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EXHIBIT 10.6
WASHINGTON MUTUAL
1994 STOCK OPTION PLAN
AS AMENDED AND RESTATED AS OF FEBRUARY 15, 2000
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WASHINGTON MUTUAL AMENDED AND RESTATED
1994 STOCK OPTION PLAN
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS
1.1 Affiliate......................................................... 1
1.2 Agreement......................................................... 1
1.3 Board............................................................. 1
1.4 Code. The Internal Revenue Code of 1986, as amended.............. 1
1.5 Committee......................................................... 1
1.6 Company........................................................... 1
1.7 Date of Exercise.................................................. 1
1.8 Exchange Act...................................................... 1
1.9 Fair Market Value................................................. 1
1.10 Incentive Option.................................................. 1
1.11 Nonqualified Option............................................... 1
1.12 Option............................................................ 2
1.13 Participant....................................................... 2
1.14 Plan.............................................................. 2
1.15 Stock............................................................. 2
1.16 Ten Percent Shareholder........................................... 2
ARTICLE 2. PURPOSE OF PLAN
ARTICLE 3. ADMINISTRATION
3.1 Administration of Plan............................................ 3
3.2 Authority to Grant Options........................................ 3
3.3 Discretionary Authority of Committee.............................. 3
ARTICLE 4. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation..................................................... 4
4.2 Limitations on Grants............................................. 4
4.3 Limitation on Incentive Options................................... 5
4.4 Ten Percent Limitation on Ownership............................... 5
4.5 Annual Grants to Nonemployee Board Members........................ 5
ARTICLE 5. STOCK SUBJECT TO PLAN
5.1 Maximum Number of Shares.......................................... 5
5.2 Forfeitures....................................................... 6
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ARTICLE 6. EXERCISE OF OPTIONS
6.1 Exercise Price.................................................... 6
6.2 Commencement of Right to Exercise................................. 6
6.3 Maximum Exercise Period........................................... 6
6.4 Early Termination of Right to Exercise............................ 6
6.5 Transferability................................................... 6
ARTICLE 7. METHOD OF EXERCISE
7.1 Exercise.......................................................... 7
7.2 Payment........................................................... 7
7.3 Federal Withholding Tax Requirements.............................. 7
7.4 Shareholder Rights................................................ 7
ARTICLE 8. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares............................................. 7
8.2 Substitution of Options on Merger or Acquisition.................. 8
8.3 Effect of Certain Transactions.................................... 8
8.4 No Preemptive Rights.............................................. 8
8.5 Fractional Shares................................................. 9
ARTICLE 9. COMPLIANCE WITH LAW AND APPROVAL
OF REGULATORY BODIES
9.1 General........................................................... 9
9.2 Representations by Participants................................... 9
ARTICLE 10. GENERAL PROVISIONS
10.1 Effect on Employment.............................................. 10
10.2 Unfunded Plan..................................................... 10
10.3 Rules of Construction............................................. 10
10.4 Governing Law..................................................... 10
10.5 Compliance With Section 16 of the Exchange Act.................... 10
10.6 Amendment......................................................... 10
10.7 Time to Grant Incentive Options................................... 10
10.8 Effective Date of Plan............................................ 11
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WASHINGTON MUTUAL AMENDED AND RESTATED
1994 STOCK OPTION PLAN
ARTICLE 1. DEFINITIONS
1.1 AFFILIATE. A "parent corporation," as defined in section 424(e)
of the Code, or "subsidiary corporation," as defined in section 424(f) of the
Code, of the Company.
1.2 AGREEMENT. A written agreement (including any amendment or
supplement thereto) between the Company or Affiliate and a Participant
specifying the terms and conditions of an Option granted to such Participant.
1.3 BOARD. The board of directors of the Company.
1.4 CODE. THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1.5 COMMITTEE. A committee with at least as many members as required
by Rule 16b-3 of the Exchange Act who are members of the Board.
