Amendment No. 1
to
PURCHASE CONTRACT AGREEMENT
This Amendment No. 1, dated February _____, 2001, amends the Purchase
Contract Agreement (the "Agreement") originally made and entered into as of the
10th day of August, 1999, by and between Bank United Corp., a Delaware
corporation ("Bank United") and Bank One N.A. (under its former name, The First
National Bank of Chicago), a national banking association ("Bank One"), as
permitted by Section 8.1 of the Agreement.
WHEREAS, Washington Mutual, Inc., a Washington corporation ("Washington
Mutual") and Bank United have entered into an Agreement and Plan of Merger dated
August 18, 2000, as amended (the "Merger Agreement") whereby Bank United will
merge (the "Merger") with and into Washington Mutual and Washington Mutual will
be the surviving corporation.
WHEREAS, Bank United has also agreed that immediately prior to the
Merger it will effect a corporate reorganization (the "Reorganization") by
merging a wholly owned subsidiary of Bank United with and into Bank United.
WHEREAS, as a result of the Reorganization, each share of Bank United
common stock outstanding at the effective time of the Reorganization, other than
shares held by persons properly exercising dissenters' appraisal rights, will
automatically convert into (1) a corresponding share of new Bank United common
stock and (2) the right to receive a certificate (a "CPR Certificate")
representing partial beneficial ownership in a Delaware trust established to
receive Bank United's portion of the proceeds, if any, minus certain expenses,
of certain litigation Bank United is prosecuting against the federal government.
In addition, appropriate and proportionate adjustments must be made to all Bank
United 8% Premium Income Equity Securities ("Bank United PIES") to reflect the
Reorganization.
WHEREAS, as a result of the Merger, each share of new Bank United
common stock will automatically convert into the right to receive (1) 1.3 shares
of Washington Mutual common stock and (2) cash in lieu of fractional shares
since no fractional shares of Washington Mutual common stock will be issued in
connection with the Merger.
WHEREAS, as a result of the Merger, each Bank United PIES will
automatically convert into the right to receive a Washington Mutual 8% Premium
Income Equity Securities (a "Replacement PIES") with substantially identical
rights and preferences as the Bank United PIES but with such appropriate and
proportionate adjustments must be made to reflect the Reorganization and the
Merger.
WHEREAS, Washington Mutual and Bank One have agreed that the
Replacement PIES be issued pursuant to the Agreement and that certain Pledge
Agreement among Bank United, Bank One (under its prior name The First National
Bank of Chicago) and The Bank of New York, dated August 10, 1999, as amended
(the "Pledge Agreement").
WHEREAS, Washington Mutual, as successor to Bank United, and Bank One
have agreed to amend the Agreement to make any appropriate and proportionate
adjustments to reflect the Reorganization, the Merger and the issuance of
Replacement PIES.
WASHINGTON MUTUAL AND BANK ONE AGREE AS FOLLOWS:
1. Each capitalized term used but not defined in this Amendment No. 1 shall
have the meaning provided for such term in the Agreement.
2. This Amendment No. 1 shall be effective on the effective date of the
Merger. If the Merger does not become effective, this Amendment No. 1 will not
be effective.
3. Washington Mutual assumes all of the obligations of Bank United under
this Agreement, the Purchase Contracts and the Pledge Agreement.
4. The definition of "Common Stock" in Section 1.1(e) of the Agreement is
replaced in its entirety with the following:
"Common Stock" means the shares of Common Stock, no par value, of the
Company.
5. The definition of "Company" in Section 1.1(e) of the Agreement is
replaced in its entirety with the following:
"Company" means Washington Mutual, Inc. until a successor
shall have become such pursuant to the applicable provision of
this Agreement, and thereafter "Company" shall mean such
successor.
6. The following definition is added to Section 1.1(e):
"CPR Certificate" means a certificate representing a partial
beneficial ownership interest in the Bank United Litigation
Contingent Payment Rights Trust, a Delaware trust established
by Bank United Corp. to receive Bank United Corp.'s portion of
the proceeds, if any, realized from the litigation filed by
Bank United Corp., its indirect subsidiary Bank United, and
Hyperion Partners L.P. against the United States in the U.S.
Court of Federal Claims on July 25, 1995, for alleged failure
of the United States to adhere to its agreement to waive or
forbear from enforcing certain provisions concerning
regulatory capital requirements.
7. The parenthetical clause "(as may be amended from time to time)" is
added to the definition of "Pledge Agreement" in Section 1.1(e) of the Agreement
between the clause "dated as of the date hereof," and the clause beginning with
the words "by and among the Company".
8. The parenthetical clause "(as may be amended from time to time)" is
added to the definition of "Remarketing Agreement" in Section 1.1(e) of the
Agreement between the clause "dated as of the date hereof," and the clause
beginning with the words "by and among the Company".
