<PAGE>
As filed with the Securities and Exchange Commission on January 30, 1997
Registration No. 333-______
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------
FORM S-8
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
2120 South 72nd Street
Omaha, Nebraska 68101
(402) 554-9200
---------------------------------------
(Address of Principal Executive Offices)
Commercial Federal Corporation
1996 Stock Option and Incentive Plan
-------------------------------------------------
(Full Title of the Plan)
Gary R. Bronstein, Esq.
Cynthia R. Cross, Esq.
Housley Kantarian & Bronstein, P.C.
1220 19th Street N.W., Suite 700
Washington, D.C. 20036
---------------------------------------
(Name and Address of Agent For Service)
(202) 822-9611
---------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Maximum Maximum
Title of each Offering Aggregate Amount of
class of Securities Amount to be Price Offering Registration
to be registered registered Per Share Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,050,000(1) $(2) $33,009,375(2) $10,002.84
================================================================================
</TABLE>
(1) Maximum number of shares issuable under Commercial Federal Corporation 1996
Stock Option and Incentive Plan, as adjusted in connection with the three
for two split of the Registrant's common stock effective on January 14,
1997, and as such amount may be increased in accordance with said plan in
the event of a merger, consolidation, recapitalization or similar event
involving the Registrant.
(2) Under Rule 457(h) the registration fee may be calculated, inter alia, based
----- ----
upon the price at which the options may be exercised. 1,050,000 shares are
being registered hereby, of which none are currently under option. These
shares are being registered based upon the average of the high and low
selling prices of the common stock of the Registrant as reported on the New
York Stock Exchange on January 29, 1997 of $31.4375 per share ($33,009,375
in the aggregate).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
Item 1. Plan Information*
- ------
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 Commercial
Federal Corporation 1996 Stock Option and Incentive Plan (the "Plan") in
accordance with Rule 428(b)(1). In accordance with 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 Certain Documents by Reference
- ------
Commercial Federal Corporation (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:
The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996 as filed with the Commission on September 30, 1996 (Commission
File No. 1-11515).
The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996 as filed with the Commission on November 14, 1996.
The Company's Quarterly Report on Form 10-Q\A for the quarter ended
September 30, 1996 as filed with the Commission on November 22, 1996.
The Company's Current Reports on Form 8-K dated August 21, 1996 and
November 18, 1996.
The description of the Company's securities contained in the Form 8-A
filed with the Commission on July 13, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Securities Exchange Act of 1934 after the date hereof and
prior to the termination of the offering of the shares of common stock, par
value $.01 per share ("Common Stock") 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
- ------
Not applicable, as the Common Stock is registered under Section 12 of
the Securities Exchange Act of 1934.
Item 5. Interests of Named Experts and Counsel
- ------
Not Applicable.
Item 6. 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:
<PAGE>
(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.
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 Corporation Act or (iv) any act or omission which violates
a declaratory or injunctive order obtained by the Company or
<PAGE>
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
subject to policy terms, limits, and deductibles. The director and officer
liability insurance also provides direct courage for the directors and officers
in the event the Company is prohibited from 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
- ------
Not Applicable.
Item 8. Exhibits
- ------
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
- ------
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;
(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;
<PAGE>
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, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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 1934, to treat each post-effective amendment as a new
registration statement relating to the securities offered, and the offering of
the securities at that time to be the initial bona fide offering.
(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.
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.
<PAGE>
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 December 16, 1996.
COMMERCIAL FEDERAL CORPORATION
By: /s/ William A. Fitzgerald
------------------------------------
William A. Fitzgerald
Chairman of the Board
and Chief Executive 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.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ William a. Fitzgerald Principal Executive Officer December 16, 1996
- ----------------------------- and Director
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
/s/ James A. Laphen Principal Financial Officer December 16, 1996
- -----------------------------
James A. Laphen
President, Chief Operating Officer
and Chief Financial Officer
/s/ Gary L. Matter Principal Accounting December 16, 1996
- ----------------------------- Officer
Gary L. Matter
Senior Vice President, Controller
and Secretary
/s/ Talton K. Anderson Director December 16, 1996
- -----------------------------
Talton K. Anderson
/s/ Robert F. Krohn Director December 13, 1996
- -----------------------------
Robert F. Krohn
/s/ Charles M. Lillis Director December 13, 1996
- -----------------------------
Charles M. Lillis
/s/ Carl G. Mammel Director December 12, 1996
- -----------------------------
Carl G. Mammel
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Robert S. Milligan Director December 11, 1996
- -----------------------------
Robert S. Milligan
/s/ James P. O'Donnell Director December 16, 1996
- -----------------------------
James P. O'Donnell
/s/ Robert D. Taylor Director December 11, 1996
- -----------------------------
Robert D. Taylor
/s/ Aldo J. Tesi Director December 13, 1996
- -----------------------------
Aldo J. Tesi
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
5 Opinion of Housley Kantarian & Bronstein, P.C. as to the validity of
the Common Stock being registered
23.1 Consent of Housley Kantarian & Bronstein, P.C. (appears in their
opinion filed as Exhibit 5)
23.2 Consent of Independent Certified Public Accountants
99.1 Commercial Federal Corporation 1996 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 1996 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 1996 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 1996 Stock Option and Incentive Plan
99.5 Notice of Restricted Stock Award
99.6 Board resolutions approving the 1996 Stock Option and Incentive Plan
<PAGE>
Exhibit 5
<PAGE>
January 30, 1997
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re: Registration Statement on Form S-8
----------------------------------
Commercial Federal Corporation 1996 Stock Option and Incentive Plan
Dear Board Members:
We have acted as special counsel to Commercial Federal Corporation, a
Nebraska Corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Registration Statement") under the Securities Act of 1933, as
amended, relating to 1,050,000 shares of common stock, par value $.01 per share
(the "Common Stock") of the Company which may be issued pursuant to the
Commercial Federal Corporation 1996 Stock Option and Incentive Plan (the
"Plan"), all as more fully described in the Registration Statement. You have
requested the opinion of this firm with respect to certain legal aspects of the
proposed offering.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion and based thereon, we are of the
opinion that the Common Stock when issued pursuant to and in accordance with the
terms of the Plan will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 and to references to our firm included
under the caption "Legal Opinion" in the Prospectus which is part of the
Registration Statement.
Very truly yours,
Housley Kantarian & Bronstein, P.C.
