Articles of Incorporation - Washington Mutual Inc.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of RCW 23B.10.070 of the Washington Business
Corporation Act, WASHINGTON MUTUAL, INC., a Washington corporation, hereby
restates its Articles of Incorporation as now and heretofore amended:
ARTICLE I
NAME
The name of this corporation is:
WASHINGTON MUTUAL, INC.
ARTICLE II
CAPITAL STOCK
A. Issuance of and Payment for Stock. The total number of shares of
capital stock which the Company has authority to issue is 1,610,000,000 shares
of which 1,600,000,000 shares shall be shares of common stock with no par value
per share and 10,000,000 shares shall be shares of preferred stock with no par
value per share. The shares may be issued by the Company from time to time as
approved by its Board of Directors without the approval of the shareholders. The
consideration for issuance of the shares shall be paid in full before their
issuance. Neither promissory notes nor the promise of future services shall
constitute payment or part payment for the issuance of shares of the Company.
The consideration for the shares shall be cash, tangible or intangible property,
labor or services actually performed for the Company or any combination of the
foregoing. In the absence of actual fraud in the transaction, the value of such
property, labor or services, as determined by the Board of Directors of the
Company, shall be conclusive. Upon payment of such consideration, such shares
shall be deemed to be fully paid and non-assessable.
B. Voting by Class or Series. Except as expressly provided in these
Articles or in any resolutions of the Board of Directors designating and
establishing the terms of any series of preferred stock, no holders of any class
or series of capital stock shall have any right to vote as a separate class or
series or to vote more than one vote per share.
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Notwithstanding the foregoing, the restriction on voting separately by class or
series shall not apply to the extent that applicable law requires such voting,
nor shall this restriction apply to any amendment to these Articles which would
adversely change the specific terms of any class or series of capital stock as
set forth in this Article II or in any resolution of the Board of Directors
designating and establishing the terms of any series of preferred stock. For
purposes of the preceding sentence, an amendment which increases the number of
authorized shares of any class or series of capital stock, or substitutes the
surviving institution in a merger or consolidation for the Company, shall not be
such an adverse change.
C. Common Stock. On matters on which holders of common stock are
entitled to vote, each holder of shares of common stock shall be entitled to one
vote for each share held by such holder.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and of sinking fund or retirement fund or other retirement
payments, if any, to which such holders are respectively entitled in preference
to the common stock, then dividends may be paid on the common stock and on any
class or series of stock entitled to participate therewith as to dividends, out
of any assets legally available for the payment of dividends; but only when and
as declared by the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Company, after there shall have been paid to or set aside for the holders of any
class having preferences over the common stock in the event of liquidation,
dissolution or winding up of the full preferential amounts to which they are
respectively entitled, the holders of the common stock, and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets, shall be entitled, after payment or provision for
payment of all debts and liabilities of the Company, to receive pro rata the
remaining assets of the Company available for distribution, in cash or in kind.
Each share of common stock shall have the same relative rights as and be
identical in all respects with all the other shares of common stock.
D. Preferred Stock. The authorized Preferred Stock shall be
comprised of 10,000,000 shares no par value per share. The Board of Directors of
the Company is authorized by resolution or resolutions from time to time
adopted, to provide for the issuance of preferred stock in one or more
additional series by designating and establishing the terms of such a series.
With respect to any such series, the Board of Directors is authorized to fix and
state the voting powers, designations, preferences and relative, participating,
optional or other special right of the shares of each such series and
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the qualifications, limitations and restrictions thereon, including, but not
limited to, determination of any of the following:
(1) The distinctive serial designation and the number of
shares constituting such series;
(2) The dividend rates or the amount of dividends to be paid
on the shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
(3) The voting powers, full, special or limited, if any, of
shares of such series;
(4) Whether the shares of such series shall be redeemable
and, if so, the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(5) The amount or amounts payable upon the shares of such
series in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Company;
(6) Whether the shares of such series shall be entitled to
the benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(7) Whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the Company and, if
so convertible or exchangeable, the conversion price or prices, or the rate of
exchange, and the adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of such conversion or
exchange; and
(8) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of serial
preferred stock and whether such shares may be reissued as shares of the same or
any other series of serial Preferred Stock.
