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SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
Michigan | 38-3150651 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) |
Troy, Michigan 48098-2639
(248) 312-2000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Vice Chairman of the Board, President and Chief Executive Officer
Flagstar Bancorp, Inc.
5151 Corporate Drive
Troy, Michigan 48098-2639
(248) 312-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Kutak Rock LLP
1101 Connecticut Avenue, NW, Suite 1000
Washington, DC 20036
(202) 828-2400
Large accelerated filero | Accelerated filerþ | Non-accelerated filero | Smaller reporting companyo | |||
(Do not check if a smaller reporting company) |
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Title of each class | Amount | Proposed maximum | Proposed maximum aggregate | Amount of | ||||||||||||||||||
of securities to | to be | offering price | offering | registration | ||||||||||||||||||
be registered | registered(1) | per unit | price | fee(2) | ||||||||||||||||||
Fixed Rate Cumulative Perpetual Preferred Stock, Series C, $0.01 par value per share | 266,657 | $ | 1,000 | $ | 266,657,000.00 | $ | 14,880.00 | |||||||||||||||
Warrant to purchase Common Stock, $0.01 par value per share(3) | — | $ | — | $ | — | $ | — | |||||||||||||||
Common Stock, $0.01 par value per share, underlying warrant to purchase common stock(3) | 64,513,790 | $ | 0.62 | (4) | $ | 39,998,549.80 | (4) | $ | 2,2320.00 | |||||||||||||
Common Stock, $0.01 par value per share | 395,909,794 | (5) | $ | 0.73 | (6) | $ | 289,014,149.62 | (6) | $ | 16,127.00 | ||||||||||||
TOTAL: | $ | 595,669,699.42 | $ | 33,239.00 | ||||||||||||||||||
(1) | Pursuant to Rule 416 under the Securities Act of 1933 (the “Securities Act”), this registration statement shall be deemed to cover or to proportionally reduce, as applicable, such additional number of securities (which amount is currently indeterminate) of the Registrant issuable in the event the number of securities set forth in the table of the Registrant is increased, or reduced, as applicable, by reason of any stock split, reverse stock split, stock dividend or other similar transaction. | |
(2) | Registration fee calculations are made pursuant to Rule 457(o) promulgated under the Securities Act and are based on the filing fee of $55.80 per $1,000,000 of securities registered. | |
(3) | In addition to the warrant, there are being registered hereunder, the 64,513,790 shares of common stock issuable upon exercise of the warrant. Pursuant to Rule 457(g), no separate registration fee is required for the warrant. | |
(4) | Calculated in accordance with Rule 457(i) with respect to the per share exercise price of $0.62 for the common stock underlying the warrant. | |
(5) | This amount includes (i) 375,000,000 shares of common stock held by MP Thrift Investments, L.P., (ii) 6,650,000 shares of common stock held by our directors and officers, (iii) 11,111,401 shares of our common stock issuable upon exercise of warrants by certain investors , and (iv) 3,148,393 shares of our common stock issued upon exercise of warrants by certain investors. | |
(6) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act, on the basis of the average of the high and low prices of the Registrant’s common stock as reported by the New York Stock Exchange on June 23, 2009. |
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The information in this prospectus is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. The selling securityholders may not sell these securities until that registration statement becomes effective. This prospectus is not an offer to sell securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
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• | Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed March 13, 2009; | ||
• | Current Reports on Form 8-K, filed February 2, 2009, February 19, 2009, February 27, 2009, May 29, 2009 and June 9, 2009; | ||
• | Definitive Proxy Statement filed April 27, 2009; and | ||
• | Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed May 7, 2009. |
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• | general business and economic conditions; | ||
• | actual or anticipated quarterly fluctuations in our operating and financial results; | ||
• | developments related to investigations, proceedings or litigations that involve us; | ||
• | changes in financial estimates and recommendations by financial analysts; | ||
• | dispositions, acquisitions and financings; | ||