By: /s/ Gary R. Bronstein
------------------------------------
Gary R. Bronstein, Esquire
<PAGE>
Exhibit 23.2
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Commercial Federal Corporation on Form S-8 of our report dated August 23, 1996
(which expresses an unqualified opinion and includes an explanatory paragraph
relating to a change in the method of accounting for mortgage servicing rights
in fiscal year 1996 and a change in the method of accounting for income taxes, a
change in the method of accounting for postretirement benefits, and a change in
the method of accounting for intangible assets in fiscal year 1994),
incorporated by reference in the Annual Report on Form 10-K of Commercial
Federal Corporation for the year ended June 30, 1996 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of such
Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Omaha, Nebraska
January 27, 1996
<PAGE>
Exhibit 99.1
<PAGE>
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
1. Purpose of the Plan.
The purpose of this Plan is to advance the interests of the Company
through providing select key Employees and Directors of the Bank, the Company,
and their Affiliates with the opportunity to acquire Shares. By encouraging such
stock ownership, the Company seeks to attract, retain and motivate the best
available personnel for positions of substantial responsibility and to provide
additional incentives to Directors and key Employees of the Company or any
Affiliate to promote the success of the business.
2. Definitions.
As used herein, the following definitions shall apply.
(a) "Affiliate" shall mean any "parent corporation" or "subsidiary
corporation" of the Company, as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
(b) "Agreement" shall mean a written agreement entered into in
accordance with Paragraph 5(c).
(c) "Awards" shall mean, collectively, Options and SARs, unless the
context clearly indicates a different meaning.
(d) "Bank" shall mean Commercial Federal Bank, a Federal Savings Bank.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Change in Control" shall mean any one of the following events:
(i) the acquisition of ownership, holding or power to vote more than 20% of the
Bank's or the Company's voting stock, (ii) the acquisition of the ability to
control the election of a majority of the Bank's or the Company's directors,
(iii) the acquisition of a controlling influence over the management or policies
of the Bank or the Company by any person or by persons acting as a "group"
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934), or
(iv) during any period of two consecutive years, individuals (the "Continuing
Directors") who at the beginning of such period constitute the Board of
Directors of the Bank or the Company (the "Existing Board") cease for any reason
to constitute at least two-thirds thereof, provided that any individual whose
election or nomination for election as a member of the Existing Board was
approved by a vote of at least two-thirds of the Continuing Directors then in
office shall be considered a Continuing Director. Notwithstanding the foregoing,
in the case of (i), (ii) and (iii) hereof, ownership or control of the Bank by
the Company itself shall not constitute a Change in Control. For purposes of
this paragraph only, the term "person" refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(h) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with Paragraph 5(a) hereof.
(i) "Common Stock" shall mean the common stock of the Company.
(j) "Company" shall mean Commercial Federal Corporation.
(k) "Continuous Service" shall mean the absence of any interruption or
termination of service as an Employee or Director of the Company or an
Affiliate. Continuous Service shall not be considered interrupted in
<PAGE>
the case of sick leave, military leave or any other leave of absence approved by
the Company, in the case of transfers between payroll locations of the Company
or between the Company, an Affiliate or a successor, or in the case of a
Director's performance of services in an emeritus or advisory capacity.
(l) "Director" shall mean any member of the Board, and any member of the
board of directors of any Affiliate that the Board has by resolution designated
as being eligible for participation in this Plan.
(m) "Disability" shall mean a physical or mental condition, which in the
sole and absolute discretion of the Committee, is reasonably expected to be of
indefinite duration and to substantially prevent a Participant from fulfilling
his or her duties or responsibilities to the Company or an Affiliate.
(n) "Effective Date" shall mean the date specified in Paragraph 15
hereof.
(o) "Employee" shall mean any person employed by the Company, the Bank,
or an Affiliate.
(p) "Exercise Price" shall mean the price per Optioned Share at which an
Option or SAR may be exercised.
(q) "ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is
identified as an "incentive stock option" within the meaning of Section 422
of the Code.
(r) "Market Value" shall mean the fair market value of the Common Stock,
as determined under Paragraph 7(b) hereof.
(s) "Non-Employee Director" shall have the meaning provided in
Rule 16b-3.
(t) "Non-ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan but which is not intended to be and is not
identified as an ISO.
(u) "Option" means an ISO and/or a Non-ISO.
(v) "Optioned Shares" shall mean Shares subject to an Award granted
pursuant to this Plan.
(w) "Participant" shall mean any person who receives an Award pursuant
to the Plan.
(x) "Plan" shall mean this Commercial Federal Corporation Stock Option
and Incentive Plan.
(y) "Restricted Stock" means Common Stock which is subject to
restrictions against transfer and forfeiture and such other terms and conditions
determined by the Committee, as provided in Paragraph 10.
(z) "Rule 16b-3" shall mean Rule 16b-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
(aa) "Share" shall mean one share of Common Stock.
(bb) "SAR" (or "Stock Appreciation Right") means a right to receive the
appreciation in value, or a portion of the appreciation in value, of a specified
number of shares of Common Stock.
<PAGE>
3. Term of the Plan and Awards.
(a) Term of the Plan. The Plan shall continue in effect for a term of
ten years from the Effective Date, unless sooner terminated pursuant to
Paragraph 17 hereof. No Award shall be granted under the Plan after ten years
from the Effective Date.
(b) Term of Awards. The term of each Award granted under the Plan shall
be established by the Committee, but shall not exceed 10 years; provided,
however, that in the case of an Employee who owns Shares representing more than
10% of the outstanding Common Stock at the time an ISO is granted, the term of
such ISO shall not exceed five years.
4. Shares Subject to the Plan.
(a) General Rule. Except as otherwise required under Paragraph 12, the
aggregate number of Shares deliverable pursuant to Awards shall not exceed
700,000 Shares. Such Shares may either be authorized but unissued Shares, Shares
held in treasury, or Shares held in a grantor trust created by the Bank or the
Company. If any Awards should expire, become unexercisable, or be forfeited for
any reason without having been exercised, the Optioned Shares shall, unless the
Plan shall have been terminated, be available for the grant of additional Awards
under the Plan.
(b) Special Rule for SARs. The number of Shares with respect to which
an SAR is granted, but not the number of Shares which the Company delivers or
could deliver to an Employee or individual upon exercise of an SAR, shall be
charged against the aggregate number of Shares remaining available under the
Plan; provided, however, that in the case of an SAR granted in conjunction with
an Option, under circumstances in which the exercise of the SAR results in
termination of the Option and vice versa, only the number of Shares subject to
the Option shall be charged against the aggregate number of Shares remaining
available under the Plan. The Shares involved in an Option as to which option
rights have terminated by reason of the exercise of a related SAR shall not be
available for the grant of further Options under the Plan.
