interest), the estimated
interest portion of rent expense and all amortization of debt issuance costs.
Fixed charges, including interest on deposits, represent all interest, the
estimated interest portion of rent expense and all amortization of debt issuance
costs.
DESCRIPTION OF DEBT SECURITIES
The following summary describes the general terms and provisions of debt
securities that we may offer, which could be senior debt securities or
subordinated debt securities. The prospectus supplement will describe the
specific terms of the debt securities offered through that prospectus supplement
and any general terms outlined in this section that will not apply to those debt
securities.
The senior debt securities will be issued under a senior indenture between
us and the senior trustee named in the applicable prospectus supplement and the
subordinated debt securities will be issued under a subordinated indenture
between us and the subordinated trustee named in the applicable prospectus
supplement.
We have summarized the material terms and provisions of the senior and
subordinated indentures in this section. We have also filed the form of each of
these indentures as exhibits to the registration statement. You should read the
applicable indenture for additional information before you buy any debt
securities. The actual provisions of the indentures, and not the summary thereof
below, will govern your rights and our obligations with respect to the debt
securities. The summary that follows includes references to section numbers of
these indentures so that you can more easily locate these provisions.
GENERAL
The debt securities will be our direct unsecured obligations. Neither of
the indentures limits the amount of debt securities that we may issue. Both
indentures permit us to issue debt securities from time to time and debt
securities issued under an indenture will be issued as part of a series that has
been established by us under such indenture. (Section 301)
The senior debt securities will be unsecured and will rank equally with all
of our other Senior Debt, as defined under "-- Subordination" below. The
subordinated debt securities will be unsecured and will rank equally with all of
our other subordinated debt and, together with such other subordinated debt,
will be subordinated to all of our existing and future Senior Debt.
Our assets consist primarily of equity in our subsidiaries. As a result,
our ability to make payments on our debt securities depends on our receipt of
dividends, loan payments and other funds from our subsidiaries. In addition, if
any of our subsidiaries becomes insolvent, the direct creditors of that
subsidiary will have a prior claim on its assets. Our rights and the rights of
our creditors, including your rights as an owner of our debt securities, will be
subject to that prior claim, unless we are also a direct creditor of that
subsidiary. This subordination of creditors of a parent company to prior claims
of creditors of its subsidiaries is commonly referred to as "structural
subordination".
A prospectus supplement relating to a series of debt securities being
offered will include specific terms relating to the offering. (Section 301)
These terms will include some or all of the following:
- the title and type of the debt securities;
- any limit on the total principal amount of the debt securities of that
series;
- the price at which the debt securities will be issued;
- the date or dates on which the principal of and any premium on the debt
securities will be payable;
6
- the maturity date or dates of the debt securities or the method by which
those dates can be determined;
- if the debt securities will bear interest:
- the interest rate on the debt securities or the method by which the
interest rate may be determined;
- the date from which interest will accrue;
- the record and interest payment dates for the debt securities;
- the first interest payment date; and
- any circumstances under which we may defer interest payments;
- the place or places where:
- we can make payments on the debt securities;
- the debt securities can be surrendered for registration of transfer or
exchange; and
- notices and demands can be given to us relating to the debt securities
and under the applicable indenture;
- any optional redemption provisions that would permit us or the holders of
debt securities to elect redemption of the debt securities before their
final maturity;
- any sinking fund provisions that would obligate us to redeem the debt
securities before their final maturity;
- whether the subordinated debt securities will be convertible into shares
of common stock, shares of preferred stock or depositary shares and, if
so, the terms and conditions of any such conversion, and, if convertible
into shares of preferred stock or depositary shares, the terms of such
preferred stock or depositary shares;
- if the debt securities will be issued in bearer form, the terms and
provisions contained in the bearer securities and in the applicable
indenture specifically relating to the bearer securities;
- the currency or currencies in which the debt securities will be
denominated and payable, if other than U.S. dollars and, if a composite
currency, any special provisions relating thereto;
- any circumstances under which the debt securities may be paid in a
currency other than the currency in which the debt securities are
denominated and any provisions relating thereto;
- whether the provisions described below under the heading "-- Defeasance"
apply to the debt securities;
- any events of default which will apply to the debt securities in addition
to those contained in the applicable indenture;
- any additions or changes to the covenants contained in the applicable
indenture and the ability, if any, of the holders to waive our compliance
with those additional or changed covenants;
- whether all or part of the debt securities will be issued in whole or in
part as temporary or permanent global securities and, if so, the
depositary for those global securities and a description of any
book-entry procedures relating to the global securities -- a "global
security" is a debt security that we issue in accordance with the
applicable indenture to represent all or part of a series of debt
securities;
- whether the debt securities are exchangeable into any other securities
and, if so, the terms under which such exchange may occur and the terms
of such other securities;
7
- if we issue temporary global securities, any special provisions dealing
with the payment of interest and any terms relating to the exchange of
interests in a temporary global security for interests in a permanent
global security or for definitive debt securities;
- the identity of the security registrar and paying agent for the debt
securities if other than the applicable trustee;
- any special tax implications of the debt securities;
- any special provisions relating to the payment of any additional amounts
on the debt securities;
- the terms of any securities being offered together with or separately
from the debt securities; and
- any other terms of the debt securities.
When we use the term "holder" in this prospectus with respect to a registered
debt security, we mean the person in whose name the debt security is registered
in the security register. (Section 101)
PAYMENT; EXCHANGE; TRANSFER
We will designate a place of payment where you can receive payment of the
principal of and any premium and interest on the debt securities. Even though we
will designate a place of payment, we may elect to pay any interest on the debt
securities by mailing a check to the person listed as the owner of the debt
securities in the security register or by wire transfer to an account designated
by that person in writing not less than ten days before the date of the interest
payment. Unless we state otherwise in the applicable prospectus supplement, we
will pay interest on a debt security:
- on an interest payment date, to the person in whose name that debt
security is registered at the close of business on the record date
relating to that interest payment date; and
- on the date of maturity or earlier redemption or repayment, to the person
who surrenders the debt security at the office of our appointed paying
agent. (Sections 307, 1002)
Any money that we pay to a paying agent for the purpose of making payments
on the debt securities and that remains unclaimed two years after the payments
were due will, at our request, be returned to us. After that time any holder of
a debt security may only look to us for the payments on the debt security.
(Section 1003)
Any debt securities of a series may be exchanged for other debt securities
of that series so long as the other debt securities are denominated in
authorized denominations and have the same aggregate principal amount and same
terms as the debt securities that were surrendered for exchange. The debt
securities may be presented for registration of transfer, duly endorsed or
accompanied by a satisfactory written instrument of transfer, at the office or
agency maintained by us for that purpose at an authorized place of payment.
There will be no service charge for any registration of transfer or exchange of
the debt securities, but we may require you to pay any tax or other governmental
charge payable in connection with a transfer or exchange of the debt securities.
(Sections 305, 1002) If the applicable prospectus supplement refers to any
office or agency, in addition to the security registrar, initially designated by
us where you can surrender the debt securities for registration of transfer or
exchange, we may at any time rescind the designation of any such office or
agency or approve a change in the location of that office. However, we will be
required to maintain an office or agency in each place of payment for that
series. (Section 1002)
DENOMINATIONS
Unless we state otherwise in the applicable prospectus supplement, the debt
securities will be issued only in registered form, without coupons, in
denominations of $1,000 each or multiples of $1,000.
8
BEARER DEBT SECURITIES
If we ever issue bearer debt securities, the applicable prospectus
supplement will describe all of the special terms and provisions of debt
securities in bearer form, and the extent to which those special terms and
provisions are different from the terms and provisions which are described in
this prospectus, which generally apply to debt securities in registered form.
The prospectus supplement will also summarize provisions of the applicable
indenture that relate specifically to bearer debt securities.
ORIGINAL ISSUE DISCOUNT
Debt securities may be issued under the indentures as original issue
discount securities that are sold at a substantial discount below their stated
principal amount. If a debt security is an original issue discount security,
that means that an amount that is less than the principal amount of the debt
security will be due and payable upon a declaration of acceleration of the
maturity of the debt security under the applicable indenture. (Section 101) The
applicable prospectus supplement will describe the federal income tax
consequences and other special factors you should consider before purchasing any
original issue discount securities.
COVENANTS CONTAINED IN INDENTURES
Except as otherwise set forth in the next sentence, the senior indenture:
- prohibits us and our subsidiaries from selling, pledging, assigning or
otherwise disposing of shares of capital stock, or securities convertible
into capital stock, of any Principal Subsidiary Institution or of any
subsidiary owning, directly or indirectly, any capital stock of a
Principal Subsidiary Institution; and
- prohibits any Principal Subsidiary Institution from issuing any shares of
its capital stock or securities convertible into its capital stock.
This restriction does not apply to:
- sales, pledges, assignments or other dispositions or issuances of
directors' qualifying shares;
- sales, pledges, assignments or other dispositions or issuances, so long
as, after giving effect to the disposition and to the issuance of any
shares issuable upon conversion or exchange of securities convertible or
exchangeable into capital stock, we would own directly or through one or
more of our subsidiaries not less than 80% of the shares of each class of
capital stock of the applicable Principal Subsidiary Institution;
- sales, pledges, assignments or other dispositions or issuances made in
compliance with an order or direction of a court or regulatory authority
of competent jurisdiction; or
- sales of capital stock by any Principal Subsidiary Institution to its
stockholders so long as before the sale we own directly or indirectly
shares of the same class and the sale does not reduce the percentage of
the shares of that class of capital stock owned by us. (Section 1005 of
the senior indenture)
When we use the term "subsidiary", we mean any corporation of which we own
more than 50% of the outstanding shares of voting stock, except for directors'
qualifying shares, directly or through one or more of our other subsidiaries.
Voting stock is stock that is entitled in the ordinary course to vote for the
election of a majority of the directors of a corporation and does not include
stock that is entitled to so vote only as a result of the happening of certain
events.
When we use the term "Principal Subsidiary Institution" above, we mean any
savings association, commercial bank, or trust company organized in the United
States under Federal or state law of which we own at least a majority of the
shares of voting stock directly or through one or more of our subsidiaries if
such savings association, commercial bank, or trust company has total assets, as
set forth in its most recent statement of condition, equal to more than 10% of
our total consolidated assets, as set forth in our most
9
recent financial statements filed with the SEC under the Exchange Act. (Section
101 of the senior indenture). As of the date hereof, our only Principal
Subsidiary Institution is IndyMac Bank.
The subordinated indenture does not contain the restriction described
above.
Neither of the indentures contains restrictions on our ability to:
- incur, assume or become liable for any type of debt or other obligation;
- create liens on our property for any purpose; or
- pay dividends or make distributions on our capital stock or repurchase or
redeem our capital stock.
The indentures do not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the indentures do not
contain any provisions which would require us to repurchase or redeem or modify
the terms of any of the debt securities upon a change of control or other event
involving us which may adversely affect the creditworthiness of the debt
securities.
CONSOLIDATION, MERGER OR SALE
Each of the indentures generally permits a consolidation or merger between
us and another entity. They also permit the sale or transfer by us of all or
substantially all of our property and assets. These transactions are permitted
if:
- the resulting or acquiring entity, if other than us, is organized and
existing under the laws of a domestic jurisdiction and assumes all of our
responsibilities and liabilities under the applicable indenture,
including the payment of all amounts due on the debt securities and
performance of the covenants in the applicable indenture; and
- immediately after the transaction, and giving effect to the transaction,
no event of default under the applicable indenture exists. (Section 801)
If we consolidate or merge with or into any other entity or sell or lease
all or substantially all of our assets according to the terms and conditions of
the indentures, the resulting or acquiring entity will be substituted for us in
the indentures with the same effect as if it had been an original party to the
indentures. As a result, the successor entity may exercise our rights and powers
under the indentures, in our name and, except in the case of a lease of all or
substantially all of our properties, we will be released from all our
liabilities and obligations under the indentures and under the debt securities.
(Section 802)
MODIFICATION AND WAIVER
Under each of the indentures, certain of our rights and obligations and
certain of the rights of holders of the debt securities may be modified or
amended with the consent of the holders of at least a majority of the aggregate
principal amount of the outstanding debt securities of all series of debt
securities affected by the modification or amendment, acting as one class.
However, the following modifications and amendments will not be effective
against any holder without the holder's consent:
- a change in the stated maturity date of any payment of principal or
interest;
- a reduction in payments due on the debt securities;
- a change in the place of payment or currency in which any payment on the
debt securities is payable;
- a limitation of the holder's right to sue us for the enforcement of
payments due on the debt securities;
- a reduction in the percentage of outstanding debt securities required to
consent to a modification or amendment of the applicable indenture or
required to consent to a waiver of compliance with certain provisions of
the applicable indenture or certain defaults under the applicable
indenture;
10
- a reduction in the requirements contained in the applicable indenture for
the determination of a quorum or voting;
- a limitation of the holder's right, if any, to repayment of debt
securities at the holder's option;
- in the case of subordinated debt securities convertible into common
stock, a limitation of any right to convert the subordinated debt
securities; and
- a modification of any of the foregoing requirements contained in the
applicable indenture. (Section 902)
Under each of the indentures, the holders of at least a majority in
aggregate principal amount of the outstanding debt securities of all series of
debt securities affected by a particular covenant or condition, acting as one
class, may, on behalf of all holders of such series of debt securities, waive
compliance by us with any covenant or condition contained in the applicable
indenture unless we specify that such covenant or condition cannot be so waived
at the time we establish the series. The senior indenture provides that
compliance with the covenant relating to Principal Subsidiary Banks described
above under "-- Covenants Contained in Indentures" may be waived in this manner.
(Section 1008 of the senior indenture; Section 1005 of the subordinated
indenture)
Under each of the indentures, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series of debt
securities may, on behalf of all holders of that series, waive any past default
under the applicable indenture, except:
- a default in the payment of the principal of or any premium or interest
on any debt securities of that series; or
- a default under any provision of the applicable indenture which itself
cannot be modified or amended without the consent of the holders of each
outstanding debt security of that series. (Section 513)
EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, an
"event of default," when used in the senior indenture with respect to any series
of senior debt securities, means any of the following:
- failure to pay interest on any senior debt security of that series for 30
days after the payment is due;
- failure to pay the principal of or any premium on any senior debt
security of that series when due;
- failure to deposit any sinking fund payment on senior debt securities of
that series when due;
- failure to perform any of the covenants regarding capital stock of
Principal Subsidiary Banks described above under "-- Covenants Contained
in Indentures";
- failure to perform any other covenant in the senior indenture that
applies to senior debt securities of that series for 90 days after we
have received written notice of the failure to perform in the manner
specified in the senior indenture;
- certain events in bankruptcy, insolvency or reorganization; or
- any other event of default that may be specified for the senior debt
securities of that series when that series is created. (Section 501 of
the senior indenture)
11
Unless otherwise specified in the applicable prospectus supplement, an
"event of default," when used in the subordinated indenture with respect to any
series of subordinated debt securities, means any of the following:
- certain events in bankruptcy, insolvency or reorganization; or
- any other event of default that may be specified for the subordinated
debt securities of that series when that series is created. (Section 501
of the subordinated indenture)
If an event of default for any series of debt securities occurs and during
the period it continues, the trustee or the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of the series may declare
the entire principal of all of the debt securities of that series to be due and
payable immediately. If such a declaration occurs, the holders of a majority of
the aggregate principal amount of the outstanding debt securities of that series
may, subject to conditions, rescind the declaration. (Sections 502, 513) Unless
we state otherwise in the applicable prospectus supplement, the holders of
subordinated debt securities will not have the right to accelerate the payment
of principal of the subordinated debt securities as a result of our failure to
perform any covenant or agreement contained in the subordinated debt securities
or the subordinated indenture.
The prospectus supplement relating to a series of debt securities which are
original issue discount securities will describe the particular provisions that
relate to the acceleration of maturity of a portion of the principal amount of
the series if an event of default occurs and continues.
Each of the indentures requires us to file an officers' certificate with
the applicable trustee each year that states, to the knowledge of the certifying
officer, that no defaults exist under the terms of the applicable indenture.
(Section 1007 of the senior indenture; Section 1004 of the subordinated
indenture). The trustee may withhold notice to the holders of debt securities of
any default, except defaults in the payment of principal, premium, interest or
any sinking fund installment, if the trustee considers the withholding of notice
to be in the best interests of the holders. For purposes of this paragraph,
"default" means any event which is, or after notice or lapse of time or both
would become, an event of default under the applicable indenture with respect to
the debt securities of the applicable series. (Section 602)
Other than its duties in the case of a default, a trustee is not obligated
to exercise any of its rights or powers under the applicable indenture at the
request, order or direction of any holders, unless the holders offer that
trustee reasonable indemnification. (Sections 601, 603) If reasonable
indemnification is provided, then, subject to other rights of the trustee, the
holders of a majority in principal amount of the outstanding debt securities of
any series may, with respect to the debt securities of that series, direct the
time, method and place of:
- conducting any proceeding for any remedy available to the trustee; or
- exercising any trust or power conferred upon the trustee. (Sections 512,
603)
The holder of a debt security of any series will have the right to begin
any proceeding with respect to the applicable indenture or for any remedy only
if:
- the holder has previously given the trustee written notice of a
continuing event of default with respect to that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written request
of, and offered reasonable indemnification to, the trustee to begin such
proceeding;
- the trustee has not started such proceeding within 60 days after
receiving the request; and
- the trustee has not received directions inconsistent with such request
from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series during those 60 days. (Section
507)
12
However, the holder of any senior debt security will have an absolute right
to receive payment of principal of and any premium and interest on the senior
debt security when due and to institute suit to enforce this payment, and the
holder of any subordinated debt security will have, subject to the subordination
provisions discussed below under "-- Subordination," the absolute right to
receive payment of principal of and any premium and interest on the subordinated
debt security when due in accordance with the subordinated indenture and to
institute suit to enforce the payment. (Section 508)
DEFEASANCE
DEFEASANCE AND DISCHARGE. At the time that we establish a series of debt
securities under the applicable indenture, we may provide that the debt
securities of that series are subject to the defeasance and discharge provisions
of that indenture. If we so provide, we will be discharged from our obligations
on the debt securities of that series if:
- we deposit with the applicable trustee, in trust, sufficient money or, if
the debt securities of that series are denominated and payable in U.S.
dollars only, Eligible Instruments, to pay the principal, any interest,
any premium and any other sums due on the debt securities of that series,
such as sinking fund payments, on the dates the payments are due under
the applicable indenture and the terms of the debt securities;
- we deliver to the applicable trustee an opinion of counsel that states
that the holders of the debt securities of that series will not recognize
income, gain or loss for federal income tax purposes as a result of the
deposit and will be subject to federal income tax on the same amounts and
in the same manner and at the same times as would have been the case if
no deposit had been made; and
- if the debt securities of that series are listed on any domestic or
foreign securities exchange, the debt securities will not be delisted as
a result of the deposit. (Section 403)
When we use the term "Eligible Instruments" in this section, we mean
monetary assets, money market instruments and securities that are payable in
dollars only and are essentially risk free as to collection of principal and
interest, including:
- direct obligations of the United States backed by the full faith and
credit of the United States; or
- any obligation of a person controlled or supervised by and acting as an
agency or instrumentality of the United States if the timely payment of
the obligation is unconditionally guaranteed as a full faith and credit
obligation by the United States. (Section 101)
In the event that we deposit money and/or Eligible Instruments in trust and
discharge our obligations under a series of debt securities as described above,
then:
- the applicable indenture, including, in the case of subordinated debt
securities, the subordination provisions contained in the subordinated
indenture, will no longer apply to the debt securities of that series;
however, certain obligations to compensate, reimburse and indemnify the
trustee, to register the transfer and exchange of debt securities, to
replace lost, stolen or mutilated debt securities, to maintain paying
agencies and the trust funds and to pay additional amounts, if any,
required as a result of U.S. withholding taxes imposed on payments to
non-U.S. persons will continue to apply; and
- holders of debt securities of that series may only look to the trust fund
for payment of principal, any premium and any interest on the debt
securities of that series. (Section 403)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. At the time
that we establish a series of debt securities under the applicable indenture, we
may provide that the debt securities of that series are subject to the covenant
defeasance provisions of that indenture. If we so provide and we make the
deposit and deliver the opinion of counsel described above in this section under
the heading
13
"-- Defeasance and Discharge" we will not have to comply with the following
restrictive covenants contained in the applicable indenture:
- Restrictions Upon Sale or Issuance of Capital Stock of Certain Subsidiary
Institutions (Section 1005 of the senior indenture) discussed above under
"-- Covenants Contained in Indentures"; and
- any other covenant we designate when we establish the series of debt
securities.
In the event of a covenant defeasance, our obligations under the applicable
indenture and the debt securities, other than with respect to the covenants
specifically referred to above, will remain in effect. (Section 1501 of the
senior indenture; Section 1701 of the subordinated indenture)
If we exercise our option not to comply with the covenants listed above and
the debt securities of the series become immediately due and payable because an
event of default has occurred, other than as a result of an event of default
specifically referred to above, the amount of money and/or Eligible Instruments
on deposit with the applicable trustee will be sufficient to pay the principal,
any interest, any premium and any other sums, due on the debt securities of that
series, such as sinking fund payments, on the date the payments are due under
the applicable indenture and the terms of the debt securities, but may not be
sufficient to pay amounts due at the time of acceleration. However, we would
remain liable for the balance of the payments. (Section 1501 of the senior
indenture; Section 1701 of the subordinated indenture)
SUBORDINATION
The subordinated debt securities will be subordinate to all of our existing
and future Senior Debt, as defined below. Our Senior Debt includes the senior
debt securities and means
- any of our indebtedness for borrowed or purchased money, whether or not
evidenced by bonds, debentures, notes or other written instruments, our
obligations under letters of credit, any of our indebtedness or other
obligations with respect to commodity contracts, interest rate and
currency swap agreements, cap, floor and collar agreements, currency spot
and forward contracts, and other similar agreements or arrangements
designed to protect against fluctuations in currency exchange or interest
rates, and
- any guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or other
similar contingent obligations in respect of obligations of others of a
type described above, whether or not such obligation is classified as a
liability on a balance sheet prepared in accordance with generally
accepted accounting principles,
whether outstanding on the date of execution of the subordinated indenture or
thereafter incurred, other than obligations expressly on a parity with or junior
to the subordinated debt securities.
If certain events in bankruptcy, insolvency or reorganization occur, we
will first pay all Senior Debt, including any interest accrued after the events
occur, in full before we make any payment or distribution, whether in cash,
securities or other property, on account of the principal of or interest on the
subordinated debt securities. In such an event, we will pay or deliver directly
to the holders of Senior Debt any payment or distribution otherwise payable or
deliverable to holders of the subordinated debt securities. We will make the
payments to the holders of Senior Debt according to priorities existing among
those holders until we have paid all Senior Debt, including accrued interest, in
full. Notwithstanding the subordination provisions discussed in this paragraph,
we may make payments or distributions on the subordinated debt securities so
long as:
- the payments or distributions consist of securities issued by us or
another company in connection with a plan of reorganization or
readjustment; and
- payment on the securities is subordinate to outstanding Senior Debt and
any securities issued with respect to Senior Debt under the plan of
reorganization or readjustment at least to the same extent
14
as provided in the subordination provisions of the subordinated debt
securities. (Section 1801 of the subordinated indenture)
If such events in bankruptcy, insolvency or reorganization occur after we
have paid in full all amounts owed on Senior Debt: the holders of subordinated
debt securities together with the holders of any of our other obligations
ranking equal with those subordinated debt securities will be entitled to
receive from our remaining assets any principal, premium or interest due at that
time on the subordinated debt securities and such other obligations before we
make any payment or other distribution on account of any of our capital stock or
obligations ranking junior to the subordinated debt securities.
If we violate the subordinated indenture by making a payment or
distribution to holders of the subordinated debt securities before we have paid
all the Senior Debt in full, then the holders of the subordinated debt
securities will be deemed to have received the payments or distributions in
trust for the benefit of, and will be obligated to pay or transfer the payments
or distributions to, the holders of the Senior Debt outstanding at that time.
