Registration No. 333-______
As filed with the Securities and Exchange Commission on June 28, 2002
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMMERCIAL FEDERAL CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
NEBRASKA
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(State or Other Jurisdiction of Incorporation or Organization)
47-0658852
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(I.R.S. Employer Identification Number)
13220 CALIFORNIA STREET
OMAHA, NEBRASKA 68154
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(Address of Principal Executive Offices)
COMMERCIAL FEDERAL CORPORATION 2002 STOCK OPTION AND INCENTIVE PLAN
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(Full Title of the Plan)
WILLIAM A. FITZGERALD, CHIEF EXECUTIVE OFFICER
COMMERCIAL FEDERAL CORPORATION
13220 CALIFORNIA STREET
OMAHA, NEBRASKA 68154
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(Name and Address of Agent For Service)
(402) 554-9200
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(Telephone Number, Including Area Code, of Agent For Service)
COPIES TO:
JOAN S. GUILFOYLE, ESQUIRE
STRADLEY, RONON, STEVENS & YOUNG, LLP
1220 19TH STREET NW, SUITE 700
WASHINGTON, DC 20036
(202) 419-8410
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered (1) Share Price Fee
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Common Stock,
$.01 par value 2,100,000 $27.45 (2) $57,645,000 (2) $5,303.34
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(1) Maximum number of shares issuable under the Commercial Federal Corporation
2002 Stock Option and Incentive Plan (2,100,000 shares), together with an
indeterminate number of shares being registered hereby as may be necessary to
adjust the number of additional shares of Common Stock of the Registrant
reserved for issuance under such Plan as a result of an increase in the number
of shares issuable under such plan as the result of a merger, consolidation,
recapitalization or similar event involving the Registrant or a stock split,
stock dividend, reclassification, recapitalization or similar adjustment(s) in
the Registrant's Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee and
calculated pursuant to Rule 457(c) based on the average of the high and low
selling price per share of the Common Stock of $27.45 per share on June 26,
2002.
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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*This registration statement relates to the registration of 2,100,000
shares of Common Stock, $.01 par value per share, of Commercial Federal
Corporation (the "Company") reserved for issuance and delivery under the
Commercial Federal Corporation 2002 Stock Option and Incentive Plan (the
"Plan"). Documents containing the information required by Part I of this
registration statement will be sent or given to participants in the Plan in
accordance with Rule 428(b)(1). In accordance with the Note to Part I of Form
S-8, such documents are not filed with the Securities and Exchange Commission
(the "Commission") either as part of this registration statement or as
prospectuses or prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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The Company is subject to the reporting and informational requirements of
Section 13(a) of the Securities Exchange Act of 1934, as amended and,
accordingly, files periodic reports and other information with the Commission.
Reports and other information concerning the Company filed with the Commission
may be inspected and copies may be obtained (at prescribed rates) at the
Commission's Public Reference Section, Room 1024, 450 Fifth Street, NW,
Washington, DC 20549. The public may obtain information on the operation of the
Public Reference Room by calling the Commission at 1-800-SEC-0330. The
Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission, including the Company. The address for the
Commission's Web site is "http://www.sec.gov".
The following documents filed by Commercial Federal Corporation (the
"Company") are incorporated by reference in this Registration Statement:
(a) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2002 as filed with the Commission on May 15, 2002 (Commission File No.
1-11515).
(b) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 filed with the Commission on April 1, 2002, as amended by the
Company's Annual Report on Form 10-K/A filed with the Commission on April 11,
2002 (Commission File No. 1-11515).
(c) The description of the Company's Securities as contained in the Form
8-A filed with the Commission on July 13, 1995 (Commission File No. 1-11515).
