As filed with the Securities and Exchange Commission on December 6, 2001.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WASHINGTON MUTUAL, INC.
(Exact name of registrant as specified in its charter)
Washington 91-1653725
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1201 Third Avenue Seattle,
Washington 98101
(Address of principal executive officers) (Zip Code)
WASHINGTON MUTUAL EQUITY INCENTIVE PLAN
WASHINGTON MUTUAL, INC. FEBRUARY 2001 WAMU SHARES
(Full title of the Plans)
Sophie Hager Hume
Vice President and Assistant Secretary
Washington Mutual, Inc.
1201 Third Avenue
Seattle, Washington 98101
(206) 461-2000
(Name, address and telephone number, including area code, of agent for service)
Copy to:
David R. Wilson
Heller Ehrman White & McAuliffe LLP
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104
(206) 447-0900
CALCULATION OF REGISTRATION FEE
================================= ===================== ===================== =================== =====================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities To be Offering Price Aggregate Offering Registration
to be Registered (1) Registered (2)(3) Per Share (4) Price(4) Fee
--------------------------------- --------------------- --------------------- ------------------- ---------------------
Common Stock, no par value 19,950,000 See Footnote $634,029,213 $151,533
================================= ===================== ===================== =================== =====================
(1) Includes associated Rights to purchase shares of the Common Stock of
Washington Mutual, Inc. ("Washington Mutual" or the "Registrant"), which
Rights are neither currently separable from the shares of Common Stock nor
currently exercisable.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
(2) Represents (i) 15,000,000 shares issuable under the Washington Mutual
Equity Incentive Plan, as amended and restated as of January 16, 2001 (the
"Equity Plan") and (ii) 4,950,000 shares issuable under the Washington
Mutual, Inc. February 2001 WAMU Shares ("2001 WAMU Shares"). Does not
include 3,112,683 shares issued or issuable pursuant to the Equity Plan and
any shares issued or issuable in respect of such shares as a result of a
3-for-2 stock split of the Common Stock effective May 15, 2001, all of
which shares the Company previously registered pursuant to Registration
Statement No. 333-69503 and Registration Statement No. 333-86840.
(3) There is also registered pursuant to Rule 416(a) under the Securities Act
of 1933, as amended (the "Securities Act") an undetermined number of
additional shares of Common Stock that may be sold in accordance with the
provisions of the plans named in footnote (2) to prevent dilution as a
result of stock splits, stock dividends or similar transactions.
(4) Estimated pursuant to Rules 457(c) and (h) of the Securities Act solely for
purposes of calculating the amount of the registration fee. The proposed
maximum offering price per share of Common Stock is based upon (i) an
exercise price per share of $34.00 as to 4,950,000 shares issuable pursuant
to outstanding and unexercised options granted under 2001 WAMU Shares, (ii)
an aggregate exercise price of $16,813,735 for 507,707 shares issuable
pursuant to outstanding and unexercised options granted under the Equity
Plan and (iii) as to 14,467,144 shares reserved for issuance under the
Equity Plan, the average of the high price and low price of the Common
Stock as reported by the New York Stock Exchange on December 3, 2001.
Unless otherwise indicated, all share amounts in this Registration
Statement are as adjusted for a 3-for-2 stock split of the Common Stock
effective May 15, 2001.
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statements filed by Washington Mutual, Inc. ("Washington Mutual" or
the "Registrant") under Registration Nos. 333-69503 and 333-86840 with respect
to securities offered pursuant to the Equity Plan are incorporated by reference
herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act and the
instructional Note to Part I of Form S-8, the information specified in Part I of
Form S-8 has been omitted from this Registration Statement.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
Washington Mutual hereby incorporates by reference into this
Registration Statement the documents listed below. In addition, all documents
subsequently filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents:
(a) Washington Mutual's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
2001, June 30, 2001 and September 30, 2001;
(c) Current Reports on Form 8-K filed on January 8, 2001, January 17,
2001, January 18, 2001, January 22, 2001, January 23, 2001, April 3, 2001, April
18, 2001, April 20, 2001, April 30, 2001, June 25, 2001, July 5, 2001, July 18,
2001, October 17, 2001 and October 24; 2001;
(d) The description of Washington Mutual's common stock, no par value,
contained in Item 1 of Washington Mutual's Registration Statement on Form 8-A
filed on December 3, 1998, file no. 001-14667;
(e) The description of Washington Mutual's Shareholder Rights Plan
contained in Item 1 of Washington Mutual's Registration Statement on Form 8-A
filed on January 8, 2001, file no. 001-14667.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
The validity of the shares offered hereby will be passed upon for
Washington Mutual by Heller Ehrman White & McAuliffe LLP, 701 Fifth Avenue,
Suite 6100, Seattle, Washington 98104. Members of Heller Ehrman White &
McAuliffe LLP and other attorneys employed by the firm that have provided advice
with respect to this matter in the aggregate owned or had options to acquire
16,970 shares of Common Stock as of December 4, 2001.