The payment or transfer to the holders of the Senior Debt will be made according
to the priorities existing among those holders. Notwithstanding the
subordination provisions discussed in this paragraph, holders of subordinated
debt securities will not be required to pay, or transfer payments or
distributions to, holders of Senior Debt so long as:
- the payments or distributions consist of securities issued by us or
another company in connection with a plan of reorganization or
readjustment; and
- payment on those securities is subordinate to outstanding Senior Debt and
any securities issued with respect to Senior Debt under such plan of
reorganization or readjustment at least to the same extent as provided in
the subordination provisions of the subordinated debt securities.
(Section 1801 of the subordinated indenture)
Because of the subordination, if we become insolvent, holders of Senior
Debt may receive more, ratably, and holders of the subordinated debt securities
having a claim pursuant to those securities may receive less, ratably, than our
other creditors. This type of subordination will not prevent an event of default
from occurring under the subordinated indenture in connection with the
subordinated debt securities.
We may modify or amend the subordinated indenture as provided under
"-- Modification and Waiver" above. However, the modification or amendment may
not, without the consent of the holders of all Senior Debt outstanding, modify
any of the provisions of the applicable indenture relating to the subordination
of the subordinated debt securities in a manner that would adversely affect the
holders of Senior Debt. (Section 902 of the subordinated indenture)
CONVERSION AND EXCHANGE
If any offered debt securities are convertible into preferred stock,
depositary shares or common stock at the option of the holders or exchangeable
for preferred stock, depositary shares or common stock at our option, the
prospectus supplement relating to those debt securities will include the terms
and conditions governing any conversions and exchanges.
DESCRIPTION OF PREFERRED STOCK
The following summary describes the general terms and provisions of our
preferred stock that may be offered by this prospectus. The prospectus
supplement will describe the specific terms of the series of the preferred stock
offered through that prospectus supplement and any general terms outlined in
this section that will not apply to that series of preferred stock.
GENERAL
Pursuant to our restated certificate of incorporation, our board of
directors has the authority, without further stockholder action, to issue a
maximum of 10,000,000 shares of preferred stock, including shares
15
issued or reserved for issuance. As of June 30, 2001 we had no outstanding
shares of preferred stock. The board of directors has the authority to determine
or fix the following terms with respect to shares of any series of preferred
stock:
- the number of shares and designation or title of the shares;
- dividend rights;
- whether and upon what terms the shares will be redeemable;
- the rights of the holders upon our dissolution or upon the distribution
of our assets;
- whether and upon what terms the shares will have a purchase, retirement
or sinking fund;
- whether and upon what terms the shares will be convertible or
exchangeable;
- the voting rights of the preferred stock, if any; and
- any other rights, preferences, privileges, limitations or restrictions of
the series.
If we purchase, redeem or convert shares of preferred stock, we will retire and
cancel them and restore them to the status of authorized but unissued shares of
preferred stock. Those shares will not be part of any particular series of
preferred stock and may be reissued by us.
As described under "Description of Depositary Shares" below, we may elect
to offer depositary shares represented by depositary receipts. If we elect to do
so, each depositary share will represent a fractional interest, to be specified
in the applicable prospectus supplement, in a share of preferred stock. If we
issue depositary shares representing interests in preferred stock, the shares of
preferred stock will be deposited with a depositary.
The preferred stock will have the dividend, liquidation, redemption, voting
and conversion rights described herein unless the applicable prospectus
supplement provides otherwise. You should read the prospectus supplement
relating to a particular series of the preferred stock for a description of the
specific terms of the series, including:
- the title, stated value and liquidation preference of the preferred stock
and the number of shares offered;
- the initial public offering price at which we will issue the preferred
stock;
- the dividend rate or rates, or method of calculation of dividends, the
dividend periods, the dates on which dividends will be payable and
whether the dividends will be cumulative or noncumulative and, if
cumulative, the dates from which the dividends will start to cumulate;
- any redemption or sinking fund provisions;
- any conversion provisions;
- whether we have elected to offer depositary shares as described under
"Description of Depositary Shares" below; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
All shares of preferred stock we issue will be fully paid and
nonassessable. This means you will have paid the full required purchase price
for your shares of preferred stock and you will not be assessed any additional
amount for your stock. Unless the applicable prospectus supplement specifies
otherwise:
- each series of preferred stock will rank equally in all respects with the
outstanding shares of preferred stock and each other series of preferred
stock offered under this prospectus;
16
- the preferred stock will have no preemptive rights to subscribe for any
additional securities which we may issue in the future, which means that
the holders of shares of preferred stock will have no right, as holders
of shares of preferred stock, to buy any portion of those issued
securities; and
- The Bank of New York will be the transfer agent and registrar for the
preferred stock and any depositary shares.
DIVIDENDS
The holders of the preferred stock of each series will be entitled to
receive cash dividends, if declared by our board of directors or its duly
authorized committee, out of our assets that we may legally use to pay
dividends. The prospectus supplement relating to a particular series of
preferred stock will describe the dividend rates and the dates on which
dividends will be payable. The rates may be fixed or variable or both. If the
dividend rate is variable, the applicable prospectus supplement will describe
the formula used to determine the dividend rate for each dividend period. We
will pay dividends to the holders of record as they appear on our stock books on
the record dates fixed by our board of directors or its duly authorized
committee.
We are incorporated in Delaware, and are governed by the Delaware General
Corporation Law. Delaware law allows a corporation to pay dividends only out of
surplus, as determined under Delaware law, or, if there is no surplus, out of
net profits for the fiscal year in which the dividend was declared and for the
preceding fiscal year. However, under Delaware law, we cannot pay dividends out
of net profits if, after we pay the dividend, our capital would be less than the
capital represented by the outstanding stock of all classes having a preference
upon the distribution of our assets.
The applicable prospectus supplement will state whether the dividends on
any series of the preferred stock are cumulative or noncumulative. If our board
of directors does not declare a dividend payable on a dividend payment date on
any noncumulative series of preferred stock, then the holders of that series
will not be entitled to receive a dividend for that dividend period and we will
not be obligated to pay the dividend for that dividend period even if our board
subsequently declares a dividend on that series payable in the future.
Our board will not declare and pay a dividend on any of our stock ranking,
as to dividends, equal with or junior to the preferred stock unless full
dividends on the preferred stock have been declared and paid, or declared and
sufficient money is set aside for payment. If full dividends have not been paid,
or declared and a sum sufficient to payment thereof set aside, on all preferred
stock ranking equal as to dividends, then:
- we will declare any dividends pro rata among the shares of preferred
stock of each series offered under this prospectus and any other series
of preferred stock ranking equal to such series of preferred stock
offered under this prospectus as to dividends, which means that the
dividends we declare per share on each series of such preferred stock
will bear the same relationship to each other that the full accrued
dividends per share on each such series of the preferred stock bear to
each other;
- other than the above-described pro rata dividends, we will not declare or
pay any dividends or declare or make any distributions upon any security
ranking junior to or equal with the preferred stock offered under this
prospectus as to dividends or upon liquidation, except dividends or
distributions paid for with securities ranking junior to the preferred
stock as to dividends and upon liquidation; and
- we will not redeem, purchase or otherwise acquire, or set aside money for
a sinking fund for, any securities ranking junior to or equal with the
preferred stock offered under this prospectus as to dividends or upon
liquidation, except by conversion into or exchange for stock junior to
the preferred stock as to dividends and upon liquidation.
17
We will not owe any interest, or any money in lieu of interest, on any dividend
payment(s) on any series of the preferred stock which may be past due.
REDEMPTION
We may redeem all or part of a series of the preferred stock and that
series may be subject to mandatory redemption under a sinking fund or otherwise,
as described in the applicable prospectus supplement. Redeemed shares of
preferred stock will become authorized but unissued shares of preferred stock
that we may issue in the future.
If a series of the preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of preferred stock are
redeemed, we will pay all accrued and unpaid dividends on those shares to, but
excluding, the redemption date. The prospectus supplement will also specify
whether the redemption price will be paid in cash or other property. If we are
only permitted to pay the redemption price for a series of preferred stock from
the proceeds of a capital stock issuance, and the proceeds from the issuance are
insufficient or no such issuance has occurred, then the terms of that series may
provide that the preferred stock will automatically and mandatorily be converted
into that capital stock.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, our board of directors will determine the number of
shares to be redeemed. We will redeem the shares pro rata from the holders of
record in proportion to the number of shares held by them, with adjustments to
avoid redemption of fractional shares.
Even though the terms of a series of preferred stock may permit redemption
of all or a part of the preferred stock, if any dividends, including accumulated
dividends, on that series are past due:
- we will not redeem any preferred stock of that series unless we
simultaneously redeem all outstanding preferred stock of that series; and
- we will not purchase or otherwise acquire any preferred stock of that
series.
The prohibition described in the prior sentence will not prohibit us from
purchasing or acquiring preferred stock of that series under a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 and 60 days prior to the date fixed for
redemption, unless we issue depositary shares representing interests in shares
of preferred stock, in which case we will send a notice to the depositary
between 40 and 70 days prior to the date fixed for redemption. We will mail the
notices to the holders' addresses as they appear on our stock records. Each
notice will state:
- the redemption date;
- the number of shares and the series of the preferred stock to be
redeemed;
- the redemption price;
- the place or places where holders can surrender the certificates for the
preferred stock for payment of the redemption price;
- that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
- the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the preferred stock held by
any holder, we will also specify in the notice the number of shares to be
redeemed from the holder.
18
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
- dividends will no longer accrue on the preferred stock called for
redemption;
- those shares will no longer be considered outstanding; and
- the holders will no longer have any rights as stockholders except to
receive the redemption prices.
When the holder properly surrenders the redeemed shares, the redemption price
will be paid out of the funds provided by us. If we redeem fewer than all of the
shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
If a redemption described above is deemed to be a "tender offer" within the
meaning of Rule 14e-1 under the Exchange Act, we will comply with all applicable
provisions of the Exchange Act.
CONVERSION OR EXCHANGE
The applicable prospectus supplement relating to a series of convertible
preferred stock will describe the terms on which shares of that series are
convertible into shares of common stock or a different series of preferred stock
or exchangeable for debt securities.
RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of shares
of each series of the preferred stock offered under this prospectus and any
preferred stock ranking equal to the preferred stock offered under this
prospectus will be entitled to receive:
- liquidation distributions in the amount stated in the applicable
prospectus supplement; and
- all accrued and unpaid dividends, whether or not earned or declared.
We will pay these amounts to the holders of shares of each series of the
preferred stock, and all amounts owing on any preferred stock ranking equally
with such series of preferred stock as to distributions upon liquidation, out of
our assets available for distribution to stockholders before any distribution is
made to holders of any securities ranking junior to the series of preferred
stock upon liquidation.
The sale of all or substantially all of our property and assets, our merger
into or consolidation with any other corporation or the merger of any other
corporation into us will not be considered a dissolution, liquidation or winding
up of our business.
We will make pro rata distributions to the holders of a series of preferred
stock and any other shares of our stock ranking equal to that series of
preferred stock as to distributions upon dissolution, liquidation or winding up
of our business if:
- we voluntarily or involuntarily liquidate, dissolve or wind up our
business, and
- we do not have enough assets available for distribution to the holders of
such series of preferred stock and any other shares of our stock ranking
equal with such series as to any such distribution to pay all amounts to
which the holders are entitled.
This means the distributions we pay to the holders of all shares ranking equal
as to distributions upon dissolution, liquidation or winding up of our business
will bear the same relationship to each other that the full distributable
amounts to which those holders are respectively entitled upon dissolution,
liquidation or winding up of our business bear to each other.
After we pay the full amount of the liquidation distribution to which the
holders of a series of the preferred stock are entitled, those holders will have
no right or claim to any of our remaining assets.
19
VOTING RIGHTS
Except as described in this section or in the applicable prospectus
supplement, and except as expressly required by applicable law, the holders of
the preferred stock will not be entitled to vote. If the holders of a series of
preferred stock are entitled to vote and the applicable prospectus supplement
does not state otherwise, then each share of preferred stock will have one vote.
As more fully described under "Description of Depositary Shares" below, if we
issue depositary shares representing fractional interests in a share of
preferred stock, the holders of each depositary share will be entitled to a
fraction of a vote.
For any series of preferred stock having one vote per share, the voting
power of the series, on matters on which holders of that series and holders of
any other series of preferred stock are entitled to vote as a single class, will
solely depend on the total number of shares in that series and not the aggregate
liquidation preference or initial offering price.
Unless we receive the consent of the holders of an outstanding series of
preferred stock and the outstanding shares of all other series of preferred
stock which
- rank equal with that series either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up of our business, and
- have voting rights that are exercisable and that are similar to those of
that series, we will not:
- authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking prior to that outstanding
preferred stock with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of our business;
or
- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our restated certificate of incorporation, or of the
resolutions contained in a certificate of designation creating that
series of the preferred stock in a way that materially and adversely
affects any right, preference, privilege or voting power of that
outstanding preferred stock.
The foregoing consent must be given by the holders of at least two-thirds of all
outstanding preferred stock described in the preceding sentence, voting together
as a single class. However, we will not be required to obtain this consent with
respect to any amendment, alteration or repeal affecting the rights,
preferences, privileges or voting powers of preferred stock of the type
described above, if we only:
- increase the amount of the authorized preferred stock;
- create and issue another series of preferred stock; or
- increase the amount of authorized shares of any series of preferred
stock;
so long as that preferred stock in each case ranks equal with or junior to the
shares of preferred stock offered under this prospectus with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of our business.
OUTSTANDING PREFERRED STOCK
Unless we specify otherwise in the applicable prospectus supplement, the
preferred stock offered by this prospectus will rank equally in all respects
with our preferred stock then outstanding. Our common stock, including the
common stock that may be issued upon conversion of preferred stock or in
exchange for, or upon conversion of, debt securities or upon exercise of
securities warrants, will be subject to any prior rights of the preferred stock
then outstanding. Therefore, the rights of any preferred stock that may be
issued after the date hereof, may limit the rights of the holders of the common
stock. We had no preferred stock outstanding at June 30, 2001.
20
DESCRIPTION OF DEPOSITARY SHARES
The following summary section describes the general terms and provisions of
the depositary shares. The prospectus supplement will describe the specific
terms of the depositary shares offered through that prospectus supplement and
any general terms outlined in this section that will not apply to those
depositary shares.
We have summarized the material terms and provisions of the deposit
agreement, the depositary shares and the depositary receipts in this section. We
have also filed a form of deposit agreement, including a form of depositary
receipt, as an exhibit to the registration statement. You should read the forms
of deposit agreement and depositary receipt relating to a series of preferred
stock for additional information before you buy any depositary shares that
represent preferred stock of that series.
GENERAL
We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do so we will provide for the issuance by a
depositary to the public of receipts for depositary shares, each of which will
represent a fractional interest in a share of a particular series of preferred
stock.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a separate deposit agreement between us and a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50 million, which we refer to
in this prospectus as the "depositary". We will name the depositary in the
applicable prospectus supplement. Subject to the terms of the deposit agreement,
each owner of a depositary share will have a fractional interest in all the
rights and preferences of the preferred stock underlying the depositary share.
Those rights include any dividend, voting, redemption, conversion and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under
the deposit agreement. If you purchase fractional interests in shares of the
related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts
although not in final form. The holders of the temporary depositary receipts
will be entitled to the same rights as if they held the depositary receipts in
final form. Holders of the temporary depositary receipts can exchange them for
the final depositary receipts at our expense.
Unless we specify otherwise in the applicable prospectus supplement, you
will not be entitled to receive the whole shares of preferred stock underlying
the depositary shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record holders
of depositary shares representing the shares of preferred stock in proportion to
the numbers of depositary shares owned by the holders on the relevant record
date. The depositary will not distribute amounts less than one cent. The
depositary will distribute any balance with the next sum received for
distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will
distribute property to the holders of depositary shares, unless the depositary
determines that it is not feasible to make the distribution. If this occurs, the
depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of depositary shares.
The deposit agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the preferred stock
will be made available to the holders of depositary shares.
21
CONVERSION AND EXCHANGE
If any series of preferred stock underlying the depositary shares is
subject to conversion or exchange, the applicable prospectus supplement will
describe the rights or obligations of each record holder of depositary receipts
to convert or exchange the depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If the series of preferred stock underlying the depositary shares is
subject to redemption, all or a part of the depositary shares will be redeemed
from the redemption proceeds of that series of the preferred stock held by the
depositary. The depositary will mail notice of redemption between 30 and 60 days
prior to the date fixed for redemption to the record holders of the depositary
shares to be redeemed at their addresses appearing in the depositary's records.
The redemption price per depositary share will bear the same relationship to the
redemption price per share of preferred stock that the depositary share bears to
the underlying preferred stock. Whenever we redeem preferred stock held by the
depositary, the depositary will redeem, as of the same redemption date, the
number of depositary shares representing the preferred stock redeemed. If less
than all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata as determined by the depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon the redemption. Payments will be made when holders
surrender their depositary receipts to the depositary.
VOTING THE PREFERRED STOCK
When the depositary receives notice of any meeting at which the holders of
the preferred stock may vote, the depositary will mail information about the
meeting contained in the notice, and any accompanying proxy materials, to the
record holders of the depositary shares relating to the preferred stock. Each
record holder of such depositary shares on the record date, which will be the
same date as the record date for the preferred stock, will be entitled to
instruct the depositary as to how the preferred stock underlying the holder's
depositary shares should be voted.
The depositary will be instructed to try, if practical, to vote the number
of shares of preferred stock underlying the depositary shares according to the
instructions received. We will agree to take all action requested by and deemed
necessary by the depositary order to enable the depositary to vote the preferred
stock in that manner. The depositary will not vote any preferred stock for which
it does not receive specific instructions from the holders of the depositary
shares relating to such preferred stock.
TAXATION
Owners of depositary shares will be treated for federal income tax purposes
as if they were owners of the preferred stock represented by the depositary
shares. Accordingly, for federal income tax purposes they will have the income
and deductions to which they would be entitled if they were holders of the
preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock;
and
- the holding period for the preferred stock, in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period that the owner
held the depositary shares.
22
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless approved by the record holders of at least a majority of the
depositary shares then-outstanding. A deposit agreement may be terminated by us
or the depositary only if:
- all outstanding depositary shares relating to the deposit agreement have
been redeemed; or
- there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up of our business and the distribution has been distributed to
the holders of the related depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay associated
charges of the depositary for the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares will pay
transfer and other taxes and governmental charges and any other charges that are
stated to be their responsibility in the deposit agreement.
MISCELLANEOUS
We will forward to the depositary, for distribution to the holders of
depositary shares, all reports and communications that we must furnish to the
holders of the preferred stock.
Neither the depositary nor we will be liable if the depositary is prevented
from, or delayed by law or any circumstance beyond its control in, performing
its obligations under the deposit agreement. Our obligations and the
depositary's obligations under the deposit agreement will be limited to
performance in good faith of duties set forth in the deposit agreement. Neither
the depositary nor we will be obligated to prosecute or defend any legal
proceeding connected with any depositary shares or preferred stock unless
satisfactory indemnity is furnished to us or the depositary. We and the
depositary may rely upon written advice of counsel or accountants, or
information provided by persons presenting preferred stock for deposit, holders
of depositary shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us. We may
also remove the depositary at any time. Resignations or removals will take
effect when a successor depositary is appointed and it accepts the appointment.
The successor depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50 million.
DESCRIPTION OF COMMON STOCK
The following summary describes our common stock and the rights of the
holders thereof. The prospectus supplement will describe the specific terms on
which our common stock is being offered through that prospectus supplement,
including whether our common stock is being offered directly or in connection
with the conversion, exchange or exercise of debt securities, preferred stock,
depositary shares or securities warrants.
23
GENERAL
SHARES OUTSTANDING. As of June 30, 2001, our authorized common stock was
200,000,000 shares. From these authorized shares, we had issued 82,831,828
shares, of which 60,447,916 shares were outstanding and 22,383,912 shares were
held as treasury shares.
DIVIDENDS. Holders of common stock may receive dividends if declared by our
board of directors out of our funds that we may legally use to pay dividends. We
may pay dividends in cash, stock or other property. In certain cases, holders of
common stock may not receive dividends until we have satisfied our obligations
to any holders of outstanding preferred stock. Other restrictions on our ability
to pay dividends are described below under "-- Dividend Restrictions" and above
under "Description of Preferred Stock-Outstanding Preferred Stock."
VOTING RIGHTS. Holders of common stock have the exclusive power to vote on
all matters presented to our stockholders unless Delaware law or the certificate
of designation for an outstanding series of preferred stock gives the holders of
that preferred stock the right to vote on certain matters. Each holder of common
stock is entitled to one vote per share. Holders of common stock have no
cumulative voting rights for the election of directors. This means a holder of a
single share of common stock cannot cast more than one vote for each position to
be filled on our board of directors.
OTHER RIGHTS. If we voluntarily or involuntarily liquidate, dissolve or
wind up our business, holders of common stock will be entitled to receive pro
rata, according to shares held by them, any of our remaining assets available
for distribution to stockholders after we have provided for payment of all debts
and other liabilities, including any liquidation preference for outstanding
shares of preferred stock. When we issue securities in the future, holders of
common stock have no preemptive rights. This means the holders of common stock
have no right, as holders of common stock, to buy any portion of those issued
securities.
LISTING. Our outstanding shares of common stock are listed on the New York
Stock Exchange under the symbol "NDE." The Bank of New York serves as the
transfer agent and registrar for the common stock.
FULLY PAID. The outstanding shares of common stock are fully paid and
nonassessable. This means the full required purchase price for the outstanding
shares of common stock has been paid and that the holders of those shares will
not be assessed any additional amounts therefor. Any additional common stock
that we may issue in the future upon the conversion or exercise of other
securities offered under this prospectus will also be fully paid and
nonassessable.
RESTRICTIONS ON PAYMENT OF DIVIDENDS
We are incorporated in Delaware and are governed by the Delaware General
Corporation Law. Delaware law allows a corporation to pay dividends only out of
surplus, as determined under Delaware law, or, if there is no surplus, out of
net profits for the fiscal year in which the dividend was declared and for the
preceding fiscal year. However, under Delaware law, we cannot pay dividends out
of net profits if, after we pay the dividend, our capital would be less than the
capital represented by the outstanding stock of all classes having a preference
upon the distribution of our assets.
NOMINATION PROCEDURES
In addition to our board of directors, stockholders may nominate candidates
for election to our board of directors. However, a stockholder must follow the
advance notice procedures described in our bylaws. In general, a stockholder
must submit a written notice of the nomination to our corporate secretary at
least 90 but not more than 120 days before a scheduled meeting of our
stockholders.
PROPOSAL PROCEDURES
Stockholders can propose that business other than nominations to our board
of directors be considered at an annual meeting of stockholders only if a
stockholder follows the advance notice procedures described
24
in our bylaws. In general, a stockholder must submit a written notice of the
proposal and the stockholder's interest in the proposal to our corporate
secretary at least 90 but not more than 120 days before the date set for the
annual meeting of our stockholders
AMENDMENT OF BYLAWS
Under our bylaws, our board of directors can adopt, amend or repeal the
bylaws, subject to limitations under the Delaware General Corporation Law. Our
stockholders also have the power to change or repeal our bylaws.
SAVINGS AND LOAN HOLDING COMPANY REGULATION
Under federal laws and regulations governing savings and loan holding
companies, including IndyMac Bancorp, Inc., OTS approval must be obtained prior
to any person or entity acquiring control of IndyMac Bancorp, Inc. or IndyMac
Bank. Control is conclusively presumed to exist if, among other things, a person
or entity acquires more than 25% of any class of voting stock of IndyMac
Bancorp, Inc. (including the Common Stock) or IndyMac Bank or controls in any
manner the election of a majority of the directors of IndyMac Bancorp, Inc. or
IndyMac Bank.
DESCRIPTION OF SECURITIES WARRANTS
The following summary describes the general terms and provisions of the
securities warrants. The prospectus supplement will describe the specific terms
of the securities warrants offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those securities
warrants.
We may issue warrants for the purchase of debt securities, preferred stock,
depositary shares or common stock. Securities warrants may be issued alone or
together with debt securities, preferred stock or depositary shares offered by
any prospectus supplement and may be attached to or may be separate from those
securities. Each series of securities warrants will be issued under a separate
securities warrant agreement between us and a bank or trust company, as
securities warrant agent, which will be described in the applicable prospectus
supplement. The securities warrant agent will act solely as our agent in
connection with the securities warrants and will not act as an agent or trustee
for any holders of securities warrants.
