<PAGE>
FILED PURSUANT TO RULE 424(b)(3)
REGISTRATION NO. 333-45613
[PERPETUAL MIDWEST FINANCIAL, INC.]
March 4, 1998
Dear Fellow Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders (the
"Special Meeting") of Perpetual Midwest Financial, Inc. ("Perpetual"), which
will be held at the Crowne Plaza Hotel located at 350 First Avenue, N.E., Cedar
Rapids, Iowa on Tuesday, April 14, 1998, at 2:00 p.m., local time. At the
Special Meeting, you will be asked to consider and vote upon a proposal to adopt
the Reorganization and Merger Agreement, dated December 15, 1997, as amended, by
and among Commercial Federal Corporation ("Commercial"), Commercial Federal
Bank, a Federal Savings Bank (the "Bank"), Perpetual and Perpetual Savings Bank,
FSB ("Perpetual Savings") and a related Acquisition Plan of Merger, dated
December 15, 1997, between Commercial and Perpetual (collectively, the "Merger
Agreement"), under which Perpetual will be merged with and into Commercial and
Perpetual Savings will be merged with and into the Bank (the "Merger"). Upon
consummation of the Merger, each outstanding share of Perpetual's common stock
(other than shares held by Commercial or Perpetual other than in a fiduciary
capacity or pursuant to a debt previously contracted) will be converted into the
right to receive .8636 of a share of Commercial common stock (the "Exchange
Ratio") (subject to possible adjustment) and cash in lieu of fractional shares
of Commercial common stock, as more fully described in the accompanying
Prospectus/Proxy Statement.
Enclosed with this letter are a Notice of Special Meeting of Perpetual's
stockholders and the Prospectus/Proxy Statement, which describes in detail the
proposed Merger, the background of the Merger, and other related information.
Also enclosed is a proxy solicited by Perpetual's Board of Directors in
connection with the Special Meeting.
Edelman & Co., Ltd., an investment banking firm, has issued its opinion to
Perpetual's Board of Directors regarding the fairness, from a financial point of
view, of the Exchange Ratio as of the date of such opinion. A copy of the
opinion is attached as Annex B to the Prospectus/Proxy Statement.
THE BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE PROPOSED MERGER AND
RECOMMENDS THAT STOCKHOLDERS VOTE THEIR SHARES "FOR" THE ADOPTION OF THE MERGER
AGREEMENT. THE BOARD OF DIRECTORS BELIEVES THAT THE PROPOSED MERGER IS IN THE
BEST INTEREST OF PERPETUAL AND ITS STOCKHOLDERS. THE AFFIRMATIVE VOTE OF THE
HOLDERS OF AT LEAST A MAJORITY OF THE ISSUED AND OUTSTANDING SHARES OF PERPETUAL
COMMON STOCK ENTITLED TO VOTE AT THE SPECIAL MEETING SHALL BE REQUIRED FOR
ADOPTION OF THE MERGER AGREEMENT.
We urge you to consider carefully all of the materials in the
Prospectus/Proxy Statement and to execute and return the enclosed proxy as soon
as possible. If you attend the Special Meeting, you may vote in person if you
wish, even though you have previously returned your proxy.
Sincerely,
/s/ James L. Roberts
James L. Roberts
President and Chief Executive Officer
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. YOU WILL RECEIVE
INSTRUCTIONS FOLLOWING THE MERGER FOR EXCHANGE OF STOCK CERTIFICATES.
<PAGE>
PERPETUAL MIDWEST FINANCIAL, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD APRIL 14, 1998
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders (the "Special
Meeting") of Perpetual Midwest Financial, Inc. ("Perpetual") will be held on
Tuesday, April 14, 1998, at the Crowne Plaza Hotel located at 350 First Avenue,
N.E., Cedar Rapids, Iowa at 2:00 p.m. local time, for the purpose of considering
and voting upon the following:
1. A proposal to adopt the Reorganization and Merger Agreement dated December
15, 1997, by and among Commercial Federal Corporation ("Commercial"),
Commercial Federal Bank, a Federal Savings Bank (the "Bank"), Perpetual,
and Perpetual Savings Bank, FSB ("Perpetual Savings") and a related
Acquisition Plan of Merger, dated December 15, 1997, as amended, by and
between Commercial and Perpetual (collectively, the "Merger Agreement"),
pursuant to which Perpetual will be merged with and into Commercial (the
"Merger"), and each outstanding share of Perpetual's common stock (other
than shares held by Perpetual or Commercial other than in a fiduciary
capacity or pursuant to a debt previously contracted) will be converted
into the right to receive .8636 of a share of Commercial common stock
(subject to possible adjustment) and cash in lieu of fractional shares of
Commercial common stock, as more fully described in the accompanying
Prospectus/Proxy Statement.
The transaction of such other matters as may properly come before the
Special Meeting or any adjournments thereof may also be acted upon. The Board
of Directors is not aware of any other business to come before the Special
Meeting. Any action may be taken on the foregoing proposals at the Special
Meeting on the date specified above or on any date or dates to which, by
original or later adjournment, the Special Meeting may be adjourned.
Only stockholders of record at the close of business on the record date,
February 27, 1998, are entitled to notice of and to vote at the Special Meeting
and any adjournments thereof. A list of Perpetual stockholders entitled to vote
at the Special Meeting will be available for examination, during normal business
hours, at the principal executive offices of Perpetual, located at 700 First
Avenue, N.E., Cedar Rapids, Iowa 52401, for at least 20 days prior to the
Special Meeting and for the duration of the Special Meeting. The affirmative
vote of not less than a majority of outstanding Perpetual common stock entitled
to vote at the Special Meeting is necessary to adopt the Merger Agreement. In
the event there are not sufficient shares represented for a quorum or votes to
adopt the Merger Agreement at the Special Meeting, Perpetual's Board of
Directors may adjourn the Special Meeting to permit further solicitation. We
urge you to execute and return the enclosed proxy as soon as possible to ensure
that your shares will be represented at the Special Meeting.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Robert H. O'Meara
Robert H. O'Meara
Secretary
Cedar Rapids, Iowa
March 4,1998
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" EACH OF THE
PROPOSALS STATED ABOVE. PLEASE SIGN AND RETURN THE ENCLOSED PROXY AS PROMPTLY
AS POSSIBLE, WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING IN PERSON.
YOU MAY REVOKE YOUR PROXY AT ANY TIME BEFORE IT IS VOTED AT THE SPECIAL MEETING.
<PAGE>
Prospectus/Proxy Statement
---------------------------------
COMMERCIAL FEDERAL CORPORATION
Prospectus
Up to 1,765,264 Shares of Common Stock
par value $.01 per share
(subject to adjustment)
---------------------------------
---------------------------------
PERPETUAL MIDWEST FINANCIAL, INC.
Proxy Statement
For a Special Meeting of Stockholders
To Be Held on April 14, 1998
---------------------------------
This Prospectus/Proxy Statement is being furnished to the holders of the
common stock, par value $.01 per share ("Perpetual Common Stock") of Perpetual
Midwest Financial, Inc. ("Perpetual") in connection with the solicitation of
proxies by Perpetual's Board of Directors for use at a special meeting of
stockholders (the "Special Meeting") to be held at the Crowne Plaza Hotel
located at 350 First Avenue, N.E., Cedar Rapids, Iowa on Tuesday, April 14, 1998
at 2:00 p.m., local time.
The purposes of the Special Meeting and the matters to be acted upon are:
(i) to consider and vote upon the adoption of a Reorganization and Merger
Agreement dated December 15, 1997, as amended, by and among Commercial Federal
Corporation ("Commercial"); Commercial Federal Bank, a Federal Savings Bank (the
"Bank"); Perpetual and Perpetual Savings Bank, FSB ("Perpetual Savings") and a
related Acquisition Plan of Merger, dated December 15, 1997 by and between
Commercial and Perpetual (collectively, the "Merger Agreement"), which provides
for the merger of Perpetual into Commercial (the "Acquisition Merger"); and (ii)
to consider and vote upon such other business as may properly come before the
Special Meeting or any adjournments thereof.
Upon consummation of the Acquisition Merger, each outstanding share of
Perpetual Common Stock issued and outstanding immediately prior to the effective
time of the Acquisition Merger (the "Acquisition Merger Effective Time") (other
than shares held by Commercial or Perpetual or their subsidiaries other than in
a fiduciary capacity or pursuant to a debt previously contracted) shall be
converted into and represent solely the right to receive .8636 of a share of
Commercial common stock $.01 per value (the "Commercial Common Stock"), subject
to adjustment as hereinafter described (the "Exchange Ratio"). Cash will be
paid in lieu of fractional shares. The shares of Commercial Common Stock and
cash paid in lieu of fractional shares to be received by holders of Perpetual
Common Stock pursuant to the Merger Agreement are referred to herein as the
"Merger Consideration." The Merger Agreement is attached as Annex A hereto and
is incorporated herein by reference.
The Exchange Ratio, as well as all per share data included herein with
respect to Commercial for periods prior to December 15, 1997, have been adjusted
to reflect a three-for-two stock split effected in the form of a 50% stock
dividend declared by Commercial on November 17, 1997 and distributed on December
15, 1997 to stockholders of record as of November 28, 1997.
<PAGE>
Commercial has filed a registration statement on Form S-4 (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the shares of the Commercial Common Stock to
be issued upon consummation of the Acquisition Merger. See "Available
Information." This Prospectus/Proxy Statement constitutes a prospectus of
Commercial with respect to the issuance of shares of Commercial Common Stock to
the stockholders of Perpetual upon consummation of the Acquisition Merger.
THE BOARD OF DIRECTORS OF PERPETUAL BELIEVES THAT THE ACQUISITION MERGER IS
IN THE BEST INTERESTS OF PERPETUAL'S STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS
THAT STOCKHOLDERS VOTE FOR THE ADOPTION OF THE MERGER AGREEMENT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, THE OFFICE OF THRIFT SUPERVISION, THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY STATE AGENCY, NOR HAS SUCH COMMISSION, OFFICE,
CORPORATION OR AGENCY PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS/PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE SHARES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE SAVINGS ASSOCIATION INSURANCE FUND, THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
This Prospectus/Proxy Statement and the accompanying proxy card are first
being sent to the stockholders of Perpetual on or about March 6, 1998.
This Prospectus/Proxy Statement does not cover any resales of the
Commercial Common Stock offered hereby to be received by the stockholders deemed
to be affiliates of Commercial or Perpetual upon consummation of the Acquisition
Merger. No person is authorized to make use of this Prospectus/Proxy Statement
in connection with such resales, although such securities may be traded without
the use of this Prospectus/Proxy Statement by those stockholders of Commercial
not deemed to be affiliates of Commercial or Perpetual.