Item 6. Indemnification of Directors and Officers.
Section 23B.08.320 of the Washington Business Corporation Act (the
"Corporation Act") provides that the personal liability of directors to a
corporation imposed by Section 23B.08.310 of the Corporation Act may be
eliminated by the articles of incorporation of the corporation, except in the
case of acts or omissions involving certain types of conduct. At Article XIII of
its Restated Articles of Incorporation, Washington Mutual has elected to
eliminate the liability of directors to Washington Mutual to the extent
permitted by law. Thus, a director of Washington Mutual is not personally liable
to Washington Mutual or its shareholders for monetary damages for conduct as a
director, except for liability of the director (i) for acts or omissions that
involve intentional misconduct by the director or a knowing violation of law by
the director, (ii) for conduct violating Section 23B.08.310 of the Corporation
Act, or (iii) for any transaction from which the director will personally
receive a benefit in money, property or services to which the director is not
legally entitled. If Washington law is amended to authorize corporate action
that further eliminates or limits the liability of directors, then the liability
of Washington Mutual directors will be eliminated or limited to the fullest
extent permitted by Washington law, as so amended.
Section 23B.08.560 of the Corporation Act provides that if authorized
by (i) the articles of incorporation, (ii) a bylaw adopted or ratified by the
shareholders, or (iii) a resolution adopted or ratified, before or after the
event, by the shareholders, a corporation will have the power to indemnify
directors made party to a proceeding, or to obligate itself to advance or
reimburse expenses incurred in a proceeding, without regard to the limitations
on indemnification contained in Sections 23B.08.510 through 23B.08.550 of the
Corporation Act, provided that no such indemnity shall indemnify any director
(i) for acts or omissions that involve intentional misconduct by the director or
a knowing violation of law by the director, (ii) for conduct violating Section
23B.08.310 of the Corporation Act, or (iii) for any transaction from which the
director will personally receive a benefit in money, property or services to
which the director is not legally entitled.
Pursuant to Article X of Washington Mutual's Restated Articles of
Incorporation and Article VIII of Washington Mutual's Bylaws, Washington Mutual
must, subject to certain exceptions, indemnify and defend its directors against
any expense, liability or loss arising from or in connection with any actual or
threatened action, suit or proceeding relating to service for or at the request
of Washington Mutual, including without limitation, liability under the
Securities Act. Washington Mutual is not permitted to indemnify a director from
or on account of acts or omissions of such director which are finally adjudged
to be intentional misconduct or a knowing violation of the law of such person,
or from or on account of conduct in violation of RCW
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23B.08.310, or from or on account of any transaction with respect to which it is
finally adjudged that such director received a benefit in money, property or
services to which he or she was not entitled. If Washington law is amended to
authorize further indemnification of directors, then Washington Mutual directors
shall be indemnified to the fullest extent permitted by Washington law, as so
amended. Also, pursuant to Article X of Washington Mutual's Restated Articles of
Incorporation and Article VIII of Washington Mutual's Bylaws, Washington Mutual
may, by action of the Washington Mutual Board, provide indemnification and pay
expenses to officers, employees and agents of Washington Mutual or another
corporation, partnership, joint venture, trust or other enterprise with the same
scope and effect as above described in relation to directors. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling Washington Mutual
pursuant to the provisions described above, Washington Mutual has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Washington Mutual Equity Incentive Plan, as amended and
restated as of January 16, 2001 (incorporated by reference to
the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001).
4.2 Washington Mutual, Inc. February 2001 WAMU Shares.
4.3 Restated Articles of Incorporation of the Registrant, as
amended (incorporated by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 1999).
4.4 Articles of Amendment to the Amended and Restated Articles of
Incorporation creating a class of preferred stock, Series RP
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000).
4.5 Articles of Amendment to the Amended and Restated Articles of
Incorporation creating a class of preferred stock, Series H
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000).
4.6 Restated Bylaws of the Registrant, as amended (incorporated by
reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2001).
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4.7 Rights Agreement dated as of December 20, 2000, between
Registrant and Mellon Investor Services, L.L.C. as Rights
Agent (incorporated by reference to the Registrant's Current
Report on Form 8-K, filed January 8, 2001).