1.6 COMPANY. Washington Mutual, Inc., successor to Washington Mutual
Savings Bank as Plan sponsor, and its successors.
1.7 DATE OF EXERCISE. The later of the date that the Participant
delivers a written notice of exercise to the Company and the date that the
Option exercise price is received by the Company.
1.8 EXCHANGE ACT. The Securities Exchange Act of 1934, as amended.
1.9 FAIR MARKET VALUE. On any given date, the applicable description
below:
(a) The closing price of the Stock as traded on the National
Association of Securities Dealers National Market System, as published
in THE NEW YORK TIMES or THE WALL STREET JOURNAL, on the business day
immediately preceding the date as of which Fair Market Value is being
determined.
(b) If the Stock is not traded as described in subparagraph
(a), Fair Market Value shall be the value determined in good faith by
the Committee or the Board.
1.10 INCENTIVE OPTION. An Option that is intended to qualify as an
"incentive stock option" within the meaning of section 422 of the Code. An
Incentive Option shall not be invalid for failure to qualify under section 422
of the Code, but shall be treated as a Nonqualified Option.
1.11 NONQUALIFIED OPTION. An Option that is not an Incentive Option.
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1.12 OPTION. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement. As used herein, an Option includes both Incentive Options
and Nonqualified Options.
1.13 PARTICIPANT. A person who is awarded Options hereunder. All
employees, consultants and advisors of the Company or of an Affiliate are
eligible to become Participants. Members of the Board who are not employees of
the Company or its Affiliates are also eligible to become Participants to the
extent that they receive Options pursuant to grants specifically called for by
the terms of this Plan.
1.14 PLAN. The Washington Mutual Amended and Restated 1994 Stock
Option Plan, as embodied herein and as amended from time to time, and including
the Washington Mutual 1994 Stock Option Plan, which is the predecessor version
of this Plan.
1.15 STOCK. The common stock of the Company.
1.16 TEN PERCENT SHAREHOLDER. An individual who owns more than 10% of
the total combined voting power of all classes of stock of the Company or an
Affiliate at the time he or she is granted an Option. For the purpose of
determining if an individual is a Ten Percent Shareholder, he or she shall be
deemed to own any voting stock owned (directly or indirectly) by or for his or
her brothers and sisters (whether by whole or half blood), spouse, ancestors or
lineal descendants and shall be considered to own proportionately any voting
stock owned (directly or indirectly) by or for a corporation, partnership,
estate or trust of which such individual is a shareholder, partner or
beneficiary.
ARTICLE 2. PURPOSE OF PLAN
The purpose of the Plan is to advance the interests of the Company, to
provide a performance incentive and to align the interests of the Participants
with the interests of the Company, its Affiliates, and its shareholders through
increased stock ownership by the Participants. It is intended that Participants
may acquire or increase their proprietary interests in the Company, that
Participant employees will be encouraged to remain in the employ of the Company
or of its Affiliates, and that Participant consultants, advisors and board
members will be encouraged to maintain their relationships with the Company or
its Affiliates. The proceeds received by the Company from the sale of Stock
pursuant to this Plan may be used for general corporate purposes.
The Plan was originally established and maintained by Washington Mutual
Savings Bank as the Washington Mutual 1994 Stock Option Plan (the "Original
Plan"). By action of the respective boards of directors of Washington Mutual
Savings Bank and the Company, the Company became the sponsor of the Original
Plan, effective November 29, 1994, at which time common stock of the Company was
substituted for common stock of Washington Mutual Savings Bank. The Original
Plan was previously approved by the shareholders of Washington Mutual Savings
Bank, the prior sponsor of the Original Plan. The Company amended and
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restated the Original Plan, effective as of February 17, 1998, and adopted
several amendments subsequent to such amendment and restatement.
The Plan was further amended on January 18 and February 15, 2000,
subject to shareholder approval.
The Board approved this restatement of the Plan to incorporate all such
amendments.
