REGISTRATION NO. 333-81221
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
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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
(Address of Principal Executive Offices)(Zip Code)
Long Beach Financial Corporation 1997 Stock Incentive Plan
(Full title of the plan)
Fay L. Chapman
Executive Vice President and General Counsel
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
6100 Columbia Center, 701 Fifth Avenue
Seattle, Washington 98104
(206) 447-0900
<PAGE>
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 Long Beach Financial
Corporation ("Long Beach") 1997 Stock Incentive Plan (the "Long Beach Plan").
The registrant has assumed the outstanding obligations under the Long Beach Plan
as successor to Long Beach by reason of merger of Long Beach into the
Registrant. 1,592,908 shares of the Registrant's common stock are issuable under
the Long Beach Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The shares being registered are issuable upon exercise of outstanding
options under plans of Long Beach Financial Corporation ("Long Beach") which are
being assumed by Washington Mutual, Inc. as part of the merger of Long Beach
into Washington Mutual, Inc. The terms of the existing Long Beach plan(s) will
remain unchanged except that Washington Mutual, Inc. shares will be issued in
lieu of Long Beach 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, 1998 (the
"1998 Washington Mutual 10-K");
2) Quarterly Reports on Form 10-Q for the quarter ended March 31, 1999,
including the Form 10-Q/A filed August 3, 1999, and for the quarter ended June
30, 1999;
(3) Current Reports on Form 8-K dated January 22, 1999; April 23, 1999;
May 21, 1999; June 21, 1999; July 23, 1999 (two reports on that date); August
10, 1999; August 26, 1999; and September 16, 1999; and
(4) The description of Registrant's Common Stock, no par value,
contained in Item 5 of Registrant's Current Report of Form 8-K dated November
29, 1994.
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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of September 30, 1999, Heller Ehrman White & McAuliffe and
individual attorneys at the firm who participated in this transaction owned an
aggregate 8,501 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 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
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.10 Long Beach 1997 Stock Incentive Plan (incorporated by
reference to Long Beach's Registration Statement filed on Form
S-1 on February 17, 1997).
4.11 Restated Articles of Incorporation of the Registrant
(incorporated by reference to Washington Mutual, Inc.
Quarterly Report on Form 10-Q for the quarter ended June 30,
1999).
4.12 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 registrant
and its consolidated subsidiaries.
5 Opinion of Heller Ehrman White & McAuliffe (previously filed)
23.1 Consent of Heller Ehrman White & McAuliffe (included as part
of the previously filed Opinion of Heller Ehrman White
& McAuliffe)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of KPMG 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.
(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.
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 30th day of
September, 1999.
WASHINGTON MUTUAL, INC.
By: *
Kerry K. Killinger
Title: Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
* *
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)
* *
Philip D. Matthews Richard M. Levy
Director 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
* *
Roger H. Eigsti Michael K. Murphy
Director Director
* *
John W. Ellis William G. Reed, Jr.
Director Director
* *
Anne V. Farrell James H. Stever
Director Director
* *
Stephen E. Frank Willis B. Wood, Jr.
Director Director
* *
Elizabeth A. Sanders William D. Schulte
Director Director
*/s/ Fay L. Chapman
Fay L. Chapman
Attorney in Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
4.10 Long Beach 1997 Stock Incentive Plan (incorporated by reference to
Long Beach's Registration Statement filed on Form S-1
on February 17, 1997).
4.11 Restated Articles of Incorporation of the Registrant (incorporated by
reference to Washington Mutual, Inc. Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999).
4.12 Undertaking of Registrant included in Item 8 of this Registration
Statement.
5 Opinion of Heller Ehrman White & McAuliffe (previously filed)
23.1 Consent of Heller Ehrman White & McAuliffe (included in previously
filed Opinion of Heller Ehrman White & McAuliffe)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of KPMG LLP
24 Power of Attorney (previously filed)
Ex. 23.2 Consent of Deloitte & Touche LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Washington Mutual, Inc. on Form S-8 of our report dated February 26, 1999,
appearing in the Annual Report on Form 10-K of Washington Mutual, Inc. for
the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
Seattle, Washington
October 1, 1999
Ex. 23.3 Consent of PricewaterhouseCoopers LLP
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Washington Mutual, Inc. of our report dated
January 22, 1997, except as to Note 28, which is as of March 7, 1997,
relating to the consolidated financial statements of Great Western Financial
Corporation, which appears on page 62 of the Washington Mutual, Inc.
Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
October 1, 1999
Ex. 23.4 Consent of KPMG LLP
Independent Auditors' Consent
We consent to the incorporation by reference in the Registration Statement
of Washington Mutual, Inc. on Form S-8 of our report dated January 15, 1998,
except as to Note 2 of Notes to Consolidated Financial Statements, which is as
of February 13, 1998, and Note 19 of Notes to Consolidated Financial Statements,
which is as of March 16, 1998, relating to the consolidated statement of
financial condition as of December 31, 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows of
H.F. Ahmanson & Company and subsidiaries for each of the years in the two-year
period ended December 31, 1997, which report appears in the December 31, 1998,
annual report on Form 10-K of Washington Mutual, Inc.
/s/ KPMG LLP
Los Angeles, California
October 1, 1999