• | actions of our current stockholders, including sales of common stock by existing stockholders and our directors and executive officers; | ||
• | fluctuations in the stock price and operating results of our competitors; | ||
• | regulatory developments; and | ||
• | developments related to the financial services industry. |
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• | senior to our common stock and all other equity securities designated as ranking junior to the Treasury preferred stock; and | ||
• | at least equally with all other equity securities designated as ranking on a parity with the Treasury preferred stock, or parity stock, with respect to the payment of dividends and distribution of assets upon our liquidation, dissolution or winding-up. |
• | purchases, redemptions or other acquisitions of our common stock or other junior stock in connection with the administration of our employee benefit plans in the ordinary course of business pursuant to a publicly announced repurchase plan up to the increase in diluted shares outstanding resulting from the grant, vesting or exercise of equity-based compensation; | ||
• | purchases or other acquisitions by broker-dealer subsidiaries of ours solely for the purpose of market-making, stabilization or customer facilitation transactions in junior stock or parity stock in the ordinary course of its business; | ||
• | purchases or other acquisitions by broker-dealer subsidiaries of ours for resale pursuant to an offering by us of our stock that is underwritten by the related broker-dealer subsidiary; |
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• | any dividends or distributions of rights or junior stock in connection with any stockholders’ rights plan or repurchases of rights pursuant to any stockholders’ rights plan; | ||
• | acquisition by us of record ownership of junior stock or parity stock for the beneficial ownership of any other person who is not us or a subsidiary of ours, including as trustee or custodian; and | ||
• | the exchange or conversion of junior stock for or into other junior stock or of parity stock for or into other parity stock or junior stock but only to the extent that such acquisition is required pursuant to binding contractual agreements entered into before January 30, 2009 or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for common stock. |
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• | any amendment or alteration of our amended and restated articles of incorporation to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock ranking senior to the Treasury preferred stock with respect to payment of dividends and/or distribution of assets on our liquidation, dissolution or winding up; | ||
• | any amendment, alteration or repeal of any provision of the certificate of designations for the Treasury preferred stock so as to adversely affect the rights, preferences, privileges or voting powers of the Treasury preferred stock; or | ||
• | any consummation of a binding share exchange or reclassification involving the Treasury preferred stock or of a merger or consolidation of us with another entity, unless the shares of Treasury preferred stock remain outstanding following any such transaction or, if we are not the surviving entity, are converted into or exchanged for preference securities and such remaining outstanding shares of Treasury preferred stock or preference securities have rights, references, privileges and voting powers that are not materially less favorable than the rights, preferences, privileges or voting powers of the Treasury preferred stock, taken as a whole. |
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• | as consideration for or to fund the acquisition of businesses and/or related assets; | ||
• | in connection with employee benefit plans and compensation related arrangements in the ordinary course and consistent with past practice approved by our board of directors; | ||
• | in connection with public or broadly marketed offerings and sales of common stock or convertible securities for cash conducted by us or our affiliates pursuant to registration under the Securities Act, or Rule 144A thereunder on a basis consistent with capital-raising transactions by comparable financial institutions (but do not include other private transactions); and | ||
• | in connection with the exercise of preemptive rights on terms existing as of January 30, 2009. |
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Three- | ||||||||||||||||||||||||
Months | ||||||||||||||||||||||||
Ended | ||||||||||||||||||||||||
