<PAGE>
As filed with the Securities and Exchange Commission on April 28, 1997
Registration No. 333-20711
333-20711-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
COMMERCIAL FEDERAL CORPORATION
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
Nebraska 47-0658852
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
CFC PREFERRED TRUST
----------------------------------------------------------
(Exact name of registrant as specified in its Charter)
Delaware [Applied For]
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
2120 South 72nd Street, Omaha, Nebraska 68124
(402) 554-9200
----------------------------------------------------------------------------
(Address, including zip code and telephone number, including area code of
each of the registrant's principal executive offices)
James A. Laphen, President
Commercial Federal Corporation
2120 South 72nd Street, Omaha, Nebraska 68124
(402) 390-5361
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service for each of the registrants)
Copies To:
Gary R. Bronstein, Esq. ----------
Cynthia R. Cross, Esq. Elizabeth C. Hinck, Esq.
Housley Kantarian & Bronstein, P.C. Dorsey & Whitney LLP
1220 19th Street, N.W., Suite 700 220 South Sixth Street
Washington, DC 20036 Minneapolis, MN 55402
(202) 822-9611 (612) 340-2600
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] ___________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
[_] ___________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that the registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses in connection with this offering are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee......... $ 13,637
Legal fees and expenses..................................... 100,000
*Printing, postage and mailing............................... 75,000
*Accounting fees and expenses................................ 35,000
*Trustee fees................................................ 25,000
*Blue Sky fees (including counsel fees)...................... 10,000
*Miscellaneous expenses...................................... 16,363
---------
$275,000
=========
</TABLE>
- ---------
* Estimated
Item 15. Indemnification of Directors and Officers.
Indemnification of Directors and Officers of the Bank
Federal Regulations clearly define areas for indemnity coverage, as follows:
(a) Any person against whom any action is brought by reason of the fact
that such person is or was a director or officer of the Bank shall be
indemnified by the Bank for:
(i) Reasonable costs and expenses, including reasonable
attorney's fees, actually paid or incurred by such person in
connection with proceedings related to the defense or settlement
of such action;
(ii) Any amount for which such person becomes liable by reason
of any judgment in such action;
(iii) Reasonable costs and expenses, including reasonable
attorney's fees, actually paid or incurred in any action to
enforce his rights under this section, if the person attains a
final judgment in favor of such person 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 except
in relation to matters as to which he shall be adjudged to be
liable for negligence or misconduct in the performance of his
duty, only if a majority of the directors of the Bank determines
that such a director or officer was acting in good faith within
what he was reasonably entitled to believe under the
circumstances was the scope of his employment or authority and
for a purpose which he was reasonably entitled to believe under
the circumstances was in the best interest of the Bank or its
shareholders.
II-1
<PAGE>
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 action, suit or other 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
appealable and as to which the period for appeal has expired and no
appeal has been taken;
(iv) "Settlement" includes the entry of a judgment by consent or by
confession or upon a plea of guilty or of nolo contendere.
Indemnification of Directors and Officers of the Company
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 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 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.
II-2
<PAGE>
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 16. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
* 1 Form of Purchase Agreement
* 4.1 Form of Junior Subordinated Indenture
* 4.2 Certificate of Trust of CFC Preferred Trust
* 4.3 Trust Agreement of CFC Preferred Trust
* 4.4 Form of Amended and Restated Trust Agreement of CFC Preferred Trust
* 4.5 Form of Preferred Security Certificate for CFC Preferred Trust
(incorporated by reference to Exhibit E to Exhibit 4.4)
* 4.6 Form of Guarantee Agreement for CFC Preferred Trust
5.1 Opinion of Housley Kantarian & Bronstein, P.C. regarding the legality
of Junior Subordinated Debentures
* 5.2 Opinion of Richards, Layton & Finger, P.A. as to legality of
Preferred Securities
5.3 Opinion of Fitzgerald, Schorr, Barmettler & Brennan, P.C. regarding
legality of Guarantee
8 Opinion of Deloitte & Touche LLP as to certain federal income tax
matters
* 12 Statement re: computation of ratio of earnings to fixed charges
23.1 Housley Kantarian & Bronstein, P.C. (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP (included in Exhibit 8)
* 23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)
23.4 Consent of Fitzgerald, Schorr, Barmettler & Brennan, P.C. (included in
Exhibit 5.3)
* 24 Power of Attorney (reference is made to the signature page of the
Registration Statement)
II-3
<PAGE>
* 25.1 Form T-1 Statement re: Eligibility of Harris Trust and Savings Bank to
act as trustee under the Junior Subordinated Debentures
* 25.2 Form T-1 Statement of Eligibility of Harris Trust and Savings Bank to
act as trust under the Amended and Restated Trust Agreement of CFC
Preferred Trust
* 25.3 Form T-1 Statement of Eligibility of Harris Trust and Savings Bank to
act as trustee under the Guarantee
- -----------
* Previously filed.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(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 which remain unsold at the termination of the
offering.