We have filed forms of securities warrant agreements and the certificates
representing the securities warrants as exhibits to the registration statement
that contains this prospectus. You should read the applicable forms of
securities warrant agreement and securities warrant certificate for additional
information before you buy any securities warrants.
GENERAL
If securities warrants for the purchase of debt securities are offered, the
applicable prospectus supplement will describe the terms of those securities
warrants, including the following if applicable:
- the offering price;
- the currencies in which the securities warrants are being offered;
- the designation, aggregate principal amount, currencies, denominations
and terms of the series of the debt securities that may be purchased if a
holder exercises the securities warrants;
- the designation and terms of any series of debt securities, preferred
stock or depositary shares with which the securities warrants are being
offered and the number of securities warrants offered with each debt
security, share of preferred stock or depositary share;
- the date on and after which the holder of the securities warrants may
transfer them separately from the related series of debt securities,
preferred stock or depositary shares;
25
- the principal amount of the series of debt securities that may be
purchased if a holder exercises the securities warrant and the price at
which and currencies in which the principal amount may be purchased upon
exercise;
- the date on which the right to exercise the securities warrants begins
and the date on which the right expires;
- whether the securities warrants will be in registered or bearer form;
- United States federal income tax consequences; and
- any other terms of the securities warrants.
Unless we state otherwise in the applicable prospectus supplement, securities
warrants for the purchase of debt securities will be issued in registered form
only.
If securities warrants for the purchase of preferred stock, depositary
shares or common stock are offered, the applicable prospectus supplement will
describe the terms of those securities warrants, including the following if
applicable:
- the offering price;
- the total number of shares that may be purchased if a holder of the
securities warrants exercises them and, in the case of securities
warrants for preferred stock or depositary shares, the designation, total
number and terms of the series of preferred stock that can be purchased
upon exercise or that are underlying the depositary shares that can be
purchased upon exercise;
- the designation and terms of the series of debt securities, preferred
stock or depositary shares with which the securities warrants are being
offered and the number of securities warrants being offered with each
debt security, share of preferred stock or depositary share;
- the date on and after which the holder of the securities warrants may
transfer them separately from the related series of debt securities,
preferred stock or depositary shares;
- the number of shares of preferred stock, depositary shares or shares of
common stock that may be purchased if a holder exercises the securities
warrant and the price at which the preferred stock, depositary shares or
common stock may be purchased upon each exercise;
- the date on which the right to exercise the securities warrants begins
and the date on which the right expires;
- United States federal income tax consequences; and
- any other terms of the securities warrants.
Securities warrants for the purchase of preferred stock, depositary shares or
common stock will be issued in registered form only.
A holder of securities warrant certificates may exchange them for new
certificates of different denominations, present them for registration of
transfer, and exercise them at the corporate trust office of the securities
warrant agent or any other office indicated in the applicable prospectus
supplement.
Until any securities warrants to purchase debt securities are exercised,
the holder of such securities warrants will not have any of the rights of
holders of the debt securities that may be purchased upon exercise, including
any right to receive payments of principal, premium or interest on the
underlying debt securities or to enforce covenants in the applicable indenture.
Until any securities warrants to purchase preferred stock, depositary shares or
common stock are exercised, holders of those securities warrants will not have
any rights of holders of the underlying preferred stock, depositary shares or
common stock, including any right to receive dividends or to exercise any voting
rights.
26
EXERCISE OF SECURITIES WARRANTS
Each holder of a securities warrant will be entitled to purchase the
principal amount of debt securities or number of shares of preferred stock,
depositary shares or shares of common stock, as the case may be, at the exercise
price described in the applicable prospectus supplement. After the close of
business on the day when the right to exercise terminates, or a later date if we
extend the time for exercise, unexercised securities warrants will become void.
A holder of securities warrants may exercise them by following the general
procedure outlined below:
- delivering to the securities warrant agent the payment required by the
applicable prospectus supplement to purchase the underlying security;
- properly completing and signing the reverse side of the securities
warrant certificate representing the securities warrants; and
- delivering the securities warrant certificate representing the securities
warrants to the securities warrant agent, or other office indicated in
the applicable prospectus supplement, within five business days of the
securities warrant agent receiving payment of the exercise price.
If you comply with the procedures described above, your securities warrants
will be considered to have been exercised when the securities warrant agent
receives payment of the exercise price. After you have completed those
procedures, we will, as soon as practicable, issue and deliver to you the debt
securities, preferred stock, depositary shares or common stock that you
purchased upon exercise. If you exercise fewer than all of the securities
warrants represented by a securities warrant certificate, the securities warrant
agent will issue to you a new securities warrant certificate for the unexercised
amount of securities warrants. Holders of securities warrants will be required
to pay any tax or governmental charge that may be imposed in connection with
transferring the underlying securities in connection with the exercise of the
securities warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
We may amend or supplement a securities warrant agreement without the
consent of the holders of the applicable securities warrants if the changes are
not inconsistent with the provisions of the securities warrants and do not
materially adversely affect the interests of the holders of the securities
warrants. We, along with the securities warrant agent, may also modify or amend
a securities warrant agreement and the terms of the securities warrants if a
majority of the then outstanding unexercised securities warrants affected by the
modification or amendment consent. However, no modification or amendment that
accelerates the expiration date, increases the exercise price, reduces the
majority consent requirement for any such modification or amendment, or
otherwise materially adversely affects the rights of the holders of the
securities warrants may be made without the consent of each holder affected by
the modification or amendment.
COMMON STOCK WARRANT ADJUSTMENTS
Unless the applicable prospectus supplement states otherwise, the exercise
price of, and the number of shares of common stock covered by, a warrant for
common stock may be adjusted in the manner set forth in the applicable
prospectus supplement if certain events occur, including:
- if we issue capital stock as a dividend or distribution on the common
stock;
- if we subdivide, reclassify or combine the common stock;
- if we issue rights or warrants to all holders of common stock entitling
them, for a period expiring not more than 45 days after the date fixed
for determining the stockholders entitled to receive such rights or
warrants, to purchase common stock at less than the current market price,
as defined in the warrant agreement for such series of common stock
warrants; or
27
- if we distribute to all holders of common stock evidences of our
indebtedness or our assets, excluding certain cash dividends and
distributions, or if we distribute to all holders of common stock rights
or warrants, excluding those referred to in the bullet point above.
Except as stated above, the exercise price and number of shares of common
stock covered by a common stock warrant will not be adjusted if we issue common
stock or any securities convertible into or exchangeable for common stock, or
securities carrying the right to purchase common stock or securities convertible
into or exchangeable for common stock.
Holders of common stock warrants may have additional rights under the
following circumstances:
- a reclassification or change of the common stock;
- a consolidation or merger involving our company; or
- a sale or conveyance to another corporation of all or substantially all
of our property and assets.
If one of the above transactions occurs and holders of our common stock are
entitled to receive stock, securities, other property or assets, including cash,
with respect to or in exchange for common stock, the holders of the common stock
warrants then outstanding will be entitled to receive upon exercise of their
common stock warrants the kind and amount of shares of stock and other
securities or property that they would have received upon the reclassification,
change, consolidation, merger, sale or conveyance if they had exercised their
common stock warrants immediately before the transaction.
GLOBAL SECURITIES
BOOK-ENTRY, DELIVERY AND FORM
We have obtained the information in this section concerning DTC,
Clearstream, Euroclear and the book-entry system and procedures from sources
that we believe to be reliable, but we take no responsibility for the accuracy
of this information.
Unless otherwise mentioned in the relevant prospectus supplement, we
anticipate that securities other than common stock will be issued in the form of
one or more global certificates, or "global securities," registered in the name
of a depositary or its nominee. Unless otherwise mentioned in the relevant
prospectus supplement, the depositary will be The Depository Trust Company,
commonly referred to as DTC, and global securities will be registered, at the
request of DTC, in the name of Cede & Co. Beneficial interests in the global
securities will be represented through book-entry accounts of financial
institutions acting on behalf of beneficial owners as participants in DTC.
Unless otherwise mentioned in the relevant prospectus supplement, investors may
elect to hold their interests in the global securities through either DTC (in
the United States) or (in Europe) through Clearstream Banking S.A., or
"Clearstream," formerly Cedelbank, or through Euroclear Bank S.A.IN.V., as
operator of the Euroclear System, or "Euroclear." Investors may hold their
interests in the securities directly if they are participants in such systems,
or indirectly through organizations that are participants in these systems.
Clearstream and Euroclear will hold interests on behalf of their participants
through customers' securities accounts in Clearstream's and Euroclear's names on
the books of their respective depositaries, which in turn will hold these
interests in customers' securities accounts in the depositaries' names on the
books of DTC. Unless otherwise mentioned in the relevant prospectus supplement,
Citibank, N.A. will act as depositary for Clearstream and J.P. Morgan Chase &
Co. will act as depositary for Euroclear. We refer to Citibank and J.P. Morgan
Chase in these capacities as the "U.S. Depositaries." Beneficial interests in
the global securities will be held in authorized denominations of such
securities. Except as set forth below, the global securities may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee.
28
Securities represented by a global security can be exchanged for definitive
securities in registered form only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for that global security and we do not appoint a successor depositary
within 90 days after receiving that notice;
- at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934 and we do not appoint a successor
depositary within 90 days after becoming aware that DTC has ceased to be
registered as a clearing agency;
- we in our sole discretion determine that that global security will be
exchangeable for definitive securities in registered form and notify the
trustee of our decision;
- or an event of default with respect to the securities represented by that
global security has occurred and is continuing.
A global security that can be exchanged as described in the preceding
sentence will be exchanged for definitive securities issued in authorized
denominations of such securities in registered form for the same aggregate
amount. The definitive securities will be registered in the names of the owners
of the beneficial interests in the global security as directed by DTC.
If applicable, we will make payments with respect to all securities
represented by a global security to the paying agent which in turn will make
payment to DTC or its nominee, as the case may be, as the sole registered owner
and the sole holder of the securities represented by global securities.
Accordingly, we, the trustee and any paying agent will have no responsibility or
liability for:
- any aspect of DTC's records relating to, or payments made on account of,
beneficial ownership interests in a note represented by a global
security;
- any other aspect of the relationship between DTC and its participants or
the relationship between those participants and the owners of beneficial
interests in a global security held through those participants; or
- the maintenance, supervision or review of any of DTC's records relating
to those beneficial ownership interests.
DTC has advised us that its current practice is to credit participants'
accounts on each payment date with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such global security
as shown on DTC's records, upon DTC's receipt of funds and corresponding detail
information. The underwriter will initially designate the accounts to be
credited. Payments by participants to owners of beneficial interests in a global
security will be governed by standing instructions and customary practices, as
is the case with securities held for customer accounts registered in "street
name," and will be the sole responsibility of those participants.
DTC
So long as DTC or its nominee is the registered owner of a global security,
DTC or its nominee, as the case may be, will be considered the sole owner and
holder of the securities represented by that global security for all purposes of
the securities. Owners of beneficial interests in the securities will not be
entitled to have securities registered in their names. Accordingly, each person
owning a beneficial interest in a global security must rely on the procedures of
DTC and, if that person is not a DTC participant, on the procedures of the
participant through which that person owns its interest, to exercise any rights
of a holder of securities. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the securities in
certificated form. These laws may impair the ability to transfer beneficial
interests in a global security.
We understand that, under existing industry practices, if we request
holders to take any action, or if an owner of a beneficial interest in a global
security desires to take any action which a holder is entitled to take, then DTC
would authorize the participants holding the relevant beneficial interests to
take that
29
action and those participants would authorize the beneficial owners owning
through such participants to take that action or would otherwise act upon the
instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers
of those ownership interests will be effected only through, records maintained
by DTC and its participants for that global security. The conveyance of notices
and other communications by DTC to its participants and by its participants to
owners of beneficial interests in the securities will be governed by
arrangements among them, subject to any statutory or regulatory requirements in
effect.
DTC has advised us that it is a limited-purpose trust company organized
under the New York banking law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered under the Securities Exchange Act of 1934.
DTC holds the securities of its participants and facilitates the clearance
and settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of its
participants. The electronic book-entry system eliminates the need for physical
certificates. DTC's participants include securities brokers and dealers,
including the underwriter, banks, trust companies, clearing corporations and
certain other organizations, some of which, and/or their representatives, own
DTC. Banks, brokers, dealers, trust companies and others that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly, also have access to DTC's book-entry system. The rules applicable to
DTC and its participants are on file with the SEC.
DTC has advised us that the above information with respect to DTC has been
provided to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
CLEARSTREAM
Clearstream has advised us that it is incorporated under the laws of
Luxembourg as a bank. Clearstream holds securities for its participating
organizations, or "Clearstream Participants," and facilitates the clearance and
settlement of securities transactions between Clearstream Participants through
electronic book-entry changes in accounts of Clearstream Participants, thereby
eliminating the need for physical movement of certificates. Clearstream provides
to Clearstream Participants, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities
and securities lending and borrowing. Clearstream interacts with domestic
securities markets in over 30 countries through established depository and
custodial relationships. As a bank, Clearstream is subject to regulation by the
Luxembourg Commission for the Supervision of the Financial Sector (Commission de
Surveillance du Secteur Financier). Clearstream Participants are recognized
financial institutions around the world, including underwriters, securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations and may include the underwriter. Clearstream's U.S.
Participants are limited to securities brokers and dealers and banks. Indirect
access to Clearstream is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream Participant either directly or indirectly.
Distributions with respect to securities held beneficially through
Clearstream will be credited to cash accounts of Clearstream Participants in
accordance with its rules and procedures, to the extent received by the U.S.
Depositary for Clearstream.
EUROCLEAR
Euroclear has advised us that it was created in 1968 to hold securities for
participants of Euroclear, or "Euroclear Participants," and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear performs various other services, including
securities lending and borrowing and interacts with domestic
30
markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V.,
or the "Euroclear Operator," under contract with Euroclear Clearance Systems
plc, a Belgian corporation. All operations are conducted by the Euroclear
Operator, and all Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not Euroclear Clearance
Systems. Euroclear Clearance Systems establishes policy for Euroclear on behalf
of Euroclear Participants. Euroclear Participants include banks, including
central banks, securities brokers and dealers and other professional financial
intermediaries and may include the underwriter. Indirect access to Euroclear is
also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is a Belgian bank. As such it is regulated by the
Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System, and applicable Belgian
law, which we refer to in this prospectus as the "Terms and Conditions." The
Terms and Conditions govern transfers of securities and cash within Euroclear,
withdrawals of securities and cash from Euroclear, and receipts of payments with
respect to securities in Euroclear. All securities in Euroclear are held on a
fungible basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under the Terms and
Conditions only on behalf of Euroclear Participants, and has no record of or
relationship with persons holding through Euroclear Participants.
Distributions with respect to securities held beneficially through
Euroclear will be credited to the cash accounts of Euroclear Participants in
accordance with the Terms and Conditions, to the extent received by the U.S.
Depositary for Euroclear.
Euroclear has further advised us that investors that acquire, hold and
transfer interests in the securities by book-entry through accounts with the
Euroclear Operator or any other securities intermediary are subject to the laws
and contractual provisions governing their relationship with their intermediary,
as well as the laws and contractual provisions governing the relationship
between such an intermediary and each other intermediary, if any, standing
between themselves and the global securities.
The Euroclear Operator has advised us that under Belgian law, investors
which are credited with securities on the records of the Euroclear Operator have
a co-proprietary right in the fungible pool of interests in securities on
deposit with the Euroclear Operator in an amount equal to the amount of
interests in securities credited to their accounts. In the event of the
insolvency of the Euroclear Operator, Euroclear Participants would have a right
under Belgian law to the return of the amount and type of interests in
securities credited to their accounts with the Euroclear Operator. If the
Euroclear Operator did not have a sufficient amount of interests in securities
on deposit of a particular type to cover the claims of all Euroclear
Participants credited with such interests in securities on the Euroclear
Operator's records, all Euroclear Participants having an amount of interests in
securities of such type credited to their accounts with the Euroclear Operator
would then have the right under Belgian law only to the return of their pro rata
share of the amount of interests in securities actually on deposit. Under
Belgian law, the Euroclear Operator is required to pass on the benefits of
ownership in any interests in securities on deposit with it (such as dividends,
voting rights and other entitlements) to any person credited with such interest
in securities on its records.
GLOBAL CLEARANCE AND SETTLEMENT PROCEDURES
Initial settlement for the securities will be made in immediately available
funds. Secondary market trading between DTC participants will occur in the
ordinary way in accordance with DTC rules and will be settled in immediately
available funds using DTC's Same-Day Funds Settlement System. Secondary market
trading between Clearstream Participants and/or Euroclear Participants will
occur in the ordinary way in accordance with the applicable rules and operating
procedures of Clearstream and Euroclear and will be settled using the procedures
applicable to conventional eurobonds in immediately available funds.
31
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream
Participants or Euroclear Participants, on the other, will be effected through
DTC in accordance with DTC rules on behalf of the relevant European
international clearing system by its U.S. Depositary; however, such cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving securities through DTC, and making or receiving payment in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Clearstream Participants and Euroclear Participants may not deliver
instructions directly to their respective U.S. Depositaries.
Because of time-zone differences, credits of securities received through
Clearstream or Euroclear as a result of a transaction with a DTC participant
will be made during subsequent securities settlement processing and dated the
business day following the DTC settlement date. Such credits or any transactions
in such securities settled during such processing will be reported to the
relevant Euroclear Participants or Clearstream Participants on such business
day. Cash received in Clearstream or Euroclear as a result of sales of
securities by or through a Clearstream Participant or a Euroclear Participant to
a DTC participant will be received with value on the DTC settlement date but
will be available in the relevant Clearstream or Euroclear cash account only as
of the business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of securities among participants of
DTC, Clearstream and Euroclear, they are under no obligation to perform or
continue to perform such procedures and such procedures may be modified or
discontinued at any time. Neither we nor the paying agent will have any
responsibility for the performance by DTC, Euroclear or Clearstream or their
respective direct or indirect participants of their obligations under the rules
and procedures governing their operations.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus through agents,
through underwriters or dealers or directly to one or more purchasers. We may
also offer the securities in exchange for our outstanding indebtedness.
Underwriters, dealers and agents that participate in the distribution of
the securities offered under this prospectus may be underwriters as defined in
the Securities Act of 1933 and any discounts or commissions received by them
from us and any profit on the resale of the offered securities by them may be
treated as underwriting discounts and commissions under the Securities Act. Any
underwriters or agents will be identified and their compensation, including
underwriting discount, will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities exchanges
on which the offered securities may be listed.
The distribution of the securities offered under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to the prevailing market prices or at negotiated prices.
We may determine the price or other terms of the securities offered under
this prospectus by use of an electronic auction. We will describe in the
applicable prospectus supplement how any auction will be conducted to determine
the price or any other terms of the securities, how potential investors may
participate in the auction and, where applicable, the nature of the
underwriters' obligations with respect to the auction.
If the securities offered under this prospectus are issued in exchange for
outstanding securities issued by us, the applicable prospectus supplement will
set forth the terms of the exchange, the identity of and the terms of sale of
the securities offered under this prospectus by the selling security holders.
32
If the applicable prospectus supplement so indicates, we will authorize
dealers or our agents to solicit offers by institutions to purchase offered
securities from us under contracts that provide for payment and delivery on a
future date. We must approve all institutions, but they may include, among
others:
- commercial and savings banks;
- insurance companies;
- pension funds;
- investment companies; and
- educational and charitable institutions.
The institutional purchaser's obligations under the contract will only be
subject to the condition that the purchase of the offered securities at the time
of delivery is allowed by the laws that govern the purchaser. The dealers and
our agents will not be responsible for the validity or performance of the
contracts.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
If we offer bearer debt securities under this prospectus, each underwriter,
dealer and agent that participates in the distribution of any original issuance
of bearer debt securities will agree not to offer, sell or deliver bearer debt
securities to a United States citizen or to any person within the United States,
unless permitted by federal law.
When we issue the securities offered by this prospectus, except for shares
of common stock, the securities may be new securities without an established
trading market. If we sell a security offered by this prospectus to an
underwriter for public offering and sale, the underwriter may make a market for
that security, but the underwriter will not be obligated to do so and could
discontinue any market making without notice at any time. Therefore, we cannot
give any assurances to you concerning the liquidity of any security offered by
this prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
LEGAL MATTERS
Unless the applicable prospectus supplement indicates otherwise, certain
matters of Delaware law relating to the validity of the securities offered by a
prospectus supplement will be passed upon for us by Richards, Layton & Finger,
special Delaware counsel. Certain legal matters will be passed upon for us by
Mayer, Brown & Platt, Los Angeles, California, and for any underwriters or
agents by counsel for such underwriters. Mayer, Brown & Platt and such counsel
will rely upon Richards, Layton & Finger as to matters of Delaware law.
EXPERTS
The consolidated financial statements of IndyMac Bancorp, Inc. for the
years ended December 31, 2000, December 31, 1999 and December 31, 1998
incorporated by reference from IndyMac Bancorp's Annual Report on Form 10-K for
the year ended December 31, 2000, have been audited by Grant Thornton LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
33
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 28, 2001
PROSPECTUS
Junior Subordinated Debt Securities
INDYMAC BANCORP, INC.
-------------------------
INDYMAC CAPITAL TRUST I
INDYMAC CAPITAL TRUST II
INDYMAC CAPITAL TRUST III
INDYMAC CAPITAL TRUST IV
Trust Preferred Securities
Guaranteed As Stated Herein By IndyMac Bancorp, Inc.
-------------------------
THE TRUSTS
The trusts are Delaware business trusts. Each trust may from time to time:
- sell trust preferred securities representing undivided beneficial
interests in the trust to the public.
- sell common securities representing undivided beneficial interests in the
trust to IndyMac Bancorp, Inc.
- use the proceeds from these sales to buy junior subordinated debentures
of IndyMac Bancorp, Inc.
- distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the trust preferred and common
securities.
DISTRIBUTIONS
For each trust preferred security that you own, you will be entitled to
receive cumulative cash distributions at a rate set forth in the accompanying
prospectus supplement on the liquidation amount of the preferred security. The
liquidation amount per trust preferred security will be set forth in the
accompanying prospectus supplement.
INDYMAC BANCORP, INC.
IndyMac Bancorp, Inc. will guarantee, as described in this prospectus, the
payment by the trust of the trust preferred securities based on obligations
discussed herein. This is called the trust preferred securities guarantee.
We will offer the securities in amounts, at prices and on terms to be
determined by market conditions at the time of our offering.
We will provide the specific terms of the securities we offer from time to
time in supplements to this prospectus. You should read this prospectus and the
prospectus supplements carefully before you invest in the securities. This
prospectus may not be used to consummate sales of securities unless accompanied
by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------------------
These securities are our unsecured obligations and are not savings
accounts, deposits or other obligations of any subsidiary of IndyMac Bancorp,
Inc. These securities are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
-------------------------
This prospectus is dated , 2001.
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND
THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering in
three separate documents that provide progressively more detail:
- this prospectus, which provides general information, some of which may
not apply to the securities being offered to you;
- an accompanying prospectus supplement, which describes the terms of the
type or types of securities then being offered directly by us or by an
underwritten public offering, some of which may not apply to the
securities you are considering; and
- if necessary, a pricing supplement, which describes the specific terms of
your securities.
If the descriptions of the terms of your securities vary between the
pricing supplement, the prospectus supplement and the accompanying prospectus,
you should rely on the information in the following order of priority:
- the pricing supplement, if any;
- the prospectus supplement; and
- this prospectus.
Unless indicated in the applicable prospectus supplement, neither we nor
the underwriters have taken any action that would permit us to publicly sell
these securities in any jurisdiction outside the United States. If you are an
investor outside the United States, you should inform yourself about and comply
with any restrictions as to the offering of the securities and the distribution
of this prospectus.