THE DATE OF THIS PROSPECTUS/PROXY STATEMENT IS MARCH 4, 1998
<PAGE>
PROSPECTUS/PROXY STATEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
AVAILABLE INFORMATION....................................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................. 1
SUMMARY..................................................................... 3
The Special Meeting of Perpetual Stockholders............................... 3
Commercial Federal Corporation and Commercial Federal Bank, a Federal
Savings Bank............................................................... 3
Perpetual Midwest Financial, Inc. and Perpetual Savings Bank, FSB........... 4
The Merger.................................................................. 4
Comparison of Stockholder Rights............................................ 8
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF
COMMERCIAL FEDERAL CORPORATION............................................. 9
Financial Condition Data and Capital Ratios................................. 9
Operating Data.............................................................. 10
Operating Ratios and Other Data............................................. 11
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF
PERPETUAL MIDWEST FINANCIAL, INC........................................... 12
Financial Condition Data and Capital Ratios................................. 12
Operating Data.............................................................. 13
Operating Ratios and Other Data............................................. 14
UNAUDITED PRO FORMA COMBINED PER SHARE DATA................................. 15
INFORMATION CONCERNING THE SPECIAL MEETING.................................. 16
General..................................................................... 16
Record Date; Vote Required.................................................. 16
Voting of Proxies; Revocability of Proxies; Solicitation of Proxies......... 17
COMMERCIAL FEDERAL CORPORATION AND
COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK............................ 17
PERPETUAL MIDWEST FINANCIAL, INC. AND
PERPETUAL SAVINGS BANK, FSB................................................ 18
PROPOSAL 1 -- THE MERGER.................................................... 20
General..................................................................... 20
Background of the Merger.................................................... 20
Reasons for the Merger and Recommendation of Perpetual Board of Directors... 22
Opinion of Financial Advisor................................................ 22
Conversion of Perpetual Common Stock........................................ 25
Treatment of Perpetual Stock Options........................................ 26
No Dissenters' Appraisal Rights............................................. 27
</TABLE>
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TABLE OF CONTENTS (Continued)
<TABLE>
<CAPTION>
Page
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<S> <C>
The Bank Merger.............................................................. 27
Management after the Merger.................................................. 27
Representations and Warranties............................................... 27
Covenants Pending the Acquisition Merger..................................... 28
Conditions to Consummation of the Merger..................................... 30
Amendment or Termination of the Merger Agreement............................. 31
Stock Option Agreement....................................................... 32
Expenses and Termination Fee................................................. 34
Required Regulatory Approvals................................................ 35
Closing; Merger Effective Times.............................................. 35
Employee Benefit Plans after the Merger...................................... 35
Interests of Certain Persons in the Merger................................... 36
Federal Income Tax Consequences.............................................. 38
Accounting Treatment......................................................... 40
Resale of Commercial Common Stock; Restrictions on Transfer.................. 40
New York Stock Exchange Listing.............................................. 40
Vote Required................................................................ 40
BENEFICIAL OWNERSHIP OF PERPETUAL COMMON STOCK............................... 41
COMMON STOCK PRICES AND DIVIDENDS............................................ 42
COMPARISON OF STOCKHOLDER RIGHTS............................................. 43
SOLICITATION OF PROXIES...................................................... 47
PERPETUAL FORM 10-KSB........................................................ 48
LEGAL MATTERS................................................................ 48
EXPERTS...................................................................... 48
INDEPENDENT ACCOUNTANTS...................................................... 48
OTHER MATTERS................................................................ 48
ANNEX:
Annex A -- Reorganization and Merger Agreement, as amended
(excluding exhibits)........................................... A-1
Annex B -- Opinion of Edelman & Co., Ltd.................................. B-1
Annex C -- Stock Option Agreement......................................... C-1
Annex D -- Perpetual 1997 Annual Report to
Stockholders................................. (Provided Separately)
Annex E -- Perpetual Form 10-Q for Quarter Ended
December 31, 1997............................ (Provided Separately)
</TABLE>
ii
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
OTHER THAN THOSE CONTAINED OR INCORPORATED IN THIS PROSPECTUS/PROXY STATEMENT,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS/PROXY STATEMENT DOES NOT
CONSTITUTE AN OFFER TO EXCHANGE OR SELL, OR A SOLICITATION OF AN OFFER TO
EXCHANGE OR PURCHASE, THE SECURITIES OFFERED BY THIS PROSPECTUS/PROXY STATEMENT,
OR THE SOLICITATION OF A PROXY, IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR TO OR FROM ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. THE INFORMATION CONTAINED IN THIS
PROSPECTUS/PROXY STATEMENT SPEAKS AS OF THE DATE HEREOF UNLESS OTHERWISE
SPECIFICALLY INDICATED. INFORMATION CONTAINED IN THIS PROSPECTUS/PROXY
STATEMENT REGARDING COMMERCIAL HAS BEEN FURNISHED BY COMMERCIAL, AND INFORMATION
HEREIN REGARDING PERPETUAL HAS BEEN FURNISHED BY PERPETUAL. NEITHER COMMERCIAL
NOR PERPETUAL WARRANTS THE ACCURACY OR COMPLETENESS OF INFORMATION RELATING TO
THE OTHER PARTY.
AVAILABLE INFORMATION
Commercial has filed with the Commission the Registration Statement under
the Securities Act relating to the shares of Commercial Common Stock to be
issued in connection with the Acquisition Merger. This Prospectus/Proxy
Statement does not contain all the information set forth in the Registration
Statement, certain portions of which have been omitted pursuant to the rules and
regulations of the Commission. The information omitted may be obtained from the
public reference facilities of the Commission or inspected and copied at the
principal or regional offices of the Commission at the addresses listed below.
Commercial and Perpetual are subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, file reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its regional offices at Northwestern Atrium Center, 500 West
Madison, Suite 1400, Chicago, Illinois 60601, and World Trade Center, 13th
Floor, New York, New York 10048. Copies of such materials also can be obtained
from the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy statements and
other information that have been filed electronically with the Commission may
also be obtained from the Commission's Website, the address of which is
http://www.sec.gov. In addition, the Commercial Common Stock is listed and
traded on the New York Stock Exchange. Reports, proxy statements and other
information regarding Commercial may be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by Commercial
(File No. 1-11515) are hereby incorporated by reference in this Prospectus/Proxy
Statement:
(i) Commercial's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
(ii) Commercial's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1997 and December 31, 1997;
(iii) Commercial's Current Reports on Form 8-K dated August 18, 1997,
September 2, 1997, September 11, 1997, November 18, 1997, December 8,
1997, December 15, 1997 and February 11, 1998; and
(iv) the description of the Commercial Common Stock set forth at Item 1 of
Commercial's registration statement on Form 8-A dated July 17, 1995;
1
<PAGE>
The following documents previously filed with the Commission by Perpetual
(File No. 0-23368) are hereby incorporated by reference in this Prospectus/Proxy
Statement:
(i) Perpetual's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1997;
(ii) Perpetual's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1997 and December 31, 1997; and
(iii) Perpetual's Current Reports on Form 8-K dated July 21, October 16
and December 23, 1997 and January 27, 1998.
In addition, Perpetual's 1997 Annual Report to Stockholders and Quarterly
Report on Form 10-Q for the quarter ended December 31, 1997 accompany this
Prospectus/Proxy Statement and are incorporated herein by reference.
All documents subsequently filed by Commercial with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus/Proxy Statement and prior to the date of the Special Meeting
shall be deemed to be incorporated by reference in this Prospectus/Proxy
Statement and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus/Proxy Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part of
this Prospectus/Proxy Statement, except as so modified or superseded.
This Prospectus/Proxy Statement incorporates by reference other documents
relating to Commercial and Perpetual which are not presented herein or delivered
herewith. These documents are available upon request without charge, in the case
of documents relating to Commercial, directed to Mr. Gary L. Matter,
Commercial's Corporate Secretary, 2120 South 72nd Street, Omaha, Nebraska 68124,
telephone (402) 390-5176 or, in the case of documents relating to Perpetual, to
Rick L. Brown, Perpetual's Corporate Treasurer and Chief Financial Officer,
Perpetual Midwest Financial, Inc., 700 First Avenue, N.E., Cedar Rapids, Iowa
52401, telephone (319) 366-1851. IN ORDER TO ENSURE TIMELY DELIVERY OF ANY
REQUESTED DOCUMENTS, THE REQUEST SHOULD BE MADE NO LATER THAN THE CLOSE OF
BUSINESS ON APRIL 9, 1998.
2
<PAGE>
SUMMARY
This summary does not purport to be complete and is qualified in its
entirety by the detailed information and definitions appearing elsewhere herein,
the annexes hereto and documents incorporated by reference herein.
The Special Meeting of Perpetual Stockholders
The Special Meeting will be held on Tuesday, April 14, 1998 at 2:00 p.m.,
local time, at the Crowne Plaza Hotel located at 350 First Avenue, N.E., Cedar
Rapids, Iowa. At the Special Meeting, stockholders of Perpetual will consider
and vote upon proposals (1) to adopt the Merger Agreement; and (2) to vote upon
any other business which may be properly brought before the Special Meeting.
Stockholders of record at the close of business on February 27, 1998 (the
"Record Date") will be entitled to one vote for each share then so held.
The presence, in person or by proxy, of one-third of the total number of
outstanding shares of Perpetual Common Stock is necessary to constitute a quorum
at the Special Meeting. The affirmative vote of at least a majority of the
issued and outstanding shares of Perpetual Common Stock entitled to vote at the
Special Meeting is required to adopt the Merger Agreement. Perpetual's
directors and executive officers are expected to vote all of their 245,621
(12.6%) shares of Perpetual's Common Stock beneficially owned as of the Record
Date "FOR" adoption of the Merger Agreement and "FOR" approval of the other
proposal.
For additional information, see "Information Concerning the Special
Meeting" herein.
Commercial Federal Corporation and Commercial Federal Bank, a Federal Savings
Bank
Commercial is a unitary non-diversified savings and loan holding company
whose primary asset is the Bank, which is one of the largest depository
institutions in the Midwest. At December 31, 1997, Commercial had total assets
of $7.2 billion and total stockholders' equity of $458.4 million. Based upon
total assets at that date, Commercial was the 13th largest publicly held thrift
holding company in the United States. Commercial is a consumer-oriented
financial institution that emphasizes single-family residential and construction
real estate lending, consumer lending, commercial real estate lending, retail
deposit activities, including demand deposit accounts, and mortgage banking. At
February 27, 1998, after its acquisition of Mid Continent Bancshares, Inc. ("Mid
Continent") and including anticipated branch consolidations, Commercial operated
34 branch offices in Nebraska, 21 branch offices in greater metropolitan Denver,
Colorado, 19 branch offices in Oklahoma, 38 branch offices in Kansas, 45 branch
offices in Iowa and seven branch offices in Arizona. Throughout its 111 year
history, Commercial has emphasized customer service. To serve its customers,
Commercial conducts loan origination activities through its 164 branch office
network, loan offices of its wholly-owned mortgage banking subsidiary and a
nationwide correspondent network of mortgage loan originators. Commercial also
provides insurance and securities brokerage and other retail financial services.
Commercial's strategy for growth emphasizes both internal and external
growth. Operations focus on increasing deposits, including demand accounts,
making loans (primarily single-family mortgage and consumer loans), community
banking, and providing customers with a full array of financial products and a
high level of customer service. As part of its long-term strategic plan,
Commercial intends to expand its operations within its market areas either
through direct marketing efforts aimed at increasing market share, branch
expansions, or opening additional branches. Commercial's retail strategy will
continue to be centered on attracting new customers and selling both new and
existing customers multiple products and services. Additionally, Commercial
will continue to build and leverage an infrastructure designed to increase fee
and other income.
Complementing its strategy of internal growth, Commercial continues to grow
its present six-state franchise through an ongoing program of selective
acquisitions of other financial institutions. Future acquisition candidates
will
3
<PAGE>
be selected based on the extent to which the candidates can enhance Commercial's
retail presence in new or underserved markets and complement Commercial's
existing retail network.
Commercial's principal executive offices are located at 2120 South 72nd
Street, Omaha, Nebraska 68124, and its telephone number is (402) 554-9200.
For additional information, see "Commercial Federal Corporation and
Commercial Federal Bank, a Federal Savings Bank" herein.
Perpetual Midwest Financial, Inc. and Perpetual Savings Bank, FSB
Perpetual was formed at the direction of Perpetual Savings in December 1993
for the purpose of owning all of the outstanding stock of Perpetual Savings
issued upon the conversion of Perpetual Savings from the mutual to the stock
form (the "Conversion"). On March 30, 1994 Perpetual acquired all of the shares
of Perpetual Savings in connection with the completion of the Conversion.
Perpetual's Common Stock is quoted on the National Association of Securities
Dealers Automated Quotations ("Nasdaq") National Market under the symbol "PMFI".
Perpetual is incorporated under the laws of the State of Delaware, and
authorized to do business in the State of Iowa, and generally is authorized to
engage in any activity that is permitted by the Delaware General Corporation
Law. The assets of Perpetual consist of the stock of Perpetual Savings and a
diversified investment portfolio. Activities of Perpetual are funded by
proceeds and income on the investment portfolio at the holding company level and
dividends from Perpetual Savings, if any. At December 31, 1997, Perpetual had
total consolidated assets of $392.1 million and deposits of $313.9 million.
Perpetual Savings is a federally chartered stock savings bank headquartered
in Cedar Rapids, Iowa. Originally organized in 1875, Perpetual Savings
converted to a federal mutual savings bank in 1991. Its deposits are insured up
to applicable limits by the Federal Deposit Insurance Corporation ("FDIC").
Perpetual Savings is primarily engaged in the business of accepting deposits
from the general public and originating and purchasing loans secured by real
estate and other loans. Perpetual Savings' primary market area covers all or a
portion of Linn and Johnson Counties, Iowa, which are serviced through its four
full service branch offices located in Cedar Rapids and one additional full
service branch office located in Iowa City, Iowa.
The executive offices of Perpetual and Perpetual Savings are located at 700
First Avenue, N.E., Cedar Rapids, Iowa 52401, and the telephone number at that
address is (319) 366-1851.