The undersigned registrants hereby undertake 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.
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.
The undersigned registrants hereby undertake to provide to the Underwriter
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
The undersigned registrants undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Omaha, State of Nebraska, on the 28th day of
April, 1997.
COMMERCIAL FEDERAL CORPORATION
By: /s/ William A. Fitzgerald
-------------------------------------------------
William A. Fitzgerald,
Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amended
registration statement has been signed below by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ William A. Fitzgerald
- ------------------------- Principal Executive Officer April 28, 1997
William A. Fitzgerald and Director
Chairman of the Board and
Chief Executive Officer
*
- ------------------------- Principal Financial April 28, 1997
James A. Laphen Officer
President, Chief Operating
Officer and Chief Financial
Officer
* Principal Accounting April 28, 1997
- ------------------------- Officer
Gary L. Matter
Senior Vice President, Controller
and Secretary
* Director April 28, 1997
- -------------------------
Talton K. Anderson
* Director April 28, 1997
- -------------------------
Robert F. Krohn
Director April __, 1997
- -------------------------
Charles M. Lillis
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
* Director April 28, 1997
- -------------------------
Carl G. Mammel
* Director April 28, 1997
- ------------------------
Robert S. Milligan
* Director April 28, 1997
- ------------------------
James P. O'Donnell
* Director April 28, 1997
- ------------------------
Robert D. Taylor
Director April __, 1997
- ------------------------
Aldo J. Tesi
</TABLE>
* By: /s/ William A. Fitzgerald
----------------------------------
William A. Fitzgerald
Attorney-in-Fact
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Omaha, State of Nebraska, on the 28th day of
April, 1997.
CFC PREFERRED TRUST
By: COMMERCIAL FEDERAL CORPORATION,
as Depositor
By: /s/ James A. Laphen
------------------------------------
James A. Laphen
President
II-7
<PAGE>
Exhibit 5.1
Opinion of
Housley Kantarian & Bronstein, P.C.
April 28, 1997
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3 filed by
Commercial Federal Corporation, Inc. (the "Company") and CFC Preferred Trust
("CFC Trust") with the Securities and Exchange Commission on January 30, 1997
relating to a public offering by CFC Trust of up to 1,800,000 __% Cumulative
Preferred Securities (the "Preferred Securities"), please be advised that as
counsel to the Company, upon examination of such corporate documents and records
as we have deemed necessary or advisable for the purposes of this opinion, it is
our opinion that the Junior Subordinated Debentures, when issued and paid for as
contemplated by the Registration Statement, will be validly issued obligations
of the Company enforceable in accordance with their terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity.
Capitalized terms used herein shall have the definitions given to such
terms in the Registration Statement. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement, and to the reference to our
firm under the heading "Legal Matters" in the Prospectus comprising a part of
the Registration Statement.
Very truly yours,
HOUSLEY KANTARIAN & BRONSTEIN, P.C.
/s/ Housley Kantarian & Bronstein, P.C.
<PAGE>
Exhibit 5.3
Opinion of
Fitzgerald, Schorr, Barmettler & Brennan, P.C.
April 28, 1997
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3 filed by
Commercial Federal Corporation, Inc. (the "Company") and CFC Preferred Trust
("CFC Trust") with the Securities and Exchange Commission on January 30, 1997
relating to a public offering by CFC Trust of up to 1,800,000 __% Cumulative
Preferred Securities (the "Preferred Securities"), please be advised that as
counsel to the Company, upon examination of such corporate documents and records
as we have deemed necessary or advisable for the purposes of this opinion, it is
our opinion that the Guarantee, when executed and delivered as contemplated by
the Registration Statement, will be validly issued obligations of the Company
enforceable in accordance with their terms except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity .
Capitalized terms used herein shall have the definitions given to such
terms in the Registration Statement. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement, and to the reference to our
firm under the heading "Legal Matters" in the Prospectus comprising a part of
the Registration Statement.