ARTICLE 3. ADMINISTRATION
3.1 ADMINISTRATION OF PLAN. The Plan shall be administered by the
Committee. The Committee shall have complete authority to (i) interpret all
provisions of this Plan; (ii) prescribe the form of any Agreement; (iii) adopt,
amend, and rescind rules for Plan administration; and (iv) make all
determinations it deems advisable for the administration of this Plan. The
express grant in the Plan of any specific power to the Committee shall not be
construed as limiting any power or authority of the Committee. Any decision made
or action taken by the Committee to administer the Plan shall be final and
conclusive. No member of the Committee shall be liable for any act done in good
faith with respect to this Plan or any Agreement or Option. The Company shall
bear all expenses of Plan administration.
3.2 AUTHORITY TO GRANT OPTIONS. The Committee shall have authority
to grant Options upon such terms the Committee deems appropriate and that are
not inconsistent with the provisions of this Plan. Such terms may include
conditions on the exercise of all or any part of an Option.
3.3 DISCRETIONARY AUTHORITY OF COMMITTEE. The Committee shall have
full discretionary power, subject to, and within the limits of, Articles 4, 5
and 6 of the Plan:
(a) To determine from time to time who of the eligible
persons shall be granted Options, and the time or times when, and the
number of shares for which, an Option or Options shall be granted to
such persons.
(b) To determine whether to grant Incentive Options,
Nonqualified Options, or both to eligible persons pursuant to the
provisions of the Plan.
(c) To prescribe the other terms and provisions (which need
not be identical) of each Option granted under the Plan to eligible
persons.
(d) To modify or amend any term or provision of any Option
granted under the Plan, provided that the consent of the holder thereof
must be obtained for any modification or amendment that reduces the
benefits to the holder of the Option.
(e) To construe and interpret the Plan and Options granted
hereunder (including the Agreements), and to establish, amend, and
revoke rules and regulations for administration. The Committee, in the
exercise of this power, may correct any defect or
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supply any omission, or reconcile any inconsistency in the Plan, or in
any Agreement, in the manner and to the extent it shall deem necessary
or expedient to make the Plan fully effective. In exercising this power
the Committee may retain counsel at the expense of the Company. All
decisions and determinations by the Committee in exercising this power
shall be final and binding upon the Company and the Participants.
(f) To determine the duration and purposes of leaves of
absence which may be granted to a Participant without constituting a
termination of his or her employment for purposes of the Plan or an
Agreement.
(g) To accelerate the time at which an Option may be
exercised, or otherwise modify the terms of an Option in a manner
favorable to the Participant.
(h) Subject to the maximum exercise period provided in
Section 6.3, to extend the time within which any Participant must
exercise any Option, in whole or in part.
(i) Notwithstanding Section 6.3, to extend the exercise
period of an Option beyond the maximum exercise period provided in
Section 6.3, in whole or in part, if the Committee determines that a
Participant will be unable to exercise such Option within the maximum
exercise period on account of an unforeseeable hardship.
(j) To authorize any person to execute on behalf of the f=
Company any instrument required to effectuate the grant of an Option
previously granted hereunder.
(k) To interpret the Plan and make any determinations that
are necessary or desirable in the administration of the Plan.
(l) To exercise such powers and to make all other
determinations deemed necessary or expedient to promote the best
interests of the Company with respect to the Plan.
ARTICLE 4. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 PARTICIPATION. The Committee may from time to time designate
persons to whom Options are to be granted from among those who are eligible to
become Participants. Such designation shall specify the number of shares of
Stock subject to each Option. All Options granted under this Plan shall be
evidenced by Agreements which shall designate such Option as either an Incentive
Option or Nonqualified Option, and which shall be subject to applicable
provisions of this Plan or such other provisions as the Committee may adopt that
are not inconsistent with Articles 4, 5 and 6 of the Plan.
4.2 LIMITATIONS ON GRANTS. A nonemployee Board member is not
eligible to receive a grant of Options except as provided in Section 4.5. A
person who is not an employee of the Company or an Affiliate is not eligible to
receive an Incentive Option. The maximum number of
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shares of Stock with respect to which Options may be granted to any Participant
in any calendar year under the Plan is one and one-half million (1,500,000)
shares.