TABLE OF CONTENTS
[Download Table]
PAGE
----
About This Prospectus................... 1
Where You Can Find More Information..... 1
Incorporation of Certain Information by
Reference............................. 1
Forward-Looking Statements.............. 2
IndyMac Bancorp, Inc.................... 3
Regulatory Matters...................... 4
The Trusts.............................. 5
Use of Proceeds......................... 6
Ratio of Earnings to Fixed Charges...... 7
Description of Junior Subordinated Debt
Securities............................ 7
[Download Table]
PAGE
----
Description of Trust Preferred
Securities............................ 19
Common Securities....................... 30
Description of Guarantees............... 31
Relationship Among Trust Preferred
Securities, Corresponding Junior
Subordinated Debt Securities and
Guarantees............................ 33
Global Securities....................... 35
Plan of Distribution.................... 39
Legal Matters........................... 40
Experts................................. 40
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that IndyMac Bancorp,
Inc. and IndyMac Capital Trust I, IndyMac Capital Trust II, IndyMac Capital
Trust III, and IndyMac Capital Trust IV, or the "trusts", filed with the
Securities and Exchange Commission, or "SEC," using a "shelf" registration
process. Under this shelf registration process, we may sell, either separately
or in units, debt securities, preferred stock, depositary shares, common stock
and securities warrants. We may also issue common stock upon conversion,
exchange or exercise of any of the securities mentioned above. The trusts may
sell trust preferred securities representing undivided beneficial interests in
the trusts to the public and common securities to us in one or more offerings.
This prospectus provides you with a general description of some of the
securities. Each time we or a trust sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about
us, the trusts and the securities offered under this prospectus. The
registration statement can be read at the SEC web site or at the SEC offices
mentioned under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the offices of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents in this prospectus. The information incorporated by
reference is an important part of this prospectus. Some information contained in
this prospectus updates the information incorporated by reference, and
information that we file subsequently with the SEC will automatically update
this prospectus. In other words, in the case of a conflict or inconsistency
between information set forth in this prospectus and information incorporated by
reference into this prospectus, you should rely on the information contained in
the document that was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 after the initial filing of
the registration statement that contains this prospectus and prior to the time
that we sell all the securities offered by this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 2000,
including information specifically incorporated by reference into our
Form 10-K from our definitive Proxy Statement for our 2001 Annual Meeting
of Stockholders; and
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and
June 30, 2001.
1
You may request a copy of these filings, other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing,
at no cost, by writing to or telephoning us at the following address:
IndyMac Bancorp, Inc.
155 North Lake Avenue
Pasadena, California 91101-7211
Attention: Investor Relations
Telephone: (800) 669-2300
You should rely only on the information incorporated by reference or
presented in this prospectus or the applicable prospectus supplement. Neither we
nor the trusts, nor any underwriters or agents, have authorized anyone else to
provide you with any different information. IndyMac Bancorp, Inc. and the trusts
may only use this prospectus to sell securities if it is accompanied by a
prospectus supplement. IndyMac Bancorp, Inc. and the trusts are only offering
these securities in states where the offer is permitted by applicable state law.
You should not assume that the information in this prospectus or the applicable
prospectus supplement is accurate as of any date other than the dates on the
front of those documents.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus may be deemed to be
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements include statements regarding liquidity, provisions
for loan losses, capital resources, anticipated future earnings and expense
levels and other anticipated aspects of future operations. Forward-looking
statements typically include the words "anticipate," "believe," "estimate,"
"expect," "project," "plan," "forecast," "intend," and other similar
expressions. These statements reflect our current views with respect to future
events and financial performance. They are subject to risks and uncertainties,
including those identified below, which could cause future results to differ
materially from historical results or from the results anticipated. Readers are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of their respective dates or as of the date hereof if no other
date is identified. We undertake no obligation to update or revise any forward-
looking statements, whether as a result of new information, future events or
otherwise.
The following factors, among others, could cause future results to differ
materially from historical results or those anticipated in any forward-looking
statements herein:
(1) the level of demand for consumer loans, mortgage loans and
construction loans, which can be affected by such external factors as (a)
the level of interest rates, (b) tax laws, (c) the strength of various
segments of the economy (including the strength of the stock market), and
(d) the demographics of our lending markets;
(2) the direction of interest rates and the relationship between
interest rates and our assets, liabilities, and hedging strategies;
(3) the accuracy of our estimates used in determining the fair value
of certain assets such as AAA rated interest only securities, mortgage
servicing rights, non-investment grade securities and residual securities;
(4) the rate of loan losses we incur, the level of loss reserves we
maintain, and our management's judgments regarding the collectibility of
loans;
(5) our liquidity requirements, which may change as a result of
fluctuations in our assets and liabilities and off-balance sheet exposures;
2
(6) the implementation of recently issued Financial Accounting
Standards Board pronouncements (SFAS 133, SFAS 137 and SFAS 138) may cause
increased volatility in our earnings reported in accordance with accounting
principles generally accepted in the United States of America;
(7) federal and state regulation of our consumer lending and banking
operations -- our principal subsidiary is a regulated federal savings bank;
(8) actions undertaken by our current and potential competitors, many
of which have lower costs of funds or other competitive advantages over us;
(9) the availability of funds from our lenders and other sources of
financing that support our lending activities;
(10) decisions to securitize, sell or purchase loans or securities;
(11) our management of the borrower, industry, product and geographic
concentrations represented in our loan portfolio;
(12) the degree of our success in executing upon our growth plans for
our consumer and mortgage banking operations;
(13) economic downturns or natural disasters in our principal lending
markets, including California, Florida, New Jersey and New York; and
(14) other risks and uncertainties detailed in our Annual Report on
Form 10-K for the year ended December 31, 2000, and in our Quarterly Report
on Form 10-Q for the quarter ended June 30, 2001, in each case under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
In addition, the banking industry in general is subject to various monetary
and fiscal policies and regulations, which include those determined by the
Federal Reserve Board, the Federal Deposit Insurance Corporation, or "FDIC," and
the Office of Thrift Supervision, or "OTS," which policies and regulations could
affect our results.
Also, our operations are centered in the State of California and are
heavily dependent upon the steady supply of electrical power. Although we have
not experienced energy shortages to date, at the date of this prospectus, there
exists uncertainty as to the steady availability of electrical power throughout
the State of California in the foreseeable future. Extended shortages of energy
could have an adverse impact on us.
INDYMAC BANCORP, INC.
IndyMac Bancorp, Inc. conducts a diversified mortgage banking business,
manages an investment portfolio, and offers commercial lending and retail
banking products. Our mortgage banking group is our core business. It is a
technology based, highly scalable operation that includes the following distinct
channels: (1) a business-to-business ("B2B") channel, with mortgage brokers,
small mortgage bankers and community financial institutions effectively provide
us with access to a variable cost, nationwide "virtual" branch network, (2) a
branchless, technology driven, business-to-consumer ("B2C") channel and (3) a
business-to-realtor ("B2R" or "LoanWorks") channel, which allows real estate
professionals to utilize our technology to fulfill the mortgage loan process for
their customers in the process of purchasing a home. We have been able to
successfully expand and leverage our proprietary loan approval and pricing
system, e-MITS(R)(1) across our mortgage banking channels. These channels
provide us with comprehensive coverage of the consumer mortgage market.
On July 1, 2000, we acquired SGV Bancorp, Inc., or SGVB. SGVB was the
parent of First Federal Savings and Loan Association of San Gabriel Valley, a
federal savings bank. As of the acquisition date, SGVB had assets of $490.8
million, deposits of $355.7 million, and shareholders' equity of $37.5 million.
---------------
(1) Patent Pending
3
We paid $25.00 per share, or $59.5 million, to acquire SGVB. We contributed
substantially all of our assets and operations to our new subsidiary bank, which
is now known as IndyMac Bank, F.S.B., or "IndyMac Bank."
We invest in residential loans and mortgage securities retained in
connection with the issuance of mortgage-backed securities, purchased in the
secondary mortgage market, or originated through B2C. We act as primary servicer
and master servicer with respect to substantially all the mortgage loans we sell
pursuant to private-label securitizations and loans sold to government sponsored
entities.
We conduct our builder construction lending activities through our
Construction Lending Corporation of America division, which offers a variety of
residential construction, land and lot loan programs for builders and
developers.
REGULATORY MATTERS
GENERAL
As a savings and loan holding company, IndyMac Bancorp, Inc. is subject to
regulation by the OTS under the holding company provisions of the federal Home
Owners' Loan Act, or "HOLA." As a federally chartered and insured stock savings
association, IndyMac Bank is subject to regulation and supervision by the OTS,
which is the primary federal regulator of savings associations, and the FDIC, in
its role as federal deposit insurer. The primary purpose of the statutory and
regulatory scheme is to protect depositors, the financial institutions and the
financial system as a whole rather than the shareholders of financial
institutions or their holding companies. The following summary is not intended
to be a complete description of the applicable laws and regulations or their
effects on IndyMac Bancorp, Inc., and it is qualified in its entirety by
reference to the particular statutory and regulatory provisions described.
HOLDING COMPANY REGULATION
IndyMac Bancorp, Inc. is classified as a unitary savings and loan holding
company under HOLA, meaning generally that it owns only one savings association.
In contrast to bank holding companies, only limited restrictions apply to the
business activities of a unitary savings and loan holding company and its
non-savings association subsidiaries. Recently enacted federal legislation,
known as the Gramm-Leach-Bliley Act, or the "G-L-B Act," imposes new activity
restrictions upon newly registered unitary savings and loan holding companies
that are not "grandfathered" under the G-L-B Act. Notwithstanding its status as
a "grandfathered" unitary savings and loan holding company under the G-L-B Act,
if IndyMac Bank fails to meet the Qualified Thrift Lender, or "QTL," Test (as
discussed under "Regulation of IndyMac Bank" in our Annual Report on Form 10-K
for the year ended December 31, 2000), IndyMac Bancorp, Inc. will become subject
to the activities restrictions applicable to multiple savings and loan holding
companies and, unless IndyMac Bank requalifies as a QTL within one year, will be
required to register as a bank holding company and become subject to the
restrictions applicable thereto.
Transactions between a savings association and its "affiliates" are subject
to quantitative and qualitative restrictions under Sections 23A and 23B of the
Federal Reserve Act. Affiliates of a savings association include, among other
entities, the savings association's holding company and non-banking companies
that are under common control with the savings association. In general, the
restrictions of Sections 23A and 23B do not apply to transactions between a
savings association and its subsidiaries, or its sister organizations that
themselves are banks or savings associations.
LIMITATIONS ON CAPITAL DISTRIBUTIONS FROM INDYMAC BANK
The ability of IndyMac Bancorp, Inc. to make payments with respect to the
securities offered by this prospectus will depend in part upon the receipt of
funds from its principal subsidiary, IndyMac Bank. The OTS capital regulations
contain "prompt corrective action" provisions that require certain mandatory
remedial actions and authorize certain other discretionary actions to be taken
by the OTS against a savings
4
association that falls within specified categories of capital deficiency. The
relevant regulation establishes five categories of capital classification for
this purpose, ranging from "well capitalized" or "adequately capitalized"
through "undercapitalized", "significantly undercapitalized" and "critically
undercapitalized." IndyMac Bank is currently a "well capitalized" institution.
In general, the prompt corrective action regulations prohibit an
OTS-regulated institution from declaring any dividends, making any other capital
distribution or paying a management fee to a controlling person, such as its
parent holding company, if, following the distribution or payment, the
institution would be within any of the three undercapitalized categories.
In addition to the prompt corrective action restriction on paying dividends
described above, OTS regulations limit "capital distributions" by savings
associations, which term includes, among other things, dividends and payments
for stock repurchases.
Under the capital distribution regulations, a savings association that is a
subsidiary of a savings and loan holding company must notify the OTS of a
proposed capital distribution at least 30 days prior to the declaration of the
capital distribution. The 30-day period provides the OTS an opportunity to
object to the proposed distribution if it believes that the distribution would
not be advisable.
An application to the OTS for specific approval to pay a dividend, rather
than the notice procedure described above, is required if: (a) the total of all
capital distributions made during a calendar year (including the proposed
distribution) exceeds the sum of the institution's year-to-date net income and
its retained income for the preceding two years, (b) the institution is not
entitled under OTS regulations to "expedited treatment" (which is generally
available to institutions the OTS regards as well run and adequately
capitalized), (c) the institution would not be at least "adequately capitalized"
following the proposed capital distribution or (d) the distribution would
violate an applicable statute, regulation, agreement or condition imposed on the
institution by the OTS.
THE TRUSTS
Each trust is a statutory business trust formed under Delaware law pursuant
to a trust agreement, signed by IndyMac Bancorp, Inc., as depositor of the
trust, the property trustee, the Delaware trustee and the administrative
trustees, each as defined below, and the filing of a certificate of trust with
the Delaware Secretary of State. The trust agreement of the applicable trust
will be amended and restated in its entirety before the issuance of trust
preferred securities by such trust. We will refer in this prospectus to such
trust agreement, as so amended and restated, as the "trust agreement." Each
trust agreement will be qualified as an indenture under the Trust Indenture Act
of 1939.
Each trust exists for the exclusive purposes of:
- issuing trust preferred securities and common securities representing
undivided beneficial interests in the assets of such trust;
- investing the gross proceeds of the sale of trust preferred securities
and common securities, collectively referred to in this prospectus as the
"trust securities", in junior subordinated debt securities; and
- engaging only in those activities necessary or incidental thereto.
All of the common securities of the trusts will be directly or indirectly
owned by us. The common securities of a trust rank equally with the trust
preferred securities of the issuing trust. A trust will make payment on its
trust preferred securities pro rata, except that upon an event of default under
the applicable trust agreement, the rights of the holders of the common
securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the trust preferred securities. We will acquire common securities of a trust in
an aggregate liquidation amount equal to at least three percent of the total
capital of the trust.
5
Each trust's business and affairs will be conducted by its trustees, each
of whom will be appointed by IndyMac Bancorp, Inc. as holder of the common
securities. The trustees will be Wilmington Trust Company, as the "property
trustee" and the "Delaware trustee", and two individual trustees, who are
referred to as the "administrative trustees" and who are employees or officers
of or affiliated with IndyMac Bancorp, Inc. Wilmington Trust Company, as
property trustee, will act as sole trustee under each trust agreement for
purposes of compliance with the Trust Indenture Act. The Bank of New York will
act as trustee under the guarantees. See "Description of Guarantees" and
"Description of Junior Subordinated Debt Securities."
If an event of default under the trust agreement has occurred and is
continuing, the holder of the common securities of a trust, or the holders of a
majority in liquidation amount of the trust preferred securities of the trust,
will be entitled to appoint, remove or replace the property trustee and/or the
Delaware trustee. The right to vote to appoint, remove or replace the
administrative trustees is vested exclusively in the holders of the common
securities, and in no event will the holders of trust preferred securities have
that right.
No separate financial statements of the trusts are included in this
prospectus. IndyMac Bancorp, Inc. and the trusts do not consider that such
financial statements would be material to the holders of trust preferred
securities because the trusts are special purpose entities, have no operating
history or independent operations and are not engaged in and do not propose to
engage in any activity other than holding as trust assets the corresponding
junior subordinated debt securities of IndyMac Bancorp, Inc. and issuing the
trust securities. Furthermore, taken together, IndyMac Bancorp, Inc.'s
obligations under each series of corresponding junior subordinated debt
securities, the junior subordinated indenture pursuant to which the
corresponding junior subordinated debt securities will be issued, the related
trust agreement, and the related guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the related trust preferred securities of each trust. For a more
detailed discussion see "Description of Trust Preferred Securities,"
"Description of Junior Subordinated Debt Securities -- Corresponding Junior
Subordinated Debt Securities" and "Description of Guarantees." In addition, we
do not expect that the trusts will be filing reports with the SEC under the
Securities Exchange Act of 1934.
Unless otherwise specified in the applicable prospectus supplement, each
trust has a term of approximately 50 years, but may be dissolved earlier as
provided in the applicable trust agreement.
IndyMac Bancorp, Inc. will pay all fees and expenses related to the trusts
and the offering of trust securities.
The principal executive office of each trust is c/o IndyMac Bancorp, Inc.,
155 North Lake Avenue, Pasadena, California 91101-7211.
USE OF PROCEEDS
Each trust will use the proceeds from the sale of its trust preferred
securities to acquire junior subordinated debentures from IndyMac Bancorp, Inc.
IndyMac Bancorp, Inc. intends to use the net proceeds from the sale of the
securities for general corporate purposes unless otherwise indicated in the
prospectus supplement or pricing supplement relating to a specific issue of
securities. Our general corporate purposes may include acquisitions of other
companies, repurchasing shares of our common stock, extending credit to, or
funding investments in, our subsidiaries and such other purposes as may be
indicated in the applicable prospectus supplement or pricing supplement. The
precise amounts and timing of our use of the net proceeds will depend upon our,
and our subsidiaries', funding requirements and the availability of other funds.
Until we use the net proceeds from the sale of any of a trust's securities for
general corporate purposes, we will use the net proceeds to reduce our
short-term indebtedness or for temporary investments.
6
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for
the five fiscal years ended December 31, 2000 and the six months ended June 30,
2000 and June 30, 2001:
[Enlarge/Download Table]
SIX MONTHS
ENDED
FISCAL YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------------ ------------
1996 1997 1998 1999 2000 2000 2001
---- ---- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits......... 1.31 1.02 1.26 1.61 1.62 1.53 2.09
Including interest on deposits......... 1.31 1.02 1.26 1.61 1.48 1.53 1.50
For purposes of computing these ratios, earnings represent income from
continuing operations before extraordinary items and cumulative effects of
changes in accounting principals plus income taxes and fixed charges (excluding
capitalized interest). Fixed charges, excluding interest on deposits, represent
interest (other than on deposits, but including capitalized interest), the
estimated interest portion of rent expense and all amortization of debt issuance
costs. Fixed charges, including interest on deposits, represent all interest,
the estimated interest portion of rent expense and all amortization of debt
issuance costs.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The following paragraphs describe the general terms and provisions of our
junior subordinated debt securities that we will issue to the trusts in exchange
for the proceeds of their sales of trust securities. The applicable prospectus
supplement will describe the specific terms of the junior subordinated debt
securities, which are sometimes referred to in this prospectus as "debt
securities", offered through that prospectus supplement and any general terms
summarized below that will not apply to those debt securities. The junior
subordinated debt securities will be issued pursuant to a junior subordinated
indenture, which is sometimes referred to in this prospectus as an "indenture",
between us and the junior subordinated trustee named in the applicable
prospectus supplement.
We have filed the form of the junior subordinated indenture as an exhibit
to the registration statement. You should read the junior subordinated indenture
for additional information before you purchase any trust preferred securities.
The actual provisions of the subordinated debentures, and not the following
summaries, will control your rights as a direct or indirect owner of the junior
subordinated debt securities. The summary that follows includes references to
section numbers of the junior subordinated indenture so that you can more easily
locate these provisions.
GENERAL
The junior subordinated debt securities will be our direct unsecured
obligations. The junior subordinated indenture does not limit the principal
amount of junior subordinated debt securities that we may issue. The junior
subordinated indenture permits us to issue junior subordinated debt securities
from time to time and junior subordinated debt securities issued under the
indenture will be issued as part of a series that has been established by us
under the indenture. (Section 301)
The junior subordinated debt securities will be unsecured and will rank
equally with all of our other junior subordinated debt and, together with such
other junior subordinated debt, will be subordinated to all of our existing and
future Senior Debt. See "-- Subordination" below.
The junior subordinated debt securities are our unsecured junior
subordinated debt securities, but our assets consist primarily of equity in our
subsidiaries. As a result, our ability to make payments on our junior
subordinated debt securities depends on our receipt of dividends, loan payments
and other funds from our subsidiaries. In addition, if any of our subsidiaries
becomes insolvent, the direct creditors of that subsidiary will have a prior
claim on its assets. Our rights and the rights of our creditors will be subject
to that prior claim, unless we are also a direct creditor of that subsidiary.
This subordination of creditors of a
7
parent company to prior claims of creditors of its subsidiaries is commonly
referred to as "structural subordination."
A prospectus supplement relating to a series of junior subordinated debt
securities being offered will include specific terms relating to the offering.
(Section 301) These terms will include some or all of the following:
- the title and type of the debt securities;
- any limit on the total principal amount of the debt securities of that
series;
- the price at which the debt securities will be issued;
- the date or dates on which the principal of and any premium on the debt
securities will be payable;
- the maturity date or dates of the debt securities or the method by which
those dates can be determined;
- if the debt securities will bear interest:
- the interest rate on the debt securities or the method by which the
interest rate may be determined;
- the date from which interest will accrue;
- the record and interest payment dates for the debt securities;
- the first interest payment date; and
- any circumstances under which we may defer interest payments;
- the place or places where:
- we can make payments on the debt securities;
- the debt securities can be surrendered for registration of transfer or
exchange; and
- notices and demands can be given to us relating to the debt securities
and under the indenture;
- any optional redemption provisions that would permit us or the holders of
debt securities to elect redemption of the debt securities before their
final maturity;
- any sinking fund provisions that would obligate us to redeem the debt
securities before their final maturity;
- whether the debt securities will be convertible into shares of common
stock, shares of preferred stock or depositary shares and, if so, the
terms and conditions of any such conversion, and, if convertible into
shares of preferred stock or depositary shares, the terms of such
preferred stock or depositary shares;
- if the debt securities will be issued in bearer form, the terms and
provisions contained in the bearer securities and in the indenture
specifically relating to the bearer securities;
- the currency or currencies in which the debt securities will be
denominated and payable, if other than U.S. dollars and, if a composite
currency, any special provisions relating thereto;
- any circumstances under which the debt securities may be paid in a
currency other than the currency in which the debt securities are
denominated and any provisions relating thereto;
- whether the provisions described below under the heading "-- Defeasance"
apply to the debt securities;
- any events of default under the indenture which will apply to the debt
securities in addition to those contained in such indenture;
8
- any additions or changes to the covenants contained in the junior
subordinated indenture and the ability, if any, of the holders to waive
our compliance with those additional or changed covenants;
- whether all or part of the debt securities will be issued in whole or in
part as temporary or permanent global securities and, if so, the
depositary for those global securities and a description of any
book-entry procedures relating to the global securities -- a "global
security" is a debt security that we issue in accordance with the junior
subordinated indenture to represent all or part of a series of debt
securities;
- if we issue temporary global securities, any special provisions dealing
with the payment of interest and any terms relating to the ability to
exchange interests in a temporary global security for interests in a
permanent global security or for definitive debt securities;
- the identity of the security registrar and paying agent for the debt
securities if other than the junior subordinated trustee;
- any special tax implications of the debt securities;
- any special provisions relating to the payment of any additional amounts
on the debt securities;
- the terms of any securities being offered together with or separately
from the debt securities;
- the terms and conditions of any obligation or right of IndyMac Bancorp,
Inc. or a holder to convert or exchange the debt securities into trust
preferred securities or other securities; and
- any other terms of the debt securities.
When we use the term "holder" in this prospectus with respect to a
registered debt security, we mean the person in whose name such debt security is
registered in the security register. (Section 101)
ADDITIONAL INTEREST
If a trust is required to pay any taxes, duties, assessments or
governmental charges of whatever nature, other than withholding taxes, imposed
by the United States, or any other taxing authority, then we will be required to
pay additional interest on the related junior subordinated debt securities. The
amount of any additional interest will be an amount sufficient so that the net
amounts received and retained by such trust after paying any such taxes, duties,
assessments or other governmental charges will be not less than the amounts that
such trust would have received had no such taxes, duties, assessments or other
governmental charges been imposed. This means that the trust will be in the same
position it would have been in if it did not have to pay such taxes, duties,
assessments or other charges. (Section 1007)
PAYMENT; EXCHANGE; TRANSFER
We will designate a place of payment where you can receive payment of the
principal of and any premium and interest on the junior subordinated debt
securities. Even though we will designate a place of payment, we may elect to
pay any interest on the junior subordinated debt securities by mailing a check
to the person listed as the owner of the junior subordinated debt securities in
the security register or by wire transfer to an account designated by that
person in writing not less than ten days before the date of the interest
payment. Unless we state otherwise in the applicable prospectus supplement, we
will pay interest on a junior subordinated debt security:
- on an interest payment date, to the person in whose name that junior
subordinated debt security is registered at the close of business on the
record date relating to that interest payment date; and
- on the date of maturity or earlier redemption or repayment, to the person
who surrenders such debt security at the office of our appointed paying
agent. (Sections 307, 1002)
Any money that we pay to a paying agent for the purpose of making payments
on the junior subordinated debt securities and that remains unclaimed two years
after the payments were due will, at our
9
request, be returned to us and after that time any holder of such debt security
can only look to us for the payments on such debt security. (Section 1003)
Any junior subordinated debt securities of a series can be exchanged for
other junior subordinated debt securities of that series so long as the other
debt securities are denominated in authorized denominations and have the same
aggregate principal amount and same terms as the junior subordinated debt
securities that were surrendered for exchange. The junior subordinated debt
securities may be presented for registration of transfer, duly endorsed or
accompanied by a satisfactory written instrument of transfer, at the office or
agency maintained by us for that purpose in a place of payment. There will be no
service charge for any registration of transfer or exchange of the junior
subordinated debt securities, but we may require you to pay any tax or other
governmental charge payable in connection with a transfer or exchange of the
junior subordinated debt securities. (Sections 305, 1002) If the applicable
prospectus supplement refers to any office or agency, in addition to the
security registrar, initially designated by us where you can surrender the
junior subordinated debt securities for registration of transfer or exchange, we
may at any time rescind the designation of any such office or agency or approve
a change in the location of that office. However, we will be required to
maintain an office or agency in each place of payment for that series. (Section
1002)
In the event of any redemption, neither we nor the junior subordinated
trustee will be required to:
- issue, register the transfer of, or exchange, junior subordinated debt
securities of any series during a period beginning at the opening of
business 15 days before the day of mailing of the notice of redemption
and ending at the close of business on the day of mailing of the notice
of redemption; or
- transfer or exchange any junior subordinated debt securities so selected
for redemption, except, in the case of any junior subordinated debt
securities being redeemed in part, any portion thereof not to be
redeemed. (Section 305)
DENOMINATIONS
Unless we state otherwise in the applicable prospectus supplement, the
junior subordinated debt securities will be issued only in registered form,
without coupons, in denominations of $1,000 each or multiples of $1,000.
