As filed with the Securities and Exchange Commission on October 10, 1997
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WASHINGTON MUTUAL, INC.
(Exact name of registrant as specified in its charter)
Washington 6712 91-1653725
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
1201 Third Avenue
Seattle, WA 98101
(206) 461-2000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
Marc R. Kittner
Senior Vice President
Washington Mutual, Inc.
1201 Third Avenue
Seattle, WA 98101
(206) 461-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service
Copies to:
David R. Wilson
Foster Pepper & Shefelman PLLC
1111 Third Avenue
Suite 3400
Seattle, WA 98101
(206) 447-4400
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check in the
following box. |_|
<PAGE>
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 statement 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. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
Title of each class of Amount to Proposed Proposed Amount of
securities to be be maximum maximum registration fee
registered registered offering price per aggregate offering
unit* price
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, no par 25,293,684 $68.125 $1,723,132,223 $522,162
value per share
- --------------------------------------------------------------------------------------------------------------------------------
* Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457(c) based on the average of the high and low prices of the Common Stock
as reported on The Nasdaq Stock Market on October 8, 1997.
</TABLE>
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
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 time 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 October 10, 1997
PROSPECTUS
_____________, 1997 25,293,684 SHARES
WASHINGTON MUTUAL, INC.
COMMON STOCK
This Prospectus relates to 25,293,684 shares (the "Shares") of common
stock, no par value ("Common Stock"), of Washington Mutual, Inc., a Washington
corporation ("Washington Mutual" or the "Company") owned by certain stockholders
of the Company identified herein (collectively, the "Selling Stockholders"). See
"Selling Stockholders." The shares of Common Stock offered hereby were issued in
connection with a transaction (the "Transaction") pursuant to which Washington
Mutual acquired Keystone Holdings, Inc. ("Keystone Holdings") and the direct and
indirect subsidiaries of Keystone Holdings, including American Savings Bank,
F.A. The Company will not receive any proceeds from the sale of the Shares
hereunder.
The Selling Stockholders may from time to time sell the Shares in
underwritten public offerings, on the Nasdaq Stock Market, on any other national
securities exchange or automated quotation system on which the Common Stock may
be listed or traded, in negotiated transactions or otherwise, at prices then
prevailing or related to the then current market price or at negotiated prices.
The Shares may be sold directly or through brokers or dealers. See "Plan of
Distribution."
The Company will receive no part of the proceeds of any sales made
hereunder. See "Use of Proceeds." All expenses of registration incurred in
connection with this offering are being borne by the Company, but all selling
and other expenses incurred by the Selling Stockholders will be borne by the
Selling Stockholders. See "Selling Stockholders."
The Selling Stockholders and any broker-dealers participating in the
distribution of the Shares may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933, as amended (the "1933 Act"), and any commissions
or discounts given to any such broker-dealer may be regarded as underwriting
commissions or discounts under the 1933 Act.
The Company's Common Stock is quoted on The Nasdaq Stock Market, under the
symbol "WAMU." On October 8, 1997, the last reported sale price of the Common
Stock on The Nasdaq Stock Market was $ 68 3/8 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
AVAILABLE INFORMATION
Washington Mutual is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by Washington Mutual with the Commission
can be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center (13th Floor), New
York, New York 10048, and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, at prescribed rates. The Commission also
maintains a Web site that contains copies of reports, proxy and information
statements and other information regarding registrants that file electronically,
including the Company, with the Commission at http://www.sec.gov. In addition,
material filed by Washington Mutual can be inspected at the offices of the
National Association of Securities Dealers, Inc., Report Section, 1735 K Street,
N.W., Washington, D.C. 20006. This Prospectus does not contain all of the
information set forth in the Registration Statement on Form S-3 and exhibits
thereto which the Company has filed with the Commission and to which reference
is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Washington Mutual
(File No. 0-25188) are incorporated herein by reference: (a) Annual Report on
Form 10-K for the year ended December 31, 1996, as amended by Form 10-K/A dated
April 25, 1997 (the "1996 Washington Mutual 10-K"); (b) Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1997 and June 30, 1997; (c) Current
Reports on Form 8-K dated March 6, 1997, March 24, 1997, as amended on March 26,
1997; March 28, 1997; April 1, 1997; April 3, 1997; April 10, 1997; April 15,
1997; April 28, 1997; April 30, 1997; May 2, 1997; May 5, 1997; May 6, 1997; May
8, 1997; May 15, 1997; May 20, 1997; July 15, 1997; August 12, 1997; September
12, 1997; September 25, 1997; and October 10, 1997; and (d) the description of
Washington Mutual capital stock contained in Item 5 of Current Report on Form
8-K dated November 29, 1994.
