Registration No. 333-68524
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
WASHINGTON MUTUAL, INC.
Exact name of registrant as specified in its charter)
Washington 6036 91-1653725
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
1201 Third Avenue
Seattle, Washington 98101
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(Address of Principal Executive Offices)(Zip Code)
Dime Bancorp, Inc. Stock Incentive Plan
Dime Bancorp, Inc. 1991 Stock Incentive Plan
Dime Bancorp, Inc. Stock Incentive Plan for Outside Directors
Dime Bancorp, Inc. 1990 Stock Option Plan
Dime Bancorp, Inc. 1992 Stock Option Plan
Dime Bancorp, Inc. 1997 Stock Incentive Plan for Outside Directors
Dime Bancorp, Inc. Incentive Stock Option Plan
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(Full title of the plan)
Fay L. Chapman
Executive Vice President and General Counsel
1201 Third Avenue
Seattle, Washington 98101
(206) 461-2000
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(Name, address and telephone number,
including area code, of agent for service)
Copy to:
David R. Wilson
Heller Ehrman White & McAuliffe LLP
6100 Columbia Center, 701 Fifth Avenue
Seattle, Washington 98104
(206) 447-0900
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EXPLANATORY NOTE
The shares subject to this Post-Effective Amendment on Form S-8 to Form S-4 are
issuable upon exercise of outstanding options under the Dime Bancorp, Inc. Stock
Incentive Plan, Dime Bancorp, Inc. 1991 Stock Incentive Plan, Dime Bancorp, Inc.
Stock Incentive Plan for Outside Directors, Dime Bancorp, Inc. 1990 Stock Option
Plan, Dime Bancorp, Inc. 1992 Stock Option Plan, Dime Bancorp, Inc. 1997 Stock
Incentive Plan for Outside Directors and the Dime Bancorp, Inc. Incentive Stock
Option Plan, all of which are collectively referred to as the "Dime Plans." The
registrant has assumed the outstanding obligations under the Dime Plans as
successor to Dime Bancorp by reason of merger of Dime Bancorp into the
Registrant. 6,734,602 shares of the Registrant's common stock are issuable under
the Dime Plans.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The shares being registered are issuable upon exercise of outstanding
options under plans of Dime Bancorp which are being assumed by Washington
Mutual, Inc. as part of the merger of Dime Bancorp into Washington Mutual, Inc.
The terms of the Dime Plans will remain unchanged except that Washington Mutual,
Inc. shares will be issued in lieu of Dime Bancorp shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Washington Mutual, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) Annual Report on Form 10-K for the year ended December 31, 2000
(the "2000 Washington Mutual 10-K");
(2) Quarterly Reports on Form 10-Q for the quarter ended March 31,
2001, for the quarter ended June 30, 2001, and for the quarter ended September
30, 2001;
(3) Current Reports on Form 8-K dated January 8, 2001; January 17,
2001; January 18, 2001; January 22, 2001; as amended 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 16, 2001; and October 17, 2001;
(4) The description of Registrant's Common Stock, no par value,
contained on Form 8-A filed December 3, 1998; and
(5) The description of Registrant's Shareholder Rights Plan contained
in Item 1 of Registrant's Registration Statement on Form 8-A dated January 8,
2001.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of 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 in this Registration Statement and to be part
hereof from the date of filing of such documents.
2
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of January 3, 2002, Heller Ehrman White & McAuliffe LLP and
individual attorneys at the firm who participated in this transaction owned or
possessed options to acquire an aggregate 12,193 shares of the common stock of
Registrant.
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 XII of
its Amended and Restated Articles of Incorporation, the Registrant has elected
to eliminate the liability of directors to the Registrant to the extent
permitted by law. Thus, a director of the Registrant is not personally liable to
the Registrant 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 IX of Washington Mutual's Amended and 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 from or on account of conduct in
violation of RCW 23B.08.310, or a knowing violation of the law 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 IX of Washington Mutual's Amended and 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description
4.1 Rights Agreement, dated as of December 20, 2000, between Registrant
and Mellon Investor Services as Rights Agent (incorporated by
reference to Washington Mutual, Inc. Registration Statement on Form
8-A dated January 8, 2001).
4.2 Dime Bancorp, Inc. Stock Incentive Plan, as amended by an amendment
effective April 27, 1994 (the "Stock Incentive Plan") (incorporated by
reference to Exhibit 4.1 to Dime Bancorp's Registration Statement on
Form S-8, filed with the Commission on January 18, 1995 (No.
33-88552)), as amended by an Amendment, effective September 19, 1997,
to the Stock Incentive Plan (incorporated by reference to Exhibit
10.14 to the 1997 10-K of Dime Bancorp).
