As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-49967
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
UNDER COVER OF FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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COMMERCIAL FEDERAL CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Nebraska 47-0658852
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2120 South 72nd Street
Omaha, Nebraska 68124
(402) 554-9200
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(Address of Principal Executive Offices)
First Colorado Bancorp, Inc. 1992 Stock Option Plan
First Colorado Bancorp, Inc. 1996 Stock Option Plan
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(Full Title of the Plan)
Mr. James A. Laphen, President
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
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(Name and Address of Agent For Service)
(402) 390-5361
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(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Edward D. Herlihy, Esq.
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, New York 10019
(212) 403-1000
Note. This Post-Effective Amendment No. 1 on Form S-8 to the
Registrant's Registration Statement on Form S-4 relates to 1,073,967 previously
registered shares of the Registrant's common stock (the "Common Stock"), par
value $.01 per share, reserved for issuance pursuant to the First Colorado
Bancorp, Inc. 1992 Stock Option Plan and the First Colorado Bancorp, Inc. 1996
Stock Option Plan which the Registrant assumed upon consummation of its
acquisition of First Colorado Bancorp, Inc. ("First Colorado") pursuant to the
Reorganization and Merger Agreement, dated March 9, 1998, by and among the
Registrant, Commercial Federal Bank, a Federal Savings Bank, First Colorado,
and First Federal Bank of Colorado.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
- ------ INFORMATION*
*Documents containing the information required by Part I of this
Registration Statement will be sent or given to participants in the First
Colorado Bancorp, Inc. 1992 Stock Option Plan and the First Colorado Bancorp,
Inc. 1996 Stock Option Plan (collectively, the "Plans") in accordance with Rule
428(b)(1). In accordance with Rule 424 and in reliance on Rule 428, such
documents are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements. Commercial Federal Corporation (the "Registrant")
will maintain a file of such documents for a period of five years after the date
on which such documents are last used as part of the prospectus used to offer or
sell shares of the Registrant's common stock, par value $.01 per share (the
"Common Stock"), pursuant to the Plans. Upon request, the Registrant will
furnish the Commission or its staff a copy of any or all documents included in
this file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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The Registrant 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 Registrant 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
Registrant. The address for the Commission's Web site is "http://www.sec.gov".
The following documents are incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997 as filed with the Commission on September 29, 1997 (Commission
File No. 1-11515).
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 as filed with the Commission on November 14, 1997 (Commission
File No. 1-11515).
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997 as filed with the Commission on February 17, 1998 (Commission
File No. 1- 11515).
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, as filed with the Commission on May 15, 1998 (Commission File
No. 1-11515).
<PAGE>
(e) The Registrant's Current Report on Form 8-K dated August 18, 1997, as
filed with the Commission.
(f) The Registrant's Current Report on Form 8-K dated September 2, 1997,
as filed with the Commission.
(g) The Registrant's Current Report on Form 8-K dated September 11, 1997,
as filed with the Commission.
(h) The Registrant's Current Report on Form 8-K dated November 18, 1997,
as filed with the Commission.
(i) The Registrant's Current Report on Form 8-K dated December 8, 1997,
as filed with the Commission.
(j) The Registrant's Current Report on Form 8-K dated December 15, 1997,
as filed with the Commission.
(k) The Registrant's Current Report on Form 8-K dated February 11, 1998,
as filed with the Commission.
(l) The Registrant's Current Report on Form 8-K dated March 9, 1998, as
filed with the Commission.
(m) The Registrant's Current Report on Form 8-K dated July 3, 1998, as
filed with the Commission.
(n) The Registrant's Current Report on Form 8-K dated July 31, 1998, as
filed with the Commission.
(o) The Registrant's Current Report on Form 8-K dated August 10, 1998, as
filed with the Commission.
(p) The description of the Registrant's Common Stock set forth in Item 1
of the Registrant's registration statement on Form 8-A dated July 17, 1995.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE REGISTRANT PURSUANT TO SECTIONS
13(A), 13(C), 14, AND 15(D) OF THE 1934 ACT AFTER THE DATE HEREOF AND PRIOR TO
THE FILING OF A POST-EFFECTIVE AMENDMENT WHICH INDICATES THAT ALL SHARES OF
COMMON STOCK OFFERED HAVE BEEN SOLD OR WHICH DEREGISTER ALL SUCH COMMON STOCK
THEN REMAINING UNSOLD, SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS
REGISTRATION STATEMENT, AND TO BE A PART HEREOF FROM THE DATE OF FILING OF SUCH
DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
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Not applicable, as the Common Stock is registered under Section 12 of the
1934 Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Indemnification of directors and officers of the Registrant is provided
under Article VI of the Articles of Incorporation of the Registrant 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 Registrant and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
Article VI of the Registrant's Articles of Incorporation provides that an
outside director shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of his fiduciary duty as a director
and authorizes the Registrant 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
Registrant 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 Registrant through management
agreements, voting trusts, directorships in related corporations or any other
device or relationship.