March 31, | Year Ended December 31, | |||||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Ratio of earnings to fixed charges and preferred stock dividends: | ||||||||||||||||||||||||
Excluding interest on deposits | (1) | (1) | (1) | 1.46 | 1.59 | 2.28 | ||||||||||||||||||
Including interest on deposits | (1) | (1) | (1) | 1.20 | 1.27 | 1.65 |
(1) | Earnings were insufficient to meet fixed charges and preferred stock dividends by approximately $423.4 million and $58.8 million for the years ended December 31, 2008 and 2007, respectively, and $96.1 million for the three-month period ended March 31, 2009. |
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U.S. Department of the Treasury | ||||||||||||||||||||
Shares of | Maximum | Warrants to | ||||||||||||||||||
Treasury | shares of | purchase | ||||||||||||||||||
preferred | Treasury | common | ||||||||||||||||||
stock | preferred | stock | Maximum | Shares of | Maximum | |||||||||||||||
beneficially | stock which | beneficially | warrants | common stock | shares of | |||||||||||||||
owned | may be | owned | which may | beneficially | common stock | |||||||||||||||
before | resold | before | be resold | owned before | which may be | |||||||||||||||
Name of selling securityholder | offering | hereby | offering | hereby | offering | resold hereby | ||||||||||||||
U.S. Department of the Treasury(a) | 266,657 | 266,657 | 1(b) | 1(b) | 64,513,790 | 64,513,790 |
(a) | This table assumes the sale by Treasury of all of its securities offered hereby. | |
(b) | One Treasury warrant to purchase 64,513,790 shares of common stock. |
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All other securityholders | ||||||||||||||||
Shares of | Maximum | |||||||||||||||
common stock | shares of | Shares of common stock | ||||||||||||||
beneficially | common stock | beneficially owned after the | ||||||||||||||
owned before | which may be | offering(1) | ||||||||||||||
Name of selling securityholder | the offering | resold hereby | Number | Percent | ||||||||||||
MP Thrift Investments L.P.(2) | 375,000,000 | 375,000,000 | -0- | * | ||||||||||||
Bay Pond Investors (Bermuda) L.P. (nominee: (Morgan Stanley & Co as nominee for Bay Pond Investors (Bermuda) L.P.))(3)(4)(5)(6) | 1,870,013 | 855,773 | 1,014,240 | * | ||||||||||||
Bay Pond Partners, L.P. (nominee: (Morgan Stanley & Co as nominee for Bay Pond Partners, L.P.))(3)(4)(5)(6) | 4,955,926 | 2,079,871 | 2,876,055 | * | ||||||||||||
Elliott Associates, L.P.(3)(4)(5)(7) | 2,358,554 | 2,058,554 | 300,000 | * | ||||||||||||
Elliott International, L.P.(3)(4)(5)(8) | 3,542,797 | 3,092,797 | 450,000 | * | ||||||||||||
Financial Stocks Limited Partnership(3)(4)(5)(9) | 2,353,084 | 1,176,542 | 1,176,542 | * | ||||||||||||
First Opportunity Fund, Inc. (nominee: (Scrod & Co))(3)(4)(5)(6) | 423,058 | 423,058 | 0 | * | ||||||||||||
LB I Group, Inc.(3)(4)(5)(10) | 1,055,528 | 527,764 | 527,764 | * | ||||||||||||
Samlyn Offshore Master Fund, Ltd.(3)(4)(5)(11) | 2,865,630 | 1,838,571 | 1,027,059 | * | ||||||||||||
Samlyn Onshore Fund, LP(3)(4)(5)(12) | 2,041,548 | 1,309,822 | 731,726 | * | ||||||||||||
Wolf Creek Investors (Bermuda), L.P. (nominee: (Goldman Sachs & Co.))(3)(4)(5)(6) | 523,954 | 455,780 | 68,174 | * | ||||||||||||
Wolf Creek Partners, L.P. (nominee: (Goldman Sachs & Co.))(3)(4)(5)(6) | 523,859 | 441,262 | 82,597 | * | ||||||||||||
Thomas J. Hammond(13) | 13,411,865 | 2,500,000 | 10,911,865 | 2.0 | ||||||||||||
Mark T. Hammond(14) | 9,521,960 | 2,500,000 | 7,021,960 | 1.3 | ||||||||||||
Paul D. Borja(15) | 179,753 | 150,000 | 29,753 | * | ||||||||||||
Kirstin A. Hammond(16) | 270,614 | 75,000 | 195,614 | * | ||||||||||||
Robert O. Rondeau(17) | 382,692 | 75,000 | 307,692 | * | ||||||||||||
Matthew I. Roslin(18) | 178,669 | 125,000 | 53,669 | * | ||||||||||||
Alessandro Dinello(19) | 334,092 | 125,000 | 209,092 | * | ||||||||||||
Charles Kirkpatrick(19) | 107,747 | 62,500 | 45,247 | * | ||||||||||||
Joan H. Anderson(19) | 166,203 | 30,000 | 136,203 | * | ||||||||||||
M. David Bowers(19) | 100,703 | 62,500 | 38,203 | * | ||||||||||||
William Robinson(19) | 144,580 | 93,750 | 50,830 | * | ||||||||||||
Rebecca Lucci(19) | 40,303 | 30,000 | 10,303 | * | ||||||||||||
Steve Brooks(19) | 201,081 | 50,000 | 151,081 | * | ||||||||||||
Mary Kay Ruedisueli(20) | 217,058 | 62,500 | 154,558 | * | ||||||||||||
Stanley Jursek(19) | 49,825 | 12,500 | 37,325 | * | ||||||||||||
Craig Burres(21) | 27,728 | 15,000 | 12,728 | * | ||||||||||||
Linda Terrasi(21) | 101,207 | 62,500 | 38,707 | * | ||||||||||||
John Marecki(21) | 71,772 | 15,000 | 56,772 | * | ||||||||||||