BEARER DEBT SECURITIES
If we ever issue bearer debt securities, the applicable prospectus
supplement will describe all of the special terms and provisions of junior
subordinated debt securities in bearer form, and the extent to which those
special terms and provisions are different from the terms and provisions which
are described in this prospectus, which generally apply to junior subordinated
debt securities in registered form, and will summarize provisions of the junior
subordinated indenture that relate specifically to bearer debt securities.
ORIGINAL ISSUE DISCOUNT
Junior subordinated debt securities may be issued under the junior
subordinated indenture as original issue discount securities and sold at a
substantial discount below their stated principal amount. If a junior
subordinated debt security is an original issue discount security, that means
that an amount less than the principal amount of the debt security will be due
and payable upon a declaration of acceleration of the maturity of the debt
security under the junior subordinated indenture. (Section 101) The applicable
prospectus supplement will describe the federal income tax consequences and
other special factors you should consider before purchasing any original issue
discount securities.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable prospectus supplement, we will have the right
from time to time to defer payment of interest on a series of junior
subordinated debt securities for up to such number of consecutive
10
interest payment periods as may be specified in the applicable prospectus
supplement, subject to the terms, conditions and covenants, if any, specified in
such prospectus supplement. Such deferral, however, may not extend beyond the
stated maturity of such series of junior subordinated debt securities. Certain
United States federal income tax consequences and special considerations
applicable to any such debt securities will be described in the applicable
prospectus supplement.
REDEMPTION
Unless otherwise specified in the applicable prospectus supplement, the
junior subordinated debt securities will not be subject to any sinking fund.
Unless otherwise specified in the applicable prospectus supplement, we may,
at our option, redeem the junior subordinated debt securities of any series in
whole at any time or in part from time to time. If the junior subordinated debt
securities of any series are redeemable only on or after a specified date or
upon the satisfaction of additional conditions, the applicable prospectus
supplement will specify such date or describe such conditions. Except as
otherwise specified in the applicable prospectus supplement, the redemption
price for any junior subordinated debt security so redeemed will equal 100% of
the principal amount of such junior subordinated debt security plus accrued and
unpaid interest to the redemption date.
Except as otherwise specified in the applicable prospectus supplement, we
may, at our option, redeem a series of junior subordinated debt securities in
whole, but not in part, at any time within 90 days after the occurrence of a tax
event or investment company event, each as defined below, at a redemption price
equal to 100% of the principal amount of such junior subordinated debt
securities then outstanding plus accrued and unpaid interest to the redemption
date. (Section 1107)
"Tax event" means the receipt by a trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change, including any announced proposed change, in the laws or regulations
of the United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement or decision is
announced on or after the date of issuance of a series of trust preferred
securities, there is more than an insubstantial risk that:
- the trust that issued the series of trust securities is, or will be
within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the
corresponding series of junior subordinated debt securities;
- interest payable by IndyMac Bancorp, Inc. on the series of corresponding
junior subordinated debt securities is not, or within 90 days of the date
of such opinion, will not be, deductible by IndyMac Bancorp, Inc., in
whole or in part, for United States federal income tax purposes; or
- the trust that issued the series of trust securities is, or will be
within 90 days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
(Section 101)
"Investment company event" means the receipt by a trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change, including any
announced prospective change, in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act of 1940, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the trust preferred securities. (Section 101)
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of junior subordinated debt
securities to be redeemed at its registered
11
address. Unless we default in payment of the redemption price, on and after the
redemption date, interest will cease to accrue on the junior subordinated debt
securities or portions thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
If junior subordinated debt securities are issued to a trust or the trustee
of a trust in connection with the issuance of trust securities by the trust and:
- there shall have occurred and be continuing an event of default with
respect to the corresponding junior subordinated debt securities of which
we have actual knowledge and which we have not taken reasonable steps to
cure;
- we shall be in default relating to our payment of any obligations under
the corresponding guarantee; or
- we shall have given notice of our election to defer payments of interest
on the corresponding junior subordinated debt securities by extending the
interest payment period and such period, or any extension of such period,
shall be continuing;
then:
- we will not be permitted to make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
issued by us that rank equally with or junior to the junior subordinated
debt securities or make any guarantee payment if such guarantee ranks
equally with or junior to the junior subordinated debt securities; and
- we will not be permitted to declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any of our capital stock other than:
- any repurchase, redemption or other acquisition of shares of our
capital stock in connection with any employee benefit plan or any other
contractual obligation, other than a contractual obligation ranking
equally with or junior to the junior subordinated debt securities;
- any exchange or conversion of any class or series of our capital stock
for any other class or series of our capital stock;
- any purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital stock
or the security being converted or exchanged;
- any declaration of a dividend in connection with any rights plan, or
the issuance of rights, stock or other property under any rights plan,
or the redemption or repurchase of rights pursuant thereto; or
- any dividend in the form of common stock on common stock; or
- payments by us under any guarantee agreement executed for the benefit
of the trust preferred securities.
LIMITATION ON MERGERS AND SALES OF ASSETS
The junior subordinated indenture generally permits a consolidation or
merger between us and another entity. It also permits the sale or transfer by us
of all or substantially all of our property and assets. These transactions are
permitted if:
- the resulting or acquiring entity, if other than us, is organized and
existing under the laws of a domestic jurisdiction and assumes all of our
responsibilities and liabilities under the junior subordinated indenture,
including the payment of all amounts due on the debt securities and
performance of the covenants in the junior subordinated indenture; and
12
- immediately after the transaction, and giving effect to the transaction,
no event of default under the junior subordinated indenture exists.
(Section 801)
If we consolidate or merge with or into any other entity or sell or lease
all or substantially all of our assets according to the terms and conditions of
the junior subordinated indenture, the resulting or acquiring entity will be
substituted for us in such indenture with the same effect as if it had been an
original party to the indenture. As a result, such successor entity may exercise
our rights and powers under the junior subordinated indenture, in our name and,
except in the case of a lease of all or substantially all of our properties, we
will be released from all our liabilities and obligations under such indenture
and under the junior subordinated debt securities. (Section 802)
EVENTS OF DEFAULT, WAIVER AND NOTICE
The junior subordinated indenture provides that the following are events of
default relating to the junior subordinated debt securities:
- default in the payment of the principal of, or premium, if any, on, any
junior subordinated debentures at maturity;
- default for 30 days in the payment of any installment of interest on any
junior subordinated debentures;
- default for 30 days after written notice in the performance of any other
covenant in respect of the junior subordinated debentures;
- certain events in bankruptcy, insolvency or reorganization of IndyMac
Bancorp, Inc.; and
- any other event of default that may be specified for the junior
subordinated debt securities of that series when that series is created.
(Section 501)
If an event of default under the junior subordinated indenture occurs and
continues, the junior subordinated trustee or the holders of at least 25% in
aggregate principal amount of the outstanding junior subordinated debt
securities of that series may declare the entire principal and all accrued but
unpaid interest of all debt securities of that series to be due and payable
immediately. If the trustee or the holders of junior subordinated debt
securities do not make such declaration, the holders of at least 25% in
aggregate liquidation amount of the related trust preferred securities will have
such right. If an event of default under the junior subordinated indenture
occurs and continues, the property trustee may also declare the principal of and
the interest on the corresponding junior subordinated debt security, and any
other amounts payable under the junior subordinated indenture, to be due and
payable and to enforce its other rights as a creditor with respect to the
corresponding junior subordinated debt security.
If such a declaration occurs, the holders of a majority in aggregate
principal amount of the outstanding debt securities of that series of
subordinated debt securities can, subject to conditions, rescind the
declaration. If the holders of such series of junior subordinated debt
securities rescind such declaration, the holders of at least a majority in
aggregate liquidation amount of the related trust preferred securities will have
such right.
The holders of a majority in aggregate principal amount of the outstanding
junior subordinated debt securities of any series may, on behalf of all holders
of that series, waive any past default, except:
- a default in payment of principal of or any premium or interest; or
- a default under any provision of the junior subordinated indenture which
itself cannot be modified or amended without the consent of the holder of
each outstanding junior subordinated debt security of that series.
(Section 513)
If the holders of junior subordinated debt securities fail to waive a default,
the holders of a majority in aggregate liquidation amount of the related trust
preferred securities will have such right.
13
The holders of a majority in aggregate principal amount of the junior
subordinated debt securities of any series affected will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the junior subordinated trustee under the junior subordinated
indenture.
We are required to file an officers' certificate with the junior
subordinated trustee each year that states, to the knowledge of the certifying
officer, that no defaults exist under the terms of the junior subordinated
indenture. (Section 1004)
A holder of trust preferred securities may institute a direct action if we
fail to make interest or other payments on the junior subordinated debt
securities when due, taking account of any extension period. (Section 508) A
direct action may be taken without first directing the property trustee to
enforce the terms of the corresponding junior subordinated debt securities or
suing IndyMac Bancorp, Inc. to enforce the property trustee's rights under such
junior subordinated debt securities. This right of direct action cannot be
amended in a manner that would impair the rights of the holders of trust
preferred securities thereunder without the consent of all holders of affected
trust preferred securities. (Section 902)
COVENANTS CONTAINED IN JUNIOR SUBORDINATED INDENTURE
The junior subordinated indenture does not contain restrictions on our
ability to:
- incur, assume or become liable for any type of debt or other obligation;
- create liens on our property for any purpose; or
- pay dividends or make distributions on our capital stock or repurchase or
redeem our capital stock, except as set forth under "-- Restrictions on
Certain Payments" above.
The junior subordinated indenture does not require the maintenance of any
financial ratios or specified levels of net worth or liquidity. In addition, the
junior subordinated indenture does not contain any provisions which would
require us to repurchase or redeem or modify the terms of any of the junior
subordinated debt securities upon a change of control or other event involving
us which may adversely affect the creditworthiness of such debt securities.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
Under circumstances involving the dissolution of a trust, which will be
discussed more fully in the applicable prospectus supplement, the junior
subordinated debt securities will be distributed to the holders of the trust
securities in liquidation of that trust, provided that any required regulatory
approval is obtained. See "Description of Trust Preferred
Securities -- Liquidation Distribution upon Dissolution."
If the junior subordinated debt securities are distributed to the holders
of the trust preferred securities, we will use our best efforts to have the
junior subordinated debt securities listed on the New York Stock Exchange or on
such other national securities exchange or similar organization on which the
trust preferred securities are then listed or quoted.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE
Under the junior subordinated indenture, certain of our rights and
obligations and certain of the rights of holders of the junior subordinated debt
securities may be modified or amended with the consent of the holders of at
least a majority in aggregate principal amount of the outstanding junior
subordinated debt securities of all series of such debt securities affected by
the modification or amendment, acting as one class. However, the following
modifications and amendments will not be effective against any holder without
that holder's consent:
- a change in the stated maturity date of any payment of principal or
interest, including any additional interest (other than to the extent set
forth in the applicable junior subordinated debt security);
- a reduction in payments due on the junior subordinated debt securities;
14
- a change in the place of payment or currency in which any payment on the
junior subordinated debt securities is payable;
- a limitation of a holder's right to sue us for the enforcement of
payments due on the junior subordinated debt securities;
- a reduction in the percentage of outstanding junior subordinated debt
securities required to consent to a modification or amendment of the
junior subordinated indenture or required to consent to a waiver of
compliance with certain provisions of such indenture or certain defaults
under such indenture;
- a reduction in the requirements contained in the junior subordinated
indenture for quorum or voting;
- a limitation of a holder's right, if any, to repayment of junior
subordinated debt securities at the holder's option;
- in the case of junior subordinated debt securities convertible into
common stock, a limitation of any right to convert such debt securities;
and
- a modification of any of the foregoing requirements contained in the
junior subordinated indenture. (Section 902)
Under the junior subordinated indenture, the holders of at least a majority
in aggregate principal amount of the outstanding junior subordinated debt
securities of all series affected by a particular covenant or condition, acting
as one class, may, on behalf of all holders of such series of debt securities,
waive compliance by us with any covenant or condition contained in the junior
subordinated indenture unless we specify that such covenant or condition cannot
be so waived at the time we establish the series. (Section 1005)
If the junior subordinated debt securities are held by a trust or the
trustee of a trust, no modification may be made that adversely affects the
holders of the related trust preferred securities, and no termination of the
junior subordinated indenture may occur, and no waiver of any event of default
or compliance with any covenant will be effective, without the prior consent of
a majority in liquidation preference of trust securities of such trust. If the
consent of the holder of each outstanding junior subordinated debt security is
required, no modification will be effective without the prior consent of each
holder of related trust preferred securities. (Section 902)
We and the junior subordinated trustee may execute, without the consent of
any holder of junior subordinated debt securities, any supplemental junior
subordinated indenture for the purpose of creating any new series of junior
subordinated debt securities.
DEFEASANCE AND DISCHARGE
DEFEASANCE AND DISCHARGE. At the time that we establish a series of junior
subordinated debt securities under the junior subordinated indenture, we can
provide that the debt securities of that series will be subject to the
defeasance and discharge provisions of that indenture. If we so provide, we will
be discharged from our obligations on the debt securities of that series if:
- we deposit with the junior subordinated trustee, in trust, sufficient
money or, if the junior subordinated debt securities of that series are
denominated and payable in U.S. dollars only, Eligible Instruments, to
pay the principal, any interest, any premium and any other sums due on
the debt securities of that series, such as sinking fund payments, on the
dates payments are due under the junior subordinated indenture and the
terms of such debt securities;
- we deliver to the junior subordinated trustee an opinion of counsel that
states that the holders of the junior subordinated debt securities of
that series will not recognize income, gain or loss for federal income
tax purposes as a result of the deposit and will be subject to federal
income tax on
15
the same amounts and in the same manner and at the same times as would
have been the case if no deposit had been made; and
- if the junior subordinated debt securities of that series are listed on
any domestic or foreign securities exchange, the debt securities will not
be delisted as a result of the deposit. (Section 403)
When we use the term "Eligible Instruments" in this section, we mean
monetary assets, money market instruments and securities that are payable in
dollars only and are essentially risk free as to collection of principal and
interest, including:
- direct obligations of the United States backed by the full faith and
credit of the United States; or
- any obligation of a person controlled or supervised by and acting as an
agency or instrumentality of the United States if the timely payment of
the obligation is unconditionally guaranteed as a full faith and credit
obligation by the United States. (Section 101)
In the event that we deposit money and/or Eligible Instruments in trust and
discharge our obligations under a series of junior subordinated debt securities
as described above, then:
- the junior subordinated indenture, including the subordination provisions
contained in the junior subordinated indenture, will no longer apply to
the junior subordinated debt securities of that series; however, certain
obligations to compensate, reimburse and indemnify the junior
subordinated trustee, to register the transfer and exchange of junior
subordinated debt securities, to replace lost, stolen or mutilated junior
subordinated debt securities, to maintain paying agencies and the trust
funds and to pay additional amounts, if any, required as a result of U.S.
withholding taxes imposed on payments to non-U.S. persons will continue
to apply; and
- holders of junior subordinated debt securities of that series may only
look to the trust fund for payment of principal, any premium and any
interest on the debt securities of that series. (Section 403)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. At the time
that we establish a series of junior subordinated debt securities under the
junior subordinated indenture, we can provide that the debt securities of that
series are subject to the covenant defeasance provisions of the indenture. If we
so provide and we make the deposit and deliver the opinion of counsel described
above in this section under the heading "-- Defeasance and Discharge" we will
not have to comply with any covenant we designate when we establish the series
of debt securities. In the event of a covenant defeasance, our obligations under
the junior subordinated indenture and the junior subordinated debt securities,
other than with respect to the covenants specifically referred to above, will
remain in effect. (Section 1701)
If we exercise our option not to comply with the covenants listed above and
the junior subordinated debt securities of the series become immediately due and
payable because an event of default under the junior subordinated indenture has
occurred, other than as a result of an event of default specifically referred to
above, the amount of money and/or Eligible Instruments on deposit with the
junior subordinated trustee will be sufficient to pay the principal, any
interest, any premium and any other sums, due on the debt securities of that
series, such as sinking fund payments, on the date the payments are due under
the junior subordinated indenture and the terms of the junior subordinated debt
securities, but may not be sufficient to pay amounts due at the time of
acceleration. However, we would remain liable for the balance of the payments.
(Section 1701)
CONVERSION OR EXCHANGE
The junior subordinated debt securities may be convertible or exchangeable
into junior subordinated debt securities of another series or into trust
preferred securities of another series, on the terms provided in the applicable
prospectus supplement. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at our option, in
which case the number of shares of trust preferred securities or other
securities to be received by the holders of junior subordinated debt securities
would be calculated as of a time and in the manner stated in the applicable
prospectus supplement.
16
SUBORDINATION
The junior subordinated debt securities will be subordinate to all of our
existing and future Senior Debt, as defined below. For purposes of this
prospectus, our Senior Debt includes the senior debt securities and our
subordinated debt securities other than the junior subordinated debt securities
and means
- any of our indebtedness for borrowed or purchased money, whether or not
evidenced by bonds, debt securities, notes or other written instruments,
- our obligations under letters of credit,
- any of our indebtedness or other obligations with respect to commodity
contracts, interest rate and currency swap agreements, cap, floor and
collar agreements, currency spot and forward contracts, and other similar
agreements or arrangements designed to protect against fluctuations in
currency exchange or interest rates, and
- any guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or other
similar contingent obligations in respect of obligations of others of a
type described above, whether or not such obligation is classified as a
liability on a balance sheet prepared in accordance with generally
accepted accounting principles,
whether outstanding on the date of execution of the junior subordinated
indenture or thereafter incurred, other than obligations expressly on a parity
with or junior to the junior subordinated debt securities. The junior
subordinated debt securities will rank on a parity with obligations evidenced by
debt securities, and guarantees in respect of those debt securities, initially
issued to any trust, partnership or other entity affiliated with us, that is,
directly or indirectly, our financing vehicle in connection with the issuance by
such entity of capital securities or other similar securities.
If certain events in bankruptcy, insolvency or reorganization occur, we
will first pay all Senior Debt, including any interest accrued after the events
occur, in full before we make any payment or distribution, whether in cash,
securities or other property, on account of the principal of or interest on the
junior subordinated debt securities. In such an event, we will pay or deliver
directly to the holders of Senior Debt any payment or distribution otherwise
payable or deliverable to holders of the junior subordinated debt securities. We
will make the payments to the holders of Senior Debt according to priorities
existing among those holders until we have paid all Senior Debt, including
accrued interest, in full. Notwithstanding the subordination provisions
discussed in this paragraph, we may make payments or distributions on the junior
subordinated debt securities so long as:
- the payments or distributions consist of securities issued by us or
another company in connection with a plan or reorganization or
readjustment; and
- payment on those securities is subordinate to outstanding Senior Debt and
any securities issued with respect to Senior Debt under such plan of
reorganization or readjustment at least to the same extent provided in
the subordination provisions of the junior subordinated debt securities.
(Section 1801)
If such events in bankruptcy, insolvency or reorganization occur after we
have paid in full all amounts owed on Senior Debt:
- the holders of junior subordinated debt securities,
- together with the holders of any of our other obligations ranking equal
with those junior subordinated debt securities,
will be entitled to receive from our remaining assets any principal, premium or
interest due at that time on the junior subordinated debt securities and such
other obligations before we make any payment or other distribution on account of
any of our capital stock or obligations ranking junior to those junior
subordinated debt securities.
17
If we violate the junior subordinated indenture by making a payment or
distribution to holders of the junior subordinated debt securities before we
have paid all the Senior Debt in full, then the holders of the junior
subordinated debt securities will be deemed to have received the payments or
distributions in trust for the benefit of, and will have to pay or transfer the
payments or distributions to, the holders of the Senior Debt outstanding at the
time. The payment or transfer to the holders of the Senior Debt will be made
according to the priorities existing among those holders. Notwithstanding the
subordination provisions discussed in this paragraph, holders of junior
subordinated debt securities will not be required to pay, or transfer payments
or distributions to, holders of Senior Debt so long as:
- the payments or distributions consist of securities issued by us or
another company in connection with a plan of reorganization or
readjustment; and
- payment on those securities is subordinate to outstanding Senior Debt and
any securities issued with respect to Senior Debt under such plan of
reorganization or readjustment at least to the same extent as provided in
the subordination provisions of those junior subordinated debt
securities. (Section 1801)
Because of the subordination provisions described above, if we become
insolvent, holders of Senior Debt may receive more, ratably, and holders of the
junior subordinated debt securities having a claim pursuant to those securities
may receive less, ratably, than our other creditors. This type of subordination
will not prevent an event of default from occurring under the junior
subordinated indenture in connection with the junior subordinated debt
securities.
We may modify or amend the junior subordinated indenture as provided under
"-- Modification and Waiver" above. However, the modification or amendment may
not, without the consent of the holders of all Senior Debt outstanding, modify
any of the provisions of the junior subordinated indenture relating to the
subordination of the junior subordinated debt securities in a manner that would
adversely affect the holders of Senior Debt. (Section 902)
The junior subordinated indenture places no limitation on the amount of
Senior Debt that we may incur. We expect from time to time to incur additional
indebtedness and other obligations constituting Senior Debt.
GOVERNING LAW
The junior subordinated indenture and the junior subordinated debt
securities will be governed by, and construed in accordance with, the internal
laws of the State of New York.
THE TRUSTEE
The junior subordinated trustee will have all of the duties and
responsibilities specified under the Trust Indenture Act. Other than its duties
in a case of default, the trustee is under no obligation to exercise any of the
powers under the junior subordinated indenture at the request, order or
direction of any holders of junior subordinated debt securities unless offered
reasonable indemnification. (Sections 601, 603)
CORRESPONDENCE BETWEEN JUNIOR SUBORDINATED DEBT SECURITIES AND TRUST PREFERRED
SECURITIES
IndyMac Bancorp, Inc. may issue one or more series of junior subordinated
debt securities under the junior subordinated indenture with terms corresponding
to the terms of a series of related trust preferred securities. In each such
instance, concurrently with the issuance of a trust's preferred securities, the
trust will invest the proceeds from that issuance and the consideration paid by
IndyMac Bancorp, Inc. for the common securities in the series of corresponding
junior subordinated debt securities issued by IndyMac Bancorp, Inc. to the
trust. Each series of corresponding junior subordinated debt securities will be
in the principal amount equal to the aggregate stated liquidation amount of the
related trust preferred securities and the common securities of such trust and
will rank equally with all other series of junior subordinated debt securities.
Holders of the related trust preferred securities for a series of corresponding
junior
18
subordinated debt securities will have the rights, in connection with
modifications to the junior subordinated indenture or upon occurrence of an
event of default described under "-- Modification of Junior Subordinated
Indenture," "-- Events of Default, Waiver and Notice" and "-- Enforcement of
Certain Rights by Holders of Trust Preferred Securities."