5. Administration of the Plan.
(a) Composition of the Committee. The Plan shall be administered by the
Committee, which shall consist of not less than two (2) members of the Board who
are Non-Employee Directors. Members of the Committee shall serve at the pleasure
of the Board. In the absence at any time of a duly appointed Committee, the Plan
shall be administered by those members of the Board who are Non-Employee
Directors.
(b) Powers of the Committee. Except as limited by the express
provisions of the Plan or by resolutions adopted by the Board, the Committee
shall have sole and complete authority and discretion (i) to select Participants
and grant Awards, (ii) to determine the form and content of Awards to be issued
in the form of Agreements under the Plan, (iii) to interpret the Plan, (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, and (v)
to make other determinations necessary or advisable for the administration of
the Plan. The Committee shall have and may exercise such other power and
authority as may be delegated to it by the Board from time to time. A majority
of the entire Committee shall constitute a quorum and the action of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Committee without a meeting, shall be
deemed the action of the Committee.
(c) Agreement. Each Award shall be evidenced by a written agreement
containing such provisions as may be approved by the Committee. Each such
Agreement shall constitute a binding contract between the Company and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the Plan and of such Agreement. The terms
of each such Agreement shall be in accordance with the Plan, but each Agreement
may include such additional provisions and restrictions determined by the
Committee, in its discretion, provided that such additional provisions and
restrictions are not inconsistent with the terms of the Plan. In particular, the
Committee shall set forth in each Agreement (i) the Exercise Price of an Option
or SAR, (ii) the number of Shares subject to, and the expiration date of, the
Award, (iii) the manner,
<PAGE>
time and rate (cumulative or otherwise) of exercise or vesting of such Award,
and (iv) the restrictions, if any, to be placed upon such Award, or upon Shares
which may be issued upon exercise of such Award.
The Chairman of the Committee and such other Directors and officers as
shall be designated by the Committee are hereby authorized to execute Agreements
on behalf of the Company and to cause them to be delivered to the recipients of
Awards.
(d) Effect of the Committee's Decisions. All decisions, determinations
and interpretations of the Committee shall be final and conclusive on all
persons affected thereby.
(e) Indemnification. In addition to such other rights of
indemnification as they may have, the members of the Committee shall be
indemnified by the Company in connection with any claim, action, suit or
proceeding relating to any action taken or failure to act under or in connection
with the Plan or any Award, granted hereunder to the full extent provided for
under the Company's governing instruments with respect to the indemnification of
Directors.
6. Grant of Options.
(a) General Rule. The Committee shall have the discretion to make
Awards to Employees and Directors (including members of the Committee). In
selecting those Employees and Directors to whom Awards will be granted and the
number of shares covered by such Awards, the Committee shall consider the
position, duties and responsibilities of the eligible Employees and Directors,
the value of their services to the Company and its Affiliates, and any other
factors the Committee may deem relevant.
(b) Special Rules for ISOs. The aggregate Market Value, as of the date
the Option is granted, of the Shares with respect to which ISOs are exercisable
for the first time by an Employee during any calendar year (under all incentive
stock option plans, as defined in Section 422 of the Code, of the Company or any
present or future Affiliate of the Company) shall not exceed $100,000.
Notwithstanding the foregoing, the Committee may grant Options in excess of the
foregoing limitations, in which case such Options granted in excess of such
limitation shall be Options which are Non-ISOs.
(c) Discounted Non-ISOs. Notwithstanding any provision of this Plan to
the contrary, the Committee may, at the election of a Director or Employee
selected by the Committee, grant Non-ISOs to such individual in lieu of cash
compensation otherwise payable by the Company or the Bank. An individual's
election pursuant to this Paragraph 6(c) shall be made prior to the calendar
year for which such election will be deemed effective, and in accordance with
regulations prescribed by the Committee. Elections shall be approved or
disapproved in the discretion of the Committee and in accordance with the terms
of the Plan. Changes to a Participant's election pursuant to this Paragraph 6(c)
shall be prospective only. Pursuant to an election accepted and approved by the
Committee, a Participant may elect to forgo the receipt of cash compensation
otherwise expected from the Company or the Bank and instead receive, as of the
last day of the calendar year, Non-ISOs with an aggregate difference between the
Market Value of the underlying shares and the Exercise Price (determined as of
the first day of the calendar year) equal to the amount of cash compensation
foregone by the Participant pursuant to an election covering the calendar year.
Such Non-ISOs will be at all times fully exercisable following their date of
grant, and shall otherwise be subject to the terms of the underlying Agreement
and this Plan. In no event however, may a Non-ISO be granted pursuant to this
Paragraph 6(c) with an Exercise Price which is less than 50% of the Market Value
of the underlying shares on the date of grant.
A Participant's interest in receiving Non-ISOs pursuant to this
Paragraph 6(c) shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, or charge; and the Company
shall not be obligated to make any Awards to persons other than as specifically
provided in the Plan. A Participant shall not have a secured claim against the
assets of the Company, and such Participant shall rely solely on the unsecured
promise of the Company for the payment of any compensation deferred through an
election to receive a Non-ISO pursuant to the Plan. Nothing herein shall be
construed to give any person any right, title, interest, or claim in or to any
specific asset, fund, reserve, account, or property of any kind whatsoever owned
by them or in
<PAGE>
which it may have any right, title or interest now or in the future; but
such persons shall have the right to enforce his or her claim against the
Company in the same manner as any unsecured creditor.
7. Exercise Price for Options.
(a) Limits on Committee Discretion. Except as provided in Paragraph
6(c) hereof, the Exercise Price as to any particular Option shall not be
less than 100% of the Market Value of the Optioned Shares on the date of
grant. In the case of an Employee who owns Shares representing more than
10% of the Company's outstanding Shares of Common Stock at the time an ISO
is granted, the Exercise Price shall not be less than 110% of the Market
Value of the Optioned Shares at the time the ISO is granted.
(b) Standards for Determining Exercise Price. If the Common Stock is
listed on a national securities exchange (including the NASDAQ National
Market System) on the date in question, then the Market Value per Share
shall be the average of the highest and lowest selling price on such
exchange on such date, or if there were no sales on such date, then the
Exercise Price shall be the mean between the bid and asked price on such
date. If the Common Stock is traded otherwise than on a national
securities exchange on the date in question, then the Market Value per
Share shall be the mean between the bid and asked price on such date, or,
if there is no bid and asked price on such date, then on the next prior
business day on which there was a bid and asked price. If no such bid and
asked price is available, then the Market Value per Share shall be its fair
market value as determined by the Committee, in its sole and absolute
discretion.