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY PURSUANT TO SECTIONS 13(A),
13(C), 14, AND 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, PRIOR
TO THE FILING OF A POST-EFFECTIVE AMENDMENT WHICH INDICATES THAT ALL SECURITIES
OFFERED HAVE BEEN SOLD OR WHICH DEREGISTERS ALL SECURITIES THEN REMAINING
UNSOLD, SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS REGISTRATION
STATEMENT AND TO BE A PART HEREOF FROM THE DATE OF FILING OF SUCH DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
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Not applicable, as the Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE COMPANY
Indemnification of directors and officers of the Company is provided under
Article VI of the Company's Amended and Restated Articles of Incorporation of
the Company for judgments, fines, settlements, and expenses, including attorney
fees incurred in connection with any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
if such director or officer acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
Article VI of the Amended and Restated Articles of Incorporation provides
that an outside director shall not be personally liable to the Company or its
stockholders for monetary damages for breach of his fiduciary duty as a director
and authorizes the Company to indemnify such outside director against monetary
damages for such breach to the full extent permitted by law. This provision
applies to acts or omissions occurring after the effective date of the
amendment, and does not limit liability for (i) any act or omission not in good
faith which involves intentional misconduct or a knowing violation of law, (ii)
any transaction from which the outside director derived an improper direct or
indirect financial benefit, (iii) paying a dividend or approving a stock
repurchase in violation of the Nebraska Business Corporation Act, or (iv) any
act or omission which violates a declaratory or injunctive order obtained by the
Company or its stockholders. For purposes of Article VI, "outside director" is
defined as any member of the Board of Directors who is not an officer or a
person who may control the conduct of the Company through management agreements,
voting trusts, directorships in related corporations or any other device or
relationship. The Company has purchased director and officer liability insurance
that insures directors and officers against certain liabilities in connection
with the performance of their duties as directors and officers, including
liabilities under the Securities Act of 1933, as amended, and provides for
payment to the Company of costs incurred by it in indemnifying its directors and
officers.
Under Nebraska law, indemnification of directors and officers may be
provided for judgments, fines, penalties, settlements, and expenses, including
attorney's fees, incurred in connection with any threatened, pending, or
completed action, suit, or proceeding other than an action by or in the right of
the Company. This applies to any civil, criminal, investigative, arbitrative, or
administrative action, formal or informal, provided that the director or officer
involved acted in good faith, in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Indemnification of directors and officers may be also provided for
judgments, fines, settlements, and expenses, including attorney's fees, incurred
in connection with any threatened, pending, or completed action, or suit by or
in the right of the corporation if such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation. However, no indemnification shall be made in
respect of any claim, issue or matter in which such person is adjudged to be
liable for negligence or misconduct in the performance of his duties to the
corporation unless the court in which the action is brought deems indemnity
proper.
The grant of indemnification to a director or officer shall be determined
by a majority of a quorum of disinterested directors, by a written opinion from
independent legal counsel, or by the shareholders.
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Indemnification shall be provided to any directors and officers for
expenses, including attorney's fees, actually and reasonably incurred in the
defense of any action, suit or proceeding to the extent that he or she has been
successful on the merits.
Federal Regulations clearly define areas for indemnity coverage, as
follows:
(a) Any person against whom any action is brought or threatened because
that person is or was a director, officer or employee of the Bank shall be
indemnified by the Bank for:
(i) Reasonable costs and expenses, including reasonable attorney's
fees, arising from the defense or settlement of such action, provided that
a majority of the Bank's directors conclude that, in connection with any
actions, a person ultimately may become entitled to indemnification under
this section;
(ii) Any amount for which that person becomes liable under a judgment
in such action;
(iii) Reasonable costs and expenses, including reasonable attorney's
fees, actually paid or incurred by that person in defending or settling
such action, or in enforcing his or her rights under this section if he or
she attains a favorable judgment in such enforcement action.
(b) Indemnification provided for in subparagraph (a) shall be made to such
officer or director only if the requirements of this subparagraph are met:
(i) The Bank shall make the indemnification provided by subparagraph
(a) in connection with any such action which results in a final judgment on
the merits in favor of such officer or director.
(ii) The Bank shall make the indemnification provided by subparagraph
(a) in case of settlement of such action, final judgment against such
director or officer or final judgment in favor of such director or officer,
other than on the merits, if a majority of the disinterested directors of
the Bank determines that such director or officer was acting in good faith
within the scope of his or her employment or authority as he or she could
reasonably have perceived it under the circumstances and for a purpose he
or she could reasonably have believed under the circumstances was in the
best interests of the Bank or its shareholders. However, no indemnification
shall be made unless the Bank gives the OTS at least 60 days' notice of its
intention to make such indemnification. No such indemnification shall be
made if the OTS advises the Bank in writing, within such notice period, of
its objection thereto.