9. The definition of "Stock" in Section 1.1(e) of the Agreement is replaced
in its entirety with the following:
"Stock" means the shares of Series H Preferred Stock to be
issued by the Company under the Certificate of Designations.
10. The definition of "Underwriting Agreement" in Section 1.1(e) of the
Agreement is replaced in its entirety with the following:
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"Underwriting Agreement" means the Underwriting Agreement,
dated as of August 4, 1999, between Bank United Corp. (the
predecessor to the Company) and Xxxxxx Brothers Inc.
11. The contact information for the Company set forth in Section 1.5 is
replaced with the following:
If to the Company:
Washington Mutual, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx X. Xxxxxxx
12. The first paragraph of Section 5.1 of the Agreement is replaced in its
entirety with the following:
Each Purchase Contract shall, unless an Early
Settlement has occurred in accordance with Section 5.9 hereof,
obligate the Holder of the related Security to purchase, and
the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"),
a number of newly issued shares of Common Stock and CPR
Certificates per Purchase Contract equal to the Settlement
Rate unless, on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event with
respect to the Security of which such Purchase Contract is a
part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is equal to or greater than
$44.9250 (the "Threshold Appreciation Price"), (i) 1.4469
shares of Common Stock and (ii) 1.1130 CPR Certificates, (b)
if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than $37.4375, (i) the
number of shares of Common Stock equal to 1.3 multiplied times
the result of the Stated Amount divided by the Applicable
Market Value and (ii) the number of CPR Certificates equal to
the Stated Amount divided by the Applicable Market Value, and
(c) if the Applicable Market Value is less than or equal to
$37.4375, (i) 1.7362 shares of Common Stock and (ii) 1.3356
CPR Certificates, in each case subject to adjustment as
provided in Section 5.6. As provided in Section 5.10, no
fractional shares of Common Stock or fractional CPR
Certificates will be issued upon settlement of Purchase
Contracts.
13. The third paragraph of Section 5.1 of the Agreement is replaced in its
entirety with the following:
The "Applicable Market Value" means the sum of (a)
1.3 times the average of the Closing Price per share of Common
Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract
Settlement Date and (b) the average of the Closing Price per
CPR Certificate on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract
Settlement Date. The "Closing Price" of the Common Stock on
any date of determination means (i) the closing sale price
(or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date, (ii) if the Common Stock is not listed
for trading on the NYSE on any such date, the closing sale
price as reported in the composite transactions for the
principal United States securities exchange on which the
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Common Stock is so listed, (iii) if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in
the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid
price is not available, the average of the mid-point of the
last bid and ask prices of the Common Stock on such date from
at least three nationally recognized independent investment
banking firms retained for this purpose by the Company. The
"Closing Price" of the CPR Certificates on any date of
determination means (i) the closing sale price (or, if no
closing price is reported, the last reported sale price) of
the CPR Certificates on the Nasdaq National Market on such
date, (ii) if the CPR Certificates are not listed for trading
on the Nasdaq National Market on any such date, the closing
sale price as reported in the composite transactions for the
principal United States securities exchange on which the CPR
Certificates are so listed, (iii) if the CPR Certificates are
not so reported, the last quoted bid price for the CPR
Certificates in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (iv) if
such bid price is not available, the average of the mid-point
of the last bid and ask prices of the CPR Certificates on such
date from at least three nationally recognized independent
investment banking firms retained for this purpose by the
Company. A "Trading Day" means a day on which the Common Stock
or the CPR Certificates, as applicable, (A) is not suspended
from trading on any national or regional securities exchange
or association or over-the-counter market at the close of
business and (B) has traded at least once on the national or
regional securities exchange or association or
over-the-counter market that is the primary market for the
trading of the Common Stock or CPR Certificates, as the case
may be.
14. The words "1.11297 shares of Common Stock" in the first sentence of
Section 5.9(b) of the Agreement are replaced by the words "1.4469 shares of
Common Stock and 1.1130 CPR Certificates".
15. The text of Section 5.10 of the Agreement is replaced in its entirety
with the following:
No fractional shares or scrip representing fractional shares
of Common Stock or fractional CPR Certificates shall be issued
or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase
Contract shall be surrendered for settlement at one time by
the same Holder, the number of full shares of Common Stock and
CPR Certificates which shall be delivered upon settlement
shall be computed on the basis of the aggregate number of
Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock
or fractional CPR Certificate which would otherwise be
deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement,
the Company, through the Agent, shall make a cash payment in
respect of such fractional interest in an amount equal to the
value of such fractional shares times the Applicable Market
Value. The Company shall provide the Agent from time to time
with sufficient funds to permit the Agent to make all cash
payments required by this Section 5.10 in a timely manner.
16. Exhibits A, B, C, D, E and F to the Agreement are replaced in their
entirety with Exhibits A, B, C, D, E and F, respectively, attached hereto.