4.3 Dime Bancorp, Inc. 1991 Stock Incentive Plan, as amended and restated
effective February 29, 1996 (the "1991 Stock Incentive Plan")
(incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on May
24, 1996 (No. 333-04477)), as amended by (i) an Amendment, effective
as of October 1, 1996, to the 1991 Stock Incentive Plan (incorporated
by reference to Exhibit 10.9 to the 1996 10-K of Dime Bancorp), (ii)
an Amendment, effective September 19, 1997, to the 1991 Stock
Incentive Plan (incorporated by reference to Exhibit 10.17 to the 1997
10-K of Dime Bancorp), (iii) an Amendment, effective as of March 27,
1998, to the 1991 Stock Incentive Plan (incorporated by reference to
Exhibit 10.18 to the 1998 10-K of Dime Bancorp), and (iv) an
Amendment, effective June 25, 1998, to the 1991 Stock Incentive Plan
(incorporated by reference to Exhibit 10.19 to the 1998 10-K of Dime
Bancorp).
4.4 Amendment to the 1991 Stock Incentive Plan, effective December 12,
2000. (Incorporated by reference to Exhibit 10.17 to the 2000 Form
10-K of Dime Bancorp.)
4.5 Dime Bancorp, Inc. Stock Incentive Plan for Outside Directors (the
"Outside Directors Plan"), as amended effective April 27, 1994
(incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on
January 18, 1995 (No. 33-88560)), as amended by an Amendment,
effective September 19, 1997, to the Outside Directors Plan
(incorporated by reference to Exhibit 10.19 to the 1997 10-K of Dime
Bancorp).
4.6 Dime Bancorp, Inc. 1990 Stock Option Plan (formerly Anchor Bancorp,
Inc. 1990 Stock Option Plan), as amended effective as of January 13,
1995 (incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on
January 18, 1995 (No. 33-88554)).
4.7 Dime Bancorp, Inc. 1992 Stock Option Plan (formerly Anchor Bancorp,
Inc. 1992 Stock Option Plan), as amended effective as of January 13,
1995 (the "1992 Stock Option Plan") (incorporated by reference to
Exhibit 4.1 to Dime Bancorp's Registration Statement on Form S-8,
filed with the Commission on January 18, 1995 (No. 33-88556)), as
amended by (i) an Amendment, effective June 1, 1996, to the 1992 Stock
Option Plan (incorporated by reference to Exhibit 10.23 to the 1996
10-K of Dime Bancorp), (ii) an Amendment, effective September 19,
1997, to the 1992 Stock Option Plan (incorporated by reference to
Exhibit 10.33 to the 1997 10- K of Dime Bancorp), and (iii) an
Amendment, effective as of March 27, 1998, to the 1992 Stock Option
Plan (incorporated by reference to Exhibit 10.36 to the 1998 10-K of
Dime Bancorp).
4
4.8 Dime Bancorp, Inc. 1997 Stock Incentive Plan for Outside Directors, as
amended and restated effective March 27, 1998 (the "1997 Outside
Director Plan") (incorporated by reference to Exhibit 10.46 to the
1998 10-K of Dime Bancorp).
4.9 Amendment to the 1997 Outside Director Plan, effective December 12,
2000. (Incorporated by reference to Exhibit 10.38 to the 2000 Form
10-K of Dime Bancorp.)
4.10 Dime Bancorp, Inc. Incentive Stock Option Plan (formerly North
American Mortgage Company Incentive Stock Option Plan), effective as
of October 15, 1997 (incorporated by reference to Exhibit 4.1 to Dime
Bancorp's Amendment No. 1 to the Registration Statement on Form S-4 on
Form S-8, filed with the Commission on October 15, 1997 (No.
333-35565)).
5 Opinion of Heller Ehrman White & McAuliffe LLP (previously filed)
23.1 Consent of Heller Ehrman White & McAuliffe LLP (included as part of
the previously filed Opinion of Heller Ehrman White & McAuliffe)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (previously filed)
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 of 1933;
(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 with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
5
(b) The undersigned Registrant 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 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
SIGNATURES
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 4th day January,
2002.
WASHINGTON MUTUAL, INC.
By: /s/ Fay L. Chapman
Title: Senior Executive Vice President
POWER OF ATTORNEY
* *
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Kerry K. Killinger William A. Longbrake
Chairman, President and Executive Vice President and
Chief Executive Officer; Director Chief Financial Officer
(Principal Executive Officer) (Principal Financial Officer)
*
-----------------------------------
Robert H. Miles
Senior Vice President and Controller
(Principal Accounting Officer)
* *
------------------------------------ -----------------------------------
Douglas P. Beighle William P. Gerberding
Director Director
* *
------------------------------------ -----------------------------------
David Bonderman Enrique Hernandez, Jr.
Director Director
* *
------------------------------------ -----------------------------------
J. Taylor Crandall Mary E. Pugh
Director Director
*
------------------------------------
Michael K. Murphy
Director
*
------------------------------------ -----------------------------------
Phillip D. Matthews William G. Reed, Jr.
Director Director
------------------------------------ -----------------------------------
Anne V. Farrell James H. Stever
Director Director
7
* *
------------------------------------ -----------------------------------
Stephen E. Frank Willis B. Wood, Jr.