The following documents filed with the Commission by Great Western
Financial Corporation (File No. 1- 4075) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1996, as amended
by Form 10-K/A filed May 9, 1997 (the "1996 Great Western 10-K"); and (b)
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997 and June
30, 1997.
All documents filed by Washington Mutual pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date hereof shall be deemed to
be incorporated herein by reference and to be a part hereof from the date of
such filing.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. Such documents (other than exhibits to such
documents unless such exhibits are specifically incorporated therein by
reference) relating to Washington Mutual are available without charge upon
request to: Washington Mutual, Inc., 1201 Third Avenue, Seattle, Washington
98101, attention: Investor Relations.
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<PAGE>
THE COMPANY
The following is a summary of certain information contained in documents
incorporated herein by reference and is not intended to be complete and is
qualified in its entirety by the more detailed information contained in t he
other documents incorporated herein by reference.
General
Washington Mutual provides a broad range of financial services to
individuals and small businesses in twenty seven states, with its primary
operations located in Washington, California, Oregon, Florida and Utah.
Washington Mutual operates through its principal subsidiaries, including its
banking subsidiaries, Washington Mutual Bank ("WMB"), Washington Mutual Bank,
FA ("WMBFA"), and Washington Mutual Bank fsb ("WMBfsb"), its consumer finance
subsidiary Aristar Inc. ("Aristar") and its insurance subsidiary, WM Life
Insurance Co. ("WM Life"). Financial services of Washington Mutual include the
traditional savings bank activities of accepting deposits from the general
public and making residential loans, consumer loans and limited types of
commercial real estate loans (primarily multi-family residential property loans)
and, more recently, certain commercial banking activities. Washington Mutual,
through other subsidiaries, also issues and markets annuity contracts and is the
investment advisor to and distributor of mutual funds.
On July 1, 1997, Washington Mutual completed a merger of Great Western
Financial Corporation ("Great Western") into a wholly-owned subsidiary of
Washington Mutual and thereby acquired Great Western Bank ("GW Bank") and
Aristar. At September 30, 1997, Washington Mutual operated branches, primarily
in Washington, California, Oregon and Florida. In addition, Aristar operated
consumer finance offices in 23 states. At June 30, 1997, on a restated basis
with Great Western, Washington Mutual had total assets of $92.5 billion, total
deposits of $51.8 billion and stockholders' equity of $5.2 billion.
The Company has entered into a definitive agreement to sell WM Life. The
sale is expected to close in December 1997.
The principal executive offices of Washington Mutual are located in the
Washington Mutual Tower, 1201 Third Avenue, Suite 1500, Seattle, Washington
98101, and its telephone number is (206) 461-2000.
Operations After the Merger with Great Western
Washington Mutual intends to utilize the Washington Mutual marketing and
sales products and systems which it has been installing in the ASB system and to
provide these same products and systems to Great Western. Great Western's
business banking programs will be retained and incorporated throughout
Washington Mutual, with a particular emphasis on business checking. Washington
Mutual also intends to consolidate and coordinate the operations, sales,
marketing and product selection of the broker-dealer subsidiaries of WMB, ASB
and Great Western. Washington Mutual and Great Western use the same information
and data processing systems for certain major functions, including the Hogan
system for deposit operations, the Alltel system for loan servicing and the EDS
system for item processing. It is expected that Great Western's Hogan System
will be upgraded to the more current version used by Washington Mutual and that
the other systems will be converted into Washington Mutual's systems. Washington
Mutual will also introduce its LoanWorks systems for loan origination throughout
the Great Western network.
On October 1, 1997, GW Bank was merged with and into ASB, with ASB as the
surviving corporation. At the time of the merger, the name of the surviving
corporation was changed to "Washington Mutual Bank, FA" Great Western Bank loan
offices in Washington will be combined with existing Washington Mutual offices
and operated under the "Washington Mutual Bank" name.