For additional information, see "Perpetual Midwest Financial, Inc. and
Perpetual Savings Bank, FSB" herein and Perpetual's 1997 Annual Report to
Stockholders and Quarterly Report on Form 10-Q for the quarter ended December
31, 1997, which accompany this Prospectus/Proxy Statement.
The Merger
General. The Merger Agreement provides for the acquisition of Perpetual
by Commercial, and the subsequent merger of Perpetual Savings and the Bank, as
follows: (i) Perpetual will merge into Commercial, with Commercial as the
surviving corporation, pursuant to which the outstanding shares of Perpetual
Common Stock will be converted into shares of Commercial Common Stock and cash
in lieu of fractional shares as set forth below under " -- Conversion of
Perpetual Common Stock" (the "Acquisition Merger"); and (ii) Perpetual Savings
will, following the Acquisition Merger, merge into the Bank, with the Bank as
the surviving savings institution (the "Bank Merger") (collectively the
"Merger"). At the Acquisition Merger Effective Time, Perpetual will have merged
into Commercial. Upon the consummation of the Bank Merger (the "Bank Merger
Effective Time"), Perpetual Savings will have merged into the Bank, Commercial
will be the resulting savings institution holding company, and the Bank will be
the resulting savings
4
<PAGE>
institution. It is anticipated that the Bank Merger Effective Time will occur
immediately following the Acquisition Merger Effective Time.
The Board of Directors of Perpetual considered the Merger and the terms of
the Merger Agreement, including the consideration to be paid to Perpetual
stockholders, in light of economic, financial, legal, market and other factors
and concluded that the Merger is in the best interests of Perpetual and its
stockholders. THE BOARD OF DIRECTORS OF PERPETUAL RECOMMENDS THAT PERPETUAL'S
STOCKHOLDERS VOTE FOR ADOPTION OF THE MERGER AGREEMENT.
For additional information, see "Proposal 1 -- The Merger -- General," " --
Background of the Merger" and " -- Reasons for the Merger and Recommendation of
the Perpetual Board of Directors" herein and the Merger Agreement attached as
Annex A hereto.
Financial Advisor and Opinion of Financial Advisor. The Board of Directors
of Perpetual has received a written opinion of Edelman & Co., Ltd. ("Edelman"),
Perpetual's financial advisor, that, as of the date of such opinion, based upon
and subject to the assumptions, factors and limitations set forth therein, the
Exchange Ratio is fair to Perpetual stockholders from a financial point of view.
As discussed in "Proposal 1 -- The Merger -- Reasons for the Merger and
Recommendations of Perpetual Board of Directors," Edelman's opinion was among
the factors considered by Perpetual's Board of Directors in reaching the
determination to approve the Merger Agreement. A copy of the Edelman opinion
dated December 14, 1997 is attached as Annex B hereto, and the description set
forth herein is qualified in its entirety by reference to the opinion. See
"Proposal 1 -- The Merger -- Opinion of Financial Advisor."
Conversion of Perpetual Common Stock. Pursuant to the Merger Agreement,
each outstanding share of Perpetual Common Stock issued and outstanding
immediately prior to the Acquisition Merger Effective Time, except as provided
hereafter, shall be converted into and represent solely the right to receive
.8636 of a share of Commercial Common Stock (the Exchange Ratio), subject to
adjustment as hereinafter described. At the Acquisition Merger Effective Time,
the holders of certificates representing shares of Perpetual Common Stock shall
cease to have any rights as stockholders of Perpetual, except the right to
receive the Merger Consideration. Perpetual Common Stock held by Perpetual
(except for shares held in any qualified plan of Perpetual or any of its
subsidiaries or otherwise held in a fiduciary capacity or in satisfaction of a
debt previously contracted) or by Commercial or any of Commercial's subsidiaries
(other than in a fiduciary capacity) at the Acquisition Merger Effective Time
shall be cancelled. See "Proposal 1 -- The Merger -- Conversion of Perpetual
Common Stock."
Cash will be paid in lieu of fractional shares. The cash value paid for a
stockholder's fractional share interest will be equal to the product of the
fraction multiplied by the average New York Stock Exchange ("NYSE") closing
price of Commercial Common Stock (the "Average NYSE Closing Price"). The
Average NYSE Closing Price will be the arithmetic mean of the NYSE Closing
Prices of the Commercial Common Stock for the twenty-fifth through the sixth
trading day, inclusive, immediately preceding the business day prior to the
later of (A) the date on which all requisite federal and state regulatory
approvals required to consummate the transactions contemplated by the Merger
Agreement are obtained, (B) the date of the Special Meeting, or (C) the 25/th/
day of the month immediately preceding the month in which the parties have
scheduled in writing the closing of the Acquisition Merger to occur, or the next
succeeding business day (the "Determination Period"). See "Proposal 1 -- The
Merger -- Conversion of Perpetual Common Stock."
The Exchange Ratio, the Average NYSE Closing Price, as well as all per
share data included herein with respect to Commercial for periods prior to
December 15, 1997, have been adjusted to reflect a three-for-two stock split
effected in the form of a 50% stock dividend declared by Commercial on November
17, 1997 and distributed on December 15, 1997 to stockholders of record as of
November 28, 1997. If the holders of Commercial Common Stock shall have
received or shall become entitled to receive, without payment therefor, prior to
the Acquisition Merger Effective Time, any additional shares of common stock or
other securities for their stock by way of a stock split, stock dividend,
reclassification, combination of shares, spinoff or similar corporate
rearrangement or Commercial shall exchange Commercial Common Stock for a
different number of kind of shares or securities ("Stock Adjustment"), then
5
<PAGE>
the Exchange Ratio shall be proportionately adjusted to take into account such
Stock Adjustment. In addition, the Average NYSE Closing Price shall likewise be
proportionately adjusted to compensate for any such Stock Adjustment.
Based on the $35.375 closing price of the Commercial Common Stock as
reported on the NYSE for February 27, 1998, the market value of the Merger
Consideration would be $30.55 per share of Perpetual Common Stock. The market
value of Commercial Common Stock to be received in the Merger, however is
subject to fluctuation. Fluctuations in the market price of Commercial Common
Stock will result in an increase or decrease in the value of the Merger
Consideration to be received in the Acquisition Merger.
Treatment of Perpetual Stock Options. At the Acquisition Merger Effective
Time, each option outstanding under Perpetual's 1993 Stock Option and Incentive
Plan (the "Perpetual Option Plan"), whether or not then exercisable, shall
continue outstanding as an option to purchase, in place of the purchase of
Perpetual Common Stock, the number of shares (rounded to the nearest whole
share) of Commercial Common Stock that would have been received by the optionee
in the Acquisition Merger had the option been exercised in full (without regard
to any limitations contained therein on exercise) for shares of Perpetual Common
Stock immediately prior to the Acquisition Merger upon the same terms and
conditions under the relevant option as were applicable immediately prior to the
Acquisition Merger Effective Time, except for appropriate pro rata adjustments
as to relevant option price for shares of Commercial Common Stock substituted
therefor so that the aggregate option exercise price of shares subject to an
option immediately following the assumption and substitution shall be the same
as the aggregate option exercise price for such shares immediately prior to such
assumption and substitution. Commercial shall assume at the Acquisition Merger
Effective Time each such option, and such assumption shall be undertaken in such
a manner that will not constitute a "modification" under Section 424 of the
Internal Revenue Code of 1986, as amended (the "Code"), as to any stock option
which is an "incentive stock option." See "Proposal 1 -- The Merger --
Conversion of Perpetual Common Stock."
Dissenters' Appraisal Rights. Under Delaware Law, Perpetual's stockholders
will not be entitled to appraisal rights in connection with the Acquisition
Merger. See "Proposal 1 -- The Merger -- No Dissenters' Appraisal Rights."
Conditions to the Merger. The obligations of Commercial and Perpetual to
effect the Merger are jointly subject to a number of conditions regarding, among
other things, adoption of the Merger Agreement by Perpetual stockholders,
regulatory approval of the Merger and receipt of an opinion with respect to the
tax effects of the Merger. The obligations of Commercial and the Bank to effect
the Merger and the transactions contemplated in the Merger Agreement are subject
to a number of additional conditions regarding, among other things, (i) receipt
of a customary legal opinion from Perpetual's legal counsel; (ii) receipt by
Perpetual and Perpetual Savings of all necessary third party consents and
approvals; (iii) receipt of a letter from Perpetual's independent public
accountants regarding certain financial information included in this
Prospectus/Proxy Statement and other matters; (iv) the absence of material
adverse changes in the financial condition, business or results of operations of
Perpetual and its subsidiaries; (v) the accuracy of Perpetual's and Perpetual
Savings' representations and their performance of obligations and compliance
with covenants and conditions under the Merger Agreement; (vi) the absence of
any pending litigation involving Perpetual or its subsidiaries reasonably
probable of having a material adverse effect on Perpetual and its subsidiaries
taken as a whole; and (vii) the receipt of all required governmental approvals
without the imposition of any conditions which Commercial and the Bank determine
to be unduly burdensome on the conduct of the business of Commercial or the
Bank. The obligations of Perpetual and Perpetual Savings to effect the
Acquisition Merger and the transactions contemplated in the Merger Agreement are
subject to a number of additional conditions regarding, among other things, (i)
receipt of a customary legal opinion from Commercial's legal counsel; (ii) the
accuracy of Commercial's and the Bank's representations and warranties and their
performance of obligations and compliance with covenants and conditions under
the Merger Agreement; (iii) receipt by Commercial and the Bank of all necessary
third party consents and approvals; (iv) receipt of approval for listing on the
NYSE of the shares of Commercial Common Stock issuable pursuant to the Merger
Agreement, subject to official notice of issuance and (v) delivery of a
certificate for the required number of whole shares of Commercial Common Stock
and cash for fractional share interests to the designated Exchange Agent. For
additional information, see "Proposal 1 -- The Merger -- Conditions to
Consummation of the Merger."
6
<PAGE>
Required Regulatory Approvals. The Merger is subject to the approval of
the Office of Thrift Supervision ("OTS"). Following OTS approval of the Merger,
the U.S. Department of Justice may review the Merger and raise objections on
antitrust grounds, though objections on such grounds are not expected. For
additional information, see "Proposal 1 -- The Merger -- Required Regulatory
Approvals."
Termination of the Merger. The Merger Agreement may be terminated at any
time before the Acquisition Merger Effective Time, whether before or after
approval by Perpetual stockholders, in a number of circumstances, including: (a)
by mutual consent of the parties; (b) at the election of either party, if the
closing of the Acquisition Merger shall not have occurred on or before August
31, 1998; (c) by either party upon the occurrence of an event which renders
satisfaction of one or more of the conditions to the obligations of the other
party impossible; and (d) by Perpetual at any time during the two business days
commencing on the business day immediately following the end of the
Determination Period, if the Average NYSE Closing Price of Commercial Common
Stock is less than $30.1666 (as adjusted in connection with any Stock Adjustment
described above). However, in the event that Perpetual attempts to terminate
the Merger Agreement pursuant to subparagraph (d) above, Commercial shall have
the option to increase the consideration to be received by the holders of
Perpetual Common Stock by adjusting the Exchange Ratio to equal the number
obtained by dividing $26.05 by the Average NYSE Closing Price.
Stock Option Agreement; Termination Fee. As a condition to Commercial's
entry into the Merger Agreement, Commercial and Perpetual entered into a Stock
Option Agreement dated December 15, 1997 (the "Stock Option Agreement"),
pursuant to which Perpetual granted to Commercial an option to purchase 185,419
shares (9.9% of the outstanding shares of Perpetual Common Stock, excluding
shares to be issued pursuant to the Stock Option Agreement), subject to
adjustment, of authorized Perpetual Common Stock upon or after the occurrence of
an "Initial Triggering Event" (as defined herein), and a "Subsequent Triggering
Event" (as defined herein), which occur prior to an "Exercise Termination Event"
(as defined herein). The exercise price per share is equal to $27.75, subject
to adjustment. The Stock Option Agreement also contains provisions which may
require Perpetual to repurchase the option from Commercial or the holder of the
option, or to repurchase option shares already purchased under certain
circumstances, and additional provisions which would require the option to be
incorporated in certain of Perpetual's future registration statements under
certain circumstances. The Stock Option Agreement is intended to increase the
likelihood that the Merger will be consummated in accordance with the terms of
the Merger Agreement. Consequently, certain aspects of the Stock Option
Agreement may have the effect of discouraging persons who otherwise might be
interested in acquiring all or a significant interest in Perpetual from
considering or proposing such an acquisition, even if such persons were prepared
to pay for the Perpetual Common Stock a price in excess of that being paid by
Commercial in the Merger. For additional information, see "Proposal 1 -- The
Merger -- Stock Option Agreement" and " -- Expenses and Termination Fee" and the
Stock Option Agreement, which is attached hereto as Annex C.