17. Except as specifically amended by this Amendment No. 1, the Agreement
shall remain in full force and effect.
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18. This Amendment No. 1 may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and the executed
counterparts taken together shall be deemed to be one originally executed
document.
19. This Amendment No. 1 shall be governed and construed in accordance with
the laws of the State of New York, without regard to any applicable conflicts of
law.
[Signature Page Follows]
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IN WITNESS WHEREOF, Washington Mutual and Bank One N.A. have caused
this Amendment No. 1 to be executed by their respective officers hereunto duly
authorized as of the date first above written.
WASHINGTON MUTUAL, INC.
By:
-----------------------
Name: Xxx X. Xxxxxxx
Title: Senior Executive Vice President
BANK ONE N.A.
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
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Exhibit A
FACE OF CORPORATE PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _______ CUSIP NO. 939322 87 1
NUMBER OF CORPORATE PIES ________
WASHINGTON MUTUAL, INC.
CORPORATE PIES
This Corporate PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Corporate PIES set forth above. Each
Corporate PIES consists of (i) the beneficial ownership by the Holder of one
share of Series H Preferred Stock (the "Preferred Stock") of Washington Mutual,
Inc., a Washington corporation (the "Company"), having a liquidation preference
of $50, subject to the Pledge of such Preferred Stock by such Holder pursuant to
the Pledge Agreement, and (ii) the rights and obligations of the Holder under
one Purchase Contract with the Company. All capitalized terms used herein which
are defined in the Purchase Contract Agreement (as defined on the reverse
hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Stock constituting part
of each Corporate PIES evidenced hereby has been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Corporate PIES.
The Pledge Agreement provides that all payments of the liquidation
preference with respect to any of the Pledged Preferred Stock or cash dividends
on any Pledged Preferred Stock (as defined in the Pledge Agreement) constituting
part of the Corporate PIES received by the Securities Intermediary shall be paid
by wire transfer in same day funds (i) in the case of (A) cash dividends with
respect to Pledged Preferred Stock and (B) any payments of the liquidation
preference with respect to any Preferred Stock or security entitlements thereto
that have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 12:00 p.m., New York
City time, on the Business Day such payment is received by the Securities
Intermediary (provided that in the event such payment is received by the
Securities Intermediary on a day that is not a Business Day or after 12:30 p.m.,
New York City time, on a Business Day, then such payment shall be made no later
than 10:30 a.m., New York City time, on the next succeeding Business Day) and
(ii) in the case of Proceeds from the Remarketing with respect to any of the
Pledged Preferred stock or security entitlements thereto, to the Company on the
Purchase Contract Settlement Date (as described herein) in accordance with the
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terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Corporate PIES of which such Pledged Preferred
Stock is a part under the Purchase Contracts forming a part of such Corporate
PIES. Dividends on any Preferred Stock forming part of a Corporate PIES
evidenced hereby, which is payable quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year, commencing February 16, 2001 (a "Payment
Date"), shall, subject to receipt thereof by the Agent from the Securities
Intermediary, be paid to the Person in whose name this Corporate PIES
Certificate (or a Predecessor Corporate PIES Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, no par value ("Common Stock")
of the Company and a number of certificates representing partial beneficial
interest in a Delaware trust which will be entitled to receive the Company's
portion of the proceeds, if any, less certain expenses, realized in connection
with certain litigation Company is prosecuting against the federal government.
("CPR Certificates"), equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Corporate PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price (the "Purchase Price")
for the shares of Common Stock and CPR Certificates purchased pursuant to each
Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the
Purchase Contract Settlement Date by separate cash or by application of payment
received, pursuant to the Remarketing, in respect of the liquidation preference
with respect to any Pledged Preferred Stock pledged to secure the obligations
under such Purchase Contract of the Holder of the Corporate PIES of which such
Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Corporate PIES evidenced hereby an amount
(the "Contract Adjustment Payments") equal to (a) if a Reset Transaction has not
occurred, 0.75% per annum of the Stated Amount or (b) following the occurrence
of a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any such succeeding Reset Transaction shall occur
(computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period, a 30-day month and for periods less than a month, the actual number of
days elapsed per 30-day period). Such Contract Adjustment Payments shall be
payable to the Person in whose name this Corporate PIES Certificate (or a
Predecessor Corporate PIES Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Dividends on the Preferred Stock and Contract Adjustment Payments will
be payable at the office of the Agent in The City of New York or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Corporate PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Corporate PIES Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
WASHINGTON MUTUAL, INC.