(c) As used in this paragraph:
(i) "Action" means any judicial or administrative proceeding, or
threatened proceeding, whether civil, criminal, or otherwise, including any
appeal or other proceeding for review;
(ii) "Court" includes, without limitation, any court to which or in
which any appeal or any proceeding for review is brought;
(iii) "Final Judgment" means a judgment, decree, or order which is not
appealable and as to which the period for appeal has expired and with no
appeal taken;
(iv) "Settlement" includes the entry of a judgment by consent or by
confession or upon a plea of guilty or nolo contendere.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
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ITEM 8. EXHIBITS
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The exhibits scheduled to be filed or included as part of this Registration
Statement are as follows:
EXHIBIT DESCRIPTION
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5.1 Opinion of Stradley, Ronon, Stevens & Young, LLP as to the validity of
the Common Stock being registered
23.1 Consent of Independent Auditors
23.2 Consent of Stradley, Ronon, Stevens & Young, LLP (appears in their
opinion filed as Exhibit 5.1)
24 Power of Attorney (contained in the signature page of this
Registration Statement)
99.1 Commercial Federal Corporation 2002 Stock Option and Incentive Plan
99.2 Form of Stock Option Agreement to be entered into with Optionees with
respect to Incentive Stock Options granted under the Commercial
Federal Corporation 2002 Stock Option and Incentive Plan
99.3 Form of Stock Option Agreement to be entered into with Optionees with
respect to Non-Incentive Stock Options granted under the Commercial
Federal Corporation 2002 Stock Option and Incentive Plan
99.4 Form of Agreement to be entered into with Optionees with respect to
Stock Appreciation Rights granted under the Commercial Federal
Corporation 2002 Stock Option and Incentive Plan
99.5 Notice of Restricted Stock Award
ITEM 9. UNDERTAKINGS
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be present by Article
3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Omaha, State of Nebraska, on June 27, 2002.
COMMERCIAL FEDERAL CORPORATION
By: /s/ William A. Fitzgerald
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William A. Fitzgerald
Chairman of the Board and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned Directors of Commercial Federal Corporation, hereby
severally constitute and appoint William A. Fitzgerald, who may act, with full
power of substitution, our true and lawful attorney and agent, to do any and all
things in our names in the capacities indicated below which said William A.
Fitzgerald, who may act, may deem necessary or advisable to enable Commercial
Federal Corporation to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration of Commercial Federal
Corporation common stock, including specifically, but not limited to, power and
authority to sign for us in our names in the capacities indicated below, the
registration statement and any and all amendments (including post-effective
amendments) thereto; and we hereby ratify and confirm all that said William A.
Fitzgerald shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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By: William A. Fitzgerald Chairman of the Board and June 27, 2002
--------------------------------- Chief Executive Officer
William A. Fitzgerald
Principal Executive Officer
By: /s/ David S. Fisher Executive Vice President June 27, 2002
--------------------------------- and Chief Financial Officer
David S. Fisher
Principal Financial Officer
By: /s/ Gary L. Matter Senior Vice President, Controller June 27, 2002
--------------------------------- and Secretary
Gary L. Matter
Principal Accounting Officer
SIGNATURE TITLE DATE
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By: /s/ Robert J. Hutchinson President and Chief Operating June 24, 2002
-------------------------------- Officer and Director
Robert J. Hutchinson
By: /s/ Talton K. Anderson Director June 24, 2002
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Talton K. Anderson
By: /s/ Michael P. Glinsky Director June 25, 2002
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Michael P. Glinsky
By: /s/ Robert F. Krohn Director June 21, 2002
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Robert F. Krohn
By: /s/ Carl G. Mammel Director June 20, 2002
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Carl G. Mammel
By: /s/ James P. O'Donnell Director June 27, 2002
--------------------------------
James P. O'Donnell
By: /s/ Robert D. Taylor Director June 27, 2002
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Robert D. Taylor
By: /s/ Aldo J. Tesi Director June 24, 2002
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Aldo J. Tesi
By: Director ___________, 2002
---------------------------------
Joseph J. Whiteside
By: /s/ George R. Zoffinger Director June 27, 2002
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George R. Zoffinger
INDEX TO EXHIBITS
Exhibit Description
5.1 Opinion of Stradley, Ronon, Stevens & Young, LLP as to the validity of
the Common Stock being registered
23.1 Consent of Independent Auditors
23.2 Consent of Stradley, Ronon, Stevens & Young, LLP (appears in their
opinion filed as Exhibit 5.1)
24 Power of Attorney (contained in the signature page of this
Registration Statement)
99.1 Commercial Federal Corporation 2002 Stock Option and Incentive Plan
99.2 Form of Stock Option Agreement to be entered into with Optionees with
respect to Incentive Stock Options granted under the Commercial
Federal Corporation 2002 Stock Option and Incentive Plan
99.3 Form of Stock Option Agreement to be entered into with Optionees with
respect to Non-Incentive Stock Options granted under the Commercial
Federal Corporation 2002 Stock Option and Incentive Plan
99.4 Form of Agreement to be entered into with Optionees with respect to
Stock Appreciation Rights granted under the Commercial Federal
Corporation 2002 Stock Option and Incentive Plan
99.5 Notice of Restricted Stock Award