8. Exercise of Options.
(a) Generally. Unless otherwise provided by the Committee pursuant to
an applicable Agreement, each Option shall be fully (100%) exercisable
immediately upon the date of its grant.
(b) Procedure for Exercise. A Participant may exercise Options, subject
to provisions relative to its termination and limitations on its exercise,
only by (1) written notice of intent to exercise the Option with respect to
a specified number of Shares, and (2) payment to the Company
(contemporaneously with delivery of such notice) in cash, in Common Stock,
or a combination of cash and Common Stock, of the amount of the Exercise
Price for the number of Shares with respect to which the Option is then
being exercised. Each such notice (and payment where required) shall be
delivered, or mailed by prepaid registered or certified mail, addressed to
the Treasurer of the Company at its executive offices. Common Stock
utilized in full or partial payment of the Exercise Price for Options shall
be valued at its Market Value at the date of exercise, and may consist of
Shares subject to the Option being exercised. Upon a Participant's exercise
of an Option, the Company may, if provided by the Committee in the
underlying Agreement, pay to the Participant a cash amount up to but not
exceeding the amount of dividends, if any, declared on the underlying
Shares between the date of grant and the date of exercise of the Option.
(c) Period of Exercisability for ISOs. Except to the extent otherwise
provided in the terms of an Agreement, an ISO may be exercised by a
Participant only while he is an Employee and has maintained Continuous
Service from the date of the grant of the ISO, or within three months after
termination of such Continuous Service (but not later than the date on
which the ISO would otherwise expire), except if the Employee's Continuous
Service terminates by reason of --
(1) "Just Cause" which for purposes hereof shall have the
meaning set forth in any unexpired employment or severance agreement
between the Employee and the Bank and/or the Company (and, in the
absence of any such agreement, shall mean termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final cease-and-
desist order), then the Employee's rights to exercise such ISO shall
expire on the date of such termination;
(2) death, then to the extent that the Employee would have been
entitled to exercise the ISO immediately prior to his death, such ISO of
the deceased Employee may be exercised within
<PAGE>
two years from the date of his death (but not later than the date on
which the ISO would otherwise expire) by the personal representatives of
his estate or person or persons to whom his rights under such ISO shall
have passed by will or by laws of descent and distribution;
(3) Disability, then to the extent that the Employee would have
been entitled to exercise the ISO immediately prior to his or her
Disability, such ISO may be exercised within one year from the date of
termination of employment due to Disability, but not later than the date
on which the ISO would otherwise expire.
(d) Period of Exercisability for Non-ISOs. Except as otherwise provided
in an Agreement, a Non-ISO may be exercised by a Participant only during
the period during which he has maintained Continuous Service from the date
of grant of the Non-ISO, provided that such Non-ISO shall (i) expire
immediately if the Participant's Continuous Service terminates due to Just
Cause, and (ii) continue to be exercisable for one year following his
termination of Continuous Service for any reason other than death. In the
event of the Participant's death, then to the extent that the Participant
would have been entitled to exercise the Non-ISO immediately prior to his
death, such Non-ISO of the deceased Participant may be exercised within two
years from the date of his death (but not later than the date on which the
Non-ISO would otherwise expire) by the personal representatives of his
estate or person or persons to whom his rights under such Non-ISO shall
have passed by will or by laws of descent and distribution.
Notwithstanding the foregoing, a Non-ISO may not be exercised later than
the date on which the Non-ISO would otherwise expire.
(e) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective
date thereof, shall be final and conclusive on all persons affected
thereby.
9. SARs (Stock Appreciation Rights)
(a) Granting of SARs. In its sole discretion, the Committee may from
time to time grant SARs to Employees either in conjunction with, or
independently of, any Options granted under the Plan. An SAR granted in
conjunction with an Option may be an alternative right wherein the exercise
of the Option terminates the SAR to the extent of the number of shares
purchased upon exercise of the Option and, correspondingly, the exercise of
the SAR terminates the Option to the extent of the number of Shares with
respect to which the SAR is exercised. Alternatively, an SAR granted in
conjunction with an Option may be an additional right wherein both the SAR
and the Option may be exercised. An SAR may not be granted in conjunction
with an ISO under circumstances in which the exercise of the SAR affects
the right to exercise the ISO or vice versa, unless the SAR, by its terms,
meets all of the following requirements:
(1) The SAR will expire no later than the ISO;
(2) The SAR may be for no more than the difference between the
Exercise Price of the ISO and the Market Value of the Shares
subject to the ISO at the time the SAR is exercised;
(3) The SAR is transferable only when the ISO is transferable, and
under the same conditions;
(4) The SAR may be exercised only when the ISO may be exercised; and
(5) The SAR may be exercised only when the Market Value of the
Shares subject to the ISO exceeds the Exercise Price of the ISO.
(b) Exercise Price. The Exercise Price as to any particular SAR shall
not be less than the Market Value of the Optioned Shares on the date of
grant.
(c) The provisions of Paragraphs 8(c) and 8(d) regarding the period of
exercisability of Options are incorporated by reference herein, and shall
determine the period of exercisability of SARs.
<PAGE>
(d) Exercise of SARs. An SAR granted hereunder shall be exercisable at
such times and under such conditions as shall be permissible under the
terms of the Plan and of the Agreement granted to a Participant, provided
that an SAR may not be exercised for a fractional Share. Upon exercise of
an SAR, the Participant shall be entitled to receive, without payment to
the Company except for applicable withholding taxes, an amount equal to the
excess of (or, in the discretion of the Committee if provided in the
Agreement, a portion of) the excess of the then aggregate Market Value of
the number of Optioned Shares with respect to which the Participant
exercises the SAR, over the aggregate Exercise Price of such number of
Optioned Shares. This amount shall be payable by the Company, in the
discretion of the Committee, in cash or in Shares valued at the then Market
Value thereof, or any combination thereof.
(e) Procedure for Exercising SARs. To the extent not inconsistent
herewith, the provisions of Paragraph 8(b) as to the procedure for
exercising Options are incorporated by reference, and shall determine the
procedure for exercising SARs.