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase Contracts
evidenced hereby)
By: BANK ONE N.A. not individually but
solely as Attorney-in-Fact of such Holder
By: BANK ONE N.A.,
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate PIES Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: BANK ONE N.A.,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of August 10, 1999 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between the Company (through
its predecessor entity, Bank United Corp.) and Bank One (under its former name,
The First National Bank of Chicago), as Purchase Contract Agent (including its
successors hereunder, the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Corporate PIES Certificates are, and are to be, executed and
delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of newly issued shares of Common Stock and CPR Certificates
per Purchase Contract equal to the Settlement Rate unless, on or prior to the
Purchase Contract Settlement Date, there shall have occurred a Termination Event
with respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $44.9250 (the "Threshold Appreciation
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Price"), (i) 1.4469 shares of Common Stock and (ii) 1.1130 CPR Certificates, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price,
but is greater than $37.4375, (i) the number of shares of Common Stock equal to
1.3 multiplied times the result of the Stated Amount divided by the Applicable
Market Value and (ii) the number of CPR Certificates equal to the Stated Amount
divided by the Applicable Market Value, and (c) if the Applicable Market Value
is less than or equal to $37.4375, (i) 1.7362 shares of Common Stock and (ii)
1.3356 CPR Certificates, in each case subject to adjustment as provided in
Section 5.6. No fractional shares of Common Stock or fractional CPR Certificates
will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Corporate PIES to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the sum of (a) 1.3 times the
average of the Closing Price per share of Common Stock on each of the 20 Trading
Days ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date and (b) the average of the Closing Price per CPR Certificate on
each of the 20 Trading Days ending on the third Trading Day immediately
preceding the Purchase Contract Settlement Date. The "Closing Price" of the
Common Stock on any date of determination means (i) the closing sale price (or,
if no closing price is reported, the last reported sale price) of the Common
Stock on the New York Stock Exchange on such date, (ii) if the Common Stock is
not listed for trading on the New York Stock Exchange on any such date, the
closing sale price as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so listed, (iii)
if the Common Stock is not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by the National Quotation
Bureau or similar organization or (iv) if such bid price is not available, the
average of the mid-point of the last bid and ask prices of the Common Stock on
such date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company. The "Closing Price" of
the CPR Certificates on any date of determination means (i) the closing sale
price (or, if no closing price is reported, the last reported sale price) of the
CPR Certificates on the Nasdaq National Market on such date, (ii) if the CPR
Certificates are not listed for trading on the Nasdaq National Market on any
such date, the closing sale price as reported in the composite transactions for
the principal United States securities exchange on which the CPR Certificates
are so listed, (iii) if the CPR Certificates are not so reported, the last
quoted bid price for the CPR Certificates in the over-the-counter market as
reported by the National Quotation Bureau or similar organization or (iv) if
such bid price is not available, the average of the mid-point of the last bid
and ask prices of the CPR Certificates on such date from at least three
nationally recognized independent investment banking firms retained for this
purpose by the Company. A "Trading Day" means a day on which the Common Stock or
the CPR Certificates, as applicable, (A) is not suspended from trading on any
national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has each traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock or CPR
Certificates, as the case may be.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Corporate PIES Certificate may pay the Purchase Price for the
shares of Common Stock and CPR Certificates purchased pursuant to each Purchase
Contract evidenced hereby by effecting a Cash Settlement or an Early Settlement
or a remarketing of the related Pledged Preferred Stock. A Holder of Corporate
PIES who does not effect, on or prior to 11:00 a.m. New York City time on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date,
an effective Cash Settlement or an Early Settlement, shall pay the Purchase
Price for the shares of Common Stock and CPR Certificates to be issued under the
related Purchase Contract from the proceeds of the sale of the related Pledged
Preferred Stock held by the Collateral Agent. Such sale will be made by the
Remarketing Agent pursuant to the terms of the Remarketing Agreement on the
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third Business Day prior to the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a Failed
Remarketing the Collateral Agent, for the benefit of the Company, exercises its
rights as a secured creditor with respect to the Pledged Preferred Stock related
to this Corporate PIES certificate, any accrued and unpaid dividends on such
Pledged Preferred Stock will become payable by the Company to the holder of this
Corporate PIES Certificate in the manner provided for in the Purchase Contract
Agreement.
The Company shall not be obligated to issue any shares of Common Stock
and CPR Certificates in respect of a Purchase Contract or deliver any
certificates therefor to the Holder unless it shall have received payment of the
aggregate purchase price for the shares of Common Stock and CPR Certificates to
be purchased thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Preferred
Stock forming a part of each Corporate PIES from the Pledge. A Corporate PIES
shall thereafter represent the right to receive the Preferred Stock forming a
part of such Corporate PIES in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Preferred Stock. Upon receipt of notice of any meeting at which holders of
Preferred Stock are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Preferred Stock, the Agent shall, as soon as
practicable thereafter, mail to the Corporate PIES Holders a notice (a)
containing such information as is contained in the notice or solicitation, (b)
stating that each Corporate PIES Holder on the record date set by the Agent
therefor (which, to the extent possible, shall be the same date as the record
date for determining the holders of Preferred Stock entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Preferred Stock constituting a part of such Holder's Corporate
PIES and (c) stating the manner in which such instructions may be given. Upon
the written request of the Corporate PIES Holders on such record date, the Agent
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum
aggregate liquidation preference of Preferred Stock as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate PIES, the Agent shall abstain from voting the
Preferred Stock evidenced by such Corporate PIES.