Unless otherwise specified in the applicable prospectus supplement, if a
tax event relating to a trust occurs and continues, we may, at our option,
redeem the corresponding junior subordinated debt securities at any time within
90 days of the occurrence of such tax event, in whole but not in part, subject
to the provisions of the junior subordinated indenture and whether or not such
corresponding junior subordinated debt securities are then redeemable at our
option.
The redemption price for any corresponding junior subordinated debt
security will be equal to 100% of the principal amount of the corresponding
junior subordinated debt securities then outstanding plus accrued and unpaid
interest to the redemption date. As long as a trust is the holder of all the
outstanding corresponding junior subordinated debt securities of a series, the
proceeds of any redemption will be used by the trust to redeem the related trust
securities in accordance with their terms. We may not redeem a series of
corresponding junior subordinated debt securities in part unless all accrued and
unpaid interest has been paid in full on all outstanding corresponding junior
subordinated debt securities of such series for all interest proceeds
terminating on or before the date of redemption.
We will covenant, as to each series of corresponding junior subordinated
debt securities:
- directly or indirectly, to maintain 100% ownership of the common
securities of the applicable trust unless a permitted successor succeeds
to ownership of the common securities;
- not to voluntarily terminate, wind up or liquidate any trust, except,
- if so specified in the applicable prospectus supplement,
- in connection with a distribution of corresponding junior subordinated
debt securities to the holders of trust preferred securities in exchange
therefor upon liquidation of such trust, or
- in connection with certain mergers, consolidations or amalgamations
permitted by the applicable trust agreement, in either such case, if so
specified in the applicable prospectus supplement; and
- to use our reasonable efforts, consistent with the terms and provisions
of the applicable trust agreement, to cause such trust to remain
classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The trust preferred securities will be issued by a trust pursuant to the
terms of an amended and restated trust agreement. Each trust agreement will be
qualified as an indenture under the Trust Indenture Act. Each trust may issue
only one series of trust preferred securities. The property trustee, Wilmington
Trust Company, will act as trustee for each series of trust preferred securities
under the applicable trust agreement for purposes of compliance with the
provisions of the Trust Indenture Act. The terms of each series of trust
preferred securities will include those stated in the applicable trust agreement
and those made part of such trust agreement by the Trust Indenture Act.
We have summarized material terms and provisions of the trust preferred
securities in this section. This summary is not intended to be complete and is
qualified by the trust agreement, the form of which we filed as an exhibit to
the registration statement, the Delaware Business Trust Act and the Trust
Indenture Act.
Each trust agreement authorizes the trustees of a trust to issue trust
securities on behalf of such trust. The trust securities represent undivided
beneficial interests in the assets of such trust. We will own, directly or
indirectly, all of a trust's common securities. The common securities rank
equally, and
19
payments will be made on a pro rata basis, with the trust preferred securities,
except in certain events of default as described below.
The trust agreement does not permit a trust to issue any securities other
than the trust securities or to incur any indebtedness. Under each trust
agreement, the property trustee will own the junior subordinated debt securities
purchased by such trust for the benefit of the holders of the trust securities.
The guarantee agreement we execute for the benefit of the holders of trust
preferred securities will be a guarantee on a subordinated basis with respect to
the related trust securities but will not guarantee payment of distributions or
amounts payable on redemption or liquidation of such trust securities when a
trust does not have funds on hand available to make such payments. See
"Description of Guarantees."
DISTRIBUTIONS
Distributions on each series of trust preferred securities:
- will be cumulative;
- will accumulate from the date of original issuance; and
- will be payable on the dates specified in the applicable prospectus
supplement.
If any date on which distributions are payable on the trust preferred
securities is not a business day, then, except as set forth in the next
sentence, payment of the distribution will be made on the next succeeding
business day, and without any interest or other payment in respect to any such
delay. If such next succeeding business day is in the next calendar year,
payment of the distribution will be made on the immediately preceding business
day. Each date on which distributions are payable in accordance with the
foregoing is referred to as a "distribution date." The term "distribution"
includes any interest payable on unpaid distributions unless otherwise stated.
Unless otherwise specified in the applicable prospectus supplement, a "business
day" is a day other than a Saturday, a Sunday, or any other day on which banking
institutions in New York, New York or Wilmington, Delaware are authorized or
required by law or executive order to remain closed.
The amount of distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. The amount of distributions
payable for any period shorter than a full quarterly period will be computed on
the basis of the actual number of days elapsed in a 360-day year of twelve
30-day months. Distributions to which holders of trust preferred securities are
entitled but are not paid will accumulate additional distributions at the annual
rate, if any, specified in the applicable prospectus supplement.
If provided in the applicable prospectus supplement, we will have the right
under the junior subordinated indenture and the corresponding junior
subordinated debt securities to defer the payment of interest on any series of
the corresponding junior subordinated debt securities for up to a number of
consecutive interest payment periods that will be specified in the prospectus
supplement relating to such series. We refer to this period as an "extension
period." No extension period may extend beyond the stated maturity of the
corresponding junior subordinated debt securities.
As a consequence of any such deferral, distributions on the related trust
preferred securities would be deferred by the applicable trust during any
extension period, but would continue to accumulate additional distributions at
the annual rate set forth in the prospectus supplement for such trust preferred
securities. If we exercise our deferral right, then during any extension period,
we may not:
- make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank on a parity in
all respects with or junior to the junior subordinated debt securities of
such series or make any guarantee payment if such guarantee ranks equally
with or junior to the junior subordinated debt securities; or
20
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of our
capital stock other than:
- any repurchase, redemption or other acquisition of shares of our capital
stock in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of our capital stock, or securities
convertible into or exercisable for our capital stock, as consideration
in an acquisition transaction entered into before the applicable
extension period,
- any exchange or conversion of any class or series of our capital stock
or any capital stock of our subsidiaries, for any class or series of our
capital stock, or of any class or series of our indebtedness for any
class or series of our capital stock,
- any purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital stock
or the securities being converted or exchanged,
- any declaration of a dividend in connection with any rights plan, or the
issuance of rights, stock or other property under any rights plan, or
the redemption or repurchase of rights pursuant thereto,
- any dividend in the form of common stock on common stock, or
- payments by us under any guarantee agreement executed for the benefit of
the trust preferred securities.
The funds available of each trust available for distribution to holders of
its trust preferred securities will be limited to payments under the
corresponding junior subordinated debt securities in which such trust invests
the proceeds from the issuance and sale of its trust securities. See
"Description of Junior Subordinated Debt Securities -- Correspondence Between
Junior Subordinated Debt Securities and Trust Preferred Securities." If we do
not make interest payments on the corresponding junior subordinated debt
securities, the property trustee will not have funds available to pay
distributions on the related trust preferred securities. To the extent each
trust has funds legally available for the payment of such distributions and cash
sufficient to make such payments, the payment of distributions is guaranteed by
us on the basis set forth under "Description of Guarantees."
Distributions on applicable trust preferred securities will be payable to
the holders of the securities as they appear on the register of the applicable
trust on the relevant record dates. As long as the applicable trust preferred
securities remain in book-entry form, the record date will be one business day
before the relevant date of distribution. If any trust preferred securities are
not in book-entry form, the relevant record date for such trust preferred
securities will be at least 15 days before to the relevant date of distribution.
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION
Upon the repayment or redemption, in whole or in part, of any corresponding
junior subordinated debt securities, whether at stated maturity or upon earlier
redemption as provided in the junior subordinated indenture, the property
trustee will apply the proceeds from such repayment or redemption to redeem a
like amount, as defined below, of the related trust securities, upon not less
than 30 nor more than 60 days' notice. The redemption price will equal the
aggregate liquidation amount of such trust securities, as defined below, plus
accumulated but unpaid distributions to the date of redemption and the related
amount of the premium, if any, paid by us upon the concurrent redemption of such
corresponding junior subordinated debt securities. See "Description of Junior
Subordinated Debt Securities -- Redemption." If less than all of any series of
corresponding junior subordinated debt securities are to be repaid or redeemed
on a redemption date, then the proceeds from such repayment or redemption will
be allocated pro rata to the redemption of the related trust preferred
securities and the common securities, except as set forth
21
under "-- Ranking of Common Securities." The amount of premium, if any, paid by
us upon the redemption of all or any part of any series of any corresponding
junior subordinated debt securities to be repaid or redeemed on a redemption
date will be allocated pro rata to the redemption of the related trust preferred
securities and common securities, except as set forth under "-- Ranking of
Common Securities."
We will have the right to redeem any series of corresponding junior
subordinated debt securities:
- on or after such date as may be specified in the applicable prospectus
supplement, in whole at any time or in part from time to time; or
- at any time, in whole, but not in part, upon the occurrence of a tax
event or investment company event. See "Description of Junior
Subordinated Debt Securities -- Redemption."
Within 90 days after any tax event or investment company event in respect
of a series of trust preferred securities and common securities that occurs and
continues, we will have the right to redeem the corresponding junior
subordinated debt securities in whole, but not in part, and thereby cause a
mandatory redemption of the related trust preferred securities and common
securities in whole, but not in part, at the redemption price. In the event,
- a tax event or investment company event in respect of a series of trust
preferred securities and common securities occurs continues, and
- we do not elect to redeem the corresponding junior subordinated debt
securities and thereby cause a mandatory redemption of the related trust
preferred securities and common securities or to dissolve the related
trust and cause the corresponding junior subordinated debt securities to
be distributed to holders of such trust preferred securities and common
securities in exchange therefor upon liquidation of the trust as
described below,
the related trust preferred securities will remain outstanding.
"Like amount" means:
- with respect to a redemption of any series of trust securities, trust
securities of such series having a liquidation amount equal to that
portion of the principal amount of corresponding junior subordinated debt
securities to be contemporaneously redeemed in accordance with the junior
subordinated indenture, the proceeds of which will be used to pay the
redemption price of such trust securities; and
- with respect to a distribution of corresponding junior subordinated debt
securities to holders of any series of trust securities in exchange
therefor in connection with a dissolution of a trust, corresponding
junior subordinated debt securities having a principal amount equal to
the liquidation amount of the trust securities of the holder to whom such
corresponding junior subordinated debt securities would be distributed.
"Liquidation amount" means the stated amount per trust security as set
forth in the applicable prospectus supplement.
DISTRIBUTION OF CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES
We will have the right at any time to dissolve a trust and cause the junior
subordinated debt securities to be distributed to the holders of the related
trust securities. Upon dissolution of the trust and after satisfaction of the
liabilities of creditors of such trust as provided by applicable law, the
corresponding junior subordinated debt securities in respect of the related
trust preferred securities and common securities issued by such trust will be
distributed to the holders of such related trust preferred securities and common
securities in exchange therefor.
22
After the liquidation date fixed for any distribution of corresponding
junior subordinated debt securities for any series of related trust preferred
securities:
- the series of trust preferred securities will no longer be deemed to be
outstanding;
- the depositary or its nominee, as the record holder of the series of
trust preferred securities, will receive a registered global certificate
or certificates representing the corresponding junior subordinated debt
securities to be delivered upon such distribution; and
- any certificates representing the series of trust preferred securities
not held by The Depository Trust Company, or "DTC", or its nominee will
be deemed to represent the corresponding junior subordinated debt
securities having a principal amount equal to the stated liquidation
amount of the series of trust preferred securities, and bearing accrued
and unpaid interest in an amount equal to the accrued and unpaid
distributions on the series of trust preferred securities until the
certificates are presented to the administrative trustees or their agent
for transfer or reissuance.
We cannot assure you as to the market prices for the trust preferred
securities or the corresponding junior subordinated debt securities that may be
distributed in exchange for trust preferred securities if a dissolution and
liquidation of a trust were to occur. Accordingly, the trust preferred
securities that an investor may purchase, or the corresponding junior
subordinated debt securities that the investor may receive on dissolution and
liquidation of such trust, may trade at a discount to the price that the
investor paid to purchase the trust preferred securities.
REDEMPTION PROCEDURES
Trust preferred securities redeemed on each redemption date will be
redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the corresponding junior subordinated debt
securities.
Redemptions of trust preferred securities will be made and the redemption
price will be payable on each redemption date only to the extent that the
applicable trust has funds on hand available for the payment of such redemption
price. See also "-- Subordination of Common Securities."
If a trust gives a notice of redemption of its trust preferred securities,
then, by 12:00 noon, New York City time, on the redemption date, to the extent
funds are available, the property trustee will deposit irrevocably with DTC
funds sufficient to pay the applicable redemption price and will give DTC
irrevocable instructions and authority to pay the redemption price to the
holders of the trust preferred securities that are to be redeemed. If the trust
preferred securities are no longer in book-entry form, the property trustee, to
the extent funds are available, will irrevocably deposit with the paying agent
for the trust preferred securities funds sufficient to pay the applicable
redemption price and will give the paying agent irrevocable instructions and
authority to pay the redemption price to the holders thereof upon surrender of
their certificates evidencing the trust preferred securities.
Notwithstanding the foregoing, distributions payable on or before the
redemption date for any trust preferred securities called for redemption will be
payable to the holders of the trust preferred securities on the relevant record
dates for the related distribution dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit:
- all rights of the holders of the trust preferred securities that are to
be redeemed will cease, except the right of the holders of such trust
preferred securities to receive the redemption price on the redemption
date, but without interest on such redemption price; and
- such trust preferred securities will cease to be outstanding.
If any date fixed for redemption of trust preferred securities is not a
business day, then payment of the redemption price will be made on the next
succeeding business day, without any interest or any other payment in respect of
any such delay, except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding business day. If
payment of the redemption price in
23
respect of trust preferred securities called for redemption is improperly
withheld or refused and not paid either by the applicable trust or by us
pursuant to the guarantee described under "Description of Guarantees,"
distributions on the trust preferred securities will continue to accrue at the
then-applicable rate, from the redemption date originally established by such
trust for such trust preferred securities to the date such redemption price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the redemption price.
Payment of the redemption price on trust preferred securities and any
distribution of corresponding junior subordinated debt securities to holders of
the related trust preferred securities will be made to the applicable record
holders as they appear on the register for the trust preferred securities on the
relevant record date, which will be one business day before the relevant
redemption date or liquidation date, as applicable. However, if any trust
preferred securities are not in book-entry form, the relevant record date for
such trust preferred securities will be a date at least 15 days before the
redemption date or liquidation date, as applicable.
If less than all of the trust preferred securities and common securities
issued by a trust are to be redeemed on a redemption date, then the aggregate
liquidation amount of the trust preferred securities and common securities to be
redeemed will be allocated pro rata to the trust preferred securities and the
common securities based upon the relative liquidation amounts of such classes.
The property trustee will select the particular trust preferred securities to be
redeemed on a pro rata basis not more than 60 days before the redemption date
from the outstanding trust preferred securities not previously called for
redemption, using any method that the property trustee deems fair and
appropriate, including the selection for redemption of portions of the
liquidation amount of trust preferred securities in the minimum amounts that are
specified in the applicable prospectus supplement. The property trustee shall
promptly notify the trust registrar in writing of the trust preferred securities
selected for redemption and the liquidation amount to be redeemed. For all
purposes of the applicable trust agreement, unless the context otherwise
requires, all provisions relating to the redemption of trust preferred
securities will relate, in the case of any trust preferred securities redeemed
or to be redeemed only in part, to the portion of the aggregate liquidation
amount of trust preferred securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to the registered address of each holder of
trust securities to be redeemed.
Subject to applicable law, including, without limitation, United States
federal securities law, we or our subsidiaries may at any time and from time to
time purchase outstanding trust preferred securities by tender, in the open
market or by private agreement.
RANKING OF COMMON SECURITIES
Payment of distributions on, and the redemption price of, a trust's trust
preferred securities and common securities, as applicable, will be made pro rata
based on the liquidation amount of such trust preferred securities and common
securities, except that upon certain events of default under the applicable
trust agreement relating to payment defaults on the corresponding junior
subordinated debt securities, the rights of the holders of the common securities
to payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the trust
preferred securities.
In the case of any event of default under a trust agreement resulting from
an event of default under the junior subordinated indenture, we, as holder of a
trust's common securities, will be deemed to have waived any right to act with
respect to any such event of default under such trust agreement until the effect
of all such events of default with respect to such trust preferred securities
have been cured, waived or otherwise eliminated. Until all events of default
under such trust agreement with respect to such trust preferred securities have
been so cured, waived or otherwise eliminated, the property trustee will act
solely on behalf of the holders of such trust preferred securities and not on
our behalf, and only the holders of such trust preferred securities will have
the right to direct the property trustee to act on their behalf.
24
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to a trust agreement, a trust will automatically dissolve upon the
expiration of its term and will dissolve on the first to occur of:
- certain events of bankruptcy, dissolution or liquidation of IndyMac
Bancorp, Inc.;
- the distribution of a like amount of the corresponding junior
subordinated debt securities to the holders of its trust securities, if
we, as holder of common securities, have given written direction to the
property trustee to dissolve the trust;
- redemption of all of its trust preferred securities as described under
"-- Redemption or Exchange -- Mandatory Redemption;" and
- the entry of an order for the dissolution of the trust by a court of
competent jurisdiction.
Except as set forth in the next sentence, if an early dissolution occurs as
described above, the trustees will liquidate the trust as expeditiously as
possible by distributing, after satisfaction of liabilities to creditors of the
trust as provided by applicable law, to the holders of the trust securities a
like amount of the corresponding junior subordinated debt securities. If the
property trustee determines that such distribution is not practical or if the
early dissolution occurs as a result of the redemption of the trust preferred
securities, then the holders will be entitled to receive out of the assets of
such trust available for distribution to holders and after satisfaction of
liabilities to creditors of the trust as provided by applicable law, an amount
equal to the aggregate liquidation amount plus accrued and unpaid distributions
to the date of payment. If the trust has insufficient assets available to pay in
full such aggregate liquidation distribution, then the amounts payable directly
by the trust on its trust preferred securities will be paid on a pro rata basis.
The holder(s) of the trust's common securities will be entitled to receive
distributions upon any such liquidation pro rata with the holders of its trust
preferred securities, except as set forth under "-- Ranking of Common
Securities."
EVENTS OF DEFAULT; NOTICE
Any one of the following events will constitute an event of default under
the applicable trust agreement, or a "trust event of default", regardless of the
reason for such event of default and of whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body:
- the occurrence of an event of default under the junior subordinated
indenture with respect to the corresponding junior subordinated debt
securities held by the trust (see "Description of Junior Subordinated
Debt Securities -- Events of Default"); or
- the default by the property trustee in the payment of any distribution on
any trust security of the related trust when the distribution becomes due
and payable, and continuation of such default for a period of 30 days; or
- the default by the property trustee in the payment of any redemption
price of any trust security of the trust when the redemption price
becomes due and payable; or
- the failure to perform or the breach, in any material respect, of any
other covenant or warranty of the trustees in the applicable trust
agreement for 30 days after the defaulting trustee or trustees have
received written notice of the failure to perform or breach of warranty
in the manner specified in the trust agreement; or
- the occurrence of certain events of bankruptcy or insolvency with respect
to the property trustee and our failure to appoint a successor property
trustee within 90 days.
Within 10 days after the occurrence of any event of default actually known
to the property trustee, the property trustee will transmit notice of such event
of default to the holders of the trust preferred securities, the administrative
trustees and to us, as depositor, unless such event of default shall have been
25
cured or waived. We, as depositor, and the administrative trustees are required
to file annually with the property trustee a certificate as to whether or not we
or they are in compliance with all the conditions and covenants applicable to us
and to them under the trust agreement.
The existence of an event of default under the junior subordinated
indenture with respect to the corresponding junior subordinated debt securities
does not entitle the holders of the related trust preferred securities to
accelerate the maturity of such debt securities.
REMOVAL OF TRUSTEES
Unless an event of default under the junior subordinated indenture shall
have occurred and be continuing, the property trustee and/or the Delaware
trustee may be removed at any time by the holder of the common securities.
The property trustee and the Delaware trustee may be removed by the holders
of a majority in liquidation amount of the outstanding related trust preferred
securities for cause or if an event of default under the junior subordinated
indenture has occurred and is continuing. In no event will the holders of such
trust preferred securities have the right to vote to appoint, remove or replace
the administrative trustees, which voting rights are vested exclusively in us,
as the holder of the common securities. No resignation or removal of a trustee
and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the trust agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an event of default shall have occurred and be continuing, at any
time or from time to time, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the trust
property may at the time be located, we, as the holder of the common securities,
and the administrative trustees shall have the power to appoint one or more
persons either to act as a co-trustee, jointly with the property trustee, of all
or any part of such trust property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such person or persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of such trust agreement. If an event of default under the junior
subordinated indenture has occurred and is continuing, the property trustee
alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Any person into which the property trustee, the Delaware trustee or any
administrative trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which such trustee shall be a party, or any
person succeeding to all or substantially all the corporate trust business of
such trustee, shall be the successor of such trustee under the trust agreement,
provided such person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUSTS
A trust may not merge with or into, consolidate, amalgamate, or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to us or any other person, except as described below, as described in
"Liquidation Distribution Upon Dissolution" or as otherwise described in the
applicable trust agreement. Such trust may, at our request, with the consent of
the administrative trustees but without the consent of the holders of the
applicable trust preferred securities, the property trustee or the Delaware
trustee, merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer
26
or lease its properties and assets substantially as an entirety to, a trust
organized as such under the laws of any state if:
- the successor entity either:
- expressly assumes all of the obligations of the trust with respect to
the trust preferred securities, or
- substitutes for the trust preferred securities other securities having
substantially the same terms as the trust preferred securities, or the
successor securities, so long as the successor securities rank the same
as the trust preferred securities in priority with respect to
distributions and payments upon liquidation, redemption and otherwise;
- we expressly appoint a trustee of the successor entity possessing the
same powers and duties as the property trustee as the holder of the
corresponding junior subordinated debt securities;
- the successor securities are listed or will be listed upon notification
of issuance on any national securities exchange or other organization on
which the trust preferred securities are then listed, if any;
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the trust preferred securities to be
downgraded by any nationally recognized statistical rating organization;
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the trust preferred securities, including
any successor securities, in any material respect;
- the successor entity has a purpose substantially identical to that of the
trust;
- prior to the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, we have received an opinion from
independent counsel to such trust experienced in such matters to the
effect that:
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the trust preferred securities, including
any successor securities, in any material respect, and
- following the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the trust nor the successor
entity will be required to register as an investment company under the
Investment Company Act; and
- we or any permitted successor or assignee owns all of the common
securities of the successor entity and guarantees the obligations of the
successor entity under the successor securities at least to the extent
provided by the guarantee.
Notwithstanding the foregoing, a trust may not, except with the consent of
holders of 100% in liquidation amount of its trust preferred securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if the consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the trust or the successor entity to
be classified as other than a grantor trust for United States federal income tax
purposes.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "Description of Guarantees -- Amendments
and Assignment" and as otherwise required by law and the applicable trust
agreement, the holders of trust preferred securities will have no voting rights.
27
We and the administrative trustees may amend a trust agreement without the
consent of the holders of its trust preferred securities, unless the amendment
will materially and adversely affect the interests of any holder of trust
preferred securities, to:
- cure any ambiguity, correct or supplement any provisions in such trust
agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
such trust agreement, which may not be inconsistent with the other
provisions of the trust agreement; or
- modify, eliminate or add to any provisions of the trust agreement to such
extent as shall be necessary to ensure that such trust will be classified
for United States federal income tax purposes as a grantor trust at all
times that any trust securities are outstanding or to ensure that such
trust will not be required to register as an "investment company" under
the Investment Company Act.
Any such amendments will become effective when notice thereof is given to the
holders of trust securities.
We, and the administrative trustees may amend a trust agreement with:
- the consent of holders representing not less than a majority, based upon
liquidation amounts, of the outstanding trust securities; and
- receipt by the trustees of an opinion of counsel to the effect that the
amendment or the exercise of any power granted to the trustees in
accordance with such amendment will not affect the trust's status as a
grantor trust for United States federal income tax purposes or the
trust's exemption from status as an "investment company" under the
Investment Company Act.
Without the consent of each holder of trust securities, a trust agreement
may not be amended to:
- change the amount or timing of any distribution required to be made in
respect of the trust securities held by such holder as of a specified
date; or
- restrict the right of a holder of trust securities to institute a suit
for the enforcement of any such payment on or after such date.