In addition, Perpetual and Perpetual Savings have agreed that at such time
as the option granted by Perpetual to Commercial pursuant to the Stock Option
Agreement becomes exercisable, Perpetual or Perpetual Savings will upon demand
pay to Commercial or the Bank in immediately available funds $1,350,000. For
additional information, see "Proposal 1 -- The Merger -- Amendment or
Termination of the Merger Agreement" and " -- Expenses and Termination Fee."
Interests of Certain Persons in the Merger. Shares of Perpetual Common
Stock held by directors, officers and employees of Perpetual will be converted
into Commercial Common Stock under the Merger Agreement on the same basis as
shares held by other Perpetual stockholders. Directors, officers and employees
of Perpetual who hold unexercised options to purchase Perpetual Common Stock
under the Perpetual Option Plan at the Acquisition Merger Effective Time will
have their stock options converted into options to purchase shares of Commercial
Common Stock. See "Proposal 1 -- The Merger -- Treatment of Perpetual Stock
Options." At February 27, 1998, officers and directors of Perpetual held
options to purchase 94,604 shares of Perpetual Common Stock at $10.00 per share.
7
<PAGE>
Four officers of Perpetual will also receive severance payments and
insurance benefits as a result of the Merger, and Mr. James L. Roberts will
receive approximately $715,000 as of the Acquisition Merger Effective Time
pursuant to an employment agreement currently in effect. In addition, Mr.
Roberts will receive approximately $45,000 for consulting services rendered
during the six-month period following the Acquisition Merger Effective Time.
In addition, Commercial has agreed to provide indemnification for a
specified period following the Acquisition Merger Effective Time to Perpetual's
directors and officers to the same extent that they are indemnified currently.
Commercial has also agreed to continue coverage under Perpetual's existing
directors' and officers' liability insurance policy for a period of 18 months
with respect to acts or omissions occurring prior to the Acquisition Merger
Effective Time.
For additional information, see "Proposal 1 -- The Merger -- Management
after the Merger," " -- Employee Benefit Plans after the Merger" and " --
Interests of Certain Persons in the Merger" herein.
Federal Income Tax Consequences. Commercial and Perpetual will rely upon
an opinion of Deloitte & Touche llp, tax advisor to Commercial, to the effect
that, among other things, (i) the Acquisition Merger should be treated for
federal income tax purposes as a tax-free reorganization under Section 368(a) of
the Code; (ii) the gain, if any, to be realized by a Perpetual stockholder who
receives Commercial Common Stock and cash in lieu of fractional shares in
exchange for Perpetual Common Stock should be recognized, but not in excess of
the amount of cash received; and (iii) cash received by Perpetual stockholders
in lieu of fractional share interests in Commercial Common Stock should be
treated as having been received as distributions in full payment in exchange for
the fractional share interests in Commercial Common Stock which they would
otherwise be entitled to receive and should qualify as capital gain or loss if
the stockholders held Perpetual Common Stock as a capital asset at the
Acquisition Merger Effective Time. See "Proposal 1 -- The Merger -- Federal
Income Tax Consequences" herein.
Accounting Treatment. Commercial expects the Acquisition Merger to be
accounted for as a pooling of interests, under which the recorded assets and
liabilities of Commercial and Perpetual will be carried forward to the
surviving corporation in the Merger (Commercial) at their recorded amounts;
income of the surviving corporation will include income of Commercial and
Perpetual for the entire fiscal year in which the Merger occurs; and the
reported revenues and expenses of Commercial and Perpetual for all prior periods
presented will be combined and restated as revenues and expenses of the
surviving corporation (Commercial). See "Proposal 1 -- The Merger -- Accounting
Treatment."
Comparison of Stockholder Rights
Upon consummation of the Acquisition Merger, holders of Perpetual Common
Stock, whose rights are presently governed by Delaware law and Perpetual's
certificate of incorporation and bylaws, and indirectly Perpetual Savings'
charter and bylaws, will become stockholders of Commercial, a Nebraska
corporation. Accordingly, their rights will be governed by the Nebraska
Business Corporation Act and the articles of incorporation and bylaws of
Commercial, and indirectly by the Bank's charter and bylaws. Certain
differences arise from the change in governing law, as well as from differences
between the certificate of incorporation and bylaws of Perpetual and the
articles of incorporation and bylaws of Commercial and between the charter and
bylaws of Perpetual Savings and the Bank. In addition, Commercial has in effect
a shareholder rights plan, while Perpetual has not adopted any similar plan. For
detailed information in this regard, see "Comparison of Stockholder Rights"
herein.
8
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF
COMMERCIAL FEDERAL CORPORATION
The following summary historical consolidated financial data of Commercial
is as of and for the years ended June 30, 1997, 1996, 1995, 1994 and 1993. The
financial data presented below has not been restated, nor is such financial data
required to be restated, for the recently completed mergers with Liberty
Financial Corporation ("Liberty") (completed February 13, 1998) and Mid
Continent (completed February 27, 1998) which will each be accounted for as a
pooling of interests. This information has been derived from and should be read
in conjunction with Commercial's Consolidated Financial Statements and the Notes
thereto, as well as the information under the caption "Selected Consolidated
Financial Data" contained in Commercial's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997, which is incorporated herein by reference. The
following summary consolidated interim financial data for the six months ended
December 31, 1997 and 1996 has been derived from unaudited consolidated interim
financial statements which, in the opinion of management, include all
adjustments (consisting of normal recurring adjustments), considered necessary
for a fair presentation. The summary consolidated financial data for the six
months ended December 31, 1997 and 1996 should be read in conjunction with
Commercial's unaudited Consolidated Financial Statements and the Notes thereto
for the six months ended December 31, 1997 and 1996 included in Commercial's
Quarterly Report on Form 10-Q for the quarter ended December 31, 1997, which is
incorporated herein by reference. The consolidated financial data for the six
months ended December 31, 1997 is not necessarily indicative of the operating
results to be expected for the entire fiscal year. On November 17, 1997, the
Board of Directors of Commercial authorized a three-for-two stock split to be
effected in the form of a 50% stock dividend to stockholders of record on
November 28, 1997. Par value remained at $.01 per share. The stock dividend
was distributed on December 15, 1997. Fractional shares resulting from the
stock split were paid in cash. All per share data and stock prices for all
periods prior to December 15, 1997, presented in this Prospectus/Proxy Statement
have been adjusted on a retroactive basis to reflect the effect of this three-
for-two stock split.
<TABLE>
<CAPTION>
Financial Condition Data and Capital Ratios:
At At June 30,
December 31 ----------------------------------------------------------------
1997 1997 1996 1995 1994 1993
------------ ------------ ----------- ----------- ----------- -----------
(Unaudited) (Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C>
Total assets..................................... $7,189,342 $7,096,665 $6,607,670 $6,569,579 $5,982,307 $5,262,336
Investment securities (1)........................ 445,013 399,057 253,043 300,481 290,807 254,889
Mortgage-backed securities (2)................... 1,031,945 1,025,763 1,180,046 1,364,907 1,350,402 952,539
Loans receivable, net (3)........................ 5,307,086 5,258,739 4,813,164 4,540,692 3,970,626 3,655,740
Goodwill and core value of deposits.............. 45,074 48,178 40,734 37,263 67,661 87,946
Deposits......................................... 4,248,932 4,378,919 4,304,576 4,011,323 3,675,825 2,731,127
Advances from Federal Home Loan Bank............. 1,716,829 1,415,506 1,350,290 1,787,352 1,625,456 1,868,779
Securities sold under agreements to repurchase.. 564,294 639,294 380,755 208,373 157,432 154,862
Other borrowings................................. 102,304 128,982 58,546 65,303 66,640 76,966
Stockholders' equity............................. 458,421 426,106 413,277 337,614 304,568 297,848
Book value per common share (4).................. 14.06 13.18 12.17 10.51 9.56 9.46
Tangible book value per common share(4)(5)....... 12.68 11.69 10.97 9.35 7.44 6.66
Regulatory capital ratios of the Bank:
Tangible capital............................... 6.69% 6.31% 6.18% 5.16% 4.69% 4.62%
Core capital (Tier 1 capital).................. 6.83% 6.47% 6.41% 5.47% 5.53% 5.93%
Risk-based capital:
Tier 1 capital............................. 13.38% 12.79% 12.56% 12.02% 12.18% 11.93%
Total capital.............................. 14.40% 13.81% 13.62% 13.12% 13.16% 12.81%
Principal balance of loans serviced for others... 5,798,600 5,951,800 5,869,800 5,151,100 4,635,945 4,327,354
- --------------------
</TABLE>
(1) Includes investment securities available for sale totaling $96.0 million,
$19.9 million, $9.9 million, $3.0 million, $5.4 million and $1.3 million,
respectively at December 31, 1997 and June 30, 1997, 1996, 1995, 1994 and
1993.
(2) Includes mortgage-backed securities available for sale totaling $191.7
million, $195.8 million, $263.2 million, $37.0 million, $45.0 million and
$41.3 million, respectively, at December 31, 1997 and June 30, 1997, 1996,
1995, 1994 and 1993.
(3) Includes loans held for sale totaling $57.9 million, $68.7 million, $89.4
million, $113.4 million, $187.7 million and $171.8 million, respectively, at
December 31, 1997 and June 30, 1997, 1996, 1995, 1994 and 1993.
(4) On November 17, 1997, the Board of Directors of Commercial authorized a
three-for-two stock split to be effected in the form of a 50 percent stock
dividend to stockholders of record on November 28, 1997. Par value remained
at $.01 per share. The stock dividend was distributed on December 15, 1997.
Fractional shares resulting from the stock split were paid in cash. All per
share data and stock prices for all periods prior to December 15, 1997,
presented have been adjusted on a retroactive basis to reflect the effect of
this three-for-two stock split.
(5) Calculated by dividing stockholders' equity, reduced by the amount of
goodwill and core value of deposits, by the number of shares of common stock
outstanding at the respective dates.