The Corporate PIES Certificates are issuable only in registered form
and only in denominations of a single Corporate PIES and any integral multiple
thereof. The transfer of any Corporate PIES Certificate will be registered and
Corporate PIES Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate PIES Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Preferred Stock thereby creating Treasury
PIES, shall be responsible for any fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract Agreement, for so long as
the Purchase Contract underlying a Corporate PIES remains in effect, such
Corporate PIES shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Corporate PIES in respect of the Preferred
Stock and Purchase Contract constituting such Corporate PIES may be transferred
and exchanged only as a Corporate PIES. The holder of a Corporate PIES may
substitute for the Pledged Preferred Stock securing its obligation under the
related Purchase Contract Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of the Pledged Preferred Stock in
accordance with the terms of the Purchase Contract Agreement and the Pledge
5
Agreement. From and after such Collateral Substitution, the Security for which
such Pledged Treasury Securities secures the holder's obligation under the
Purchase Contract shall be referred to as a "Treasury PIES." A Holder may make
such Collateral Substitution only in integral multiples of 20 Corporate PIES for
20 Treasury PIES. Such Collateral Substitution may cause the equivalent
aggregate amount of this Certificate to be increased or decreased; provided,
however, this Corporate PIES Certificate shall not represent more than ____
Corporate PIES. All such adjustments to the equivalent amount of this Corporate
PIES Certificate shall be duly recorded by placing an appropriate notation on
the Schedule attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to
the Securities Intermediary Preferred Stock with an aggregate liquidation
preference equal to the aggregate principal amount of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in The
City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Corporate PIES Register.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company, if,
on or prior to the Purchase Contract Settlement Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and the Holders, at their addresses as
they appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Preferred Stock from
the Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early (an "Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Corporate PIES Certificate, the Holder of this Corporate PIES Certificate shall
deliver this Corporate PIES Certificate to the Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to (i) the product of
(A) the Stated Amount times (B) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement, plus (ii) if such
delivery is made with respect to any Purchase Contracts during the period from
the close of business on any Record Date for any Payment Date to the opening of
business on such Payment Date, an amount equal to the Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Preferred Stock underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Corporate PIES as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to 1.4469 shares of Common Stock and 1.1130 CPR
Certificates and shall be adjusted in the same manner and at the same time as
the Settlement Rate is adjusted as provided in the Purchase Contract Agreement.
6
Upon registration of transfer of this Corporate PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Corporate
PIES Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Corporate PIES Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Corporate PIES evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Shares underlying this
Corporate PIES Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, Proceeds from the Remarketing with respect to any of the Pledged
Preferred Stock or security entitlements thereto in respect of the aggregate
liquidation preference of the Pledged Preferred Stock on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Corporate PIES Certificate
is registered as the owner of the Corporate PIES evidenced hereby for the
purpose of receiving payments of dividends payable quarterly on the Preferred
Stock receiving payments of Contract Adjustment Payments, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Agent nor any such agent shall be
affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock or
a holder of CPR Certificates.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of
---------------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
---------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto________________________________________________________________________
____________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
============================================================================
____________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing_____________________________________
attorney to transfer said Corporate PIES Certificates on the books of Bank
United Corp. with full power of substitution in the premises.
Dated: ___________________ _____________________________________________
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Corporate PIES
Certificates in every particular,
without alteration or enlargement or
any change whatsoever.
Signature Guarantee: ___________________________________
8
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock and CPR Certificates deliverable upon settlement on or after the Purchase
Contract Settlement Date of the Purchase Contracts underlying the number of
Corporate PIES evidenced by this Corporate PIES Certificate be registered in the
name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different name
and address have been indicated below. If shares are to be registered in the
name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: ________________
(if assigned to another person)
If shares or CPR Certificates
are to be registered in the
name of and delivered to a Person REGISTERED HOLDER other than the Holder,
please (i) print such Person's name and address and (ii) provide a guarantee of
your signature:
Please print name and address of
Registered Holder:
------------------------------------- -------------------------------------
Name Name
------------------------------------- -------------------------------------
Address Address
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
9
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate PIES evidenced by this Corporate
PIES Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock and CPR Certificates deliverable upon
such Early Settlement be registered in the name of, and delivered, together with
a check in payment for any fractional share and any Corporate PIES Certificate
representing any Corporate PIES evidenced hereby as to which Early Settlement of
the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. Pledged Shares deliverable upon such Early Settlement will be transferred
in accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: ______________________ _____________________________________
Signature
Signature Guarantee: _____________________________________
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Corporate REGISTERED HOLDER PIES Certificates are
to be registered in the name of and delivered to, and Pledged Preferred Stock
are to be transferred to, a Person other than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
------------------------------------- -------------------------------------
Name Name
------------------------------------- -------------------------------------
Address Address
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
-------------------------------------------------------------------------------
10
Transfer Instructions for Pledged Preferred Stock Transferable Upon Early
Settlement or a Termination Event:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
11
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
Date Amount of Amount of Number of Signature of
decrease in increase in PIES authorized
Number of Number of evidenced by officer of
PIES PIES this Trustee or
evidenced by evidenced by Global Securities
the the Certificate Custodian
Global Global following such
Certificate Certificate decrease or
increase
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12
Exhibit B
FACE OF TREASURY PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _____ CUSIP NO. 939322 86 3
NUMBER OF TREASURY PIES _________
WASHINGTON MUTUAL, INC.