Pam Hardy(21) | 24,334 | 10,000 | 14,334 | * | ||||||||||||
Michael Hillman(21) | 68,231 | 25,000 | 43,231 | * | ||||||||||||
Joel Murray(21) | 12,713 | 6,250 | 6,463 | * | ||||||||||||
Ernest Antczak(21) | 15,699 | 12,500 | 3,199 | * | ||||||||||||
Fred Bartel(21) | 12,500 | 12,500 | 0 | * | ||||||||||||
Michael Yeager(21) | 32,625 | 31,250 | 1,375 | * | ||||||||||||
Greg Lutin(22) | 67,655 | 31,250 | 36,405 | * | ||||||||||||
Rob Malczynski(22) | 110,174 | 37,500 | 72,674 | * | ||||||||||||
Paul Wyner(22) | 44,531 | 37,500 | 7,031 | * | ||||||||||||
Tim McAvenia(23) | 182,464 | 62,500 | 119,964 | * | ||||||||||||
Linda Bissell(23) | 41,136 | 25,000 | 16,136 | * | ||||||||||||
Gary Szymanski(23) | 82,744 | 31,250 | 51,494 | * | ||||||||||||
Mike Fowler(23) | 35,010 | 25,000 | 10,010 | * | ||||||||||||
Paul Perez(23) | 16,633 | 12,500 | 4,133 | * | ||||||||||||
Tim Kalaris(23) | 198,597 | 12,500 | 186,097 | * | ||||||||||||
James Crowley(23) | 21,314 | 7,500 | 13,814 | * | ||||||||||||
Ann-Marie Copland(24) | 13,500 | 12,500 | 1,000 | * | ||||||||||||
Lisa Lacey(24) | 27,165 | 6,250 | 20,915 | * | ||||||||||||
Rich Hoffman(24) | 17,479 | 6,250 | 11,229 | * | ||||||||||||
Jay J. Hansen(25) | 90,268 | 80,000 | 10,268 | * | ||||||||||||
B. Brian Tauber(25) | 153,500 | 87,500 | 66,000 | * | ||||||||||||
William F. Pickard(25) | 31,250 | 31,250 | — | * |
* | Less than 1.0%. | |
(1) | The “Shares of common stock beneficially owned after the offering” column assumes that all shares registered hereunder will be sold. However, the selling securityholders have the discretion to sell none, some or all of the shares registered hereunder. The “Shares of common stock beneficially owned after the offering—Percent” column is calculated based on 544,155,030 shares of common stock outstanding, which assumes that the outstanding May Warrants and the Treasury warrant are exercised for 11,111,401 and 64,513,790 shares of common stock, respectively, and 468,529,839 shares of common stock were outstanding as of June 23, 2009. |
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(2) | MP Thrift Investments, L.P. is our controlling stockholder, holding approximately 80.6% of the total voting power of our common stock, and has representatives on our board of directors. | |
(3) | The “Shares of common stock beneficially owned before the offering” column includes any common stock issuable upon exercise of the outstanding May Warrants. | |
(4) | The “Maximum shares of common stock which may be resold hereby” column includes all common stock issuable upon exercise of such selling securityholder’s May Warrants, calculated without regard to anti-dilution adjustments. | |
(5) | Some of these shares of common stock owned before the offering are subject to a separate resale registration statement previously filed with the SEC and, if sold pursuant thereto, would not be beneficially owned after this offering. See “PROSPECTUS SUMMARY—Capital Raising Activities—The May Private Placement.” The “Shares of common stock beneficially owned after the offering” column does not assume that these shares have been sold. | |
(6) | Wellington Management Company, LLP (“Wellington”) is an investment advisor registered under the Investment Advisers Act of 1940, as amended. Wellington, in such capacity, may be deemed to share beneficial ownership over the shares held by its client accounts. | |
(7) | Paul E. Singer, Elliott Capital Advisors, L.P., a Delaware limited partnership which is controlled by Mr. Singer, and Elliott Special GP, LLC, a Delaware limited liability company which is controlled by Mr. Singer, are the general partners of Elliott Associates, L.P. | |
(8) | Hambledon, Inc., a Cayman Islands corporation controlled by Paul E. Singer, is the sole general partner of Elliott International, L.P. In addition, Elliott International Capital Advisors Inc., the investment manager of Elliott International, L.P. which is controlled by Mr. Singer, has shared power with Elliott International, L.P. to vote and dispose of the shares owned by Elliott International, L.P. | |
(9) | FSI Group, LLC, a Delaware limited liability company, is the sole general partner of Financial Stocks Limited Partnership. Steven N. Stein and John M. Stein together control FSI Group, LLC, and accordingly share the power to vote and dispose of the shares owned by Financial Stocks Limited Partnership. | |