Director Director
* *
------------------------------------ -----------------------------------
Elizabeth A. Sanders William D. Schulte
Director Director
*By: /s/ Fay L. Chapman
Attorney in Fact
8
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Rights Agreement, dated as of December 20, 2000, between Registrant
and Mellon Investor Services as Rights Agent (incorporated by
reference to Washington Mutual, Inc. Registration Statement on Form
8-A dated January 8, 2001).
4.2 Dime Bancorp, Inc. Stock Incentive Plan, as amended by an amendment
effective April 27, 1994 (the "Stock Incentive Plan") (incorporated by
reference to Exhibit 4.1 to Dime Bancorp's Registration Statement on
Form S-8, filed with the Commission on January 18, 1995 (No.
33-88552)), as amended by an Amendment, effective September 19, 1997,
to the Stock Incentive Plan (incorporated by reference to Exhibit
10.14 to the 1997 10-K of Dime Bancorp).
4.3 Dime Bancorp, Inc. 1991 Stock Incentive Plan, as amended and restated
effective February 29, 1996 (the "1991 Stock Incentive Plan")
(incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on May
24, 1996 (No. 333-04477)), as amended by (i) an Amendment, effective
as of October 1, 1996, to the 1991 Stock Incentive Plan (incorporated
by reference to Exhibit 10.9 to the 1996 10-K of Dime Bancorp), (ii)
an Amendment, effective September 19, 1997, to the 1991 Stock
Incentive Plan (incorporated by reference to Exhibit 10.17 to the 1997
10-K of Dime Bancorp), (iii) an Amendment, effective as of March 27,
1998, to the 1991 Stock Incentive Plan (incorporated by reference to
Exhibit 10.18 to the 1998 10-K of Dime Bancorp), and (iv) an
Amendment, effective June 25, 1998, to the 1991 Stock Incentive Plan
(incorporated by reference to Exhibit 10.19 to the 1998 10-K of Dime
Bancorp).
4.4 Amendment to the 1991 Stock Incentive Plan, effective December 12,
2000. (Incorporated by reference to Exhibit 10.17 to the 2000 Form
10-K of Dime Bancorp.)
4.5 Dime Bancorp, Inc. Stock Incentive Plan for Outside Directors (the
"Outside Directors Plan"), as amended effective April 27, 1994
(incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on
January 18, 1995 (No. 33-88560)), as amended by an Amendment,
effective September 19, 1997, to the Outside Directors Plan
(incorporated by reference to Exhibit 10.19 to the 1997 10-K of Dime
Bancorp).
4.6 Dime Bancorp, Inc. 1990 Stock Option Plan (formerly Anchor Bancorp,
Inc. 1990 Stock Option Plan), as amended effective as of January 13,
1995 (incorporated by reference to Exhibit 4.1 to Dime Bancorp's
Registration Statement on Form S-8, filed with the Commission on
January 18, 1995 (No. 33-88554)).
4.7 Dime Bancorp, Inc. 1992 Stock Option Plan (formerly Anchor Bancorp,
Inc. 1992 Stock Option Plan), as amended effective as of January 13,
1995 (the "1992 Stock Option Plan") (incorporated by reference to
Exhibit 4.1 to Dime Bancorp's Registration Statement on Form S-8,
filed with the Commission on January 18, 1995 (No. 33-88556)), as
amended by (i) an Amendment, effective June 1, 1996, to the 1992 Stock
Option Plan (incorporated by reference to Exhibit 10.23 to the 1996
10-K of Dime Bancorp), (ii) an Amendment, effective September 19,
1997, to the 1992 Stock Option Plan (incorporated by reference to
Exhibit 10.33 to the 1997 10- K of Dime Bancorp), and (iii) an
Amendment, effective as of March 27, 1998, to the 1992 Stock Option
Plan (incorporated by reference to Exhibit 10.36 to the 1998 10-K of
Dime Bancorp).
9
4.8 Dime Bancorp, Inc. 1997 Stock Incentive Plan for Outside Directors, as
amended and restated effective March 27, 1998 (the "1997 Outside
Director Plan") (incorporated by reference to Exhibit 10.46 to the
1998 10-K of Dime Bancorp).
4.9 Amendment to the 1997 Outside Director Plan, effective December 12,
2000. (Incorporated by reference to Exhibit 10.38 to the 2000 Form
10-K of Dime Bancorp.)
4.10 Dime Bancorp, Inc. Incentive Stock Option Plan (formerly North
American Mortgage Company Incentive Stock Option Plan), effective as
of October 15, 1997 (incorporated by reference to Exhibit 4.1 to Dime
Bancorp's Amendment No. 1 to the Registration Statement on Form S-4 on
Form S-8, filed with the Commission on October 15, 1997 (No.
333-35565)).
5 Opinion of Heller Ehrman White & McAuliffe LLP (previously filed)
23.1 Consent of Heller Ehrman White & McAuliffe LLP (included as part of
the previously filed Opinion of Heller Ehrman White & McAuliffe)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (previously filed)
10