TREASURY PIES
This Treasury PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PIES set forth above. Each Treasury
PIES consists of (i) a 1/20 undivided beneficial ownership interest of a
Treasury Security having a principal amount at maturity equal to $1,000, subject
to the Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Bank United Corp., a Delaware corporation (the "Company"). All
capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury PIES evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Treasury PIES.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company, to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, no par value ("Common Stock"),
of the Company equal to the Settlement Rate, unless on or prior to the Purchase
Contract Settlement Date there shall have occurred a Termination Event or an
Early Settlement with respect to the Treasury PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of the Proceeds from the Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "Contract Adjustment Payments") equal
1
to (a) if a Reset Transaction has not occurred, 0.75% per annum of the Stated
Amount or (b) following the occurrence of a Reset Transaction, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur (computed on the basis of (i) for
any full quarterly period, a 360-day year of twelve 30-day months and (ii) for
any period shorter than a full quarterly period, a 30-day month and for periods
less than a month, the actual number of days elapsed per 30-day period), as the
case may be. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury PIES Certificate (or a Predecessor Treasury PIES
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent
in The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Treasury
PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Treasury PIES Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
WASHINGTON MUTUAL, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase Contracts)
By: BANK ONE N.A., not individually but
solely as Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
3
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury PIES referred to in the within-mentioned
Purchase Contract Agreement.
By: BANK ONE N.A., as Purchase Contract Agent
By: ____________________________
Authorized Officer
4
(REVERSE OF TREASURY PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of August 10, 1999 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between the Company (through
its predecessor entity, Bank United Corp.) and Bank One (under its former name,
The First National Bank of Chicago), as Purchase Contract Agent (including its
successors thereunder, herein called the "Agent"), to which the Purchase
Contract Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Company and the Holders and
of the terms upon which the Treasury PIES Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of newly issued shares of Common Stock and CPR Certificates
per Purchase Contract equal to the Settlement Rate unless, on or prior to the
Purchase Contract Settlement Date, there shall have occurred a Termination Event
with respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $44.9250 (the "Threshold Appreciation
Price"), (i) 1.4469 shares of Common Stock and (ii) 1.1130 CPR Certificates, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price,
but is greater than $37.4375, (i) the number of shares of Common Stock equal to
1.3 multiplied times the result of the Stated Amount divided by the Applicable
Market Value and (ii) the number of CPR Certificates equal to the Stated Amount
divided by the Applicable Market Value, and (c) if the Applicable Market Value
is less than or equal to $37.4375, (i) 1.7362 shares of Common Stock and (ii)
1.3356 CPR Certificates, in each case subject to adjustment as provided in
Section 5.6. No fractional shares of Common Stock or fractional CPR Certificates
will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Treasury PIES to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the sum of (a) 1.3 times the
average of the Closing Price per share of Common Stock on each of the 20 Trading
Days ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date and (b) the average of the Closing Price per CPR Certificate on
each of the 20 Trading Days ending on the third Trading Day immediately
preceding the Purchase Contract Settlement Date. The "Closing Price" of the
Common Stock on any date of determination means (i) the closing sale price (or,
if no closing price is reported, the last reported sale price) of the Common
Stock on the New York Stock Exchange on such date, (ii) if the Common Stock is
not listed for trading on the New York Stock Exchange on any such date, the
closing sale price as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so listed, (iii)
if the Common Stock is not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by the National Quotation
Bureau or similar organization or (iv) if such bid price is not available, the
average of the mid-point of the last bid and ask prices of the Common Stock on
such date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company. The "Closing Price" of
the CPR Certificates on any date of determination means (i) the closing sale
price (or, if no closing price is reported, the last reported sale price) of the
CPR Certificates on the Nasdaq National Market on such date, (ii) if the CPR
Certificates are not listed for trading on the Nasdaq National Market on any
such date, the closing sale price as reported in the composite transactions for
the principal United States securities exchange on which the CPR Certificates
are so listed, (iii) if the CPR Certificates are not so reported, the last
quoted bid price for the CPR Certificates in the over-the-counter market as
5
reported by the National Quotation Bureau or similar organization or (iv) if
such bid price is not available, the average of the mid-point of the last bid
and ask prices of the CPR Certificates on such date from at least three
nationally recognized independent investment banking firms retained for this
purpose by the Company. A "Trading Day" means a day on which the Common Stock or
the CPR Certificates, as applicable, (A) is not suspended from trading on any
national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has each traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock or CPR
Certificates, as the case may be.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PIES shall pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying a principal amount of the Pledged Treasury
Securities underlying such Holder's Treasury PIES equal to the Stated Amount of
such Purchase Contract to the purchase of the Common Stock. A Holder of Treasury
PIES who does not effect, on or prior to 11:00 a.m. New York City time on the
Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities (as defined in the Pledge Agreement) forming a part of each Treasury
PIES. A Treasury PIES shall thereafter represent the right to receive the