4.3 LIMITATION ON INCENTIVE OPTIONS. To the extent that the
aggregate Fair Market Value of Stock with respect to which Incentive Options are
exercisable for the first time by a Participant during any calendar year (under
all incentive stock option plans of the Company and its Affiliates) exceeds
$100,000 (the Fair Market Value being determined as of the date each Option was
granted), such Options shall be treated as Nonqualified Options. This provision
shall be applied by taking Incentive Options into account in the order in which
they were granted.
4.4 TEN PERCENT LIMITATION ON OWNERSHIP. Unless requisite approvals
are obtained from the Federal Deposit Insurance Corporation, the Office of
Thrift Supervision or other regulatory entities, no person shall be eligible to
receive or exercise any option which, if exercised, would result in his or her
holding beneficially or of record in excess of 10% of the outstanding voting
stock of the Company.
4.5 ANNUAL GRANTS TO NONEMPLOYEE BOARD MEMBERS.
(a) GRANT DATE. Nonqualified Options shall be granted
automatically each year to each individual who, on the third Tuesday of
February of each year, through February 1999, and the third Tuesday of
December each year, beginning in December 1999 (the "Eligibility Date"),
is a member of the Board and is not an employee of the Company or its
Affiliates.
(b) NUMBER OF SHARES; EXERCISE PRICE. On each Eligibility
Date, each nonemployee Board member described in Section 4.5(a) shall be
granted a Nonqualified Option to acquire 4,000 shares of Stock. The
exercise price for such Nonqualified Options shall be the Fair Market
Value of Stock on the respective Eligibility Dates.
(c) EXERCISABILITY. For purposes of determining the dates on
which Options can be exercised, each Nonqualified Option awarded under
this Section 4.5 shall be fully exercisable on the earlier to occur, if
at all, of (1) (i) for Options granted on a third Tuesday in February,
the third Tuesday in February after the year that the option was
granted, provided that the individual is still a member of the Board,
and (ii) for Options granted on a third Tuesday in December, the third
Tuesday in December after the year in which the option was granted,
provided that the individual is still a member of the Board, or (2) the
date of the individual's mandatory retirement from the Board (as defined
in the Company's bylaws).
ARTICLE 5. STOCK SUBJECT TO PLAN
5.1 MAXIMUM NUMBER OF SHARES. The maximum aggregate number of shares
of Stock that may be issued pursuant to the exercise of Options under this Plan
(including the predecessor of this Plan, the Original Plan) is thirty million
(30,000,000) shares, subject to adjustments as provided in Article 8.
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5.2 FORFEITURES. Except as provided in the next sentence, if any
Option granted hereunder expires, terminates or is canceled without having been
exercised in full, the unpurchased shares subject thereto shall not again be
available for issuance under this Plan. The foregoing shall not apply to Options
that expire before the expiration of their maximum exercise period in connection
with a Participant ceasing to be an employee, director, consultant or advisor of
the Company or its Affiliates.
ARTICLE 6. EXERCISE OF OPTIONS
6.1 EXERCISE PRICE. The exercise price of an Option shall be not
less than 100% of the Fair Market Value of a share of Stock on the date the
Option is granted. In the case of a Ten Percent Shareholder, however, the
exercise price of an Incentive Option shall not be less than 110% of the Fair
Market Value of a share of Stock on the date the Option is granted. If the
exercise price of an Option is changed after the date it is granted, such change
shall be deemed to be a termination of the existing Option and the issuance of a
new Option.
6.2 COMMENCEMENT OF RIGHT TO EXERCISE. An Option shall first become
exercisable on the date of grant if not otherwise specified; as may otherwise be
specified by the Committee (in the Agreement or otherwise); or as may be
specified in connection with a change in control under a properly authorized
employment agreement between the Participant and the Company or an Affiliate.