9
<PAGE>
COMMERCIAL FEDERAL CORPORATION
<TABLE>
<CAPTION>
Operating Data:
Six Months Ended
December 31, Year Ended June 30,
---------------------- -------------------------------------------------------------------------
1997 1996 1997 1996 1995 1994 1993
------- -------- --------- -------- -------- -------- --------
(Unaudited) (Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Interest income............ $266,030 $250,533 $505,050 $491,092 $454,368 $393,854 $404,628
Interest expense........... 179,473 167,944 337,047 328,317 304,526 256,102 276,584
-------- -------- -------- -------- -------- -------- --------
Net interest income........ 86,557 82,589 168,003 162,775 149,842 137,752 128,044
Provision for loan losses.. (4,100) (3,766) (8,121) (6,107) (6,408) (6,248) (6,185)
Loan servicing fees........ 15,565 14,771 30,350 27,891 24,731 22,227 18,776
Retail fees and charges.... 8,984 7,916 16,114 12,747 9,547 9,155 7,874
Real estate operations..... 797 1,134 1,016 172 1,490 (1,449) (5,243)
Gain (loss) on sales of
loans..................... 364 127 386 164 (1,695) 1,433 1,194
Gain (loss) on sales of
securities, net........... 1,026 100 390 253 (41) 220 (231)
Gain on sale of loan
servicing rights.......... 380 -- -- 452 3,519 5,929 6,903
Other operating income..... 6,589 4,297 10,223 7,967 7,515 7,178 5,169
General and administrative
expenses.................. 59,239 57,703 112,931 114,517 102,554 94,115 89,560
Federal deposit insurance
special assessment........ -- 27,062 27,062 -- -- -- --
Amortization of goodwill
and core value of
deposits................. 3,104 5,125 9,855 9,529 10,262 14,131 10,544
Valuation adjustment and
accelerated amortization
of goodwill............... -- -- -- -- 21,357 52,703 --
-------- -------- -------- -------- -------- -------- --------
Income before income
taxes, extraordinary
items and cumulative
effects of changes in
accounting principles.... 53,819 17,278 68,513 82,268 54,327 15,248 56,197
Provision for income taxes. 18,951 5,838 23,836 26,962 23,146 16,875 22,081
-------- -------- -------- -------- -------- -------- --------
Income before extraordinary
items and cumulative
effects of changes in
accounting principles.... 34,868 11,440 44,677 55,306 31,181 (1,627) 34,116
Extraordinary items (1).... -- (583) (583) -- -- -- --
Cumulative effects of
changes in accounting
principles (2)............ -- -- -- -- -- 6,597 --
-------- -------- -------- -------- -------- -------- --------
Net income................. $ 34,868 $ 10,857 $ 44,094 $ 55,306 $ 31,181 $ 4,970 $ 34,116
======== ======== ======== ======== ======== ======== ========
Earnings per share
(basic)(3):
Income before extraordinary
items and cumulative
effects of changes in
accounting principles.. $ 1.08 $ .35 $ 1.38 $ 1.68 $ .98 $ (.05) $ 1.18
Extraordinary items (1).. -- (.02) (.02) -- -- -- --
Cumulative effects of
changes in accounting
principles (2).......... -- -- -- -- -- .21 --
-------- -------- -------- -------- -------- -------- --------
Net income............... $ 1.08 $ .33 $ 1.36 $ 1.68 $ .98 $ .16 $ 1.18
======== ======== ======== ======== ======== ======== ========
Earnings per share
(dilutive) (3):
Income before extraordinary
items and cumulative
effects of changes in
accounting principles.. $ 1.06 $ .35 $ 1.36 $ 1.66 $ .96 $ (.05) $ 1.08
Extraordinary items (1).. -- (.02) (.02) -- -- -- --
Cumulative effects of
changes in accounting
principles (2).......... -- -- -- -- -- .20 --
-------- -------- -------- -------- -------- -------- --------
Net income............... $ 1.06 $ .33 $ 1.34 $ 1.66 $ .96 $ .15 $ 1.08
======== ======== ======== ======== ======== ======== ========
</TABLE>
(Table continued on following page)
10
<PAGE>
COMMERCIAL FEDERAL CORPORATION
<TABLE>
<CAPTION>
Six Months Ended
December 31 Year Ended June 30,
------------------------------- ---------------------------------------------------------------------
1997 1996 1997 1996 1995 1994 1993
------------ ----------------- ------------ ------------ ------------ ------------ ------------
(Unaudited) (Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Data (Continued):
Dividends declared per
common share (3).......... $ .102 $ .092 $ .185 $ .178 $ -- $ -- $ --
=========== =========== =========== =========== =========== =========== ===========
Weighted average basic
common shares
outstanding (3).......... 32,404,454 32,467,709 32,374,625 32,908,722 31,924,073 31,607,096 28,915,170
=========== =========== =========== =========== =========== =========== ===========
Weighted average diluted
common shares
outstanding (3).......... 32,970,111 32,933,820 32,857,440 33,406,071 32,430,600 32,255,691 31,604,743
=========== =========== =========== =========== =========== =========== ===========
Operating Ratios and Other Data:
Net interest rate spread
during period........... 2.36% 2.43% 2.39% 2.34% 2.26% 2.43% 2.57%
Net yield on interest-
earning assets.......... 2.52% 2.56% 2.57% 2.58% 2.46% 2.59% 2.65%
Return on average assets
(4)..................... .97% .32% .65% .84% .49% .09% .67%
Return on average equity
(4)..................... 15.84% 5.54% 11.04% 14.74% 9.98% 1.54% 12.39%
Dividend payout ratio (5) 9.62% 27.88% 13.81% 10.72% -- -- --
Total number of branches
at end of period........ 108 105 107 98 89 73 55
- --------------------------
</TABLE>
(1) Represents the loss on early retirement of debt, net of income tax
benefits.
(2) Represents the cumulative effect of the change in the method of accounting
for income taxes less the cumulative effect of the changes in accounting
for postretirement benefits, net of income tax benefit.
(3) On November 17, 1997, the Board of Directors of Commercial authorized a
three-for-two stock split to be effected in the form of a 50 percent stock
dividend to stockholders of record on November 28, 1997. Par value
remained at $.01 per share. The stock dividend was distributed on December
15, 1997. Fractional shares resulting from the stock split were paid in
cash. All per share data and stock prices for all periods prior to
December 15, 1997, presented have been adjusted on a retroactive basis to
reflect the effect of this three-for-two stock split.
(4) Based on the average daily balances during the six month periods ended
December 31, 1997 and 1996 and fiscal years 1997, 1996, 1995 and 1994 and
on average monthly balances for fiscal year 1993. Return on average assets
(ROA) and return on average equity (ROE) for the six months ended December
31, 1996 are .90% and 15.48%, respectively, excluding the after-tax effect
of the nonrecurring expenses totaling $17.3 million, $1.5 million and
$103,000 associated with the Savings Association Insurance Fund special
assessment, the repurchase of 2,812,725 shares of Commercial's common stock
and the change in income taxes for tax bad debt reserves, respectively.
ROA and ROE for fiscal year 1997 are .93% and 15.91%, respectively,
excluding the after-tax effect of the nonrecurring expenses totaling $17.3
million, $1.5 million, $583,000 and $103,000, associated with the Savings
Association Insurance Fund special assessment, the repurchase of 2,812,725
shares of Commercial's common stock, the loss on early retirement of debt
and the change in income taxes for tax bad debt reserves, respectively.
ROA and ROE for fiscal year 1996 are .90% and 15.68%, respectively,
excluding the after-tax effect of the nonrecurring expenses totaling $2.9
million and $585,000 associated with Railroad Financial Corporation merger
and the Corporation's 1995 proxy contest, respectively. ROA and ROE for
fiscal year 1995 are .83% and 16.82%, respectively, excluding the
accelerated amortization of goodwill totaling $21.4 million. ROA and ROE
for fiscal year 1994 are .75% and 13.11%, respectively, excluding the
after-tax effect of the intangible assets valuation adjustment and the
cumulative effects of changes in accounting principles totaling $43.9
million and $6.6 million, respectively.
(5) Represents dividends declared per share divided by dilutive net income per
share. Commercial established a quarterly common stock cash dividend
policy on October 4, 1995, and paid its first dividend on October 31, 1995.
11
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF
PERPETUAL MIDWEST FINANCIAL, INC.
The following summary consolidated financial data of Perpetual is at and
for the dates indicated. This information has been derived from and should be
read in conjunction with Perpetual's Consolidated Financial Statements and the
Notes thereto, as well as the information under the caption "Selected
Consolidated Financial Information" contained in Perpetual's Annual Report for
the fiscal year ended June 30, 1997 and Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997, which accompany this Prospectus/Proxy Statement
and are incorporated herein by reference. The following summary consolidated
interim financial data for the six months ended December 31, 1997 and 1996 has
been derived from unaudited consolidated interim financial statements which, in
the opinion of management, include all adjustments (consisting of normal
recurring adjustments), considered necessary for a fair presentation. The
summary consolidated financial data for the six months ended December 31, 1997
and 1996 should be read in conjunction with Perpetual's unaudited Consolidated
Financial Statements and the Notes thereto for the six months ended December 31,
1997 and 1996 included in Perpetual's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997, which is incorporated herein by reference. The
consolidated financial data for the six months ended December 31, 1997 is not
necessarily indicative of the operating results to be expected for the entire
fiscal year.
Financial Condition Data and Capital Ratios:
<TABLE>
<CAPTION>
At
December 31, At June 30, At
------------ -------------------------------------------------- December 31,
1997 1997 1996 1995 1994 (1) 1993
--------- --------- --------- --------- ---------- ------------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C>
Total assets..................................... $ 392,093 $ 397,229 $ 383,273 $ 349,281 $ 272,172 $ 249,368
Loans receivable, net............................ 337,909 310,522 296,080 227,381 125,910 113,154
Loans held for sale.............................. 153 889 1,871 1,058 1,216 1,788
Mortgage-backed and related securities
held for sale................................. -- -- -- -- -- 104,538
Mortgage-backed and related securities
available for sale............................ 8,548 11,345 32,351 48,457 72,371 --
Mortgage-backed and related securities
held to maturity.............................. -- -- -- 24,816 27,816 --
Trading securities............................... 456 757 990 768 2,718 --
Investment securities held to maturity........... -- -- -- 17,940 21,383 413
Securities available for sale.................... 14,907 29,798 24,050 1,176 99 --
Securities held for sale......................... -- -- -- -- -- 11,431
Other securities................................. 4,641 4,641 4,641 4,500 2,602 2,602
Deposits......................................... 313,868 305,165 261,497 230,840 208,030 211,794
Borrowed funds................................... 38,706 52,203 80,724 77,101 26,051 18,588
Stockholders' equity - substantially
restricted (2)................................ 34,974 33,890 35,588 36,043 34,556 15,124
Book value per common share...................... 18.49 18.00 17.90 17.27 16.27 --
Regulatory capital ratios of Perpetual Savings:
Tangible capital.............................. 8.19% 8.00% 8.17% 8.76% 10.96% 6.06%
Core capital (Tier 1 capital)................. 8.19% 8.00% 8.17% 8.76% 10.96% 6.06%
Risk-based capital:
Tier 1 capital............................. 11.32% 11.69% 12.02% 16.07% 22.48% 12.40%
Total capital.............................. 12.23% 12.60% 12.62% 17.32% 24.56% 13.85%
Principal balance of loans serviced for others... $ 102,516 $ 117,994 $ 132,852 $ 141,279 $ 153,876 $ 159,607
</TABLE>
- ----------------------
(1) During 1994, Perpetual changed its fiscal year from December 31 to June 30.
(2) Perpetual Savings converted from a mutual to a stock savings bank on March
30, 1994.
12
<PAGE>
PERPETUAL MIDWEST FINANCIAL, INC.
Operating Data:
<TABLE>
<CAPTION>
Six Months Ended Six Months
December 31, Year Ended June 30, Ended Year Ended
---------------------- ----------------------------------- June 30, (1) December 31,
1997 1996 1997 1996 1995 1994 1993
--------- --------- --------- --------- --------- ------------ ------------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Total interest and dividend income..... $ 15,389 $ 14,605 $ 29,629 $ 27,074 $ 22,224 $ 8,111 $ 16,564
Total interest expense................. 9,643 9,466 18,979 18,066 14,448 4,839 10,723
--------- --------- --------- --------- --------- --------- ---------
Net interest income.................... 5,746 5,139 10,650 9,008 7,776 3,272 5,841
Provision for loan losses.............. 495 777 1,416 210 4 77 2,157
--------- --------- --------- --------- --------- --------- ---------
Net interest income after provision
for loan losses....................... 5,251 4,362 9,234 8,798 7,772 3,195 3,684
Loan servicing fees.................... 158 191 371 429 483 227 456
Gain (loss) on sales of
interest-earning assets, net.......... 136 235 363 248 (108) (93) 1,415
Gain (loss) on securities
held for sale......................... -- -- -- -- -- -- (424)
Other noninterest income............... 599 484 1,124 675 827 1,121 657
--------- --------- --------- --------- --------- --------- ---------
Total noninterest income............... 893 910 1,858 1,352 1,202 1,255 2,104
Special SAIF assessment................ -- 1,485 1,485 -- -- -- --
Other noninterest expense.............. 4,490 4,545 8,821 7,747 6,758 3,151 4,892
--------- --------- --------- --------- --------- --------- ---------
Total noninterest expense.............. 4,490 6,030 10,306 7,747 6,758 3,151 4,892
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before provision for
income taxes.......................... 1,654 (758) 786 2,403 2,216 1,299 896
Provision (benefit) for
income taxes.......................... 661 (286) 319 909 875 315 378
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)...................... $ 993 $ (472) $ 467 $ 1,494 $ 1,341 $ 984 $ 518
========= ========= ========= ========= ========= ========= =========
Basic earnings (loss) per share (2).... $ .56 $ (.27) $ .26 $ .77 $ .67 $ .30 $ --
Diluted earnings (loss) per
share (2)............................. $ .54 $ (.27) $ .25 $ .74 $ .65 $ .29 $ --
Dividends declared per
common share.......................... $ .15 $ .15 $ .30 $ .225 $ -- $ -- $ --
</TABLE>
- ------------------
(1) During 1994, Perpetual changed its fiscal year from December 31 to June 30.