interest in the Treasury Security forming a part of such Treasury PIES, in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury PIES Certificates are issuable only in registered form and
only in denominations of a single Treasury PIES and any integral multiple
thereof. The transfer of any Treasury PIES Certificate will be registered and
Treasury PIES Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury PIES Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Preferred
Stock for Treasury Securities, thereby recreating Corporate PIES, shall be
responsible for any fees or expenses associated therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Treasury PIES remains in effect, such Treasury PIES shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Treasury PIES in respect of the Treasury Security and the Purchase Contract
constituting such Treasury PIES may be transferred and exchanged only as a
Treasury PIES. A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Collateral Agent Preferred Stock with an aggregate liquidation
preference equal to the aggregate principal amount at maturity of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. From and after such substitution, the Holder's Security
shall be referred to as an "Corporate PIES." Such substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; provided, however, this Treasury PIES Certificate shall not represent
6
more than ____ Treasury PIES. All such adjustments to the equivalent aggregate
principal amount of this Treasury PIES Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of a Corporate PIES may recreate a Treasury PIES by delivering
to the Collateral Agent Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of the Pledged Preferred Stock in
exchange for the release of such Pledged Preferred Stock in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. Any such
recreation of a Treasury PIES may be effected only in multiples of 20 Corporate
PIES for 20 Treasury PIES.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in The
City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Treasury PIES Register.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early (an "Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Treasury PIES the Holder of this Treasury PIES Certificate shall deliver this
Treasury PIES Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) $50 times
(B) the number of Purchase Contracts with respect to which the Holder has
elected to effect Early Settlement, plus (ii) if such delivery is made with
respect to any Purchase Contracts during the period from the close of business
on any Record Date for any Payment Date to the opening of business on such
Payment Date, an amount equal to the Contract Adjustment Payments payable, if
any, on such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Treasury Securities underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive a number of shares of Common Stock on account of each Purchase
Contract forming part of a Treasury PIES as to which Early Settlement is
effected equal to 1.4469 shares of Common Stock and 1.1130 CPR Certificates per
Purchase Contract (the "Early Settlement Rate"). The Early Settlement Rate shall
be adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
PIES Certificate. The Company covenants and agrees, and the Holder, by its
7
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Treasury PIES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury PIES evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Treasury PIES Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the aggregate principal
amount of the Pledged Treasury Securities on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Treasury PIES Certificate
is registered as the owner of the Treasury PIES evidenced hereby for the purpose
of receiving payments of interest on the Treasury Securities, receiving payments
of Contract Adjustment Payments, performance of the Purchase Contracts and for
all other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock or
CPR Certificates.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of______
------------------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto_____________________________________________________________
_____________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
-----------------------------------------------------------------------------
_____________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing______________________________________
attorney to transfer said Treasury PIES Certificates on the books of Bank United
Corp. with full power of substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Treasury PIES Certificates in
every particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: ___________________________________
9
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PIES evidenced
by this Treasury PIES Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee:_________________
(if assigned to another person)
If shares and CPR Certificates
are to be registered in the
name of and delivered to a Person REGISTERED HOLDER other than the Holder,
please (i) print such Person's name and address and (ii) provide a guarantee of
your signature:
Please print name and address of
Registered Holder:
------------------------------------- -------------------------------------
Name Name
------------------------------------- -------------------------------------
Address Address
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification __________________________Number, if any
10
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PIES evidenced by this Treasury PIES
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PIES with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PIES Certificate representing any Treasury PIES evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________ _____________________________________
Signature
Signature Guarantee: _____________________________________
11
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock of REGISTERED HOLDER
Treasury PIES Certificates are to
be registered in the name of and
delivered to and Pledged Treasury
Securities are to be transferred
to a Person other than the Holder,
please print such Person's name
and address:
Please print name and address of
Registered Holder:
------------------------------------- -------------------------------------
Name Name
------------------------------------- -------------------------------------
Address Address
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
12
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
Date Amount of Amount of Number of Signature of
decrease in increase in PIES authorized
Number of Number of evidenced by officer of
PIES PIES this Trustee or
evidenced by evidenced by Global Securities
the the Certificate Custodian
Global Global following such
Certificate Certificate decrease or
increase
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13
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank One N.A.