6.3 MAXIMUM EXERCISE PERIOD. The maximum period in which an Option
may be exercised shall be determined by the Committee on the date of grant
except that no Option shall be exercisable after the expiration of 10 years
(five years in the case of Incentive Options granted to a Ten Percent
Shareholder) from the date it was granted. The terms of any Option may provide
that it is exercisable for a shorter period.
6.4 EARLY TERMINATION OF RIGHT TO EXERCISE. Unless otherwise
specified by the Committee (in the Agreement or otherwise), and except as
otherwise specified in connection with a change in control under a properly
authorized employment agreement between the Participant and the Company or an
Affiliate, if the Participant for any reason ceases to be an employee,
consultant, advisor or director of the Company or an Affiliate, and the
Participant does not thereupon become an employee, consultant, advisor or
director of the Company or an Affiliate, the Participant shall have the right
for 90 days after termination of the relationship to exercise only the portion
of the Participant's Options that had become exercisable by the date of the
termination, and thereafter the Options shall terminate and cease to be
exercisable.
6.5 TRANSFERABILITY. Any Incentive Option granted under this Plan
shall be transferable only by will or by the laws of descent and distribution
and may be exercised only by the Participant to whom it was granted, unless he
or she is deceased. Any Nonqualified Option granted under this Plan shall be
transferable only (a) by will or by the laws of descent and distribution, or (b)
to the extent not prohibited by the Committee, to Immediate Family Members,
partnerships in which the only partners are Immediate Family Members, or trusts
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established solely for the benefit of Immediate Family Members. "Immediate
Family Members" are the grandparents, parents, aunts, uncles, ▇▇▇▇▇▇, brothers,
sisters, cousins, children, nieces, nephews, grandchildren and
great-grandchildren, and corresponding step relations, of the Participant who
holds the Nonqualified Option. No right or interest of a Participant in any
Option shall be liable for, or subject to, any lien, obligation or liability of
such Participant.
ARTICLE 7. METHOD OF EXERCISE
7.1 EXERCISE. An Option granted hereunder shall be deemed to have
been exercised on the Date of Exercise. Subject to the provisions of Articles 6
and 9 and any contrary provisions in the Agreement, an Option may be exercised
in whole or in part at such times and in compliance with such requirements as
the Committee shall determine.
7.2 PAYMENT. Unless otherwise provided by the Agreement, payment of
the Option price shall be made in cash or, unless prohibited by the Committee,
Stock that was acquired prior to the exercise of the Option, other consideration
acceptable to the Committee, or a combination thereof. As long as the Stock is
registered under the Exchange Act, and to the extent permitted by applicable
laws and regulations (including, but not limited to, federal tax and securities
laws and regulations) and not prohibited by the Committee, an Option may also be
exercised by delivery of a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds to pay the exercise price in compliance with
Regulation T (12 C.F.R. Part 220).
7.3 FEDERAL WITHHOLDING TAX REQUIREMENTS. Upon exercise of a
Nonqualified Option by a Participant who was an employee of the Company or an
Affiliate when the Option was issued, the Participant shall, upon notification
of the amount due and prior to or concurrently with the delivery of the
certificates representing the shares, pay to the Company amounts necessary to
satisfy applicable federal, state and local withholding tax requirements or
shall otherwise make arrangements satisfactory to the Company for such
requirements. The Participant shall likewise pay or make arrangements for any
withholding tax requirements that may apply or become applicable to any other
exercise of Options or disposition of Stock acquired by the exercise of Options.
Further, the Company or its Affiliate shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to any
Participant any federal, state or local taxes of any kind required by law to be
withheld with respect to the exercise of Options or disposition of Stock
acquired by the exercise of Options.
7.4 SHAREHOLDER RIGHTS. No Participant shall have any rights as a
stockholder with respect to shares subject to his or her Option prior to the
Date of Exercise of such Option.