(2) Earnings (loss) per common share subsequent to Perpetual Savings' stock
conversion effective March 30, 1994. Perpetual was formed in December
1993. All amounts have been restated to reflect adoption of SFAS No. 128
on December 31, 1997.
13
<PAGE>
PERPETUAL MIDWEST FINANCIAL, INC.
Operating Ratios and Other Data:
<TABLE>
<CAPTION>
Six Months Ended
December 31, Year Ended June 30, Six Months Year Ended
----------------------- ------------------------------------- Ended June 30, December 31,
1997 (1) 1996 (1) 1997 1996 1995 1994 (1) 1993
---------- ---------- ---------- ---------- ---------- -------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Performance Ratios:
Interest rate spread information --
Average during period............ 2.69% 2.36% 2.51% 2.20% 2.02% 2.26% 2.11%
End of period.................... 2.73 2.55 2.97 2.48 1.84 2.27 1.85
Net interest margin (2)............. 3.02 2.75 2.84 2.58 2.48 2.60 2.36
Return on assets (ratio of net
income (loss) to average
total assets).................... .50 (.24) .12 .40 .40 .75 .20
Return on stockholders' equity
(ratio of net income (loss) to
average equity).................. 5.78 (2.75) 1.38 4.17 3.80 7.93 3.48
Ratio of operating expense
to average total assets.......... 2.26 3.10 2.61 2.12 2.20 2.41 1.89
Dividend payout (ratio of dividends
paid to net income).............. 28.41 N/A 124.37 30.84 -- -- --
Quality Ratios:
Non-performing assets to total
assets at end of period......... .31 .33 .31 .38 .05 .31 1.19
Allowance for loan losses to
non-performing loans............ 256.81 213.95 280.47 199.55 1,732.90 551.56 102.96
Capital Ratios:
Stockholders' equity to total
assets at end of period......... 8.92 8.64 8.53 9.29 10.32 12.69 6.06
Average stockholders' equity
to average assets............... 8.65 8.82 8.56 9.78 10.57 9.45 5.73
Ratio of average interest-earning
assets to average
interest-bearing liabilities.... 106.36 107.23 106.48 107.02 109.32 108.91 105.73
Number of full service offices...... 5 5 5 5 4 4 4
</TABLE>
- ---------------------
(1) December 31, 1997 and 1996 and June 30, 1994 ratios are annualized for
comparative purposes.
(2) Net interest income divided by average interest-earning assets.
14
<PAGE>
UNAUDITED PRO FORMA COMBINED PER SHARE DATA
The following table presents selected per share data for Commercial and
Perpetual on a historical and pro forma combined basis as if the Acquisition
Merger had been effective as of the dates or the beginning of the periods
indicated.
The Acquisition Merger is expected to be accounted for under the pooling of
interests method, and pro forma data is derived in accordance with such method.
Such pro forma equivalent per share amounts as to net income or loss from
continuing operations, dividends and book value are computed by multiplying the
pro forma combined amounts by the Exchange Ratio of .8636.
Historical information for Commercial and Perpetual is derived from the
respective consolidated financial statements incorporated by reference herein or
included elsewhere herein. In addition, historical information for Commercial
has been adjusted, as applicable, to reflect (i) the merger with First
National, completed January 30, 1998 and accounted for as a purchase, (ii) the
merger with Liberty completed February 13, 1998 and accounted for as a pooling
of interests, and (iii) the merger with Mid Continent completed February 27,
1998, and accounted for as a pooling of interests (collectively, the "Previously
Announced Mergers"). The pro forma results are not necessarily indicative of
the results that would have occurred if the Acquisition Merger had occurred at
the beginning of the periods indicated or which may be obtained in the future.
The information below should be read in conjunction with such historical
consolidated financial statements of Commercial and Perpetual.
On November 17, 1997, the Board of Directors of Commercial authorized a
three-for-two stock split effected in the form of a 50% stock dividend to
stockholders of record on November 28, 1997. Par value remained at $.01 per
share. The stock dividend was distributed on December 15, 1997. Fractional
shares resulting from the stock split were paid in cash. All per share data
and stock prices for all periods prior to December 15, 1997, presented in this
Prospectus/Proxy Statement have been adjusted on a retroactive basis to reflect
the effect of this three-for-two stock split.
<TABLE>
<CAPTION>
Six Months
Ended
December 31, Year Ended
---------------- June 30,
-------------------------
1997 1996 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net income (loss) per
common share (diluted):
Commercial historical..... $1.06 $ .33 $1.34 $1.66 $ .96
Commercial (as adjusted
for Previously
Announced Mergers).... .96 .36 1.34 1.62 1.03
Perpetual historical...... .54 (.27) .25 .74 .65
Pro forma combined (1)(2) .95 .33 1.30 1.59 1.02
Perpetual pro forma
equivalent............... .82 .28 1.12 1.37 .88
Dividends declared per
common share:
Commercial historical..... .102 .092 .185 .178 --
Commercial (as adjusted
for Previously
Announced Mergers)..... .092 .085 .173 .165 .022
Perpetual historical...... .150 .150 .300 .225 --
Pro forma combined (1)(3). .095 .090 .181 .169 .021
Perpetual pro forma
equivalent............... .082 .078 .156 .146 .018
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
At At
December 31, June 30,
1997 1997
------------ --------
<S> <C> <C>
Book value per common share:
Commercial historical................... $14.06 $13.18
Commercial (as adjusted for Previously
Announced Mergers)................... 14.47 13.52
Perpetual historical.................... 18.49 18.00
Pro forma combined (1)(4)............... 14.75 13.81
Perpetual pro forma equivalent.......... 12.74 11.93
</TABLE>
- -------------
(1) As adjusted for Previously Announced Mergers.
(2) Per share data is based upon an Exchange Ratio of .8636 and the issuance
of 1,580,444 additional shares of Commercial Common Stock for the six
months ended December 31, 1997 and 1,536,428 shares for the six months
ended December 31, 1996. Additional shares issued at the Exchange Ratio
for the years ended June 30, 1997, 1996 and 1995 were 1,643,416, 1,735,870
and 1,770,693 shares, respectively.
(3) Pro forma combined dividends declared per common share are based upon an
Exchange Ratio of .8636 and the issuance of 1,633,067 additional shares of
Commercial Common Stock as of December 31, 1997 and 1,647,125 shares as of
December 31, 1996. Shares issued at the Exchange Ratio as of June 30,
1997, 1996 and 1995 were 1,625,791, 1,716,907 and 1,802,406, respectively.
(4) Pro forma combined book value per common share is based upon an Exchange
Ratio of .8636 and the issuance of 1,633,067 shares of Commercial Common
Stock as of December 31, 1997 and 1,625,791 additional shares as of June
30, 1997.
INFORMATION CONCERNING THE SPECIAL MEETING
General
This Prospectus/Proxy Statement is being furnished to the stockholders of
Perpetual as part of the solicitation of proxies by its Board of Directors from
holders of the outstanding shares of Perpetual Common Stock for use at the
Special Meeting to be held on April 14, 1998, and any adjournments thereof.
This Prospectus/Proxy Statement, and the accompanying proxy card, are first
being mailed to stockholders of Perpetual on or about March 6, 1998.
The principal purposes of the Special Meeting are to consider and vote upon
the adoption of the Merger Agreement among Commercial, the Bank, Perpetual and
Perpetual Savings, which sets forth the terms and conditions of the Acquisition
Merger and also provides for the Bank Merger. See "Proposal 1 -- The Merger --
Conversion of Perpetual Common Stock." The Merger is subject to certain
conditions, including regulatory approval of the OTS.
In this Prospectus/Proxy Statement, the terms "Commercial" and "Perpetual"
refer to the parent corporation only or to both the parent corporation and its
subsidiaries, depending on the context.
Record Date; Vote Required
The Board of Directors of Perpetual has fixed the close of business on
February 27, 1998, as the Record Date for determining stockholders entitled to
notice of and to vote at the Special Meeting, and accordingly, only holders of
Perpetual Common Stock of record at the close of business on that day will be
entitled to notice of and to vote at the Special Meeting. The number of shares
of Perpetual Common Stock outstanding on the Record Date was 1,949,473, each of
such shares being entitled to one vote.
As to the approval of the Merger Agreement, by checking the appropriate
box, a stockholder may: (i) vote "FOR" adoption of the Merger Agreement, (ii)
vote "AGAINST" adoption of the Merger Agreement, or (iii) "ABSTAIN." Because
the affirmative vote of the holders of a majority of the outstanding shares of
Perpetual Common Stock entitled to vote on the Merger Agreement is required to
adopt the Merger Agreement, abstentions will have the effect of a vote against
adoption of the Merger Agreement. In addition, brokers who hold shares in
street name for individuals who are the beneficial owners of such shares are
prohibited from giving a proxy to vote shares held for such
16
<PAGE>
individuals on adoption of the Merger Agreement without specific instructions
from such individuals. The failure of such individuals to provide specific
instructions with respect to their shares of Perpetual Common Stock to their
broker will have the effect of a vote against adoption of the Merger Agreement.
The directors and executive officers of Perpetual (including certain of
their related interests) beneficially own, as of the Record Date, and are
entitled to vote at the Special Meeting 245,621 shares representing
approximately 12.6% of the issued and outstanding shares of Perpetual Common
Stock. See "Beneficial Ownership of Perpetual Common Stock." Perpetual's
directors and executive officers are expected to vote all of their shares "FOR"
adoption of the Merger Agreement.
Voting of Proxies; Revocability of Proxies; Solicitation of Proxies
After having been submitted, the enclosed proxy may be revoked by the
person giving it, at any time before it is exercised, by: (i) submitting written
notice of revocation of such proxy to the Secretary of Perpetual, (ii)
submitting a proxy having a later date, or (iii) appearing at the Special
Meeting and requesting a return of the proxy. All shares represented by valid
proxies will be exercised in the manner specified thereon. If no specification
is made, duly executed proxies will be voted "FOR" each of the proposals
submitted.
The solicitation is being made by Perpetual. Directors, officers and
employees of Perpetual may solicit proxies from Perpetual stockholders, either
personally or by telephone, telegraph or other form of communication. Such
persons will receive no additional compensation for such services. All expenses
associated with the solicitation of proxies will be paid by Perpetual including
the charges and expenses of brokerage houses and other custodians, nominees, and
fiduciaries for forwarding solicitation material to beneficial owners of
Perpetual Common Stock held of record by such persons. Regan & Associates, Inc.
will assist in the solicitation of proxies by Perpetual for a fee of $3,250 plus
reasonable expenses associated with such solicitation.
COMMERCIAL FEDERAL CORPORATION AND
COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK
Commercial is a unitary non-diversified savings and loan holding company
whose primary asset is the Bank, which is one of the largest depository
institutions in the Midwest. At December 31, 1997, Commercial had total assets
of $7.2 billion and total stockholders' equity of $458.4 million. Based upon
total assets at that date, Commercial was the 13th largest publicly held thrift
holding company in the United States. Commercial is a consumer-oriented
financial institution that emphasizes single-family residential and construction
real estate lending, consumer lending, commercial real estate lending, retail
deposit activities, including demand deposit accounts, and mortgage banking. At
February 27, 1998, after its acquisition of Mid Continent and including
anticipated branch consolidations, Commercial operated 34 branch offices in
Nebraska, 21 branch offices in greater metropolitan Denver, Colorado, 19 branch
offices in Oklahoma, 38 branch offices in Kansas, 45 branch offices in Iowa and
seven branch offices in Arizona. Throughout its 164 year history, Commercial
has emphasized customer service. To serve its customers, Commercial conducts
loan origination activities through its 115 branch office network, loan offices
of its wholly-owned mortgage banking subsidiary and a nationwide correspondent
network of mortgage loan originators. Commercial also provides insurance and
securities brokerage and other retail financial services.
Commercial's strategy for growth emphasizes both internal and external
growth. Operations focus on increasing deposits, including demand accounts,
making loans (primarily single-family mortgage and consumer loans), community
banking, and providing customers with a full array of financial products and a
high level of customer service. As part of its long-term strategic plan,
Commercial intends to expand its operations within its market areas either
through direct marketing efforts aimed at increasing market share, branch
expansions, or opening additional branches. Commercial's retail strategy will
continue to be centered on attracting new customers and selling both new and
existing customers multiple products and services. Additionally, Commercial
will continue to build and leverage an infrastructure designed to increase fee
and other income.
17
<PAGE>
Complementing its strategy of internal growth, Commercial continues to grow
its present six-state franchise through an ongoing program of selective
acquisitions of other financial institutions.
