Amendment No. 1
to
Agreement and Plan of Merger
This Amendment No. 1, dated January 5, 2001, amends the Agreement and Plan
of Merger (the "Agreement") originally made and entered into as of the 18th day
of August, 2000, by and between Washington Mutual, Inc., a Washington
corporation ("Washington Mutual") and Bank United Corp., a Delaware corporation.
WHEREAS, immediately prior to the merger (the "Merger") of Bank United
Corp. with and into Washington Mutual as set forth in the Agreement, Bank United
Corp. will effect a reorganization (the "Reorganization") by merging a wholly
owned subsidiary of Bank United Corp. with and into Bank United Corp.
WHEREAS, as a result of the Reorganization, each share of Bank United Corp.
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 Corp.
common stock and (2) the right to receive a CPR Certificate. In addition,
appropriate and proportionate adjustments will be made to all options to
purchase shares of Bank United Corp. common stock outstanding at the effective
time of the Reorganization and to all Bank United Corp. 8% Premium Income Equity
Securities.
WHEREAS, Washington Mutual and Bank United Corp. have agreed to amend the
Agreement to more accurately describe the treatment of options to purchase
shares of Bank United Corp. in connection with the Merger and to correct certain
cross-references.
WASHINGTON MUTUAL AND BANK UNITED CORP. 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. The reference in Section 1.1 of the Agreement to the section defining
the term "Stock Option Agreement" shall be changed from "2.12" to "2.13".
3. Section 2.5(e) of the Agreement shall be replaced in its entirety with
the following:
At the Effective Time, all shares of any class of the capital stock of
Bank United Corp. that are owned by Bank United Corp. as treasury stock and
all shares of any class of the capital stock of Bank United Corp. that are
owned directly or indirectly by Washington Mutual or Bank United Corp. or
any of their respective Subsidiaries (other than shares of any class of the
capital stock of Bank United Corp. held directly or indirectly in trust
accounts, managed accounts and the like or otherwise held in a fiduciary or
nominee capacity that are beneficially owned by third parties (any such
shares being referred to herein as "Trust Account Shares") and other than
any shares of any class of the capital stock of Bank United Corp. held by
Washington Mutual or Bank United Corp. or any of their respective
Subsidiaries in respect of a debt previously contracted (any such shares of
Bank United Corp. Capital Stock being referred to herein as "DPC Shares"))
shall be cancelled and shall cease to exist and no capital stock or
warrants of Washington Mutual or other consideration shall be delivered in
exchange therefor.
4. The first sentence of Section 2.8 of the Agreement shall be replaced
with the following:
At the Effective Time, each option granted by Bank United Corp. to
purchase shares of Bank United Corp. Common Stock and CPR Certificates
(each a "Bank United Corp. Option") which is outstanding and unexercised
immediately prior thereto shall cease to represent a right to acquire
shares of Bank United Corp. Common Stock and shall be converted
automatically into an option to purchase shares of Washington Mutual Common
Stock and CPR Certificates in an amount and at an exercise price determined
as provided below (and otherwise subject to the terms of the Bank United
Corp. 1999 Stock Incentive Plan, as amended to date, the Bank United Corp.
1996 Stock Incentive Plan, as amended to date, the Bank United Corp. 2000
Stock Incentive Plan, as amended to date, the Executive Management
Compensation Program, as amended to date or the Bank United Corp. Director
Stock Plan, as amended to date, as applicable (collectively, the "Bank
United Corp. Stock Option Plans"), and the agreements evidencing grants
thereunder):
(a) the number of shares of Washington Mutual Common Stock to be
subject to the new option shall be equal to the product of the number
of shares of Bank United Corp. Common Stock subject to the original
option and the Exchange Ratio, provided that any fractional shares of
Washington Mutual Common Stock resulting from such multiplication
shall be rounded to the nearest share, and the number of CPR
Certificates subject to the new option shall be equal to the number of
CPR Certificates subject to the original option; and
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(b) the exercise price under the new option for one share of
Washington Mutual Common Stock and the corresponding fraction of a CPR
Certificate (which fraction shall equal 1 divided by the Exchange
Ratio) under the new option shall be equal to the exercise price per
share exercise price of the original option to acquire one share of
Bank United Corp. Common Stock and one CPR Certificate divided by the
Exchange Ratio, provided that such exercise price shall be rounded to
the nearest cent.
5. The clause (a) of the first sentence of Section 4.6 of the Agreement
shall be replaced with the following:
(a) the consolidated statements of financial conditions of Bank United
Corp. and its Subsidiaries, as of September 30, for the fiscal years 1998
and 1999 and the related consolidated statements of operations,
stockholders' equity and cash flows for the fiscal years 1997 through 1999,
inclusive, as reported in Bank United Corp.'s Annual Report on Form 10-K
for the fiscal year ended September 30, 1999, filed with the SEC under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each
case accompanied by the audit report of Bank United Corp.'s independent
auditors, and
6. Section 5.8 of the Agreement shall be amended so that the words "Section
5.10" are replaced with the words "Section 5.11".
7. The first sentence of Section 6.2(f) of the Agreement shall be amended
so that the words "Section 7.3(b)" are replaced with the words "Section 7.3".
8. Section 8.2(h) of the Agreement shall be replaced in its entirety with
the following:
Dissenting Shares. The aggregate number of Dissenting Shares shall not
constitute more than 10% of all outstanding Bank United Common Stock and the
aggregate number of shares of Bank United Common Stock held by holders (if any)
who have not voted in favor of the merger described in Section 7.15 and who are
eligible to and have demanded appraisal rights (if any) with respect thereto in
accordance with Section 262 of the DGCL and, as of the effective time of the
merger described in Section 7.15, shall not have failed to perfect or shall not
have effectively withdrawn or lost their rights to appraisal and payment (if
any) under Section 262 of the DGCL shall not constitute more than 10% of all
outstanding Bank United Common Stock at the effective time of the merger
described in Section 7.15.
9. Except as specifically amended by this Amendment No. 1, the Agreement
shall remain in full force and effect.
10. 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.
11. This Amendment No. 1 shall be governed and construed in accordance with
the laws of the State of Washington, without regard to any applicable conflicts
of law.
[Signature Page Follows]
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IN WITNESS WHEREOF, Washington Mutual and Bank United Corp. 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: /s/ Xxx X. Xxxxxxx
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Name Xxx X. Xxxxxxx
Title: Senior Executive Vice President
BANK UNITED CORP.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
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