10. Restricted Stock Awards.
Any Share of Restricted Stock which the Committee may grant to Employees
and Directors shall be subject to the following terms and conditions, and
to such other terms and conditions as are either applicable generally to
Awards, or prescribed by the Committee in the applicable Agreement:
(a) Restriction Period. At the time of each award of Restricted Stock,
there shall be established for the Restricted Stock a restriction period,
which shall be no greater than 5 years (the "Restriction Period"). Such
Restriction Period may differ among Participants and may have different
expiration dates with respect to portions of shares of Restricted Stock
covered by the same award.
(b) Vesting Restrictions. The Committee shall determine the
restrictions applicable to the award of Restricted Stock, including, but
not limited to, requirements of Continuous Service for a specified term, or
the attainment of specific corporate, divisional or individual performance
standards or goals, which restrictions may differ with respect to each
Participant. The Agreement shall provide for forfeiture of Shares covered
thereby if the specified restrictions are not met during the Restriction
Period, and may provide for early termination of any Restriction Period in
the event of satisfaction of the specified restrictions prior to expiration
of the Restricted Period.
(c) Vesting upon Death, Disability, or Retirement. The Committee shall
set forth in the Agreement the percentage of the award of Restricted Stock
which shall vest in the Participant in the event of death, disability or
retirement prior to the expiration of the Restriction Period or the
satisfaction of the restrictions applicable to an award of Restricted
Stock.
(d) Acceleration of Vesting. Notwithstanding the Restriction Period and
the restrictions imposed on the Restricted Stock, as set forth in any
Agreement, the Committee may shorten the Restriction Period or waive any
restrictions, if the Committee concludes that it is in the best interests
of the Company to do so.
(e) Ownership; Voting. Stock certificates shall be issued in respect of
Restricted Stock awarded hereunder and shall be registered in the name of
the Participant, whereupon the Participant shall become a stockholder of
the Company with respect to such Restricted Stock and shall, to the extent
not inconsistent with express provisions of the Plan, have all the rights
of a stockholder, including but not limited to the right to receive all
dividends paid on such Shares and the right to vote such Shares. Said
stock certificates shall be deposited with the Company or its designee,
together with a stock power endorsed in blank, and the following legend
shall be placed upon such certificates reflecting that the shares
represented thereby are subject to restrictions against transfer and
forfeiture:
"The transferability of this certificate and the shares of stock
represented thereby are subject to the terms and conditions (including
forfeiture) contained in the 1996 Stock Option and Incentive Plan of
Commercial Federal Corporation, and an agreement entered into between
the registered owner and Commercial
<PAGE>
Federal Corporation. Copies of such Plan and Agreement are on file in
the offices of the Secretary of Commercial Federal Corporation, 2120
South 72nd Street Omaha, Nebraska 68124".
(f) Lapse of Restrictions. At the expiration of the Restricted Period
applicable to the Restricted Stock, the Company shall deliver to the
Participant, or the legal representative of the Participant's estate, or if
the personal representative of the Participant's estate shall have assigned
the estate's interest in the Restricted Stock, to the person or persons to
whom his rights under such Stock shall have passed by assignment pursuant
to his will or to the laws of descent and distribution, the stock
certificates deposited with it or its designee and as to which the
Restricted Period has expired and the requirements of the restrictions have
been met. If a legend has been placed on such certificates, the Company
shall cause such certificates to be reissued without the legend.
(g) Forfeiture of Restricted Stock. The Agreement shall provide for
forfeiture of any Restricted Stock which is not vested in the Participant
or for which the restrictions have not been satisfied during the
Restriction Period.
11. Change in Control
Notwithstanding the provisions of any Award which provides for its
exercise or vesting in installments, all Shares of Restricted Stock shall
become fully vested upon a Change in Control, and all Options and SARs
shall be immediately exercisable and fully vested. With respect to
Options, at the time of a Change in Control, the Participant shall, at the
discretion of the Committee, be entitled to receive cash in an amount equal
to the excess of the Market Value of the Common Stock subject to such
Option over the Exercise Price of such Shares, in exchange for the
cancellation of such Options by the Participant.
12. Effect of Changes in Common Stock Subject to the Plan.
(a) Recapitalizations; Stock Splits, Etc. The number and kind of shares
reserved for issuance under the Plan, and the number and kind of shares
subject to outstanding Awards, and the Exercise Price thereof, shall be
proportionately adjusted for any increase, decrease, change or exchange of
Shares for a different number or kind of shares or other securities of the
Company which results from a merger, consolidation, recapitalization,
reorganization, reclassification, stock dividend, split-up, combination of
shares, or similar event in which the number or kind of shares is changed
without the receipt or payment of consideration by the Company.
(b) Transactions in which the Company is Not the Surviving Entity. In
the event of (i) the liquidation or dissolution of the Company, (ii) a
merger or consolidation in which the Company is not the surviving entity,
or (iii) the sale or disposition of all or substantially all of the
Company's assets (any of the foregoing to be referred to herein as a
"Transaction"), all outstanding Awards, together with the Exercise Prices
thereof, shall be equitably adjusted for any change or exchange of Shares
for a different number or kind of shares or other securities which results
from the Transaction.
(c) Special Rule for ISOs. Any adjustment made pursuant to
subparagraphs (a) or (b)(1) hereof shall be made in such a manner as not to
constitute a modification, within the meaning of Section 424(h) of the
Code, of outstanding ISOs.
(d) Conditions and Restrictions on New, Additional, or Different Shares
or Securities. If, by reason of any adjustment made pursuant to this
Paragraph, a Participant becomes entitled to new, additional, or different
shares of stock or securities, such new, additional, or different shares of
stock or securities shall thereupon be subject to all of the conditions and
restrictions which were applicable to the Shares pursuant to the Award
before the adjustment was made.
(e) Other Issuances. Except as expressly provided in this Paragraph,
the issuance by the Company or an Affiliate of shares of stock of any
class, or of securities convertible into Shares or stock of another class,
for cash or property or for labor or services either upon direct sale or
upon the exercise of rights or warrants to
<PAGE>
subscribe therefor, shall not affect, and no adjustment shall be made with
respect to, the number, class, or Exercise Price of Shares then subject to
Awards or reserved for issuance under the Plan.
13. Non-Transferability of Awards.
Awards may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will or by the laws of descent and
distribution. Notwithstanding any other provision of this Plan to the
contrary, to the extent permissible under Rule 16b-3, a Participant who is
granted Non-ISOs pursuant to this Plan may transfer such Non-ISOs to his or
her spouse, lineal ascendants, lineal descendants, or to a duly established
trust, provided that Non-ISOs so transferred may not again be transferred
other than to the Participant originally receiving the grant of Non-ISOs or
to an individual or trust to whom such Participant could have transferred
Non-ISOs pursuant to this Paragraph 13. Non-ISOs which are transferred
pursuant to this Paragraph 13 shall be exercisable by the transferee
subject to the same terms and conditions as would have applied to such Non-
ISOs in the hands of the Participant originally receiving the grant of such
Non-ISOs.