The Registrant 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
Registrant 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 Registrant.
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.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
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For a list of all exhibits filed or included as part of this Registration
Statement, see "Index to Exhibits" at the end of this Registration Statement.
ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(d) If the registrant is a foreign private issuer, file a post-effective
amendment to the registration statement to include any financial statements
required by Rule 3-19 of this chapter at the start of any delayed offering or
throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided, that
the registrant includes in the
<PAGE>
prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph and other information necessary to ensure
that all other information in the prospectus is at least as current as the date
of those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<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 August 14, 1998.
COMMERCIAL FEDERAL CORPORATION
By: *
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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.
Signatures Title Date
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* Principal Executive Officer
- ----------------------- and Director
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
/s/ James A. Laphen Principal Financial Officer August 14, 1998
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James A. Laphen
President, Chief Operating
Officer and Chief Financial
Officer
* Principal Accounting Officer
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Gary L. Matter
Senior Vice President,
Controller and
Secretary
* Director
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Talton K. Anderson
* Director
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Michael P. Glinsky
<PAGE>
* Director
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William A. Krause
* Director
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Robert F. Krohn
* Director
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Carl G. Mammel
* Director
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Robert S. Milligan
* Director
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James P. O'Donnell
* Director
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Robert D. Taylor
* Director
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Aldo J. Tesi
*By: /s/ James A. Laphen August 14, 1998
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James A. Laphen
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
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5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the validity of the
Common Stock being registered
23.1 Consent of Independent Auditors
23.2 Consent of Wachtell, Lipton, Rosen & Katz (included in their opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (contained in the signature page to the
Registration Statement on Form S-4 as filed with the Commission on
April 10, 1998)
99.1 First Colorado Bancorp, Inc. 1992 Stock Option Plan *
99.2 First Colorado Bancorp, Inc. 1996 Stock Option Plan*
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* Incorporated by reference to the Annual Report on Form 10-K for the year
ended December 31, 1996 of First Colorado Bancorp, Inc. (Commission File
No. 0-27126).
Exhibit 5.1
[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]
August 14, 1998
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re: First Colorado Bancorp, Inc. 1992 Stock Option Plan
First Colorado Bancorp, Inc. 1996 Stock Option Plan
Post-Effective Amendment No.1 on Form S-8 to
Commercial Federal Corporation's Registration Statement on Form S-4
Dear Board Members:
We have acted as special counsel to Commercial Federal
Corporation, a Nebraska corporation (the "Company"), in connection with the
preparation of Post-Effective Amendment No.1 on Form S-8 to the Company's
Registration Statement on Form S-4 (Registration No. 333-49967) filed with
the Securities and Exchange Commission (the "Registration Statement") under
the Securities Act of 1933, as amended, relating to 1,073,967 shares of
common stock, par value $.01 per share (the "Common Stock"), of the Company
which may be issued pursuant to the exercise of stock options granted under
the First Colorado Bancorp, Inc. 1992 Stock Option Plan and the First
Colorado Bancorp, Inc. 1996 Stock Option Plan (the "Plans"), all as more
fully described in the Registration Statement. You have requested the
opinion of this firm with respect to issuance of the Common Stock pursuant to
the Plans.
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 the exercise of
stock options granted under the Plans 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.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-49967 of Commercial Federal Corporation
on Form S-4 filed under cover of Form S-8 of our report dated August 15, 1997
(September 11, 1997 as to Note 29) (which report expresses an unqualified
opinion and includes an explanatory paragraph referring to a change in the
method of accounting for mortgage servicing rights in fiscal year 1996),
appearing in the Annual Report on Form 10-K of Commercial Federal Corporation
for the year ended June 30, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of Registration Statement No.
333-49967.
/s/ Deloite & Touche LLP
Omaha, Nebraska
August 14, 1998