(10) | LB I Group Inc. is a wholly-owned subsidiary of Lehman Brothers Inc., which is a registered broker-dealer. LB I Group Inc. has represented to us that it is not acting as an underwriter in this offering, it purchased the shares it is offering under this prospectus in the ordinary course of business, and at the time of such purchase, it had no agreements or understandings, directly or indirectly, with any person to distribute such shares. Lehman Brothers Holdings Inc., a public reporting company, is the parent of Lehman Brothers Inc. | |
(11) | Samlyn Capital, LLC (“Samlyn Capital”) is the Investment Manager to Samlyn Offshore Ltd. Robert Pohly is the managing member of Samlyn Capital, and as such has investment power and voting control over these securities. Samlyn Capital and Mr. Pohly each disclaims beneficial ownership of these securities except to the extent of their pecuniary interest. | |
(12) | Samlyn Capital is the Investment Manager to, and Samlyn Partners, LLC (“Samlyn Partners”) is the General Partner of, Samlyn Onshore Fund, LP. Robert Pohly is the managing member of Samlyn Capital and Samlyn Partners, and as such has investment power and voting control over these securities. Samlyn Capital, Samlyn Partners and Mr. Pohly each their pecuniary interest. | |
(13) | Chairman of the Company and the Bank. The amount shown as beneficially owned by Mr. Hammond, both before and after the offering, does not include 4,333,106 shares of common stock held by Mr. Hammond’s wife, Janet G. Hammond, as to which Mr. Hammond disclaims beneficial ownership. | |
(14) | Vice-chairman, president and chief executive officer of the Company and the Bank. Mr. Hammond is the son of Thomas J. Hammond and husband of Kirstin A. Hammond. The amount shown as beneficially owned by Mr. Hammond, both before and after the offering, does not included 270,614 shares of common stock held by Mr. Hammond’s wife, Kirstin A. Hammond, as to which Mr. Hammond disclaims beneficial ownership. | |
(15) | Executive vice-president and chief financial officer of the Company and the Bank. | |
(16) | Executive vice-president and chief investment officer of the Bank and president of Flagstar Capital Markets Corporation, a wholly-owned subsidiary of the Bank. Ms. Hammond is the wife of Mark T. Hammond and daughter-in-law of Thomas J. Hammond. The amount shown as beneficially owned by Ms. Hammond, both before and after the offering, does not included [9,527,847] shares of common stock held by Ms. Hammond’s husband, Mark T. Hammond, as to which Ms. Hammond disclaims beneficial ownership. | |
(17) | Resigned as a director and an executive vice-president of the Company and the Bank. | |
(18) | Executive vice-president, chief administrative officer and chief legal officer of the Company and the Bank. | |
(19) | Executive vice-president of the Bank. | |
(20) | Secretary of the Company and executive vice-president of the Bank. | |
(21) | Senior vice-president of the Bank. | |
(22) | First vice-president of the Bank. | |
(23) | Vice-president of the Bank. | |
(24) | Executive vice-president of the Bank. | |
(25) | Director of the Company. |
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Stock, Series C
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SEC registration fee | $ | 33,239 | ||
Accounting fees | 10,000 | |||
Legal fees | 60,000 | |||
Printing, engraving expenses | 5,000 | |||
Other | 1,761 | |||
Total | $ | 110,000 | ||
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Exhibit | ||||
Number | Description | |||
3.1 | Amended and Restated Articles of Incorporation of the Company, as amended (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated May 29, 2009, and incorporated herein by reference). | |||
3.2 | Certificate of Designation of Mandatory Convertible Non-Cumulative Perpetual Preferred Stock, Series A of the Company (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated as of May 20, 2008, and incorporated herein by reference). | |||
3.3 | Certificate of Designation of Convertible Participating Voting Preferred Stock, Series B of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated as of February 2, 2009, and incorporated herein by reference). | |||
3.4 | Certificate of Designations for Fixed Rate Cumulative Perpetual Preferred Stock, Series C (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated January 30, 2009, and incorporated herein by reference). | |||
3.5 | Sixth Amended and Restated Bylaws of the Company (previously filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K, dated May 29, 2009 and incorporated herein by reference). | |||
4.1 | Specimen of certificate for shares of Common Stock (previously filed as Exhibit 4 to the Company’s Registration Statement on Form S-1, Registration Statement No. 333-21621, dated February 12, 1997, and incorporated herein by reference). | |||