14. Time of Granting Awards.
The date of grant of an Award shall, for all purposes, be the later of
the date on which the Committee makes the determination of granting such
Award, and the Effective Date. Notice of the determination shall be given
to each Participant to whom an Award is so granted within a reasonable time
after the date of such grant.
15. Effective Date.
The Plan shall become effective immediately upon its approval by a
favorable vote of stockholders owning at least a majority of the total
votes cast at a duly called meeting of the Company's stockholders held in
accordance with applicable laws. No Awards may be made prior to approval
of the Plan by the stockholders of the Company.
16. Modification of Awards.
At any time, and from time to time, the Board may authorize the
Committee to direct execution of an instrument providing for the
modification of any outstanding Award, provided no such modification shall
confer on the holder of said Award any right or benefit which could not be
conferred on him by the grant of a new Award at such time, or impair the
Award without the consent of the holder of the Award.
17. Amendment and Termination of the Plan.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or
terminate the Plan. No amendment, suspension or termination of the Plan
shall, without the consent of any affected holders of an Award, alter or
impair any rights or obligations under any Award theretofore granted.
18. Conditions Upon Issuance of Shares.
(a) Compliance with Securities Laws. Shares of Common Stock shall not
be issued with respect to any Award unless the issuance and delivery of
such Shares shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the rules and
regulations promulgated thereunder, any applicable state securities law,
and the requirements of any stock exchange upon which the Shares may then
be listed.
(b) Special Circumstances. The inability of the Company to obtain
approval from any regulatory body or authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares
hereunder shall relieve the Company of any liability in respect of the non-
issuance or sale of such Shares. As a condition to the exercise of an
Option or SAR, the Company may require the person exercising the Option or
SAR to make such representations and warranties as may be necessary to
assure the availability of an exemption from the registration requirements
of federal or state securities law.
<PAGE>
(c) Committee Discretion. The Committee shall have the discretionary
authority to impose in Agreements such restrictions on Shares as it may
deem appropriate or desirable, including but not limited to the authority
to impose a right of first refusal or to establish repurchase rights or
both of these restrictions.
19. Reservation of Shares.
The Company, during the term of the Plan, will reserve and keep
available a number of Shares sufficient to satisfy the requirements of the
Plan.
20. Withholding Tax.
The Company's obligation to deliver Shares upon exercise of Options
and/or SARs or upon the vesting of Restricted Stock shall be subject to the
Participant's satisfaction of all applicable federal, state and local
income and employment tax withholding obligations. The Committee, in its
discretion, may permit the Participant to satisfy the obligation, in whole
or in part, by irrevocably electing to have the Company withhold Shares, or
to deliver to the Company Shares that he already owns, having a value equal
to the amount required to be withheld. The value of the Shares to be
withheld, or delivered to the Company, shall be based on the Market Value
of the Shares on the date the amount of tax to be withheld is to be
determined. As an alternative, the Company may retain, or sell without
notice, a number of such Shares sufficient to cover the amount required to
be withheld.
21. No Employment or Other Rights.
In no event shall an Employee's or Director's eligibility to participate
or participation in the Plan create or be deemed to create any legal or
equitable right of the Employee, Director, or any other party to continue
service with the Company, the Bank, or any Affiliate of such corporations.
No Employee or Director shall have a right to be granted an Award or,
having received an Award, the right to again be granted an Award. However,
an Employee or Director who has been granted an Award may, if otherwise
eligible, be granted an additional Award or Awards.
22. Governing Law.
The Plan shall be governed by and construed in accordance with the laws
of the State of Nebraska, except to the extent that federal law shall be
deemed to apply.
<PAGE>
Exhibit 99.2
<PAGE>
STOCK OPTION AGREEMENT
FOR INCENTIVE STOCK OPTIONS UNDER SECTION 422
OF THE INTERNAL REVENUE CODE
PURSUANT TO THE
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
STOCK OPTION for a total of _________ shares of Common Stock, par value
$.01 per share, of Commercial Federal Corporation (the "Company"), which
Option is intended to qualify as an incentive stock option under Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), is
hereby granted to __________________ (the "Optionee") at the price set
forth herein, and in all respects subject to the terms, definitions and
provisions of the Commercial Federal Corporation 1996 Stock Option and
Incentive Plan (the "Plan") which was adopted by the Company and which is
incorporated by reference herein, receipt of which is hereby acknowledged.
1. Option Price. The option price is $_______ for each share,
------------
being 100% */ of the fair market value, as determined by the Committee, of
--
the Common Stock on the date of grant of this Option.
2. Exercises of Option. This Option shall be exercisable in
-------------------
accordance with provisions of the Plan as follows:
(i) Schedule of rights to exercise.
------------------------------
Percentage of Total Shares
Years of Continuous Employment Subject to Option Which May
After Date of Grant of Option Be Exercised
------------------------------ ---------------------------
Upon Grant
1 year but less than 2 years
2 years but less than 3 years
3 years but less than 4 years
-------------------------
*/ 110% in the case of an Optionee who owns shares representing more than
-- 10% of the outstanding common stock of the Company on the date of grant
of this Option.
<PAGE>
ISO Agreement
Page 2
4 years but less than 5 years
5 years or more
(ii) Method of Exercise. This Option shall be exercisable by a
------------------
written notice by the Optionee which shall:
(a) state the election to exercise the Option, the number of shares
with respect to which it is being exercised, the person in whose name
the stock certificate or certificates for such shares of Common Stock
is to be registered, his address and Social Security Number (or if
more than one, the names, addresses and Social Security Numbers of
such persons);
(b) contain such representations and agreements as to the holder's
investment intent with respect to such shares of Common Stock as may
be satisfactory to the Company's counsel;
(c) be signed by the person or persons entitled to exercise the Option
and, if the Option is being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to counsel
for the Company, of the right of such person or persons to exercise
the Option; and
(d) be in writing and delivered in person or by certified mail to the
Treasurer of the Company.
Payment of the purchase price of any shares with respect to which the
Option is being exercised shall be by cash, Common Stock, or such
combination of cash and Common Stock as the Optionee elects. The
certificate or certificates for shares of Common Stock as to which the
Option shall be exercised shall be registered in the name of the person or
persons exercising the Option.