Attention:
Re: ________ PIES of Washington Mutual, Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York, as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate liquidation preference of [Preferred Stock] [Treasury
Securities] in exchange for the [Pledged Preferred Stock] [Pledged Treasury
Securities] held in the Collateral Account, in accordance with the Pledge
Agreement, dated as of August 10, 1999, as amended (the "Pledge Agreement";
unless otherwise defined herein, terms defined in the Pledge Agreement are used
herein as defined therein), among you (under your prior name, The First National
Bank of Chicago), the Company (through its predecessor entity, Bank United
Corp.), the Collateral Agent and the Securities Intermediary. The undersigned
Holder has paid all applicable fees relating to such exchange. The undersigned
Holder hereby instructs you to instruct the Collateral Agent to release to you
on behalf of the undersigned Holder the [Pledged Preferred Stock] [Pledged
Treasury Securities] related to such [Corporate PIES] [Treasury PIES].
Date: _______________________ ____________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
------------------------------------ ------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
------------------------------------
------------------------------------
------------------------------------
14
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
--------------------
Attention:
Telecopy: __________
Re: __________ PIES of Washington Mutual, Inc. (the "Company")
Please refer to the Purchase Contract Agreement, dated as of August 10,
1999, as amended (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), among the Company and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of PIES from time to time.
We hereby notify you that a Termination Event has occurred and that
[the Preferred Stock][the Treasury Securities] underlying your ownership
interest in _____ [Corporate PIES][Treasury PIES] have been released and are
being held by us for your account pending receipt of transfer instructions with
respect to such [Preferred Stock][Treasury Securities] (the "Released
Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [Corporate
PIES][Treasury PIES] effected through book-entry or by delivery to us of your
[Corporate PIES Certificate][Treasury PIES Certificate], we shall transfer the
Released Securities by book-entry transfer, or other appropriate procedures, in
accordance with your instructions. In the event you fail to effect such transfer
or delivery, the Released Securities and any [dividends] [interest] thereon,
shall be held in our name, or a nominee in trust for your benefit, until such
time as such [Corporate PIES][Treasury PIES] are transferred or your [Corporate
PIES Certificate][Treasury PIES Certificate] is surrendered or satisfactory
evidence is provided that your [Corporate PIES Certificate][Treasury PIES
Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date:_________________ By: BANK ONE N.A.
-----------------------------------
Name:
Title:
15
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
BANK ONE N.A.
Attention:
Re: ________ PIES of Washington Mutual, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.4 of the Purchase Contract Agreement, dated as of August 10,
1999, as amended (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), between the Company (through its predecessor entity, Bank
United Corp.) and yourself (under your prior name, The First National Bank of
Chicago), as Purchase Contract Agent and as Attorney-in-Fact for the Holders of
the Purchase Contracts, that such Holder has elected to pay to the Securities
Intermediary for deposit in the Collateral Account, on or prior to 11:00 a.m.
New York City time, on the [fifth Business Day][Business Day] immediately
preceding the Purchase Contract Settlement Date (in lawful money of the United
States by certified or cashiers' check or wire transfer, in immediately
available funds), $______ as the Purchase Price for the shares of Common Stock
issuable to such Holder by the Company under the related Purchase Contract on
the Purchase Contract Settlement Date. The undersigned Holder hereby instructs
you to notify promptly the Collateral Agent of the undersigned Holder's election
to make such cash settlement with respect to the Purchase Contracts related to
such Holder's [Corporate PIES] [Treasury PIES].
Date: _______________________ ____________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
16
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Payment of Purchase Contract Settlement Price)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
Re: __________ PIES of Washington Mutual, Inc. (the "Company")
Please refer to the Purchase Contract Agreement dated as of August 10,
1999, as amended (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), between the Company (through its predecessor entity, Bank
United Corp.) and the undersigned (under its prior name, The First National Bank
of Chicago), as Purchase Contract Agent and as attorney-in-fact for the holders
of PIES from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of Corporate
PIES as of 11:00 a.m, [DATE (fifth Business Day immediately preceding the
Purchase Contract Settlement Date)], we hereby notify you that [_____ shares of
Preferred Stock] are to be tendered for purchase in the Remarketing.
Date:__________________
By: BANK ONE N.A.
----------------------------------------
Name:
Title:
17