Washington Mutual intends to close approximately 100 branch offices in
California and Florida, and approximately 100 loan offices in California,
Washington and other states; consolidate other bank premises and
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<PAGE>
facilities and the outsourcing of the corporate properties management function;
adopt a common branch operating system, with an attendant reduction in per
deposit account origination and maintenance costs; reduce aggregate advertising
expenditures due to market overlap between ASB and GW Bank locations and
elimination of duplicative staff functions in marketing and research; eliminate
duplicative back office functions, particularly in the accounting, finance and
human resources areas; reduce GW Bank's current cost to originate a loan (which
brings such costs to a level that more closely approximates the industry average
and is still above the comparable cost of such originations at Washington
Mutual, and reduce the cost to service loans, again to a level that is below the
current GW Bank cost but still above the current cost at Washington Mutual.
Washington Mutual estimates that these measures will result in annual cost
savings of $340 million in 1999.
Washington Mutual intends to continue its strategy of continuously
analyzing returns on capital from various business activities and product lines
and maintaining flexibility in the use of capital in order to take advantage of
business opportunities that arise, whether through increased loan production,
purchases of loans or mortgage-backed securities, or acquisitions of other
companies. Washington Mutual anticipates that the merger with Great Western will
provide it with a stronger capital base and greater flexibility to pursue this
growth strategy through efficient leveraging of capital and capital management
strategies to facilitate that growth by allocating capital to the most
productive business opportunities. Washington Mutual has no present intention of
instituting a common stock repurchase program.
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<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders consist of certain persons and entities who
received shares of Common Stock in connection with the merger of Keystone
Holdings with the Company. The following table sets forth the number of shares
of Common Stock beneficially owned by each of the Selling Stockholders. Except
for David Bonderman and J. Taylor Crandall, who each became of director of the
Company in January 1997, and Robert M. Bass who has the right to nominate one
member of the Company's Board of Directors, none of the Selling Stockholders has
held any position or office or otherwise had a material relationship with the
Company within the past three years other than as a result of the ownership of
the shares of Common Stock of the Company. The shares of Common Stock offered by
this Prospectus may be offered from time to time by the Selling Stockholders
named below. The Selling Stockholders collectively own approximately 9.8% of all
shares of Common Stock outstanding, based on 257,176,811 shares of Common Stock
outstanding on September 30, 1997 (excluding 8,000,000 shares of Common Stock
held in escrow for the benefit of the former shareholders of Keystone Holdings
and the FSLIC Resolution Fund and their transferees).
<TABLE>
<CAPTION>
Shares
Selling Stockholders Beneficially Owned
- -------------------- ----------------------
<S> <C>
Acadia Partners, L.P................................................... 5,426,923
WAMU Partners.......................................................... 4,915,473
Robert M. Bass......................................................... 4,906,025
Bernard J. Carl........................................................ 1,451,490
David Bonderman........................................................ 1,273,814
Capital Partnership.................................................... 938,658
Bank of America, NT & SA, Trustee of the
Mario J. Antoci and Diane Antoci Trust................................. 911,611
Netcong Newton Partners, L.P........................................... 610,045
David M. Schwarz....................................................... 610,045
Peter T. Joseph........................................................ 543,435
Andrew E. Furer........................................................ 520,656
KH Carl Partners, L.P.................................................. 462,700
James G. Coulter....................................................... 315,455
KH Group Management, Inc............................................... 303,858
Thomas J. Barrack, Jr.................................................. 277,985
William E. Oberndorf................................................... 228,465
Barnum Trust........................................................... 191,278
Chester W. Carlock..................................................... 157,827
Daniel L. Doctoroff 1996 GRAT (New American)........................... 125,639
J. Taylor Crandall..................................................... 100,000
Glenn R. August........................................................ 83,781
Barry R. Jackson....................................................... 82,802
The Peter T. Joseph Foundation......................................... 66,610
Peter G. Mulvihill..................................................... 59,001
David G. Offensend..................................................... 51,317
Steven B. Gruber....................................................... 51,317
Anthony P. Scotto...................................................... 49,167
FW-HY Partners, L.P.................................................... 40,743
William P. Hallman, Jr................................................. 40,000
Linda L. Leahy, Trustee of the
Barrack Children's Trust U/D/T......................................... 37,470
Richard C. Blum Irrevocable Children's Trust........................... 33,725
J. Bruce Boisture...................................................... 29,517
Jeffrey J. Keenan...................................................... 26,051
Cotham Family Partners, L.P............................................ 24,982
William T. Coleman, Jr................................................. 24,980