Each share of each series of preferred stock shall have the same
relative rights as and be identical in all respects with all the other shares of
the same series.
While the foregoing authorizes the Board of Directors, in establishing
the terms of a series of Preferred Stock, to permit holders of that series of
Preferred Stock to elect
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separately one or more directors, in no event shall the total number of
directors separately elected by holders of one or more series of Preferred Stock
equal or exceed fifty percent (50%) of the total number of authorized directors.
ARTICLE III
PREEMPTIVE RIGHTS
The shareholders of the Company shall have no preemptive rights to
acquire additional shares of the Company.
ARTICLE IV
BOARD OF DIRECTORS
The Company shall be managed by a Board of Directors. The number of
directors shall be stated in the Company's Bylaws, provided, however, that such
number shall be not less than five (5). There shall be three classes of elected
directors designated as Class 1, Class 2, and Class 3 directors. Each class
shall contain one-third of the total number of directors, as near as may be. The
terms of the Class 1 directors shall expire at the first annual shareholders'
meeting after their election. The terms of the Class 2 directors shall expire at
the second annual shareholders' meeting after their election. The terms of the
Class 3 directors shall expire at the third annual shareholders' meeting after
their election. At each annual shareholders' meeting held thereafter, directors
shall be chosen for a term of three years to succeed those whose terms expire. A
vacancy on the Board of Directors may be filled by the Board in accordance with
the applicable provisions of the Company's Bylaws. A director elected to fill a
vacancy shall be elected for a term of office continuing only until the next
election of directors by shareholders.
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ARTICLE V
REMOVAL OF DIRECTORS
Any director may be removed by the shareholders only with good cause and
in accordance with the applicable provisions of the Company's Bylaws.
ARTICLE VI
CUMULATIVE VOTING
The right to cumulate votes in the election of directors shall not exist
with respect to shares of stock of the Company.
ARTICLE VII
BYLAWS
The Board of Directors has the power to adopt, amend or repeal the
Bylaws of the Company, subject to the concurrent power of the shareholders, by
at least two-thirds affirmative vote of the shares of the Company entitled to
vote thereon, to adopt, amend or repeal the Bylaws.
ARTICLE VIII
SHAREHOLDER VOTE REQUIRED TO APPROVE SUBSTANTIAL BUSINESS TRANSACTION
If pursuant to the Washington Business Corporations Act the Company's
shareholders are required to approve a plan of merger, share exchange, or other
disposition of all, or substantially all of the Company's property, otherwise
than in the usual and regular course of business (each of the foregoing, a
"Substantial Business Transaction"), then (a) if two-thirds of the directors
vote to recommend the Substantial Business Transaction to the shareholders, the
Substantial Business Transaction shall be approved by each voting group entitled
to vote thereon by a simple majority of all votes entitled to be cast by that
group; (b) in all other cases where a shareholder vote is required by the
Washington Business Corporation Act, such Act, as it may be amended, shall
control.
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ARTICLE IX
INDEMNIFICATION
The Company shall indemnify any individual made a party to a
proceeding because that individual is or was a director of the Company and shall
advance or reimburse the reasonable expenses incurred by such individual in
advance of final disposition of the proceeding, without regard to the
limitations in RCW 23B.08.510 through 23B.08.550 of the Washington Business
Corporation Act, or any other limitation that may hereafter be enacted to the
extent such limitation may be disregarded if authorized by the articles of
incorporation, to the full extent and under all circumstances permitted by
applicable law.