Pending and Recently Completed Acquisitions. In addition to the Merger,
Commercial has entered into definitive agreements to acquire four other
financial institution holding companies: First National Bank Shares, LTD ("First
National"), a bank holding company; Liberty, a commercial bank and thrift
holding company; Mid Continent, a savings and loan holding company and AmerUs
Bank, a federally chartered savings bank headquartered in Des Moines, Iowa. The
acquisition of First National, headquartered in Great Bend, Kansas, was
completed January 30, 1998, the acquisition of Liberty, headquartered in West
Des Moines, Iowa, was completed February 13, 1998 and the acquisition of Mid
Continent, headquartered in El Dorado, Kansas, was completed February 27, 1998.
Under the terms of the First National merger agreement, all of the outstanding
shares of First National's common stock were exchanged for 992,842 shares of
Commercial Common Stock for total consideration of approximately $33.3 million.
First National operated seven branch offices in Kansas and at January 30, 1998
had assets of approximately $155.0 million, deposits of approximately $130.0
million and stockholders' equity of approximately $11.0 million. This
acquisition will be accounted for as a purchase. Under the terms of the Liberty
merger agreement, all of the outstanding shares of Liberty common stock were
exchanged for 4,015,555 shares of Commercial Common Stock for total
consideration of approximately $136.3 million. This acquisition will be
accounted for as a pooling. Under the terms of the Mid Continent merger
agreement, all of the outstanding shares of Mid Continent's common stock were
exchanged for approximately 2,642,142 shares of Commercial Common Stock for
total consideration of approximately $93.5 million. This acquisition will be
accounted for as a pooling. Together with Perpetual, these five pending or
recently completed acquisitions will add 115 branches (before any consolidation)
to Commercial's existing network and approximately $3.1 billion in total assets,
approximately $2.3 billion in deposits and approximately $1.9 billion in loans
serviced for others. Liberty operated seven bank subsidiaries and one thrift
subsidiary with 38 branch locations in Iowa and seven branch locations in the
Tucson, Arizona metropolitan area. Mid Continent operated ten branch offices in
Kansas. AmerUs Bank operates 27 branches in Iowa, eight branches in Missouri,
six branches in Nebraska, four branches in Kansas, two branches in Minnesota and
one branch in South Dakota. Future acquisition candidates will be selected
based on the extent to which the candidates can enhance Commercial's retail
presence in new or underserved markets and complement Commercial's existing
retail network.
New Director. Effective February 13, 1998, Mr. William A. Krause, the
former Chairman and a director of Liberty, was appointed to the Board of
Directors of Commercial for a term to expire at Commercial's 1998 annual meeting
of stockholders in November. Mr. Krause has also been appointed to the Board of
Directors of the Bank.
Commercial's principal executive offices are located at 2120 South 72nd
Street, Omaha, Nebraska 68124, and its telephone number is (402) 554-9200.
For additional information regarding Commercial and the Bank, see
Commercial's Annual Report on Form 10-K for the fiscal year ended June 30, 1997,
Quarterly Reports on Form 10-Q for the quarters ended September 30, 1997 and
December 31, 1997 and the Current Reports on Form 8-K dated August 18, 1997,
September 2, 1997, September 11, 1997, November 18, 1997, December 8, 1997,
December 15, 1997 and February 11, 1998, all of which are incorporated by
reference herein.
PERPETUAL MIDWEST FINANCIAL, INC. AND
PERPETUAL SAVINGS BANK, FSB
Perpetual was formed at the direction of Perpetual Savings in December 1993
for the purpose of owning all of the outstanding stock of Perpetual Savings
issued upon the Conversion. On March 30, 1994 Perpetual acquired all of the
shares of Perpetual Savings in connection with the completion of the Conversion.
Perpetual's Common Stock is quoted on the Nasdaq National Market under the
symbol "PMFI".
18
<PAGE>
Perpetual is incorporated under the laws of the State of Delaware, and
authorized to do business in the State of Iowa, and generally is authorized to
engage in any activity that is permitted by the Delaware General Corporation
Law. The assets of Perpetual consist of the stock of Perpetual Savings and a
diversified investment portfolio. Activities of Perpetual are funded by
proceeds and income on the investment portfolio at the holding company level and
dividends from Perpetual Savings, if any. At December 31, 1997, Perpetual had
total consolidated assets of $392.1 million and deposits of $313.9 million.
Perpetual Savings is a federally chartered stock savings bank headquartered
in Cedar Rapids, Iowa. Originally organized in 1875, Perpetual Savings
converted to a federal mutual savings bank in 1991. Its deposits are insured up
to applicable limits by the FDIC. Perpetual Savings is primarily engaged in the
business of accepting deposits from the general public and originating and
purchasing loans secured by real estate and other loans. Perpetual Savings'
primary market area covers all or a portion of Linn and Johnson Counties, Iowa,
which are serviced through its four full service branch offices located in Cedar
Rapids and one additional full service branch office located in Iowa City, Iowa.
Pending Litigation. Perpetual Savings is a defendant to a lawsuit in which
the plaintiff alleges that Perpetual Savings agreed to purchase certain loans
from the plaintiff's acquired subsidiary. The plaintiff is seeking to compel
Perpetual Savings to purchase the loans and is alleging damages of approximately
$400,000. Management of Perpetual Savings believes that this claim is without
merit and does not anticipate that there will be any material adverse effect on
the financial condition or results of operation of Perpetual Savings as a result
of this litigation.
The executive offices of Perpetual and Perpetual Savings are located at 700
First Avenue, N.E., Cedar Rapids, Iowa 52401, and the telephone number at that
address is (319) 366-1851.
For additional information regarding Perpetual, including its consolidated
financial statements and related notes as of June 30, 1997, see Perpetual's 1997
Annual Report to Stockholders and Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997, which are incorporated by reference herein and
delivered herewith.
19
<PAGE>
PROPOSAL 1 -- THE MERGER
(Adoption of the Merger Agreement)
The following information with respect to the Merger, insofar as it relates
to matters contained in the Merger Agreement, including the exhibits thereto, is
qualified in its entirety by reference to the full text of such agreement, which
is attached as Annex A to this Prospectus/Proxy Statement and is incorporated by
reference herein.
General
The Merger Agreement provides for the acquisition of Perpetual by
Commercial, and the subsequent merger of Perpetual Savings into the Bank, as
follows: (i) Perpetual will merge into Commercial, with Commercial as the
surviving corporation, pursuant to which the outstanding shares of Perpetual
Common Stock will be converted into shares of Commercial Common Stock and cash
in lieu of fractional shares as set forth below (the Acquisition Merger); and
(ii) Perpetual Savings will then merge into the Bank, with the Bank as the
surviving savings institution (the Bank Merger) (collectively, the Merger).
Upon the consummation of the Acquisition Merger (the Acquisition Merger
Effective Time), Perpetual will have merged into Commercial. Upon the
consummation of the Bank Merger (the Bank Merger Effective Time), Perpetual
Savings will have merged into the Bank, Commercial will be the resulting savings
institution holding company, and the Bank will be the resulting subsidiary
savings institution. It is anticipated that the Bank Merger Effective Time will
occur immediately following the Acquisition Merger Effective Time. For
additional information regarding the Merger, see the Merger Agreement, which is
attached as Annex A hereto and incorporated by reference herein.
Stockholders of Perpetual are being asked to adopt the Merger Agreement.
The affirmative vote of a majority of the outstanding shares of Perpetual Common
Stock is required for Perpetual's stockholders to adopt the Merger Agreement.
Background of the Merger
Perpetual was formed in December 1993 by Perpetual Savings to become the
holding company of Perpetual Savings. The acquisition of Perpetual Savings by
Perpetual was consummated on March 30, 1994 in connection with Perpetual
Savings' Conversion. Following the Conversion and consistent with its business
plan, Perpetual pursued a strategy of gradual growth that focused on developing
its retail banking business within its market place. Throughout the period
following the Conversion, Perpetual also considered its strategic alternatives,
taking into account its size and market area.
In February 1997, consistent with its fiduciary responsibilities to the
Perpetual stockholders, the Perpetual Board of Directors scheduled a Strategic
Planning Retreat (the "Retreat") to further consider strategic alternatives
available to Perpetual. In preparation for the Retreat, Perpetual retained two
consultants, Crowe, Chizek and Company LLP ("Crowe Chizek") and Edelman to
advise the Board. Representatives of each of these consultants met with
Perpetual's directors and management and conducted research in preparation for
the Retreat.
On July 8 and 9, 1997 the Perpetual Board held its Retreat, and on July 8
heard presentations from representatives of Crowe Chizek and Edelman. The Crowe
Chizek representative advised the Board regarding Perpetual's potential to
maximize stockholder value as an ongoing business enterprise. The Edelman
representative advised the Board regarding Perpetual's potential to maximize
stockholder value through a strategic alliance with another financial
institution. Board members asked questions of both consultants. Significant
attention was given to the respective benefits of attempting to increase returns
on assets and equity as an independent entity versus effecting a merger in which
Perpetual shares would be exchanged into shares of a larger financial
institution with higher returns on assets and equity. On July 9, 1997, the
Perpetual Board met to consider the previous day's discussions and to review
20
<PAGE>
strategic options. After discussion, the Board authorized the retention of
investment banking and legal advisors to solicit indications of interest from
potential strategic alliance partners.
On August 15, 1997, Perpetual retained Edelman as its financial advisor and
agent for the purpose of exploring a strategic alliance. Perpetual, with the
assistance of Edelman, compiled a Confidential Memorandum concerning Perpetual's
operations and Perpetual's interest in a business combination. Perpetual
authorized Edelman to distribute the Confidential Memorandum to prospective
merger partners. A total of 28 parties were contacted by Edelman, 14 of which
asked to receive the Confidential Memorandum, four of which subsequently
submitted preliminary expressions of interest in effecting a business
combination with Perpetual (the "Expressions"). On October 30, 1997, a
representative of Edelman met with Perpetual to review the Expressions.
Following its review of the Expressions, Perpetual determined that Edelman
should invite three of the parties to conduct additional due diligence with
respect to Perpetual. The Expressions of two of these parties proposed an
acquisition of Perpetual for cash consideration. At Perpetual's direction,
Edelman indicated to both of these parties that Perpetual had a preference for a
transaction involving a tax-free exchange solely for stock. Perpetual also
authorized Edelman to confer further with two other parties, neither of which
elected to submit proposals. In early November, Perpetual retained Barry P.
Taff, P.C. ("Taff") to provide strategic consulting services in connection with
the acquisition proposals.
Following review of additional documentary material and discussions with
Perpetual's management two of the three parties which had submitted Expressions
submitted proposals aimed at a combination with Perpetual. Commercial proposed
an all stock exchange, while the other party proposed a cash acquisition with an
indicated price per share higher than the current indicated market value per
share of the Commercial proposal. Following discussions with Edelman, Taff and
legal counsel to Perpetual, management directed Edelman to inform both of these
parties that any further revisions in their proposals submitted in advance of a
Board meeting scheduled December 6, 1997 would be considered. The cash bidder
was again informed of Perpetual's preference for all stock consideration. Both
parties increased the amounts of consideration offered (the "Revised
Proposals"), while the form of consideration remained unchanged. The indicated
price per share of the cash acquisition proposal was again higher than the
indicated price per share of the Commercial Proposal.
On December 6, 1997, the Perpetual Board met to consider the Revised
Proposals. Information regarding the Revised Proposals, the two interested
parties and the situation facing the Board was provided by Edelman, Taff, legal
counsel and management. After reviewing the financial aspects of both proposals
and considering the differences between a tax-free stock exchange and a cash
acquisition, the Board unanimously indicated a preference for the revised
Commercial proposal and authorized preparation of the Merger Agreement. During
the following week, after being informed of the Perpetual Board's decision in
favor of another proposal, the other party contacted Edelman on an unsolicited
basis and again raised the amount of its cash proposal. Commercial was informed
that an enhanced competing offer had been received and elected not to modify its
proposed terms in response.