5
<PAGE>
John M. Lewis.......................................................... 24,980
Alan Henry Family Trust................................................ 24,980
Ronald N. Beck......................................................... 23,600
John M. Stevenson...................................................... 22,980
Rosecliff, Inc......................................................... 18,365
Daniel L. Doctoroff 1994 GRAT (New American)........................... 18,315
Billie J. Ellis, Jr.................................................... 15,738
Mary Ellis............................................................. 14,988
Daniel L. Doctoroff.................................................... 13,382
Oak Hill Partners, Inc................................................. 12,980
Dee J. Kelly........................................................... 12,491
Kevin G. Levy.......................................................... 12,491
Robert V. DiPauli...................................................... 12,491
Thomas L. Kempner & William A. Perlmuth, Trustees U/W
Carl M. Loeb, FBO Thomas L. Kempner.................................... 11,241
Annette K. Boisture,
Custodian for benefit of Katherine A. Boisture......................... 8,850
Mark L. Hart, Jr....................................................... 8,491
Gerald E. Schultz...................................................... 8,327
David Mills............................................................ 7,698
Benjamin Diesbach...................................................... 6,246
Shirley Ann Moore...................................................... 6,246
Molly M. South......................................................... 6,245
Annette K. Boisture,
Custodian for benefit of Leigh C. Boisture............................. 5,310
John J. Geisler........................................................ 3,540
Ian G. Wallace......................................................... 3,540
N. Colin Lind.......................................................... 2,498
Gary W. Reese.......................................................... 2,498
Neal K. Aronson........................................................ 2,360
Anna E. Boisture,
Connecticut Uniform Gifts to Minors Act................................ 2,213
Joel R. Pafford........................................................ 1,746
David L. Bucy.......................................................... 1,249
Susan Bonner........................................................... 1,249
Carl Ernst............................................................. 1,249
Richard L. Brasher..................................................... 1,249
Robert J. Klein........................................................ 513
Stephen Tredennick..................................................... 500
----------------
Total......................................................... 25,293,684
==============
</TABLE>
PLAN OF DISTRIBUTION
The Share may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made in an underwritten public offering, on The Nasdaq Stock Market, on any
national securities exchange on which the Common Stock is listed or traded, in
negotiated transactions or otherwise, at prices then prevailing or related to
the then current market price or at negotiated prices. The Shares may be sold
directly or through brokers or dealers. The methods by which the Shares may be
sold include: (a) a block trade (which may involve crosses) in which the broker
or dealer so engaged will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this
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Prospectus; (c) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and (d) privately negotiated transactions. In
effecting sales, brokers and dealers engaged by Selling Stockholders may arrange
for other brokers or dealers to participate. Brokers or dealers may receive
commissions or discounts from Selling Stockholders (or, if any such
broker-dealer acts as agent for the purchaser of such shares, from such
purchaser) in amounts to be negotiated which are not expected to exceed those
customary in the types of transactions involved. Broker-dealers may agree with
the Selling Stockholders to sell a specified number of such shares at a
stipulated price per share, and, to the extent such broker-dealer is unable to
do so acting as agent for a Selling Stockholder, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
such Selling Stockholder. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market or otherwise at prices and on terms then prevailing at
the time of sale, at prices then related to the then-current market price or in
negotiated transactions and, in connection with such resales, may pay to or
receive from the purchasers of such shares commissions as described above.
In connection with the distribution of the Shares, the Selling Stockholders
may enter into hedging transactions with broker-dealers. In connection with such
transactions, broker-dealers may engage in short sales of the Shares in the
course of hedging the positions they assume with the Selling Stockholders. The
Selling Stockholders may also sell the Shares short and redeliver the Shares to
close out the short positions. The Selling Stockholders may also enter into
option or other transactions with broker-dealers which require the delivery to
the broker-dealer of the Shares. The Selling Stockholders may also loan or
pledge the Shares to a broker-dealer and the broker-dealer may sell the Shares
so loaned or upon a default the broker-dealer may effect sales of the pledged
shares. In addition to the foregoing, the Selling Stockholders may enter into,
from time to time, other types of hedging transactions.
The Selling Stockholders and any broker-dealers participating in the
distributions of the Shares may be deemed to be "underwriters" within the
meaning of Section 2(11) of the 1933 Act and any profit on the sale of Shares by
the Selling Stockholders and any commissions or discounts given to any such
broker-dealer may be deemed to be underwriting commissions or discounts under
the 1933 Act.
The Shares may also be sold pursuant to Rule 144 under the 1933 Act
beginning one year after the Shares were issued.