4.8 The Registrant agrees to furnish the Securities and Exchange
Commission, upon request, with copies of all instruments
defining the rights of holders of long-term debt of the
Registrant and its consolidated subsidiaries.
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
23.1 Consent of Heller Ehrman White & McAuliffe LLP (included as
part of Opinion of Heller Ehrman White & McAuliffe LLP).
23.2 Consent of Deloitte & Touche LLP.
24. Power of Attorney (included on the signature page to this
Registration Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided,however, that paragraphs (a)(1)(i) and (a) (1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions of the Registrant's Restated
Articles of Incorporation and Restated Bylaws discussed in Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, State of Washington on this 30th day of
November, 2001.
WASHINGTON MUTUAL, INC.
By: /s/ Kerry K. Killinger
----------------------------------------
Kerry K. Killinger
Chairman, President and Chief Executive
Officer
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Fay L. Chapman and William A. Longbrake,
or either of them, his or her true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign
any or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ Kerry K. Killinger November 30, 2001
-----------------------------------------------------
Kerry K. Killinger
Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
/s/ William A. Longbrake November 30, 2001
-----------------------------------------------------
William A. Longbrake
Vice Chair and Chief Financial Officer
(Principal Financial Officer)
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/s/ Robert H. Miles November 30, 2001
-----------------------------------------------------
Robert H. Miles
Senior Vice President and Controller
(Principal Accounting Officer)
/s/ Douglas P. Beighle November 30, 2001
-----------------------------------------------------
Douglas P. Beighle
Director
-----------------------------------------------------
David Bonderman
Director
-----------------------------------------------------
J. Taylor Crandall
Director
/s/ Anne V. Farrell November 30, 2001
-----------------------------------------------------
Anne V. Farrell
Director
/s/ Stephen E. Frank November 30, 2001
-----------------------------------------------------
Stephen E. Frank
Director
/s/ William P. Gerberding November 30, 2001
-----------------------------------------------------
William P. Gerberding
Director
/s/ Enrique Hernandez, Jr. November 30, 2001
-----------------------------------------------------
Enrique Hernandez, Jr.
Director
/s/ Phillip D. Matthews November 30, 2001
-----------------------------------------------------
Phillip D. Matthews
Director
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/s/ Michael K. Murphy November 30, 2001
-----------------------------------------------------
Michael K. Murphy
Director
/s/ Mary A. Pugh November 30, 2001
-----------------------------------------------------
Mary A. Pugh
Director
/s/ William G. Reed, Jr. November 30, 2001
-----------------------------------------------------
William G. Reed, Jr.
Director
/s/ Elizabeth A. Sanders November 30, 2001
-----------------------------------------------------
Elizabeth A. Sanders
Director
/s/ William D. Schulte November 30, 2001
-----------------------------------------------------
William D. Schulte
Director
/s/ James H. Stever November 30, 2001
-----------------------------------------------------
James H. Stever
Director
/s/ Willis B. Wood, Jr. November 30, 2001
-----------------------------------------------------
Willis B. Wood, Jr.
Director
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INDEX TO EXHIBITS
Exhibit Description
4.1 Washington Mutual Equity Incentive Plan, as amended and
restated as of January 16, 2001 (incorporated by reference to
the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001).
4.2 Washington Mutual, Inc. February 2001 WAMU Shares.
4.3 Restated Articles of Incorporation of the Registrant, as
amended (incorporated by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 1999).
4.4 Articles of Amendment to the Amended and Restated Articles of
Incorporation creating a class of preferred stock, Series RP
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000).
4.5 Articles of Amendment to the Amended and Restated Articles of
Incorporation creating a class of preferred stock, Series H
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000).
4.6 Restated Bylaws of the Registrant, as amended (incorporated by
reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2001).
4.7 Rights Agreement dated as of December 20, 2000, between
Registrant and Mellon Investor Services, L.L.C. as Rights
Agent (incorporated by reference to the Registrant's Current
Report on Form 8-K, filed January 8, 2001).
4.8 The Registrant agrees to furnish the Securities and Exchange
Commission, upon request, with copies of all instruments
defining the rights of holders of long-term debt of the
Registrant and its consolidated subsidiaries.
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
23.1 Consent of Heller Ehrman White & McAuliffe LLP (included as
part of Opinion of Heller Ehrman White & McAuliffe LLP).
23.2 Consent of Deloitte & Touche LLP.
24. Power of Attorney (included on the signature page to this
Registration Statement).
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