ARTICLE X
BUSINESS COMBINATIONS
A. For the purposes of this Article X:
(1) The terms "Affiliate" and "Associate" shall have the
meanings attached to them by Rule 12b-2 under the Securities Exchange Act of
1934, as amended, or any similar successor rule.
(2) The term "beneficial owner" and correlative terms shall
have the meaning as set forth in Rule 13d-3 under the Securities Exchange Act of
1934, as amended, or any similar successor rule. Without limitation and in
addition to the foregoing, any shares of Voting Stock of the Company which any
Major Stockholder has the right to vote or to acquire (i) pursuant to any
agreement, (ii) by reason of tenders of shares by shareholders of the Company in
connection with or pursuant to a tender offer made by such Major Stockholder
(whether or not any tenders have been accepted, but excluding tenders which have
been rejected), or (iii) upon the exercise of conversion rights, warrants,
options or otherwise, shall be deemed "beneficially owned" by such Major
Stockholder.
(3) The term "Business Combination" shall mean:
(a) any merger or consolidation (whether in a single
transaction or a series of related transactions, including a series of separate
transactions with a Major Stockholder, any Affiliate or Associate thereof or any
Person acting in concert therewith) of the Company or any Subsidiary with or
into a Major Stockholder or of a Major Stockholder into the Company or a
Subsidiary;
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(b) any sale, lease, exchange, transfer,
distribution to stockholders or other disposition, including without limitation,
a mortgage, pledge or any other security device, to or with a Major Stockholder
by the Company or any of its Subsidiaries (in a single transaction or a series
of related transactions) of all, substantially all or any Substantial Part of
the assets of the Company or a Subsidiary (including, without limitation, any
securities of a Subsidiary);
(c) the purchase, exchange, lease or other
acquisition by the Company or any of its Subsidiaries (in a single transaction
or a series of related transactions) of all, substantially all or any
Substantial Part of the assets or business of a Major Stockholder;
(d) the issuance of any securities, or of any
rights, warrants or options to acquire any securities, of the Company or a
Subsidiary to a Major Stockholder or the acquisition by the Company or a
Subsidiary of any securities, or of any rights, warrants or options to acquire
any securities, of a Major Stockholder;
(e) any reclassification of Voting Stock,
recapitalization or other transaction (other than a redemption in accordance
with the terms of the security redeemed) which has the effect, directly or
indirectly, of increasing the proportionate amount of Voting Stock of the
Company or any Subsidiary which is beneficially owned by a Major Stockholder, or
any partial or complete liquidation, spin off, split off or split up of the
Company or any Subsidiary; provided, however, that this Section A(3)(e) shall
not relate to any transaction of the types specified herein that has been
approved by a majority of the Continuing Directors; and
(f) any agreement, contract or other arrangement
providing for any of the transactions described herein.
(4) The term "Continuing Director" shall mean (i) a person
who was a member of the Board of Directors of the Company immediately prior to
the time that any then-existing Major Stockholder became a Major Stockholder, or
(ii) a person designated (before initially becoming a director) as a Continuing
Director by a majority of the then Continuing Directors. All references to a
vote of the Continuing Directors shall mean a vote of the total number of
Continuing Directors.
(5) The term "Major Stockholder" shall mean any Person
which, together with its Affiliates and Associates and any Person acting in
concert therewith, is the beneficial owner of five percent (5%) or more of the
votes held by the holders of the outstanding shares of the Voting Stock of the
Company, and any Affiliate or Associate of a Major Stockholder, including a
Person acting in concert therewith. The term "Major Stockholder" shall not
include a Subsidiary.
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(6) The term "other consideration to be received" shall
include, without limitation, Voting Stock retained by the Company's existing
shareholders in the event of a Business Combination which is a merger or
consolidation in which the Company is the surviving corporation.
(7) The term "Person" shall mean any individual,
corporation, partnership or other person, group or entity (other than the
Company, any Subsidiary or a trustee holding stock for the benefit of employees
of the Company or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such
partnerships, syndicate, association or group will be deemed a "Person."
