As filed with the Securities and Exchange Commission on January 16, 2002.
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)
retirement 401(k) investment plan of dime bancorp, inc.
(Full title of the Plan)
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)
CALCULATION OF REGISTRATION FEE
================================= ===================== ===================== =================== =====================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities To be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price(4) Fee
--------------------------------- --------------------- --------------------- ------------------- ---------------------
Interests in the Plan (1) N/A N/A (1)
================================= ===================== ===================== =================== =====================
(1) Pursuant to Rule 416(c), an indeterminate number of interests in the Plan
are being registered. Pursuant to Rule 416(c), no registration fee is required
for the registration of plan interests.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
Explanatory Note
This Registration Statement covers the plan interests in the Retirement
401(k) Investment Plan of Dime Bancorp, Inc. This plan was assumed by the
registrant, Washington Mutual, Inc., pursuant to the merger of Dime Bancorp into
Washington Mutual on January 4, 2002. The plan interests were originally
registered by Dime Bancorp on Form S-8, Registration No. 33-88564.
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, October 24; 2001 and January 11, 2002.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable
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 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.
3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Retirement 401(k) Investment Plan of Dime Bancorp, Inc.
5.1 Not applicable.
The registrant hereby undertakes that it has submitted the Plan to the
Internal Revenue Service and has qualified the Plan in accordance with the
rules and regulations of the Internal Revenue Service. Registrant further
undertakes that it will submit any amendments to the Plan to the Internal
Revenue Service in a timely manner and will make all changes required by
the Internal Revenue Service in order to maintain the qualification of the
Plan.
23.1 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.
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(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.
(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.
5
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 15th day of
January, 2002.
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 January 15, 2002
-----------------------------------------------------
Kerry K. Killinger
Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
/s/ William A. Longbrake January 15, 2002
-----------------------------------------------------
William A. Longbrake
Vice Chair and Chief Financial Officer
(Principal Financial Officer)
/s/ Robert H. Miles January 15, 2002
-----------------------------------------------------
Robert H. Miles
Senior Vice President and Controller
(Principal Accounting Officer)
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/s/ Douglas P. Beighle January 15, 2002
-----------------------------------------------------
Douglas P. Beighle
Director
January 15, 2002
-----------------------------------------------------
David Bonderman
Director
January 15, 2002
-----------------------------------------------------
J. Taylor Crandall
Director
/s/ Anne V. Farrell January 15, 2002
-----------------------------------------------------
Anne V. Farrell
Director
/s/ Stephen E. Frank January 15, 2002
-----------------------------------------------------
Stephen E. Frank
Director
/s/ William P. Gerberding January 15, 2002
-----------------------------------------------------
William P. Gerberding
Director
/s/ Enrique Hernandez, Jr. January 15, 2002
-----------------------------------------------------
Enrique Hernandez, Jr.
Director
/s/ Phillip D. Matthews January 15, 2002
-----------------------------------------------------
Phillip D. Matthews
Director
/s/ Margaret Osmer-McQuade January 15, 2002
-----------------------------------------------------
Margaret Osmer-McQuade
Director
/s/ Michael K. Murphy January 15, 2002
-----------------------------------------------------
Michael K. Murphy
Director
7
/s/ Mary A. Pugh January 15, 2002
-----------------------------------------------------
Mary A. Pugh
Director
/s/ William G. Reed, Jr. January 15, 2002
-----------------------------------------------------
William G. Reed, Jr.
Director
January 15, 2002
-----------------------------------------------------
Elizabeth A. Sanders
Director
/s/ William D. Schulte January 15, 2002
-----------------------------------------------------
William D. Schulte
Director
/s/ James H. Stever January 15, 2002
-----------------------------------------------------
James H. Stever
Director
January 15, 2002
-----------------------------------------------------
Willis B. Wood, Jr.
Director
8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the undersigned Plan Administrator 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 15th day of January, 2002.
Retirement 401(k) Investment Plan
of Dime Bancorp, Inc.
By: /s/ Daryl David
DARYL DAVID
Plan Administrator
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INDEX TO EXHIBITS
Exhibit Description
4.1 Retirement 401(k) Investment Plan of Dime Bancorp, Inc.
23.1 Consent of Deloitte & Touche LLP.
24. Power of Attorney (included on the signature page to
this Registration Statement).
10