So long as the property trustee holds any corresponding junior subordinated
debt securities, the trustees may not, without obtaining the prior approval of
the holders of a majority in aggregate liquidation amount of all outstanding
trust preferred securities:
- direct the time, method and place of conducting any proceeding for any
remedy available to the junior subordinated trustee, or executing any
trust or power conferred on the property trustee with respect to the
corresponding junior subordinated debt securities;
- waive any past default that is waivable under the junior subordinated
indenture;
- exercise any right to rescind or annul a declaration that the principal
of all the corresponding junior subordinated debt securities is due and
payable; or
- consent to any amendment, modification or termination of the junior
subordinated indenture or such corresponding junior subordinated debt
securities, where such consent shall be required.
If a consent under the junior subordinated indenture would require the
consent of each holder of corresponding junior subordinated debt securities
affected thereby, no such consent may be given by the property trustee without
the prior consent of each holder of the corresponding trust preferred
securities. The trustees may not revoke any action previously authorized or
approved by a vote of the holders of the trust preferred securities except by
subsequent vote of the holders of the trust preferred securities. The property
trustee will notify each holder of the trust preferred securities of any notice
of default with respect to the corresponding junior subordinated debt
securities. In addition to obtaining the foregoing approvals of the holders of
the trust preferred securities, before taking any of the foregoing actions, the
trustees will obtain an opinion of counsel experienced in such matters to the
effect that such action would not cause
28
the related trust to be classified as other than a grantor trust for United
States federal income tax purposes.
Any required approval of holders of trust preferred securities may be given
at a meeting of holders of trust preferred securities convened for such purpose
or pursuant to written consent. The property trustee will cause a notice of any
meeting at which holders of trust preferred securities are entitled to vote, or
of any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of trust preferred securities in the
manner set forth in the applicable trust agreement.
No vote or consent of the holders of trust preferred securities will be
required for a trust to redeem and cancel its trust preferred securities in
accordance with the applicable trust agreement.
Notwithstanding that holders of trust preferred securities are entitled to
vote or consent under any of the circumstances described above, any of the trust
preferred securities that are owned by us or our affiliates or the trustees or
any of their affiliates, shall, for purposes of such vote or consent, be treated
as if they were not outstanding.
PAYMENT AND PAYING AGENT
Payments on the trust preferred securities shall be made to the depositary,
which shall credit the relevant accounts at the depositary on the applicable
distribution dates. If any trust preferred securities are not held by the
depositary, such payments shall be made by check mailed to the address of the
holder as such address shall appear on the register.
Unless otherwise specified in the applicable prospectus supplement, the
paying agent shall initially be Wilmington Trust Company, and any co-paying
agent chosen by the property trustee and acceptable to us and to the
administrative trustees. The paying agent shall be permitted to resign as paying
agent upon 30 days' written notice to us and to the property trustee. In the
event that Wilmington Trust Company shall no longer be the paying agent, the
administrative trustees will appoint a successor to act as paying agent, which
will be a bank or trust company acceptable to the administrative trustees and to
us.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement,
Wilmington Trust Company will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of trust preferred securities will be effected
without charge by or on behalf of the applicable trust, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange. A trust will not be required to register or cause to be
registered the transfer of its trust preferred securities after such trust
preferred securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
Other than during the occurrence and continuance of an event of default,
the property trustee undertakes to perform only the duties that are specifically
set forth in the applicable trust agreement. After an event of default, the
property trustee must exercise the same degree of care and skill as a prudent
individual would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the property trustee is under no obligation to
exercise any of the powers vested in it by the applicable trust agreement at the
request of any holder of trust preferred securities unless it is offered
indemnity satisfactory to it by such holder against the costs, expenses and
liabilities that might be incurred. If no event of default has occurred and is
continuing and the property trustee is required to decide between alternative
causes of action, construe ambiguous provisions in such trust agreement or is
unsure of the application of any provision of such trust agreement, and the
matter is not one upon which holders of trust preferred securities are entitled
under the applicable trust agreement to vote, then the property trustee will
take any action that we direct. If we do not provide direction, the property
trustee may take any action
29
that it deems advisable and in the best interests of the holders of the trust
securities and will have no liability except for its own bad faith, negligence
or willful misconduct.
We and our affiliates maintain certain accounts and other banking
relationships with the property trustee and its affiliates in the ordinary
course of business.
TRUST EXPENSES
Pursuant to the applicable trust agreement, we, as depositor, agree to pay
- all debts and other obligations of the applicable trust (other than with
respect to the trust preferred securities);
- all costs and expenses of the trust, including costs and expenses
relating to the organization of the trust, the fees and expenses of the
trustees and the cost and expenses relating to the operation of the
trust; and
- any and all taxes and costs and expenses with respect thereto, other than
United States withholding taxes, to which the trust might become subject.
GOVERNING LAW
The trust agreements will be governed by and construed in accordance with
the laws of Delaware.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the applicable trust in such a way that it will not be
required to register as an "investment company" under the Investment Company Act
or characterized as other than a grantor trust for United States federal income
tax purposes. The administrative trustees are authorized and directed to conduct
their affairs so that the corresponding junior subordinated debt securities will
be treated as indebtedness of IndyMac Bancorp, Inc. for United States federal
income tax purposes.
In this connection, we and the administrative trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of the applicable trust or the applicable trust agreement, that we and the
administrative trustees determine to be necessary or desirable to achieve such
end, as long as such action does not materially and adversely affect the
interests of the holders of the applicable trust preferred securities.
Holders of the trust preferred securities have no preemptive or similar
rights.
No trust may borrow money or issue debt or mortgage or pledge any of its
assets.
COMMON SECURITIES
In connection with the issuance of trust preferred securities, the
applicable trust will issue one series of common securities. The prospectus
supplement relating to an issuance of trust preferred securities will specify
the terms of the related common securities, including distribution, redemption,
voting and liquidation rights. Except for voting rights, the terms of the common
securities will be substantially identical to the terms of the trust preferred
securities, except in certain events of default as described above. The common
securities will rank equally, and payments will be made on the common securities
pro rata, with the trust preferred securities, except as set forth under
"Description of Trust Preferred Securities -- Ranking of Common Securities."
Except in limited circumstances, the common securities of a trust carry the
right to vote to appoint, remove or replace any of the trustees of that trust.
We will own, directly or indirectly, all of the common securities of the trusts.
30
DESCRIPTION OF GUARANTEES
Set forth below is a summary of information concerning the guarantee that
we will execute and deliver for the benefit of the holders of trust preferred
securities when a trust issues trust securities. Each trust preferred securities
guarantee will be qualified as an indenture under the Trust Indenture Act. Bank
of New York will act as the guarantee trustee for purposes of the Trust
Indenture Act. The guarantee trustee will hold the trust preferred securities
guarantee for the benefit of the holders of the trust preferred securities.
GENERAL
Under the trust preferred securities guarantee, we will irrevocably and
unconditionally agree to pay in full to the holders of the trust securities,
except to the extent paid by the applicable trust, as and when due, regardless
of any defense, right of set-off or counterclaim which such trust may have or
assert, the following payments, which are referred to as "guarantee payments",
without duplication:
- any accrued and unpaid distributions that are required to be paid on
trust preferred securities, to the extent the related trust has funds
available for distributions;
- the redemption price, plus all accrued and unpaid distributions relating
to any trust preferred securities called for redemption by the trust, to
the extent the trust has funds available for redemptions; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the trust, other than in connection with the distribution of junior
subordinated debt securities to the holders of trust preferred securities
or the redemption of all of the trust preferred securities, the lesser
of:
- the aggregate of the liquidation amount and all accrued and unpaid
distributions on the trust preferred securities to the date of payment;
and
- the amount of assets of the trust remaining for distribution to holders
of the trust preferred securities in liquidation of the trust.
The redemption price and liquidation amount will be fixed at the time the trust
preferred securities are issued.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts to the holders of trust preferred securities or
by causing the applicable trust to pay such amounts to such holders.
The trust preferred securities guarantee will not apply to any payment of
distributions except to the extent a trust shall have funds available for such
payments. If we do not make interest payments on the junior subordinated debt
securities purchased by a trust, the trust will not pay distributions on the
trust preferred securities and will not have funds available for such payments.
See "-- Status of the Guarantees." Because we are a holding company, our rights
to participate in the assets of any of our subsidiaries upon the subsidiary's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors except to the extent that we may ourselves be a creditor
with recognized claims against the subsidiary. Except as otherwise described in
the applicable prospectus supplement, the trust preferred securities guarantees
do not limit the incurrence or issuance by us of other secured or unsecured
debt.
The trust preferred securities guarantee, when taken together with our
obligations under the junior subordinated debt securities, the junior
subordinated indenture and the applicable trust agreement, including our
obligations to pay costs, expenses, debts and liabilities of the applicable
trust, other than those relating to trust securities, will provide a full and
unconditional guarantee on a subordinated basis of payments due on the trust
preferred securities.
We have also agreed separately to irrevocably and unconditionally guarantee
the obligations of each trust with respect to the common securities to the same
extent as the trust preferred securities guarantees.
31
STATUS OF THE GUARANTEES
The guarantee will be unsecured and will rank:
- subordinate and junior in right of payment to all of our other
liabilities in the same manner as the junior subordinated debt securities
as set forth in the junior subordinated indenture; and
- equally with all other trust preferred security guarantees that we issue.
The guarantee will constitute a guarantee of payment and not of collection,
which means that the guaranteed party may sue the guarantor to enforce its
rights under the guarantee without suing any other person or entity. The
guarantee will be held for the benefit of the holders of the related trust
securities. The guarantee will be discharged only by payment of the guarantee
payments in full to the extent not paid by the trust or upon the junior
subordinated debt securities.
AMENDMENTS AND ASSIGNMENT
The trust preferred securities guarantee may be amended only with the prior
approval of the holders of not less than a majority in aggregate liquidation
amount of the outstanding relevant trust preferred securities. No vote will be
required, however, for any changes that do not adversely affect the rights of
holders of such preferred securities in any material respect. All guarantees and
agreements contained in the trust preferred securities guarantee will bind our
successors, assignees, receivers, trustees and representatives and will be for
the benefit of the holders of the trust preferred securities then outstanding.
TERMINATION OF THE GUARANTEES
A trust preferred securities guarantee will terminate upon full payment of
the redemption price of all related trust preferred securities, upon
distribution of the corresponding junior subordinated debt securities to the
holders of the related trust securities or upon full payment of the amounts
payable in accordance with the applicable trust agreement upon liquidation of
the trust. A trust preferred securities guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any holder of related
trust preferred securities must restore payment of any sums paid under the
related trust preferred securities or the trust preferred securities guarantee.
EVENTS OF DEFAULT
An event of default under the trust preferred securities guarantee will
occur if we fail to perform any payment or other obligation under the guarantee.
The holders of a majority in liquidation amount of the related trust
preferred securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of the applicable trust preferred securities guarantee or to direct the
exercise of any trust or power conferred upon the guarantee trustee under the
guarantee. Any holder of related trust preferred securities may institute a
legal proceeding directly against us to enforce the guarantee trustee's rights
and our obligations under the applicable trust preferred securities guarantee,
without first instituting a legal proceeding against such trust, the guarantee
trustee or any other person or entity.
As guarantor, we are required to file annually with the guarantee trustee a
certificate as to whether or not we are in compliance with all applicable
conditions and covenants under the trust preferred securities guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
Prior to the occurrence of a default relating to a trust preferred
securities guarantee, the guarantee trustee is required to perform only the
duties that are specifically set forth in such trust preferred securities
guarantee. Following the occurrence of a default, the guarantee trustee will
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Provided that the foregoing requirements have
been met, the guarantee trustee is under no obligation to exercise any of the
32
powers vested in it by the trust preferred securities guarantee at the request
of any holder of trust preferred securities, unless offered indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred thereby.
We and our affiliates maintain certain accounts and other banking
relationships with the guarantee trustee and its affiliates in the ordinary
course of business.
GOVERNING LAW
The trust preferred securities guarantees will be governed by and construed
in accordance with the internal laws of the state of New York.
RELATIONSHIP AMONG TRUST PREFERRED SECURITIES, CORRESPONDING JUNIOR
SUBORDINATED DEBT SECURITIES AND GUARANTEES
As set forth in the applicable trust agreement, the sole purpose of a trust
is to issue the trust securities and to invest the proceeds in the corresponding
junior subordinated debt securities.
As long as payments of interest and other payments are made when due on the
applicable series of junior subordinated debt securities, those payments will be
sufficient to cover the distributions and payments due on the related trust
securities. This is due to the following factors:
- the aggregate principal amount of the junior subordinated debt securities
will be equal to the sum of the aggregate stated liquidation amount of
the trust securities;
- the interest rate and the interest and other payment dates on the junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust securities;
- under the junior subordinated indenture, we will pay, and the applicable
trust will not be obligated to pay, directly or indirectly, all costs,
expenses, debts and obligations of the trust, other than those relating
to the trust securities; and
- the applicable trust agreement further provides that the trustees may not
cause or permit the trust to engage in any activity that is not
consistent with the purposes of the trust.
To the extent that funds are available, we guarantee payments of
distributions and other payments due on trust preferred securities to the extent
described in this prospectus. If we do not make interest payments on the
applicable series of junior subordinated debt securities, the related trust will
not have sufficient funds to pay distributions on the trust preferred
securities. The trust preferred securities guarantee is a subordinated guarantee
in relation to the trust preferred securities. The trust preferred securities
guarantee does not apply to any payment of distributions unless and until such
trust has sufficient funds for the payment of such distributions. See
"Description of Guarantees."
We have the right to set off any payment that we are otherwise required to
make under the junior subordinated indenture with any payment that we have
previously made or are concurrently on the date of such payment making under a
related guarantee.
A trust preferred securities guarantee covers the payment of distributions
and other payments on the trust preferred securities only if and to the extent
that we have made a payment of interest or principal or other payments on the
corresponding junior subordinated debt securities. A trust preferred securities
guarantee, when taken together with our obligations under the corresponding
junior subordinated debt securities and the junior subordinated indenture and
our obligations under the applicable trust agreement, will provide a full and
unconditional guarantee of distributions, redemption payments and liquidation
payments on the related trust preferred securities.
If we fail to make interest or other payments on the junior subordinated
debt securities when due, taking account of any extension period, the applicable
trust agreement allows the holders of the related trust preferred securities to
direct the property trustee to enforce its rights under the junior subordinated
33
debt securities. If the property trustee fails to enforce these rights, any
holder of such trust preferred securities may directly sue us to enforce such
rights without first suing the property trustee or any other person or entity.
See "Description of Trust Preferred Securities -- Book Entry Issuance" and
"-- Voting Rights."
A holder of trust preferred securities may institute a direct action if an
event of default under the applicable trust agreement has occurred and is
continuing and such event is attributable to our failure to pay interest or
principal on the junior subordinated debt securities when due. A direct action
may be brought without first :
- directing the property trustee to enforce the terms of the corresponding
junior subordinated debt securities, or
- suing us to enforce the property trustee's rights under such junior
subordinated debt securities.
In connection with such direct action, we will be subrogated to the rights of
such holder of trust preferred securities under the applicable trust agreement
to the extent of any payment made by us to such holder of trust preferred
securities. Consequently, we will be entitled to payment of amounts that a
holder of trust preferred securities receives in respect of an unpaid
distribution to the extent that such holder receives or has already received
full payment relating to such unpaid distribution from such trust.
We acknowledge that the guarantee trustee will enforce the trust preferred
securities guarantees on behalf of the holders of the trust preferred
securities. If we fail to make payments under the trust preferred securities
guarantee, the holders of the related trust preferred securities may direct the
guarantee trustee to enforce its rights such guarantee. If the guarantee trustee
fails to enforce the trust preferred securities guarantee, any holder of trust
preferred securities may directly sue us to enforce the guarantee trustee's
rights under the trust preferred securities guarantee. Such holder need not
first sue the applicable trust, the guarantee trustee, or any other person or
entity. A holder of trust preferred securities may also directly sue us to
enforce such holder's right to receive payment under the trust preferred
securities guarantees. Such holder need not first direct the guarantee trustee
to enforce the terms of the trust preferred securities guarantee or sue such
trust or any other person or entity.
A default or event of default under any of our Senior Debt would not
constitute a default or event of default under the junior subordinated
indenture. However, in the event of payment defaults under, or acceleration of,
our Senior Debt, the subordination provisions of the junior subordinated
indenture provide that no payments may be made in respect of the corresponding
junior subordinated debt securities until such Senior Debt has been paid in full
or any payment default thereunder has been cured or waived.
We and each trust believe that the above mechanisms and obligations, taken
together, are equivalent to a full and unconditional guarantee by us of payments
due on the trust preferred securities. See "Description of
Guarantees -- General."
LIMITED PURPOSE OF TRUST
Each trust's preferred securities evidence a beneficial interest in the
trust, and the trust exists for the sole purpose of issuing its trust preferred
securities and common securities and investing the proceeds in corresponding
junior subordinated debt securities issued by IndyMac Bancorp, Inc. A principal
difference between the rights of a holder of a trust preferred security and a
holder of a corresponding junior subordinated debt security is that a holder of
a corresponding junior subordinated debt security is entitled to receive from us
the principal amount of and interest accrued on such corresponding junior
subordinated debt securities held, while a holder of trust preferred securities
is entitled to receive distributions from the trust, or from us under the
related guarantee, if and to the extent the trust has funds available for the
payment of such distributions.
34
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution of a trust involving the
liquidation of the corresponding junior subordinated debt securities, after
satisfaction of liabilities to creditors of such trust, the holders of the
related trust preferred securities will be entitled to receive, out of the
assets held by such trust, the liquidation distribution in cash. See
"Description of Trust Preferred Securities -- Liquidation Distribution Upon
Termination." Upon any voluntary or involuntary liquidation or bankruptcy of
IndyMac Bancorp, Inc., the property trustee, as holder of the corresponding
junior subordinated debt securities, would be a subordinated creditor of IndyMac
Bancorp, Inc., subordinated in right of payment to all Senior Debt as set forth
in the junior subordinated indenture, but entitled to receive payment in full of
principal and interest before any of our stockholders receive distributions.
Since we are the guarantor under the guarantee and have agreed to pay for all
costs, expenses and liabilities of each trust, other than such trust's
obligations to the holders of its trust preferred securities, the positions of a
holder of such trust preferred securities and a holder of such corresponding
junior subordinated debt securities relative to other creditors and to our
stockholders in the event of liquidation or bankruptcy are expected to be
substantially the same.
GLOBAL SECURITIES
BOOK-ENTRY, DELIVERY AND FORM
We have obtained the information in this section concerning DTC,
Clearstream, Euroclear and the book-entry system and procedures from sources
that we believe to be reliable, but we take no responsibility for the accuracy
of this information.
Unless otherwise mentioned in the relevant prospectus supplement, we and
the trusts anticipate that trust preferred securities will be issued in the form
of one or more global certificates, or "global securities," registered in the
name of a depositary or its nominee. Unless otherwise mentioned in the relevant
prospectus supplement, the depositary will be The Depository Trust Company,
commonly referred to as DTC, and global securities will be registered, at the
request of DTC, in the name of Cede & Co. Beneficial interests in the global
securities will be represented through book-entry accounts of financial
institutions acting on behalf of beneficial owners as participants in DTC.
Unless otherwise mentioned in the relevant prospectus supplement, investors may
elect to hold their interests in the global securities through either DTC (in
the United States) or (in Europe) through Clearstream Banking S.A., or
"Clearstream," formerly Cedelbank, or through Euroclear Bank S.A.IN.V., as
operator of the Euroclear System, or "Euroclear." Investors may hold their
interests in the securities directly if they are participants in such systems,
or indirectly through organizations that are participants in these systems.
Clearstream and Euroclear will hold interests on behalf of their participants
through customers' securities accounts in Clearstream's and Euroclear's names on
the books of their respective depositaries, which in turn will hold these
interests in customers' securities accounts in the depositaries' names on the
books of DTC. Unless otherwise mentioned in the relevant prospectus supplement,
Citibank, N.A. will act as depositary for Clearstream and J.P. Morgan Chase &
Co. will act as depositary for Euroclear. We refer to Citibank and J.P. Morgan
Chase in these capacities as the "U.S. Depositaries." Beneficial interests in
the global securities will be held in authorized denominations of such
securities. Except as set forth below, the global securities may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee.
Securities represented by a global security can be exchanged for definitive
securities in registered form only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for that global security and we do not appoint a successor depositary
within 90 days after receiving that notice;
- at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934 and we do not appoint a successor
depositary within 90 days after becoming aware that DTC has ceased to be
registered as a clearing agency;
35
- we in our sole discretion determine that that global security will be
exchangeable for definitive securities in registered form and notify the
trustee of our decision;
- or an event of default with respect to the securities represented by that
global security has occurred and is continuing.
A global security that can be exchanged as described in the preceding
sentence will be exchanged for definitive securities issued in authorized
denominations of such securities in registered form for the same aggregate
amount. The definitive securities will be registered in the names of the owners
of the beneficial interests in the global security as directed by DTC.
If applicable, we will make payments with respect to all securities
represented by a global security to the paying agent which in turn will make
payment to DTC or its nominee, as the case may be, as the sole registered owner
and the sole holder of the securities represented by global securities.
Accordingly, we, the trustee and any paying agent will have no responsibility or
liability for:
- any aspect of DTC's records relating to, or payments made on account of,
beneficial ownership interests in a note represented by a global
security;
- any other aspect of the relationship between DTC and its participants or
the relationship between those participants and the owners of beneficial
interests in a global security held through those participants; or
- the maintenance, supervision or review of any of DTC's records relating
to those beneficial ownership interests.
DTC has advised us that its current practice is to credit participants'
accounts on each payment date with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such global security
as shown on DTC's records, upon DTC's receipt of funds and corresponding detail
information. The underwriter will initially designate the accounts to be
credited. Payments by participants to owners of beneficial interests in a global
security will be governed by standing instructions and customary practices, as
is the case with securities held for customer accounts registered in "street
name," and will be the sole responsibility of those participants.
DTC
So long as DTC or its nominee is the registered owner of a global security,
DTC or its nominee, as the case may be, will be considered the sole owner and
holder of the securities represented by that global security for all purposes of
the securities. Owners of beneficial interests in the securities will not be
entitled to have securities registered in their names. Accordingly, each person
owning a beneficial interest in a global security must rely on the procedures of
DTC and, if that person is not a DTC participant, on the procedures of the
participant through which that person owns its interest, to exercise any rights
of a holder of securities. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the securities in
certificated form. These laws may impair the ability to transfer beneficial
interests in a global security.
We understand that, under existing industry practices, if we request
holders to take any action, or if an owner of a beneficial interest in a global
security desires to take any action which a holder is entitled to take, then DTC
would authorize the participants holding the relevant beneficial interests to
take that action and those participants would authorize the beneficial owners
owning through such participants to take that action or would otherwise act upon
the instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers
of those ownership interests will be effected only through, records maintained
by DTC and its participants for that global security. The conveyance of notices
and other communications by DTC to its participants and by its participants to
owners of beneficial interests in the securities will be governed by
arrangements among them, subject to any statutory or regulatory requirements in
effect.
36
DTC has advised us that it is a limited-purpose trust company organized
under the New York banking law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered under the Securities Exchange Act of 1934.
DTC holds the securities of its participants and facilitates the clearance
and settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of its
participants. The electronic book-entry system eliminates the need for physical
certificates. DTC's participants include securities brokers and dealers,
including the underwriter, banks, trust companies, clearing corporations and
certain other organizations, some of which, and/or their representatives, own
DTC. Banks, brokers, dealers, trust companies and others that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly, also have access to DTC's book-entry system. The rules applicable to
DTC and its participants are on file with the SEC.
DTC has advised us that the above information with respect to DTC has been
provided to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
CLEARSTREAM
Clearstream has advised us that it is incorporated under the laws of
Luxembourg as a bank. Clearstream holds securities for its participating
organizations, or "Clearstream Participants," and facilitates the clearance and
settlement of securities transactions between Clearstream Participants through
electronic book-entry changes in accounts of Clearstream Participants, thereby
eliminating the need for physical movement of certificates. Clearstream provides
to Clearstream Participants, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities
and securities lending and borrowing. Clearstream interacts with domestic
securities markets in over 30 countries through established depository and
custodial relationships. As a bank, Clearstream is subject to regulation by the
Luxembourg Commission for the Supervision of the Financial Sector (Commission de
Surveillance du Secteur Financier). Clearstream Participants are recognized
financial institutions around the world, including underwriters, securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations and may include the underwriter. Clearstream's U.S.