4.2 | Warrants to purchase up to 14,259,794 shares of Common Stock (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated February 2, 2009, and incorporated herein by reference). | |||
4.3# | Specimen of certificate for shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series C. | |||
5.1# | Opinion of Kutak Rock LLP. | |||
10.1 | Letter Agreement, including the Securities Purchase Agreement — Standard Terms incorporated therein, dated as of January 30, 2009, between the Company and the United States Department of the Treasury (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated as of February 2, 2009, and incorporated herein by reference). | |||
12.1# | Statement of Computation of Ratios of Earnings to Fixed Charges and Preferred Dividends. | |||
23.1# | Consent of Baker Tilly Virchow Krause, LLP (f/k/a Virchow, Krause & Company, LLP). | |||
23.2# | Consent of Kutak Rock LLP (included in Exhibit 5.1). | |||
24.1# | Power of Attorney (included on page II-6). |
# | Filed herewith. |
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FLAGSTAR BANCORP, INC. | ||||
(Registrant) | ||||
By: | /s/ Mark T. Hammond | |||
Mark T. Hammond, Vice-Chairman, President and | ||||
Chief Executive Officer (Authorized Officer) | ||||
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SIGNATURE | TITLE | DATE | ||||
By: | /s/ THOMAS J. HAMMOND | Chairman of the Board | June 24, 2009 | |||
By: | /s/ MARK T. HAMMOND | Vice Chairman of the Board, President, and Chief Executive Officer (Principal Executive Officer) | June 24, 2009 | |||
By: | /s/ PAUL D. BORJA | Executive Vice-President and Chief Financial Officer (Principal Financial and Accounting Officer) | June 24, 2009 | |||
By: | | Director | ||||
By: | /s/ MARK PATTERSON | Director | June 24, 2009 | |||
By: | /s/ GREGORY ENG | Director | June 24, 2009 | |||
By: | /s/ JAMES D. COLEMAN | Director | June 24, 2009 | |||
By: | /s/ LESLEY GOLDWASSER | Director | June 24, 2009 | |||
By: | /s/ DAVID L. TREADWELL | Director | June 24, 2009 | |||
By: | | Director | ||||
By: | /s/ JAY J. HANSEN | Director | June 24, 2009 | |||
By: | | Director |
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Exhibit | ||||
Number | Description | |||
3.1 | Amended and Restated Articles of Incorporation of the Company, as amended (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated May 29, 2009, and incorporated herein by reference). | |||
3.2 | Certificate of Designation of Mandatory Convertible Non-Cumulative Perpetual Preferred Stock, Series A of the Company (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated as of May 20, 2008, and incorporated herein by reference). | |||
3.3 | Certificate of Designation of Convertible Participating Voting Preferred Stock, Series B of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated as of February 2, 2009, and incorporated herein by reference). | |||
3.4 | Certificate of Designations for Fixed Rate Cumulative Perpetual Preferred Stock, Series C (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated January 30, 2009, and incorporated herein by reference). | |||
3.5 | Sixth Amended and Restated Bylaws of the Company (previously filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K, dated May 29, 2009 and incorporated herein by reference). | |||
4.1 | Specimen of certificate for shares of Common Stock (previously filed as Exhibit 4 to the Company’s Registration Statement on Form S-1, Registration Statement No. 333-21621, dated February 12, 1997, and incorporated herein by reference). | |||
4.2 | Warrants to purchase up to 14,259,794 shares of Common Stock (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated February 2, 2009, and incorporated herein by reference). | |||
4.3# | Specimen of certificate for shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series C. | |||
5.1# | Opinion of Kutak Rock LLP. | |||
10.1 | Letter Agreement, including the Securities Purchase Agreement — Standard Terms incorporated therein, dated as of January 30, 2009, between the Company and the United States Department of the Treasury (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, dated as of February 2, 2009, and incorporated herein by reference). | |||
12.1# | Statement of Computation of Ratios of Earnings to Fixed Charges and Preferred Dividends. | |||
23.1# | Consent of Baker Tilly Virchow Krause, LLP (f/k/a Virchow, Krause & Company, LLP). | |||
23.2# | Consent of Kutak Rock LLP (included in Exhibit 5.1). | |||
24.1# | Power of Attorney (included on page II-6). |
# | Filed herewith. |