As filed with the Securities and Exchange Commission on
February 27, 1998
Registration No. 333-42817
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________________
POST-EFFECTIVE AMENDMENT NO. 1
UNDER COVER OF FORM S-8 TO FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________________________
COMMERCIAL FEDERAL CORPORATION
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(Exact name of Registrant as Specified in Its Charter)
Nebraska 47-0658852
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2120 South 72nd Street
Omaha, Nebraska 68101
(402) 554-9200
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(Address of Principal Executive Offices)
Mid Continent Bancshares, Inc. 1994 Stock Option Plan
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(Full Title of the Plan)
Mr. James A. Laphen, President
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
(402) 390-5361
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(Name and Address of Agent For Service)
(202) 822-9611
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(Telephone number, including area code, of agent for service)
COPIES TO:
J. MARK POERIO, ESQUIRE
CYNTHIA R. CROSS, ESQUIRE
HOUSLEY KANTARIAN & BRONSTEIN, P.C.
1220 19TH STREET, N.W., SUITE 700
WASHINGTON, D.C. 20036
Note. This Post-Effective Amendment No. 1 on Form S-8 to
the Registrant's Registration Statement on Form S-4 relates to
106,437 previously registered shares of the Registrant's common
stock (the "Common Stock"), par value $.01 per share, reserved
for issuance pursuant to the Mid Continent Bancshares, Inc. 1994
Stock Option Plan which the Registrant assumed upon consummation
of its acquisition of Mid Continent Bancshares, Inc. ("Mid
Continent") pursuant to the Reorganization and Merger Agreement,
dated September 2, 1997, by and among the Registrant and
Commercial Federal Bank, a Federal Savings Bank, Mid Continent,
and Mid- Continent Federal Savings Bank.
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*
*Documents containing the information required by Part I
of this Registration Statement will be sent or given to
participants in the Mid Continent Bancshares, Inc. 1994 Stock
Option Plan (the "Plan") in accordance with Rule 428(b)(1). In
accordance with Rule 424 and in reliance on Rule 428, 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. Commercial Federal Corporation (the "Company")
will maintain a file of such documents for a period of five
years after the date on which such documents are last used as
part of the prospectus used to offer or sell shares of the
Company's common stock, par value $.01 per share (the "Common
Stock") pursuant to the Plan. Upon request, the Company will
furnish the Commission or its staff a copy of any or all
documents included in this file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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The Company is subject to the informational requirements
of the Securities Exchange Act of 1934 (the "1934 Act") and,
accordingly, files periodic reports and other information with
the Commission. Reports, proxy statements 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, N.W., Washington, D.C. 20549. 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 are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997 as filed with the
Commission on September 29, 1997 (Commission File No.
1-11515).
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997 as filed with the
Commission on November 14, 1997 (Commission File No.
1-11515).
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997 as filed with the
Commission on February 17, 1998 (Commission File No.
1-11515).
(d) The Company's Current Report on Form 8-K dated
August 18, 1997, as filed with the Commission.
(e) The Company's Current Report on Form 8-K dated
September 2, 1997, as filed with the Commission.
(f) The Company's Current Report on Form 8-K dated
September 11, 1997, as filed with the Commission.
(g) The Company's Current Report on Form 8-K dated
November 18, 1997, as filed with the Commission.
(h) The Company's Current Report on Form 8-K dated
December 8, 1997, as filed with the Commission.
(i) The Company's Current Report on Form 8-K dated
December 15, 1997, as filed with the Commission.
(j) The Company's Current Report on Form 8-K dated
February 11, 1998, as filed with the Commission.
(k) The description of the Company's Common Stock set
forth in Item 1 of the Company's registration statement
on Form 8-A dated July 17, 1995.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY PURSUANT
TO SECTIONS 13(A), 13(C), 14, AND 15(D) OF THE 1934 ACT AFTER
THE DATE HEREOF AND PRIOR TO THE FILING OF A POST-EFFECTIVE
AMENDMENT WHICH INDICATES THAT ALL SHARES OF COMMON STOCK
OFFERED HAVE BEEN SOLD OR WHICH DEREGISTER ALL SUCH COMMON STOCK
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 and Exchange Act of 1934.
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
is provided under Article VI of the 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 Company's 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, 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 or
administrative action 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.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
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For a list of all exhibits filed or included as part of
this Registration Statement, see "Index to Exhibits" at the end
of this Registration Statement.
ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) 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 the securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(d) If the registrant is a foreign private issuer,
to file a post-effective amendment to the registration statement
to include any financial statements required by Rule 3-19 of
this chapter at the start of any delayed offering or throughout
a continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Rule 3-19
of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
2. 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.
3. 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 presented by Article 3 of Regulation
S-X are 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.
4. 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act 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 Act and will be governed by the final adjudication of such
issue.
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 February 25, 1998.
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)
By: /s/ James A. Laphen
--------------------------------
James A. Laphen
President, Chief Operating Officer
and Chief Financial Officer
(Duly Authorized Representative)
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.
Signatures Title Date
- ---------- ----- -----
* /s/ William A. Fitzgerald
- --------------------------- Principal Executive Officer
William A. Fitzgerald and Director
Chairman of the Board and
Chief Executive Officer
/s/ James A. Laphen Principal Financial Officer February 25, 1998
- ----------------------------
James A. Laphen
President, Chief Operating
Officer and Chief Financial
Officer
* /s/ Gary L. Matter
- -------------------------- Principal Accounting Officer
Gary L. Matter
Senior Vice President,
Controller and Secretary
* /s/ Talton K. Anderson
- -------------------------- Director
Talton K. Anderson
* /s/ Michael P. Glinksy
- -------------------------- Director
Michael P. Glinsky
* /s/ Robert F. Krohn
- -------------------------- Director
Robert F. Krohn
* /s/ Carl G. Mammel
- -------------------------- Director
Carl G. Mammel
* /s/ Robert S. Milligan
- -------------------------- Director
Robert S. Milligan
* /s/ James P. O'Donnell
- -------------------------- Director
James P. O'Donnell
* /s/ Robert D. Taylor
- -------------------------- Director
Robert D. Taylor
* /s/ Aldo J. Tesi
- -------------------------- Director
Aldo J. Tesi
- -------------------------- Director
William A. Krause
*By:/s/ James A. Laphen February 25, 1998
--------------------------
James A. Laphen
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit Description
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5.1 Opinion of Housley Kantarian & Bronstein, P.C. as
to the validity of the Common Stock being
registered
23.1 Consent of Independent Auditors
23.2 Consent of Housley Kantarian & Bronstein, P.C.
(appears in their opinion filed as Exhibit 5.1)
24.1 Power of Attorney (contained in the signature
page to the Registration Statement on Form S-4 as
filed with the Commission on December 19, 1997)
99.1 Mid Continent Bancshares, Inc. 1994 Stock Option
Plan (the "Plan")
99.2 Form of Stock Option Agreement previously entered
into with Optionees with respect to
Incentive Stock Options granted under the Plan
("ISO Agreement")
99.3 Form of Stock Option Agreement previously entered
into with Optionees with respect to Non-Incentive
Stock Options granted under the Plan ("Non-
ISO Agreement")
99.4 Form of 1998 Amendment to the ISO Agreement and
Non-ISO Agreement