Participants are limited to securities brokers and dealers and banks. Indirect
access to Clearstream is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream Participant either directly or indirectly.
Distributions with respect to securities held beneficially through
Clearstream will be credited to cash accounts of Clearstream Participants in
accordance with its rules and procedures, to the extent received by the U.S.
Depositary for Clearstream.
EUROCLEAR
Euroclear has advised us that it was created in 1968 to hold securities for
participants of Euroclear, or "Euroclear Participants," and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear performs various other services, including
securities lending and borrowing and interacts with domestic markets in several
countries. Euroclear is operated by Euroclear Bank S.A./N.V., or the "Euroclear
Operator," under contract with Euroclear Clearance Systems plc, a Belgian
corporation. All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not Euroclear Clearance Systems. Euroclear
Clearance Systems establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks, including central banks,
securities brokers and dealers and other professional financial intermediaries
and may include the underwriter. Indirect access to Euroclear is also available
to other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly.
37
The Euroclear Operator is a Belgian bank. As such it is regulated by the
Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System, and applicable Belgian
law, which we refer to in this prospectus as the "Terms and Conditions." The
Terms and Conditions govern transfers of securities and cash within Euroclear,
withdrawals of securities and cash from Euroclear, and receipts of payments with
respect to securities in Euroclear. All securities in Euroclear are held on a
fungible basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under the Terms and
Conditions only on behalf of Euroclear Participants, and has no record of or
relationship with persons holding through Euroclear Participants.
Distributions with respect to securities held beneficially through
Euroclear will be credited to the cash accounts of Euroclear Participants in
accordance with the Terms and Conditions, to the extent received by the U.S.
Depositary for Euroclear.
Euroclear has further advised us that investors that acquire, hold and
transfer interests in the securities by book-entry through accounts with the
Euroclear Operator or any other securities intermediary are subject to the laws
and contractual provisions governing their relationship with their intermediary,
as well as the laws and contractual provisions governing the relationship
between such an intermediary and each other intermediary, if any, standing
between themselves and the global securities.
The Euroclear Operator has advised us that under Belgian law, investors
which are credited with securities on the records of the Euroclear Operator have
a co-proprietary right in the fungible pool of interests in securities on
deposit with the Euroclear Operator in an amount equal to the amount of
interests in securities credited to their accounts. In the event of the
insolvency of the Euroclear Operator, Euroclear Participants would have a right
under Belgian law to the return of the amount and type of interests in
securities credited to their accounts with the Euroclear Operator. If the
Euroclear Operator did not have a sufficient amount of interests in securities
on deposit of a particular type to cover the claims of all Euroclear
Participants credited with such interests in securities on the Euroclear
Operator's records, all Euroclear Participants having an amount of interests in
securities of such type credited to their accounts with the Euroclear Operator
would then have the right under Belgian law only to the return of their pro rata
share of the amount of interests in securities actually on deposit. Under
Belgian law, the Euroclear Operator is required to pass on the benefits of
ownership in any interests in securities on deposit with it (such as dividends,
voting rights and other entitlements) to any person credited with such interest
in securities on its records.
GLOBAL CLEARANCE AND SETTLEMENT PROCEDURES
Initial settlement for the securities will be made in immediately available
funds. Secondary market trading between DTC participants will occur in the
ordinary way in accordance with DTC rules and will be settled in immediately
available funds using DTC's Same-Day Funds Settlement System. Secondary market
trading between Clearstream Participants and/or Euroclear Participants will
occur in the ordinary way in accordance with the applicable rules and operating
procedures of Clearstream and Euroclear and will be settled using the procedures
applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream
Participants or Euroclear Participants, on the other, will be effected through
DTC in accordance with DTC rules on behalf of the relevant European
international clearing system by its U.S. Depositary; however, such cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving securities through DTC, and making or receiving payment in
accordance with
38
normal procedures for same-day funds settlement applicable to DTC. Clearstream
Participants and Euroclear Participants may not deliver instructions directly to
their respective U.S. Depositaries.
Because of time-zone differences, credits of securities received through
Clearstream or Euroclear as a result of a transaction with a DTC participant
will be made during subsequent securities settlement processing and dated the
business day following the DTC settlement date. Such credits or any transactions
in such securities settled during such processing will be reported to the
relevant Euroclear Participants or Clearstream Participants on such business
day. Cash received in Clearstream or Euroclear as a result of sales of
securities by or through a Clearstream Participant or a Euroclear Participant to
a DTC participant will be received with value on the DTC settlement date but
will be available in the relevant Clearstream or Euroclear cash account only as
of the business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of securities among participants of
DTC, Clearstream and Euroclear, they are under no obligation to perform or
continue to perform such procedures and such procedures may be modified or
discontinued at any time. Neither we nor the paying agent will have any
responsibility for the performance by DTC, Euroclear or Clearstream or their
respective direct or indirect participants of their obligations under the rules
and procedures governing their operations.
PLAN OF DISTRIBUTION
We and the trusts may sell the securities offered under this prospectus
through agents, through underwriters or dealers or directly to one or more
purchasers. We may also offer the securities in exchange for our outstanding
indebtedness.
Underwriters, dealers and agents that participate in the distribution of
the securities offered under this prospectus may be underwriters as defined in
the Securities Act of 1933, and any discounts or commissions received by them
from us and any profit on the resale of the offered securities by them may be
treated as underwriting discounts and commissions under the Securities Act. Any
underwriters or agents will be identified and their compensation, including
underwriting discount, will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities exchanges
on which the offered securities may be listed.
The distribution of the securities offered under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to the prevailing market prices or at negotiated prices.
We may determine the price or other terms of the securities offered under
this prospectus by use of an electronic auction. We will describe in the
applicable prospectus supplement how any auction will be conducted to determine
the price or any other terms of the securities, how potential investors may
participate in the auction and, where applicable, the nature of the
underwriters' obligations with respect to the auction.
If the securities offered under this prospectus are issued in exchange for
outstanding securities issued by us, the applicable prospectus supplement will
set forth the terms of the exchange, the identity of and the terms of sale of
the securities offered under this prospectus by the selling security holders.
If the applicable prospectus supplement so indicates, we or a trust will
authorize dealers or agents to solicit offers by institutions to purchase
offered securities under contracts that provide for payment and delivery on a
future date. We or a trust must approve all institutions, but they may include,
among others:
- commercial and savings banks;
- insurance companies;
- pension funds;
39
- investment companies; and
- educational and charitable institutions.
The institutional purchaser's obligations under the contract will only be
subject to the condition that the purchase of the offered securities at the time
of delivery is allowed by the laws that govern the purchaser. The dealers and
agents will not be responsible for the validity or performance of the contracts.
We and the trusts may have agreements with the underwriters, dealers and
agents to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with respect to payments
which the underwriters, dealers or agents may be required to make as a result of
those certain civil liabilities.
If we offer bearer debt securities under this prospectus, each underwriter,
dealer and agent that participates in the distribution of any original issuance
of bearer debt securities will agree not to offer, sell or deliver bearer debt
securities to a United States citizen or to any person within the United States,
unless permitted by federal law.
When we or a trust issue trust preferred securities, they may be new
securities with no established trading market. If we or a trust sell a security
offered by this prospectus to an underwriter for public offering and sale, the
underwriter may make a market for that security, but the underwriter will not be
obligated to do so and could discontinue any market making without notice at any
time. Therefore, we cannot give any assurances to you concerning the liquidity
of any security offered by this prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
LEGAL MATTERS
Unless the applicable prospectus supplement indicates otherwise, certain
matters of Delaware law relating to the validity of the trust preferred
securities, the enforceability of the trust agreements and the creation of the
trusts will be passed upon for us and the trusts by Richards, Layton & Finger,
P.A., special Delaware counsel to us and the trusts. Certain legal matters will
be passed upon for us by Mayer, Brown & Platt, Los Angeles, California, and for
any underwriters or agents by counsel for such underwriters. Mayer, Brown &
Platt and such counsel will rely upon Richards, Layton & Finger, P.A., as to
matters of Delaware law.
EXPERTS
The consolidated financial statements of IndyMac Bancorp, Inc. for the
years ended December 31, 2000, December 31, 1999 and December 31, 1998
incorporated by reference from IndyMac Bancorp's Annual Report on Form 10-K for
the year ended December 31, 2000, have been audited by Grant Thornton LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
40
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrants in connection with the issuance and
distribution of the securities being registered:
[Download Table]
Registration Fee............................................ $125,000
Legal Fees and Expenses*.................................... $300,000
Trustee Fees and Expenses*.................................. $ 20,000
Accounting Fees and Expenses*............................... $300,000
Printing and Engraving Fees*................................ $ 40,000
Miscellaneous*.............................................. $ 50,000
--------
Total*.................................................... $835,000
========
-------------------------
* Estimate pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
IndyMac Bancorp, Inc.'s Restated Certificate of Incorporation eliminates
personal liability of directors to IndyMac Bancorp, Inc. 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 IndyMac Bancorp, Inc. 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 General
Corporation Law of the State of Delaware relating to certain unlawful dividends
and stock repurchases; or (iv) any transaction from which the director derived
an improper personal benefit. The Certificate of Incorporation, as amended, also
provides that IndyMac Bancorp, Inc. shall indemnify and advance expenses to each
director, officer, employee and agent to the fullest extent permitted by the
General Corporation Law of the State of Delaware.
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 IndyMac Bancorp, Inc. 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 IndyMac Bancorp, Inc. 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 this General Corporation Law of the State of
Delaware, IndyMac Bancorp, Inc.'s Bylaws, as amended, provide for
indemnification of directors, officers, employees and agents of IndyMac Bancorp,
Inc. 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 will be conditioned upon receipt by IndyMac
Bancorp, Inc. of an undertaking by or on behalf of such director or office to
repay such amount if it is ultimately determined that he or she is not entitled
to indemnification. The advancement of expenses, as well as indemnification,
pursuant to IndyMac Bancorp, Inc.'s Bylaws, as amended, is not exclusive of any
other rights which those seeking
II-1
indemnification or advancement of expenses from IndyMac Bancorp, Inc. may have.
IndyMac Bancorp, Inc. also maintains an insurance policy pursuant to which its
directors and officers are insured against certain liabilities which might arise
out of their relationship with IndyMac Bancorp, Inc. as directors and officers.
Certain rules of the Federal Deposit Insurance Corporation limit the
ability of certain depository institutions, their subsidiaries and their
affiliated depository institution holding companies to indemnify affiliated
parties, including institution directors. In general, subject to the ability to
purchase directors and officers liability insurance and to advance professional
expenses under certain circumstances, the rules prohibit such institutions from
indemnifying a director for certain costs incurred with regard to an
administrative or enforcement action commenced by any federal banking agency
that results in a final order or settlement pursuant to which the director is
assessed a civil money penalty, removed from office, prohibited from
participating in the affairs of an insured depository institution or required to
cease and desist from or take an affirmative action described in Section 8(b) of
the Federal Deposit Insurance Act (12 U.S.C, (S) 1818(b)).
Under the trust agreements of IndyMac Capital Trust I, IndyMac Capital
Trust II, IndyMac Capital Trust III and IndyMac Capital Trust IV, IndyMac
Bancorp, Inc. will agree to indemnify the trustees of the issuer trust, and to
hold the trustees harmless against, any loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the applicable trust
agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties under such agreement.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-K:
[Download Table]
EXHIBIT
NO. DESCRIPTION
------- -----------
1.1 Form of underwriting agreement for debt securities of
IndyMac Bancorp, Inc.*
1.2 Form of underwriting agreement for equity securities of
IndyMac Bancorp, Inc.*
1.3 Form of underwriting agreement for trust preferred
securities.*
4.1 Senior Indenture (including form of Senior Debt Security),
between IndyMac Bancorp, Inc. and The Bank of New York, as
trustee, which is also hereby incorporated by reference as
new Exhibit 4(a) to IndyMac Bancorp, Inc.'s registration
statement on Form S-3 (no. 333-41329) (in substitution of
the form of indenture previously set forth as such Exhibit
4(a)).**
4.2 Subordinated Indenture (including form of Subordinated Debt
Security) between IndyMac Bancorp, Inc. and The Bank of New
York, as trustee.**
4.3 Form of Deposit Agreement.
4.4 Form of Depositary Receipt (included as Exhibit A to Exhibit
4.3).
4.5(a) Form of Warrant Agreement for Common Stock.
4.5(b) Form of Warrant Agreement for Preferred Stock and Depositary
Shares.
4.5(c) Form of Warrant Agreement for Debt Securities.
4.6 Form of Junior Subordinated Indenture to be entered into
between IndyMac Bancorp, Inc. and The Bank of New York, as
trustee.**
4.7(a) Certificate of Trust of IndyMac Capital Trust I, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.7(b) Certificate of Trust of IndyMac Capital Trust II, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.7(c) Certificate of Trust of IndyMac Capital Trust III, as filed
with the Delaware Secretary of State on August 16, 2001.**
II-2
[Download Table]
EXHIBIT
NO. DESCRIPTION
------- -----------
4.7(d) Certificate of Trust of IndyMac Capital Trust IV, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.8(a) Trust Agreement of IndyMac Capital Trust I dated as of
August 16, 2001.**
4.8(b) Trust Agreement of IndyMac Capital Trust II dated as of
August 16, 2001.**
4.8(c) Trust Agreement of IndyMac Capital Trust III dated as of
August 16, 2001.**
4.8(d) Trust Agreement of IndyMac Capital Trust IV dated as of
August 16, 2001.**
4.9(a) Form of Amended and Restated Trust Agreement for IndyMac
Capital Trust I among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein. **
4.9(b) Form of Amended and Restated Trust Agreement for IndyMac
Capital Trust II among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.9(c) Form of Amended and Restated Trust Agreement of IndyMac
Capital Trust III among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.9(d) Form of Amended and Restated Trust Agreement of IndyMac
Capital Trust IV among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.10(a) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust I (included as Exhibit D to Exhibit 4.9(a)).**
4.10(b) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust II (included as Exhibit D to Exhibit
4.9(b)).**
4.10(c) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust III (included as Exhibit D to Exhibit
4.9(c)).**
4.10(d) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust IV (included as Exhibit D to Exhibit
4.9(d)).**
4.11(a) Form of Guarantee Agreement for IndyMac Capital Trust I
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York, as trustee.**
4.11(b) Form of Guarantee Agreement for IndyMac Capital Trust II
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York, as trustee.**
4.11(c) Form of Guarantee Agreement for IndyMac Capital Trust III
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York as trustee.**
4.11(d) Form of Guarantee Agreement for IndyMac Capital Trust IV
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York as trustee.**
5.1 Opinion of Mayer, Brown & Platt.**
5.2(a) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust I.**
5.2(b) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust II.**
5.2(c) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust III.**
5.2(d) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust IV.**
12.1 Statement re Computation of Ratios.**
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1).**
23.2 Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2(a), 5.2(b), 5.2(c), and 5.2(d)).**
23.3 Consent of Grant Thornton LLP.
24.1 Power of Attorney (included in the signature page of this
registration statement).**
25.1 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Subordinated Indenture.**
II-3
[Download Table]
EXHIBIT
NO. DESCRIPTION
------- -----------
25.2 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Senior Indenture, which is also
hereby incorporated by reference as new Exhibit 25 to
IndyMac Bancorp, Inc.'s registration statement on Form S-3
(no. 333-41329) (in substitution of the statement of
eligibility previously set forth as Exhibit 25 thereto).**
25.3 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Junior Subordinated Indenture.**
25.4(a) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust I.**
25.4(b) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust II.**
25.4(c) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust III.**
25.4(d) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust IV.**
25.5(a) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust I.**
25.5(b) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust II.**
25.5(c) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust III.**
25.5(d) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust IV.**
-------------------------
* To be filed by amendment or incorporated by reference in connection with an
offering of securities.
** Previously filed.
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(2) 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. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered would not
exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement;
(3) 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) and (2) above to 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 Registrants
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
II-4
(b) 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.
(c) To remove from registration by means of a post-effective amendment
of any of the securities being registered which remain unsold at the
termination of the offering.
Each of the undersigned Registrants 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each of the Registrants has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
each Registrant of expenses incurred or paid by a director, officer or
controlling person of each 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, each of the Registrants
will, unless, in the opinion of their 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 of 1933 and will be governed by the final
adjudication of such issue.
Each of the undersigned Registrants hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be a part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Each of the undersigned Registrants hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this amendment to registration statement on Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Pasadena, State of California, on August 28, 2001.
INDYMAC BANCORP, INC.
By: /s/ ROGER H. MOLVAR
------------------------------------
Roger H. Molvar
Executive Vice President and
Chief Administrative Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to registration statement on Form S-3 has been signed by the
following persons on behalf of the registrant in the capacities and on the dates
indicated.
[Enlarge/Download Table]
SIGNATURES TITLE DATE
---------- ----- ----
/s/ DAVID S. LOEB* Chairman of the Board of August 28, 2001
--------------------------------------------------- Directors
David S. Loeb
/s/ MICHAEL W. PERRY* Vice Chairman of the Board of August 28, 2001
--------------------------------------------------- Directors and Chief Executive
Michael W. Perry Officer (Principal Executive
Officer)
/s/ CARMELLA L. GRAHN* Executive Vice President and August 28, 2001
--------------------------------------------------- Chief Financial Officer
Carmella L. Grahn (Principal Financial and
Accounting Officer)
/s/ LYLE E. GRAMLEY* Director August 28, 2001
---------------------------------------------------
Lyle E. Gramley
Director August 28, 2001
---------------------------------------------------
Hugh M. Grant
/s/ PATRICK C. HADEN* Director August 28, 2001
---------------------------------------------------
Patrick C. Haden
/s/ THOMAS J. KEARNS* Director August 28, 2001
---------------------------------------------------
Thomas J. Kearns
/s/ FREDERICK J. NAPOLITANO* Director August 28, 2001
---------------------------------------------------
Frederick J. Napolitano
/s/ JAMES R. UKROPINA* Director August 28, 2001
---------------------------------------------------
James R. Ukropina
*By: /s/ ROGER H. MOLVAR
---------------------------------------------
Roger H. Molvar
Attorney-in-Fact
II-6
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this amendment to registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Pasadena, State of California, on August 28, 2001.
INDYMAC CAPITAL TRUST I
By: /s/ ROGER H. MOLVAR
------------------------------------
Name: Roger H. Molvar
Title: Administrative Trustee
INDYMAC CAPITAL TRUST II
By: /s/ ROGER H. MOLVAR
------------------------------------
Name: Roger H. Molvar
Title: Administrative Trustee
INDYMAC CAPITAL TRUST III
By: /s/ ROGER H. MOLVAR
------------------------------------
Name: Roger H. Molvar
Title: Administrative Trustee
INDYMAC CAPITAL TRUST IV
By: /s/ ROGER H. MOLVAR
------------------------------------
Name: Roger H. Molvar
Title: Administrative Trustee
II-7
INDEX OF EXHIBITS
[Download Table]
EXHIBIT
NO. DESCRIPTION
------- -----------
1.1 Form of underwriting agreement for debt securities of
IndyMac Bancorp, Inc.*
1.2 Form of underwriting agreement for equity securities of
IndyMac Bancorp, Inc.*
1.3 Form of underwriting agreement for trust preferred
securities.*
4.1 Senior Indenture (including form of Senior Debt Security),
between IndyMac Bancorp, Inc. and The Bank of New York, as
trustee, which is also hereby incorporated by reference as
new Exhibit 4(a) to IndyMac Bancorp, Inc.'s registration
statement on Form S-3 (no. 333-41329) (in substitution of
the form of indenture previously set forth as such Exhibit
4(a)).**
4.2 Subordinated Indenture (including form of Subordinated Debt
Security) between IndyMac Bancorp, Inc. and The Bank of New
York, as trustee.**
4.3 Form of Deposit Agreement.
4.4 Form of Depositary Receipt (included as Exhibit A to Exhibit
4.3).
4.5(a) Form of Warrant Agreement for Common Stock.
4.5(b) Form of Warrant Agreement for Preferred Stock and Depositary
Shares.
4.5(c) Form of Warrant Agreement for Debt Securities.
4.6 Form of Junior Subordinated Indenture to be entered into
between IndyMac Bancorp, Inc. and The Bank of New York, as
trustee.**
4.7(a) Certificate of Trust of IndyMac Capital Trust I, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.7(b) Certificate of Trust of IndyMac Capital Trust II, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.7(c) Certificate of Trust of IndyMac Capital Trust III, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.7(d) Certificate of Trust of IndyMac Capital Trust IV, as filed
with the Delaware Secretary of State on August 16, 2001.**
4.8(a) Trust Agreement of IndyMac Capital Trust I dated as of
August 16, 2001.**
4.8(b) Trust Agreement of IndyMac Capital Trust II dated as of
August 16, 2001.**
4.8(c) Trust Agreement of IndyMac Capital Trust III dated as of
August 16, 2001.**
4.8(d) Trust Agreement of IndyMac Capital Trust IV dated as of
August 16, 2001.**
4.9(a) Form of Amended and Restated Trust Agreement for IndyMac
Capital Trust I among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein. **
4.9(b) Form of Amended and Restated Trust Agreement for IndyMac
Capital Trust II among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.9(c) Form of Amended and Restated Trust Agreement of IndyMac
Capital Trust III among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.9(d) Form of Amended and Restated Trust Agreement of IndyMac
Capital Trust IV among IndyMac Bancorp, Inc., as depositor,
Wilmington Trust Company, as Property Trustee and Delaware
Trustee, and the Administrative Trustees named therein.**
4.10(a) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust I (included as Exhibit D to Exhibit 4.9(a)).**
4.10(b) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust II (included as Exhibit D to Exhibit
4.9(b)).**
4.10(c) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust III (included as Exhibit D to Exhibit
4.9(c)).**
4.10(d) Form of Trust Preferred Securities Certificate for IndyMac
Capital Trust IV (included as Exhibit D to Exhibit
4.9(d)).**
[Download Table]
EXHIBIT
NO. DESCRIPTION
------- -----------
4.11(a) Form of Guarantee Agreement for IndyMac Capital Trust I
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York, as trustee.**
4.11(b) Form of Guarantee Agreement for IndyMac Capital Trust II
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York, as trustee.**
4.11(c) Form of Guarantee Agreement for IndyMac Capital Trust III
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York as trustee.**
4.11(d) Form of Guarantee Agreement for IndyMac Capital Trust IV
between IndyMac Bancorp, Inc., as guarantor, and The Bank of
New York as trustee.**
5.1 Opinion of Mayer, Brown & Platt.**
5.2(a) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust I.**
5.2(b) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust II.**
5.2(c) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust III.**
5.2(d) Opinion of Richards, Layton & Finger, P.A. with respect to
IndyMac Capital Trust IV.**
12.1 Statement re Computation of Ratios.**
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1).**
23.2 Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2(a), 5.2(b), 5.2(c), and 5.2(d)).**
23.3 Consent of Grant Thornton LLP.
24.1 Power of Attorney (included in the signature page of this
registration statement).**
25.1 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Subordinated Indenture.**
25.2 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Senior Indenture, which is also
hereby incorporated by reference as new Exhibit 25 to
IndyMac Bancorp, Inc.'s registration statement on Form S-3
(no. 333-41329) (in substitution of the statement of
eligibility previously set forth as Exhibit 25 thereto).**
25.3 Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Junior Subordinated Indenture.**
25.4(a) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust I.**
25.4(b) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust II.**
25.4(c) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust III.**
25.4(d) Statement of Eligibility on Form T-1 of The Bank of New
York, as trustee under the Guarantee Agreement with respect
to IndyMac Capital Trust IV.**
25.5(a) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust I.**
25.5(b) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust II.**
25.5(c) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust III.**
25.5(d) Statement of Eligibility on Form T-1 of Wilmington Trust
Company, as trustee under the Amended and Restated Trust
Agreement of IndyMac Capital Trust IV.**
-------------------------
*To be filed by amendment or incorporated by reference in connection with an
offering of securities.
**Previously filed.
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000950150-01-500572 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Fri., Apr. 19, 5:30:11.2am ET 