ARTICLE 8. ADJUSTMENT UPON CORPORATE CHANGES
8.1 ADJUSTMENTS TO SHARES. The maximum number and kind of shares of
Stock with respect to which Options hereunder may be granted and which are the
subject of outstanding
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Options shall be adjusted by way of increase or decrease as the Committee
determines (in its sole discretion) to be appropriate, in the event that:
(a) the Company effects one or more stock dividends, stock
splits, reverse stock splits, subdivisions, consolidations or other
similar events;
(b) the Company or an Affiliate engages in a transaction to
which section 424(a) of the Code applies; or
(c) there occurs any other event which in the judgment of
the Committee necessitates such action.
Provided, however, that if an event described in paragraph (a) or (b) above
occurs, the Committee shall make adjustments to the limits on Options specified
in Section 4.2, to the limitation on aggregate awards of Options under Section
5.1, and to the number of options to be awarded under Section 4.5 that are
proportionate to the modifications of the Stock that are on account of such
corporate changes.
8.2 SUBSTITUTION OF OPTIONS ON MERGER OR ACQUISITION. The Committee
may grant Options in substitution for stock awards, stock options, stock
appreciation rights or similar awards held by an individual who becomes an
employee of the Company or an Affiliate in connection with a transaction to
which section 424(a) of the Code applies. The terms of such substituted Options
shall be determined by the Committee in its sole discretion, subject only to the
limitations of Article 5.
8.3 EFFECT OF CERTAIN TRANSACTIONS. Upon a merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation of
the Company, as a result of which the shareholders of the Company receive cash,
stock or other property in exchange for their shares of Stock, any Option
granted hereunder shall terminate, provided that the Participant shall have the
right immediately prior to any such merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation to exercise his or
her Options in whole or in part whether or not the vesting requirements set
forth in any Agreement have been satisfied, unless the Committee elects to
convert all Options hereunder into options to purchase stock of an acquiring
corporation. If the Committee so elects to convert the Options, the amount and
price of such converted options shall be determined by adjusting the amount and
price of the Options granted hereunder in the same proportion as used for
determining the number of shares of stock of the acquiring corporation the
holders of the Stock receive in such merger, consolidation, acquisition of
property or stock, separation or reorganization, and the vesting schedule set
forth in the Agreement shall continue to apply to the converted options. Nothing
in this Section 8.3 or elsewhere in the Plan shall authorize the Committee to
take any action contrary to any provision regarding vesting of Options that is
contained in any Agreement or employment agreement if the action would reduce
the benefits to the Participant, unless the Participant consents to the action.
8.4 NO PREEMPTIVE RIGHTS. The issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
for cash or property, or for labor or services rendered, either upon direct sale
or upon the exercise of rights or warrants to
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subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, outstanding Options.
8.5 FRACTIONAL SHARES. Only whole shares of Stock may be acquired
through the exercise of an Option. The Company will return to the Participant
any amount tendered in the exercise of an Option remaining after the maximum
number of whole shares have been purchased.
ARTICLE 9. COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
9.1 GENERAL. No Option shall be exercisable, no Stock shall be
issued, no certificates for shares of Stock shall be delivered, and no payment
shall be made under this Plan except in compliance with all federal and state
laws and regulations (including, without limitation, withholding tax
requirements), federal and state securities laws and regulations and the rules
of all national securities exchanges or self-regulatory organizations on which
the Company's shares may be listed. The Company shall have the right to rely on
an opinion of its counsel as to such compliance. Any certificate issued to
evidence shares of Stock for which an Option is exercised may bear such legends
and statements as the Committee upon advice of counsel may deem advisable to
assure compliance with federal and state laws and regulations. No Option shall
be exercisable, no Stock shall be issued, no certificate for shares shall be
delivered and no payment shall be made under this Plan until the Company has
obtained such consent or approval as the Committee may deem advisable from any
regulatory bodies having jurisdiction over such matters.