(iii) Restrictions on exercise. This Option may not be exercised if
------------------------
the issuance of the shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law or valid
regulation. As a condition to the Optionee's exercise of this Option, the
Company may require the person exercising this Option to make any
representation and warranty to the Company as may be required by any
applicable law or regulation.
3. Withholding. The Optionee hereby agrees that the exercise of the
-----------
Option or any installment thereof will not be effective, and no shares will
become transferable to the Optionee, until the Optionee makes appropriate
arrangements with the Company for such tax withholding as may be required
of the Company under federal, state, or local law on account of such
exercise.
4. Non-transferability of Option. This Option may not be
-----------------------------
transferred in any manner otherwise than by will or the laws of descent or
distribution. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
<PAGE>
ISO Agreement
Page 3
5. Term of Option. This Option may not be exercisable for more than
--------------
ten **/ years from the date of grant of this Option, as stated below, and
---
may be exercised during such term only in accordance with the Plan and the
terms of this Option.
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
COMMITTEE
By
-----------------------------
-------------
Date of Grant Attest: (Seal)
------------------------
- ----------------------
**/ Five years in the case of an Optionee who owns shares representing more
- --- than 10% of the outstanding common stock of the Company on the date of
grant of this Option.
<PAGE>
INCENTIVE STOCK OPTION EXERCISE FORM
PURSUANT TO THE
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
-----------
Date
Treasurer
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re: Commercial Federal Corporation 1996 Stock Option and Incentive Plan
-------------------------------------------------------------------
Dear Sir:
The undersigned elects to exercise the Incentive Stock Option to purchase
________ shares, par value $.01, of Common Stock of Commercial Federal
Corporation under and pursuant to a Stock Option Agreement dated ______, 199__.
Delivered herewith is a certified or bank cashier's or teller's check and/or
shares of Common Stock, valued at the fair market value of the stock on the date
of exercise, as set forth below.
$______ of cash or check
______ ____ shares of Common Stock, valued at $____ per share
$ Total
======
The name or names to be on the stock certificate or certificates and the
address and Social Security Number of such person(s) is as follows:
Name
----------------------------------------------------------------------------
Address
-------------------------------------------------------------------------
Social Security Number
----------------------------------------------------------
Very truly yours,
-----------------
<PAGE>
Exhibit 99.3
<PAGE>
STOCK OPTION AGREEMENT
FOR NON-INCENTIVE STOCK OPTIONS PURSUANT TO THE
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
STOCK OPTION for a total of ___________ shares of Common Stock, par
value $.01 per share, of Commercial Federal Corporation (the "Company") is
hereby granted to _____________ (the "Optionee") at the price set forth
herein, and in all respects subject to the terms, definitions and
provisions of the Commercial Federal Corporation 1996 Stock Option and
Incentive Plan (the "Plan") which has been adopted by the Company and which
is incorporated by reference herein, receipt of which is hereby
acknowledged. Such Stock Options do not comply with Options granted under
---
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
1. Option Price. The option price is $____________ for each share.
------------
2. Exercise of Option. This Option shall be exercisable in
------------------
accordance with provisions of the Plan as follows:
(i) Schedule of rights to exercise.
------------------------------
Percentage of Total Shares
Years of Continuous Employment Subject to Option Which May
After Date of Grant of Option Be Exercised
---------------------------------- --------------------------------
Upon Grant
1 year but less than 2 years
2 years but less than 3 years
3 years but less than 4 years
4 years but less than 5 years
5 years or More
(ii) Method of Exercise. This Option shall be exercisable by a
------------------
written notice which shall:
(a) state the election to exercise the Option, the number of shares
with respect to which it is being exercised, the person in whose name
the stock certificate or certificates for such shares of Common Stock
is to be registered, his address and Social Security Number (or if
more than one, the names, addresses and Social Security Numbers of
such persons);
<PAGE>
Non-ISO Agreement
Page 2
(b) contain such representations and agreements as to the holders'
investment intent with respect to such shares of Common Stock as may
be satisfactory to the Company's counsel;
(c) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by any person or persons
other than the Optionee, be accompanied by proof, satisfactory to
counsel for the Company, of the right of such person or persons to
exercise the Option; and
(d) be in writing and delivered in person or by certified mail to the
Treasurer of the Company.
Payment of the purchase price of any shares with respect to which the
Option is being exercised shall be by cash, Common Stock, or such
combination of cash and Common Stock as the Optionee elects. The
certificate or certificates for shares of Common Stock as to which the
Option shall be exercised shall be registered in the name of the person or
persons exercising the Option.
(iii) Restrictions on exercise. The Option may not be exercised if
------------------------
the issuance of the shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law or valid
regulation. As a condition to his exercise of this Option, the Company may
require the person exercising this Option to make any representation and
warranty to the Company as may be required by any applicable law or
regulation.
3. Withholding. The Optionee hereby agrees that the exercise of the
-----------
Option or any installment thereof will not be effective, and no shares will
become transferable to the Optionee, until the Optionee makes appropriate
arrangements with the Company for such tax withholding as may be required
of the Company under federal, state, or local law on account of such
exercise.
4. Non-transferability of Option. This Option may not be
-----------------------------
transferred in any manner otherwise than by will or the laws of descent or
distribution. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
Notwithstanding any other terms of this agreement, to the extent
permissible under Rule 16b-3 of the Securities Exchange Act of 1934, as
amended, this Option may be transferred to the Optionee's spouse, lineal
ascendants, lineal descendants, or to a duly established trust, provided
that such transferee shall be permitted to exercise this Option subject to
the same terms and conditions applicable to the Optionee.
<PAGE>
Non-ISO Agreement
Page 3
5. Term of Option. This Option may not be exercisable for more than
--------------
ten years from the date of grant of this Option, as set forth below, and
may be exercised during such term only in accordance with the Plan and the
terms of this Option.
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
COMMITTEE
By
------------------- ------------------------------------------
Date of Grant
Attest (Seal)
-------------------------
<PAGE>
NON-INCENTIVE STOCK OPTION EXERCISE FORM
PURSUANT TO THE
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
-----------------
Date
Treasurer
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re: Commercial Federal Corporation 1996 Stock Option and Incentive Plan
-------------------------------------------------------------------
Dear Sir:
The undersigned elects to exercise his Non-Incentive Stock Option to
purchase ___________ shares, par value $.01, of Common Stock of Commercial
Federal Corporation under and pursuant to a Stock Option Agreement dated
________________, 199__.
Delivered herewith is a certified or bank cashier's or tellers check
and/or shares of Common Stock, valued at the fair market value of the stock
on the date of exercise, as set forth below.