(8) The term "Subsidiary" shall mean any business entity
fifty percent (50%) or more of which is beneficially owned by the Company.
(9) The term "Substantial Part," as used in reference to the
assets of the Company or any Subsidiary or of any Major Stockholder means assets
having a value of more than five percent (5%) of the total consolidated assets
of the Company and its Subsidiaries as of the end of the Company's most recent
fiscal year ending prior to the time the determination is made.
(10) The term "Voting Stock" shall mean the stock or other
securities entitled to vote upon any action to be taken in connection with any
Business Combination or entitled to vote generally in the election of directors,
including stock or other securities convertible into Voting Stock.
B. Notwithstanding any other provisions of these Articles of
Incorporation and except as set forth in Section C of this Article X, neither
the Company nor any Subsidiary shall be a party to a Business Combination
unless:
(1) The Business Combination was approved by the Board of
Directors of the Company prior to the Major Stockholder involved in the Business
Combination becoming such; or
(2) The Major Stockholder involved in the Business
Combination sought and obtained the unanimous prior approval of the Board of
Directors to become a Major Stockholder and the Business Combination was
approved by a majority of the Continuing Directors; or
(3) The Business Combination was approved by at least eighty
percent (80%) of the Continuing Directors of the Company; or
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(4) The Business Combination was approved by at least
ninety-five percent (95%) of the outstanding Voting Stock beneficially owned by
shareholders other than any Major Stockholder.
C. The approval requirements of Section B shall not apply if:
(1) The Business Combination is approved by at least the
majority vote of the shares of the Voting Stock and the majority vote of the
shares of the Voting Stock beneficially owned by shareholders other than any
Major Stockholder; and
(2) All of the following conditions are satisfied:
(a) The aggregate of the cash and the fair market
value of other consideration to be received per share (as adjusted for stock
splits, stock dividends, reclassification of shares into a lesser number and
similar events) by holders of the common stock of the Company in the Business
Combination is not less than the higher of (i) the highest per share price
(including brokerage commissions, soliciting dealers' fees, dealer-management
compensation, and other expenses, including, but not limited to, costs of
newspaper advertisements, printing expenses and attorneys' fees) paid by the
Major Stockholder in acquiring any of the Company's common stock; or (ii) an
amount which bears the same or a greater percentage relationship to the market
price of the Company's common stock immediately prior to the announcement of
such Business Combination as the highest per share price determined in (i) above
bears to the market price of the Company's common stock immediately prior to the
commencement of acquisition of the Company's common stock by such Major
Stockholder, but in no event in excess of two times the highest per share price
determined in (i) above; and
(b) The consideration to be received in such
Business Combination by holders of the common stock of the Company shall be,
except to the extent that a stockholder agrees otherwise as to all or a part of
his or her shares, in the same form and of the same kind as paid by the Major
Stockholder in acquiring his Voting Stock.
(c) After becoming a Major Stockholder and prior to
the consummation of such Business Combination, (i) such Major Stockholder shall
not have acquired any newly issued shares of capital stock, directly or
indirectly, from the Company or a Subsidiary (except upon conversion of
convertible securities acquired by it prior to becoming a Major Stockholder or
upon compliance with the provisions of this Article X or as a result of a pro
rata stock dividend or stock split), and (ii) such Major Stockholder shall not
have received the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other financial
assistance or tax credits provided by the Company or a Subsidiary, or made any
major changes in the Company's business or equity capital structure; and
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(d) A proxy statement responsive to the requirements
of the Securities Exchange Act of 1934, whether or not the Company is then
subject to such requirements, shall be mailed to all shareholders of the Company
for the purpose of soliciting shareholder approval of such Business Combination
and shall contain on the front thereof, in a prominent place, (i) any
recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors may choose to state, and (ii) the
opinion of a reputable national investment banking firm as to the fairness (or
lack thereof) of the terms of such Business Combination, from the point of view
of the remaining shareholders of the Company. Such investment banking firm shall
be engaged solely on behalf of the remaining shareholders, be paid a reasonable
fee for their services by the Company upon receipt of such opinion, and be one
of the so-called major bracket investment banking firms which has not previously
been associated with such Major Stockholder and to be selected by a majority of
the Continuing Directors.