9.2 REPRESENTATIONS BY PARTICIPANTS. As a condition to the exercise
of an Option, the Company may require a Participant to represent and warrant at
the time of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute such shares,
if, in the opinion of counsel for the Company, such representation is required
by any relevant provision of the laws referred to in Section 9.1. At the option
of the Company, a stop transfer order against any shares of Stock may be placed
on the official stock books and records of the Company, and a legend indicating
that the Stock may not be pledged, sold or otherwise transferred unless an
opinion of counsel is provided (concurred in by counsel for the Company) and
stating that such transfer is not in violation of any applicable law or
regulation may be stamped on the stock certificate in order to assure exemption
from registration. The Committee may also require such other action or agreement
by the Participants as may from time to time be necessary to comply with the
federal and state securities laws. This provision shall not obligate the Company
or any Affiliate to undertake registration of Options or Stock hereunder.
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ARTICLE 10. GENERAL PROVISIONS
10.1 EFFECT ON EMPLOYMENT. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any employee any right to continue in the employ of
the Company or an Affiliate or in any way affect any right and power of the
Company or an Affiliate to terminate the employment of any employee at any time
with or without assigning a reason therefor.
10.2 UNFUNDED PLAN. The Plan shall be unfunded, and the Company shall
not be required to segregate any assets that may at any time be represented by
grants under this Plan. Any liability of the Company to any person with respect
to any grant under this Plan shall be based solely upon contractual obligations
that may be created hereunder. No such obligation of the Company shall be deemed
to be secured by any pledge of, or other encumbrance on, any property of the
Company.
10.3 RULES OF CONSTRUCTION. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
10.4 GOVERNING LAW. The laws of the State of Washington shall apply
to all matters arising under this Plan, to the extent that federal law does not
apply.
10.5 COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT. With respect to
persons subject to Section 16 of the Exchange Act, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of this Plan or
action by the Committee fails to so comply, it shall be deemed null and void to
the extent permitted by law and deemed advisable by the Committee.
10.6 AMENDMENT. The Committee may amend or terminate this Plan at any
time; provided, however, an amendment that would have a material adverse effect
on the rights of a Participant under an outstanding Option is not valid with
respect to such Option without the Participant's consent, except as necessary
for Incentive Options to maintain qualification under the Code. Provided further
that the shareholders of the Company must approve any amendment that increases
either the aggregate number of shares of Stock that may be issued pursuant to
the exercise of Options granted under the Plan or the maximum number of shares
with respect to which any Participant may be granted Options in any calendar
year (other than any such increase made pursuant to Article 8), or that changes
the employees (or class of employees) eligible to receive Options.
10.7 TIME TO GRANT INCENTIVE OPTIONS. No Incentive Option may be
granted under this Amended and Restated Stock Option Plan more than ten years
after the date following December 21, 1999 on which this Amended and Restated
1994 Stock Option Plan is approved by shareholders as provided in Section 10.8.
Incentive Options granted before the expiration of that ten year period shall
remain valid in accordance with their terms and the terms of this Plan. Any
Option purportedly granted under this Plan as an Incentive Option after the
expiration of that ten
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year period shall be treated as a Nonqualified Option but shall otherwise remain
valid in accordance with its terms and the terms of this Plan.
10.8 EFFECTIVE DATE OF PLAN. This version of the Amended and Restated
1994 Stock Option Plan is subject to the condition subsequent that certain
amendments embodied therein are approved by shareholders holding a majority of
the Company's outstanding voting stock present or represented by proxy and
entitled to vote at the Company's next annual shareholders' meeting, which is
duly held, that occurs after February 15, 2000, the date that the Board adopted
such amendments subject to shareholder approval. If such shareholder approval is
not given, this version of the Amended and Restated 1994 Stock Option Plan shall
be of no force or effect and the prior version of the Amended and Restated Plan,
as amended prior to January 18, 2000, shall continue to govern.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed on
this the __________ day of _______________, 2000, but to be effective on
February 15, 2000.
WASHINGTON MUTUAL, INC.
By:
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Its: Senior Vice President
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