The Company has filed the Registration Statement, of which this Prospectus
forms a part, with respect to the sale of the Shares. The Company has agreed to
use its best efforts to keep the Registration Statement current and effective
for a period commencing on the effective date of the Registration Statement and
terminating 36 months after the Registration Statement is declared effective by
the Commission. There can be no assurance that the Selling Stockholders will
sell any or all of the Shares offered hereunder.
The Company will pay all of the expenses incident to the offering and sale
of the Shares, other than commissions, discounts and fees of underwriters,
dealers or agents.
EXPERTS
The supplemental consolidated financial statements of Washington Mutual as
of December 31, 1996 and 1995, and for each of the years in the three-year
period ended December 31, 1996, have been incorporated by reference herein and
in the Registration Statement in reliance upon the report of Deloitte & Touche
llp, independent auditors. Insofar as the report of Deloitte & Touche llp
relates to the amounts included for Great Western Financial Corporation and
subsidiaries for 1996, 1995 and 1994, and for Keystone Holdings, Inc. and
subsidiaries for 1995 and 1994, it is based solely on the reports of Price
Waterhouse LLP, independent accountants for Great Western Financial Corporation
and subsidiaries for the years then indicated, and KPMG Peat Marwick LLP,
independent auditors for Keystone Holdings, Inc. and subsidiaries for the years
then indicated, incorporated by reference herein, given upon the authority of
said firms as experts in accounting and auditing.
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The consolidated financial statements of Great Western Financial
Corporation incorporated in this Prospectus by reference to the Annual Report on
Form 10-K/A for the year ended December 31, 1996, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
upon the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby has been
passed upon by Foster Pepper & Shefelman PLLC, counsel to Washington Mutual. As
of September 30, 1997, individual members of Foster Pepper & Shefelman PLLC
owned an aggregate of 19,506 shares of Common Stock.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission Registration Fee ...........$ 527,910
Attorneys' Fees and Expenses .................................. 20,000
Accountants' Fees and Expenses ................................ 50,000
Printing Fees and Expenses .................................... 15,000
Miscellaneous Expenses......................................... 1,500
Total.....................................................$ 614,410
ITEM 15. 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, 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.
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 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 X
of Washington Mutual's Restated Articles of Incorporation and Article VIII of
Washington Mutual's Bylaws, Washington Mutual may, by action of the Board of
Directors of Washington Mutual, 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.
II-1
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ITEM 16. EXHIBITS
The exhibits identified in parentheses below, on file with the Securities
and Exchange Commission, are incorporated herein by reference as exhibits
hereto.
Exhibit
3.1 Restated Articles of Incorporation of the Registrant (the "Articles")
3.2* Bylaws of the Registrant
4.1 Article II, Sections D(2), D(3), and D(4) of the Articles, which define
the rights of holders of the Series C Preferred Stock, the Series D
Preferred Stock and the Series E Preferred Stock (filed together with
Exhibit 3.1 hereto)
4.2* Rights Agreement, dated October 16, 1990
4.3* Amendment No. 1 to Rights Agreement, dated October 31, 1994
4.4* Supplement to Rights Agreement, dated November 29, 1994
5.1 Opinion of Foster Pepper & Shefelman PLLC
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Foster Pepper & Shefelman PLLC (contained in its opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on Signatures pages)
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*Incorporated by reference to Washington Mutual, Inc. Current Report on
Form 8-K dated November 29, 1994 (File No. 0-25188).
ITEM 17. UNDERTAKINGS
(b) The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of Washington Mutual's annual report pursuant to section
13(a) or section 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 herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the provisions
referred to in Item 15 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 of 1933 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 registrants will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a
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<PAGE>
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.
(i) The undersigned registrant 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 this 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 part of this 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 such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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<PAGE>
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
the requirements for filing on Form S-3 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 the 3rd day of
October, 1997.
WASHINGTON MUTUAL, INC.
By: /s/ Kerry K. Killinger
Kerry K. Killinger
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Kerry K. Killinger and Marc R. Kittner, and each of them, with
the full power of substitution, as attorney-in-fact to sign in such person's
behalf, individually and in each capacity stated below, and to file any
amendments, including post-effective amendments to this Registration Statement.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated below on the 3rd day of October, 1997.