Very truly yours,
FITZGERALD, SCHORR, BARMETTLER & BRENNAN, P.C.
/s/ Fitzgerald, Schorr, Barmettler & Brennan, P.C.
<PAGE>
EXHIBIT 8
[Letterhead of Deloitte & Touche LLP]
March 19, 1997
Commercial Federal Corporation
2120 South 72nd Street
Omaha, NE 68124
RE: Opinion as to Certain Federal Income Tax Considerations
Applicable to Cumulative Trust Preferred Securities
Ladies and Gentlemen:
We have acted as special tax advisor to Commercial Federal Corporation (the
"Company"), a Nebraska corporation, and to CFC Trust (the "Issuer" or the
"Trust"), a Delaware business trust, in connection with the offering (the
"Offering") for sale of the Cumulative Trust Preferred Securities (the
"Preferred Securities") to be issued by the Trust formed pursuant to a Trust
Agreement, (the "Trust Agreement"), among the Company, as Depositor, Harris
Trust and Savings Bank, as Property Trustee (the "Property Trustee"), Wilmington
Trust Company, as Delaware Trustee, (the "Delaware Trustee"), and the
Administrative Trustees named therein, (collectively, with the Property Trustee
and the Delaware Trustee, the "Issuer Trustees").
The Preferred Securities which are the subject of the Offering and the common
securities (the "Common Securities") which are not being offered for sale
represent the entire beneficial ownership interest in the Trust. The Trust
property will consist primarily of Junior Subordinate Deferrable Interest
Debentures (the "Junior Subordinated Debentures"), which are being issued by the
Company to the Trust in exchange for the net proceeds of the Offering and the
Common Securities. The Junior Subordinated Debentures will bear interest at a
specified rate, payable quarterly subject to an option to defer such interest
payments. The Preferred Securities will have a preference under certain
circumstances with respect to cash distributions over the Common Securities.
In connection with this opinion, we have examined and relied upon (i) the form
or the Certificate of Trust of the Issuer to be filed, in the office of the
Secretary of State of the State of Delaware the form of the Trust Agreement,
(iii) the form of the Junior Subordinated Indenture Agreement (the "Indenture"),
between the Company and Harris Trust and Savings Bank as trustee (the "Debenture
Trustee"), pursuant to which the Company will issue the Junior Subordinated
Debentures, (iv) the Cumulative Trust Preferred Securities Prospectus (the
"Prospectus"), and the related Prospectus Supplement (the
<PAGE>
Commercial Federal Corporation
March 19, 1997
Page 2
"Prospectus Supplement), (v) the form of Preferred Securities Certificate, (vi)
the form of Common Securities Certificate, (vii) the form of Junior Subordinated
Debentures, (viii) the form of the Guarantee Agreement between the Company and
the Indenture trustee (the "Guarantee Trustee") for the benefit of the holders,
from time to time, of the Preferred Securities, (ix) the form of the Expense
Agreement between the Company and the Trust, and (x) such other agreements
executed and delivered in connection with the transaction. In addition, we have
examined and considered such instruments, documents and other corporate records
of the Company and of the Issuer and such matters of fact and law which we deem
necessary for the purpose of the opinion expressed below.
In our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
In rendering our opinion, we have also relied upon the Internal Revenue Code of
1986, as amended (the "Code"), administrative rulings, judicial decisions,
treasury regulations, and such authorities as we have deemed appropriate. The
statutory provisions, regulations, interpretations, and other authorities upon
which our opinion is based are subject to change, and such change could apply
retroactively. We will not undertake to advise you as to the effect that any
change in law, or interpretation thereof that could have an effect on the
opinions expressed herein. In addition, there can be no assurance that
positions contrary to those stated in our opinion will not be taken by the
Internal Revenue Service.
We express no opinions as to the laws of any jurisdiction other than the federal
laws of the United States of America.
We have reviewed the "Certain Federal Income Tax Consequences" section contained
in the Prospectus and in our opinion it accurately describes the material
federal income tax consequences that may be relevant to the purchase, ownership
and disposition of the Preferred Securities.
Except as set forth above, we express no other opinion as to the tax
consequences, whether federal, state, local or foreign of the Offering.
We hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus Supplement and "Certain Federal Income Tax
Consequences" and "Legal Matters" in the Prospectus and to the filing of this
opinion as an exhibit to the Registration Statement in connection with the
Offering. We are furnishing this opinion to you solely in connection with the
Offering and this opinion is not to be used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
/s/ Deloitte & Touche LLP