________$of cash or check
________ ____ shares of Common Stock, valued at $____ per share
$ Total
========
The name or names to be on the stock certificate or certificates and the
address and Social Security Number of such person is as follows:
Name
----------------------------------------------------------------------
Address
-------------------------------------------------------------------
Social Security Number
----------------------------------------------------
Very truly yours,
-------------------------
<PAGE>
Exhibit 99.4
<PAGE>
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
Stock Appreciation Rights Agreement
Not In Tandem with Stock Option
On the date of grant specified below, the Stock Option Committee of
Commercial Federal Corporation (the "Company") hereby grants to ________________
(the "Optionee") a total of _______ Stock Appreciation Rights (SARs), subject to
the terms and conditions set forth in the Commercial Federal Corporation 1996
Stock Option and Incentive Plan (the "Plan") (a copy of which is available to
the Optionee upon request). The terms and conditions of the Plan are
incorporated herein by reference.
(a) The exercise price is $____ for each share, such price being 100% of
the fair market value, as determined by the Committee, of the Common Stock on
the date of grant of this option.
(b) The SAR shall be exercisable to the extent permitted in the Plan.
(c) The SAR shall be accepted for surrender by the Optionee in
consideration for the payment by the Company of an amount equal to the excess of
the fair market value on the date of exercise of the Shares of Common Stock
subject to such SAR over the exercise price specified in Paragraph (a) hereof.
(d) Payment hereunder shall be made in shares of Common Stock or in cash as
provided in the Plan.
(e) The SAR is nontransferable, except in accordance with Section 13 of the
Plan.
(f) The SAR may be exercised only in accordance with Sections 8 and 9 of
the Plan, and only when there is a positive spread, i.e., when the market price
of the Common Stock subject to the SAR exceeds the exercise price of the SAR.
(g) In the event of any inconsistency or conflict between this Agreement
and the Plan, the Plan shall be controlling and supercede any conflicting or
inconsistent provision of the Agreement.
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
COMMITTEE
By:
-------------------------
Date of Grant: ATTEST:
- ------------- ------------------------------
<PAGE>
Exhibit 99.5
<PAGE>
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN COMMITTEE
NOTICE OF RESTRICTED STOCK AWARD
--------------------------------
WHEREAS, the Board of Directors of Commercial Federal Corporation (the
"Company") has previously adopted the Commercial Federal Corporation 1996 Stock
Option and Incentive Plan (the "Plan"), and
WHEREAS, the Board of Directors of the Company has previously appointed
Directors ________________, ____________________ and ____________________ as
members of the Commercial Federal Corporation 1996 Stock Option and Incentive
Plan Committee (the "Committee") pursuant to the terms of the Plan; and
WHEREAS, the Plan became effective on November 19, 1996 upon its receipt of
stockholder approval, and Paragraph 10 of the Plan provides that the Committee
may grant restricted stock awards to employees and directors.
PLEASE TAKE NOTICE, that the following individual be granted a restricted
stock award under the Plan ("Restricted Stock Award"), effective __________ ___,
19__:
Number of Shares Subject to
Recipient Restricted Stock Award
--------- ----------------------
---------------------- -----------------
AND BE IT FURTHER RESOLVED, that such Restricted Stock Award shall vest
according to the following schedule:
Percentage of Total Shares
Years of Continuous Employment Subject to Restricted Stock Award
After Date of Restricted Stock Award Which Will be Vested
------------------------------------ ---------------------------------
Upon Grant
1 year but less than 2 years
2 years but less than 3 years
3 years but less than 4 years
4 years but less than 5 years
5 years or more
<PAGE>
AND BE IT FURTHER RESOLVED, that the Restricted Stock Award specified
herein shall be subject to the restrictions and other provisions of Paragraph 10
of the Plan.
Date of Notice:
, 199
- ------------- --
COMMERCIAL FEDERAL CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
COMMITTEE
By:
-------------------------------
Its Chairman
<PAGE>
Exhibit 99.6
<PAGE>
CONSENT TO ACTION WITHOUT A MEETING
BY THE BOARD OF DIRECTORS OF
COMMERCIAL FEDERAL CORPORATION
The undersigned, being the Directors of record of Commercial Federal
Corporation (the "Company"), acting pursuant to Section 21-2090 of the Nebraska
Business Corporation Act, do hereby consent to the following actions, effective
this ____ day of October, 1996.
RESOLVED, that the Commercial Federal Corporation 1996 Stock Option and
Incentive Plan, in the form submitted to this meeting and attached hereto
at Tab 1, is hereby adopted and approved, subject to (i) approval by the
stockholders of the Company, and (ii) such final adjustments of an
immaterial nature as the Company's executive officers may deem to be
necessary or proper to effect the purpose of the Option Plan and of these
resolutions;
RESOLVED FURTHER, that the Company shall reserve for issuance under the
Option Plan, and is hereby authorized upon receipt of proper consideration
therefor, in accordance with the terms of the Option Plan, to issue shares
of Common Stock, provided for under the Option Plan (as such number of
shares may be adjusted in accordance with the Option Plan) upon the
exercise of stock options or other awards granted thereunder;
RESOLVED FURTHER, that the Company's executive officers are hereby
authorized to take or to direct the taking of any actions that he may deem
necessary or proper in connection with the adoption of the Option Plan,
including the filing of a Registration Statement on Form S-8 with the
Securities and Exchange Commission in order to register shares of Common
Stock reserved for issuance upon the exercise of stock options or other
awards granted under the Option Plan; and
RESOLVED FURTHER, that the 1996 amendment to the 1984 Stock Option and
Incentive Plan, as amended and restated, in the form attached hereto at Tab
2, is hereby adopted and approved subject to such immaterial changes as the
Company's executive officers deem necessary and consistent with these
resolutions.
<PAGE>
The above actions are hereby enacted without a meeting of the Board of
Directors of Commercial Federal Corporation effective the ____ day of October
1996.
COMMERCIAL FEDERAL CORPORATION
By Its Directors:
--------------------------- ------------------------------
Talton K. Anderson William A. Fitzgerald
--------------------------- ------------------------------
Robert F. Krohn Charles M. Lillis
--------------------------- ------------------------------
Carl G. Mammel Robert S. Milligan
---------------------------
James P. O'Donnell