/s/ Kerry K. Killinger /s/ William A. Longbrake
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)
/s/ Douglas G. Wisdorf
Douglas G. Wisdorf
Senior Vice President and
Controller
(Principal Accounting Officer)
/s/ Douglas P. Beighle /s/ William P. Gerberding
Douglas P. Beighle William P. Gerberding
Director Director
/s/ J. Taylor Crandall /s/ Samuel B. McKinney
J. Taylor Crandall Dr. Samuel B. McKinney
Director Director
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<PAGE>
/s/ Roger H. Eigsti /s/ Michael K. Murphy
Roger H. Eigsti Michael K. Murphy
Director Director
/s/ John W. Ellis /s/ David Bonderman
John W. Ellis David Bonderman
Director Director
/s/ Daniel J. Evans /s/ William G. Reed, Jr.
Daniel J. Evans William G. Reed, Jr.
Director Director
/s/ Anne V. Farrell /s/ James H. Stever
Anne V. Farrell James H. Stever
Director Director
/s/ Stephen E. Frank /s/ Enrique Hernandez, Jr.
Stephen E. Frank Enrique Hernandez, Jr.
Director Director
/s/ Willis B. Wood, Jr.
Willis B. Wood, Jr.
Director
<PAGE>
EXHIBITS INDEX
3.1 Restated Articles of Incorporation of the Registrant (the "Articles")
3.2* Bylaws of the Registrant
4.1 Article II, Sections D(2), D(3), and D(4) of the Articles, which define
the rights of holders of the Series C Preferred Stock, the Series D
Preferred Stock and the Series E Preferred Stock (filed together with
Exhibit 3.1 hereto)
4.2* Rights Agreement, dated October 16, 1990
4.3* Amendment No. 1 to Rights Agreement, dated October 31, 1994
4.4* Supplement to Rights Agreement, dated November 29, 1994
5.1 Opinion of Foster Pepper & Shefelman PLLC
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Foster Pepper & Shefelman PLLC (contained in its opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on Signatures pages)
*Incorporated by reference to Washington Mutual, Inc. Current Report on
Form 8-K dated November 29, 1994 (File No. 0-25188).
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Exhibit 5.1
FOSTER PEPPER & SHEFELMAN PLLC
October 7, 1997
Board of Directors
Washington Mutual, Inc.
1201 Third Avenue
Seattle, Washington 98101
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Washington Mutual, Inc., a Washington
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement ("Registration Statement") on Form S-3 under the
Securities Act of 1933, as amended, for 25,293,684 shares (the "Shares") of the
Company common stock, no par value per share (the "Common Stock"). Such Shares
are currently outstanding shares of Common Stock and are held of record by the
selling shareholders listed in the Registration Statement.
We have examined the Registration Statement and the action of the Board
of Directors of the Company in authorizing the issuance of the Shares and such
other documents and records as we deem necessary for the purpose of this
opinion.
Based on the foregoing, we are of the opinion that the Shares are
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the heading "Legal
Matters" in the Prospectus in the Registration Statement.
Very truly yours,
/s/ FOSTER PEPPER & SHEFELMAN PLLC
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Washington Mutual, Inc. on Form S-3 and related Prospectus of our report dated
February 14, 1997, appearing on Form 10-K as amended by Form 10-K/A dated April
24, 1997 and our report dated October 2, 1997 on the Supplemental Consolidated
Financial Statements of Washington Mutual, Inc. appearing on Form 8-K dated
October 7, 1997.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement and Prospectus.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Seattle, Washington
October 7, 1997
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Exhibit 23.2
Independent Auditors' Consent
The Board of Directors
Washington Mutual, Inc.,
as successor to
Keystone Holdings, Inc.
We consent to the incorporation by reference in the registration statement
on Form S-3 of Washington Mutual, Inc., relating to the registration of
25,293,684 shares of common stock, no par value, of our report dated January 26,
1996, except as to Note 27 to the consolidated financial statements, which is as
of February 8, 1996, with respect to the consolidated balance sheet of Keystone
Holdings, Inc. and subsidiaries as of December 31, 1995, and the related
consolidated statements of earnings, stockholder's equity, and cash flows for
each of the years in the two-year period ended December 31, 1995, which report
appears in the 1996 Annual Report on Form 10-K/A of Washington Mutual, Inc. and
the Form 8-K of Washington Mutual, Inc. and to the reference to our firm under
the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Los Angeles, California
October 10, 1997
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Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Washington
Mutual, Inc. of our report dated January 7, 1997, except as to Note 28, which is
as of March 7, 1997, appearing on page 105 of Great Western Financial
Corporation's Annual Report on Form 10-K/A for the year ended December 31, 1996.
We also consent to the references to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Los Angeles, California
October 7, 1997
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