D. During the time a Major Stockholder exists, a resolution to
voluntarily dissolve the Company shall be adopted only upon: (1) the consent of
all of the Company's shareholders; or (2) the affirmative vote of at least
two-thirds of the total number of directors, the affirmative vote of the holders
of at least two-thirds of the shares of the Company entitled to vote thereon,
and the affirmative vote of the holders of at least two-thirds of the shares of
each class of shares entitled to vote thereon as a class, if any.
E. As to any particular transaction, the Continuing Directors shall
have the power and duty to determine, on the basis of information known to them:
(1) The amount of Voting Stock beneficially held by any
Person;
(2) Whether a Person is an Affiliate or an Associate of
another;
(3) Whether a Person is acting in concert with another;
(4) Whether the assets subject to any Business Combination
constitute a Substantial Part;
(5) Whether a proposed transaction is subject to the
provisions of this Article; and
(6) Such other matters with respect to which a determination
is required under this Article.
Any such determination shall be conclusive and binding for all purposes
of this Article.
The affirmative vote required by this Article is in addition to the vote
of the holders of any class or series of stock of the Company otherwise required
by law, these
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Articles of Incorporation, any resolution which has been adopted by the Board of
Directors providing for the issuance of a class or series of stock or any
agreement between the Company and any national securities exchange.
ARTICLE XI
AMENDMENT
The Company may amend these Articles of Incorporation if approved by
each voting group entitled to vote thereon by a simple majority of all the votes
entitled to be cast by that voting group at any regular meeting or special
meeting duly called for that purpose in the manner prescribed by its Bylaws,
provided, however, that Article X may not be repealed or amended in any respect
unless such action is approved by at least a ninety-five percent (95%) vote of
the outstanding Voting Stock beneficially owned by shareholders other than any
Major Stockholder, and provided further, that the board of Directors may,
without shareholder approval, amend these Articles (i) to the extent permitted
under the Washington Business Corporation Act or (ii) as necessary to designate
the preferences, limitations, and relative rights of a class or series of shares
of the Company prior to issuance of any shares in that class or series.
ARTICLE XII
LIMITATION OF LIABILITY
A director of the Company shall not be personally liable to the Company
or its shareholders for monetary damages for conduct as a director ("Protected
Conduct"). However, Protected Conduct shall exclude (i) acts or omissions which
involve intentional misconduct by the director or a knowing violation of law by
the director, (ii) any conduct violating Section 23B.08.310 of the Revised Code
of Washington, and (iii), 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 further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company shall be eliminated
or limited to the fullest extent permitted by Washington law, as so amended. Any
repeal or modification of this Article XII by the shareholders of the Company
shall not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
ARTICLE XIII
The street address of the registered office of the Company is:
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1201 Third Avenue
15th Floor
Seattle, Washington 98101
and the name of the registered agent at that address is:
Marc R. Kittner
ARTICLE XIV
SPECIAL MEETINGS OF SHAREHOLDERS
Special meetings of the shareholders for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the board of directors or by
any other person or persons authorized to do so in the Company's Bylaws.
Notwithstanding RCW 23B.07.020(1) (b) or any other provision in these Articles
or the Company's Bylaws, a special meeting of the shareholders may be called by
the shareholders only if the holders of at least twenty-five percent of all the
votes to be cast on any issue proposed to be considered at the proposed special
meeting sign, date and deliver to the Company's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to be
held.
DATED at Seattle, Washington, on the __________ day of October, 1999.
WASHINGTON MUTUAL, INC.
By:
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Kerry K. Killinger
President, Chairman and
Chief Executive Officer
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