On December 14, 1997, the Perpetual Board met to review the prospective
transaction. The meeting was attended by representatives of Edelman, Taff,
representatives of Silver Freedman & Taff, L.L.P., special counsel to Perpetual,
and certain senior officers of Perpetual. The events of the previous week were
related to the Board, as were the financial terms proposed by Commercial and the
other party. Legal counsel reviewed with the Board the proposed Merger
Agreement. The Board asked questions of its third party advisors. Edelman
provided its verbal opinion to the Perpetual Board that the Exchange Ratio
proposed by Commercial was fair, from a financial point of view, to the holders
of Perpetual Common Stock (see " -- Opinion of Financial Advisor"). After
evaluating the enhanced cash proposal, the Merger Consideration proposed by
Commercial, and the other terms and conditions of the Merger Agreement, the
Perpetual Board authorized execution of the Merger Agreement. The Merger
Agreement was executed and publicly announced on December 15, 1997.
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Reasons for the Merger and Recommendation of Perpetual Board of Directors
The Perpetual Board believes that the terms of the Merger Agreement, which
are the product of arm's-length negotiations between representatives of
Perpetual and Commercial, are in the best interests of Perpetual and the
Perpetual stockholders. In the course of reaching this determination, the
Perpetual Board considered a number of factors. Without assigning any relative
or specific weights, these reasons included, among other things:
(i) Concern that, despite improvement in profitability at Perpetual, it
would take considerable additional improvement and time before Perpetual could
attain levels of profitability considered attractive by industry standards;
(ii) Concern that generally favorable economic conditions for the banking
industry and for Perpetual's market area could change, with the potential
results of lower pricing or reduced feasibility of a merger transaction;
(iii) Consideration of the value of the Commercial Common Stock to be
issued to Perpetual stockholders in relation to the market value, book value and
earnings per share of Perpetual Common Stock;
(iv) Consideration of the value to Perpetual stockholders of a tax-free
exchange and a continuing interest in the combined organization;
(v) Consideration of the business, operations, financial condition and
prospects of Commercial, as well as the liquidity of Commercial Common Stock;
(vi) Consideration of the potential enhancement of pricing and services
to the Perpetual customer base and market area through the greater financial
resources of a larger financial institution such as Commercial;
(vii) Input concerning the proposed merger provided by Perpetual
management, as well as input concerning the terms and provisions of the Merger
Agreement provided by legal counsel; and
(viii) The opinion of Edelman that the Exchange Ratio was fair, from a
financial point of view, to holders of Perpetual Common Stock.
THE PERPETUAL BOARD UNANIMOUSLY RECOMMENDS THAT PERPETUAL STOCKHOLDERS VOTE FOR
ADOPTION OF THE MERGER AGREEMENT.
Opinion of Financial Advisor
On August 15, 1997, Perpetual engaged Edelman to provide financial advisory
services in connection with the potential combination of Perpetual with a larger
institution. Edelman is a financial advisory and consulting firm engaged in
advising financial institutions and other businesses regarding financing and
merger transactions and other matters. Perpetual selected Edelman because of
its expertise with financial institutions, and its particular knowledge of and
experience with Perpetual. Edelman had previously advised Perpetual regarding
certain strategic planning efforts.
At a meeting of the Perpetual Board of Directors on December 14, 1997,
Edelman provided its verbal opinion to the Board that the Exchange Ratio was
fair, from a financial point of view, to the holders of Perpetual common stock.
Edelman subsequently delivered its opinion in written form.
The full text of Edelman's opinion is attached hereto as Annex B and is
incorporated herein by reference. THE SUMMARY SET FORTH IN THIS
PROSPECTUS/PROXY STATEMENT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL
TEXT OF SUCH OPINION, AND STOCKHOLDERS ARE URGED TO READ SUCH OPINION.
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In forming its opinion, Edelman reviewed, among other things, (i) with
respect to Perpetual, the Prospectus dated February 10, 1994 relating to
Perpetual's initial public offering of Common Stock; Annual Reports on Form
10-KSB and Annual Reports to stockholders for the six months ended June 30, 1994
and the fiscal years ended June 30, 1995 through 1997; and the Quarterly Report
on Form 10-Q for the quarter ended September 30, 1997; (ii) with respect to
Commercial, Annual Reports on Form 10-K and Annual Reports to stockholders for
the fiscal years ended June 30, 1993 through 1997; and the Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997; (iii) a draft of the Merger
Agreement received December 12, 1997; (iv) certain other information concerning
the future prospects of Perpetual and Commercial, and of the combined entity, as
furnished by the respective companies, which Edelman discussed separately with
the senior management of Perpetual and Commercial; (v) historical market price
and trading data for Perpetual and Commercial Common Stock; (vi) the financial
performance and condition of Perpetual and Commercial and similar data for other
financial institutions Edelman believed to be relevant; (vii) the financial
terms of other mergers Edelman believed to be relevant; and (viii) such other
information as Edelman deemed appropriate.
In conducting its review and preparing its opinion, Edelman relied upon the
accuracy and completeness of the financial and other information regarding
Perpetual and Commercial provided to it by the respective managements of
Perpetual and Commercial, and on certain other publicly available financial and
other information, and did not independently verify any such information.
Edelman relied upon the managements of Perpetual and Commercial in forming a
view of the future prospects of Perpetual and Commercial, and in forming
assumptions regarding a range of potential synergies resulting from the Merger.
Edelman assumed, without independent verification, that the aggregate allowances
for loan losses at Perpetual and Commercial were adequate to cover such losses.
Edelman did not inspect any properties, assets or liabilities of Perpetual or
Commercial and did not make or obtain any evaluations or appraisals of any
properties, assets or liabilities of Perpetual or Commercial. In rendering its
opinion, Edelman assumed that the Merger will be consummated on the terms
described in the Merger Agreement.
EDELMAN'S OPINION IS DIRECTED SOLELY TO THE FAIRNESS, FROM A FINANCIAL
POINT OF VIEW, OF THE EXCHANGE RATIO AND DOES NOT ADDRESS THE DECISION TO EFFECT
THE MERGER OR CONSTITUTE A RECOMMENDATION TO ANY PERPETUAL STOCKHOLDER AS TO HOW
SUCH STOCKHOLDER SHOULD VOTE ON THE ACQUISITION MERGER. IT IS FURTHER
UNDERSTOOD THAT EDELMAN'S OPINION IS BASED ON ECONOMIC AND MARKET CONDITIONS AND
OTHER CIRCUMSTANCES EXISTING AS OF DECEMBER 14, 1997, AND DOES NOT REPRESENT AN
OPINION AS TO WHAT THE VALUE OF COMMERCIAL COMMON STOCK WILL BE WHEN ISSUED TO
THE STOCKHOLDERS OF PERPETUAL UPON CONSUMMATION OF THE ACQUISITION MERGER OR
THEREAFTER.
In connection with rendering its opinion to the Perpetual Board, Edelman
performed a variety of financial analyses that are summarized below. The
preparation of a fairness opinion is a complex process involving subjective
judgments and quantitative analysis and is not necessarily susceptible to
partial analysis or summary description. Edelman believes that its analyses and
the summary set forth herein must be considered as a whole and that selecting
portions of such analyses and the factors considered therein, without
considering all factors and analyses, creates an incomplete view of the analyses
and processes underlying Edelman's opinion. Any estimates or assumptions used
in Edelman's analyses are not necessarily indicative of actual future value or
results, which may be significantly more or less favorable than is suggested by
such estimates. No company or previous transaction used in Edelman's analyses
was identical to Perpetual or Commercial or the Merger. The fact that any
specific analysis has been referred to in the summary below is not meant to
indicate that such analysis was given more weight than any other analysis.
Edelman may have given various analyses more or less weight than other analyses,
and may have deemed various assumptions more or less probable than other
assumptions.
The following is a brief summary of the analyses performed by Edelman in
connection with its opinion:
Comparable Transactions. Edelman analyzed certain pricing statistics
regarding thrift acquisitions and compared these to pricing ratios for the
Acquisition Merger. In acquisitions of thrifts nationwide announced in 1996 and
1997, the average price to tangible book value ratios were 154% and 186%. Among
acquisitions of $200 million to $600 million asset size midwestern thrift
institutions completed subsequent to December 31, 1995, the median price to
tangible book value ratio was 147%, while the median price to earnings ratio
(adjusted for the one-time charge for
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recapitalization of the Savings Association Insurance Fund) was 20.7. Perpetual
was valued in the Acquisition Merger at 167% price to tangible book value based
on September 30, 1997 book value per share and the closing price of Commercial
stock on December 12, 1997, the last trading day before the opinion date. Based
on last 12 months earnings per share, Perpetual was valued in the Acquisition
Merger at 37.1 times earnings. Based on earnings for the September 30, 1997
quarter annualized, Perpetual was valued at 26.2 times earnings.
Comparable Companies. Edelman compared certain operating and stock
valuation ratios of Commercial and a group of 9 other $2 billion to $15 billion
asset size banking companies (the "Group"), including ALBANK Financial
Corporation; Charter One Financial, Inc.; CitFed Bancorp, Inc.; Flagstar
Bancorp, Inc.; InterWest Bancorp, Inc.; MAF Bancorp, Inc.; St. Paul Bancorp,
Inc.; TCF Financial Corp.; and Washington Federal, Inc. Commercial and the
Group median, respectively, had tangible equity to tangible assets of 5.5% and
6.9%, and non-performing assets to total assets of .88% and .58% at September
30, 1997. Commercial had last 12 months returns on average assets and equity of
.95% and 16.11%, compared to Group medians of 1.16% and 15.71%. Based on
December 12, 1997 closing stock prices, Commercial's price to last 12 months
earnings (including an adjustment for a charge for early retirement of debt) was
17.6, compared to a Group median last 12 months price to earnings ratio of 17.3.
Price to average securities analyst estimates of next fiscal year earnings as
reported by the Institutional Brokers Estimate System ("IBES") was 13.8 for
Commercial and 14.5 for the Group median. Commercial had a price to tangible
book value ratio of 287% compared to 230% for the Group median. It was also
noted that Commercial Common Stock had appreciated 65% during 1997, compared to
47% for the Group median, 60% for the Nasdaq Bank Index and 27% for the S&P 500
index.
Edelman also compared certain operating and stock valuation ratios of
Perpetual to a universe of 338 publicly traded thrift stocks which were not
subject to pending acquisitions and which had financial data available for the
third quarter of 1997 (the "Universe"). Perpetual and the Universe median,
respectively, had total assets of $402 million and $354 million; tangible equity
to tangible assets of 8.5% and 10.6%; and non-performing assets to total assets
of .30% and .48%. Perpetual's last 12 months returns on average assets and
equity were .40% and 4.7%, compared to Universe medians of .95% and 8.3%. Based
on December 11, 1997 prices, Perpetual's ratio of price to annualized last
quarter earnings was 23.8, compared to a Universe median of 17.7. Perpetual's
price to tangible book value was 151%, compared to a universe median of 156%.
Trading and Dividend Analysis. Edelman reviewed certain trading, liquidity
and dividend data regarding Perpetual and Commercial. It was noted that
Commercial stock traded a daily average of 52,830 shares from January 1, 1997
through December 12, 1997, compared to 4,367 for Perpetual. It was also noted
that based on current quarterly dividend rates and the Exchange Ratio, the
Merger constituted a dividend decrease of 37% for Perpetual stockholders, from
$.30 to approximately $.19 per Perpetual share annually. Edelman also reviewed
the averages of the daily ratios of Perpetual to Commercial closing market price
(the "Trading Ratio") over various time horizons and compared this to the
Exchange Ratio. The Exchange Ratio represented a premium over the average
Trading Ratio of 7.4% during January 1, 1997 through December 12, 1997; 13.5%
during July 1, 1997 through December 12, 1997; 5.3% during the 20 trading days
ending December 12, 1997; and 7.8% based on the closing Commercial price and the
average of the Perpetual closing bid and ask prices on December 12, 1997.
Contribution Analysis. Edelman compared Perpetual stockholders' pro forma
ownership in Commercial to Perpetual's relative contribution of assets, equity,
market capitalization and income in the combination. Based on September 30,
1997 shares outstanding and options awarded, and based on December 12, 1997
market pricing of Commercial Common Stock, Perpetual stockholders stood to
receive approximately 4.9% of the combined entity. By comparison, Perpetual
represented 5.3% of the two companies' total assets, 7.9% of their total
tangible stockholders' equity, 4.6% of their December 12, 1997 market
capitalization, 2.3% of their last 12 months net income (adjusted for loss on
early retirement of debt for Commercial) and 3.1% of their last three months
income.
Impact Analysis. Edelman analyzed the theoretical impact of the Merger on
Commercial's profitability based on various assumptions regarding financial
performance following closing. Sensitivity analysis was conducted assuming
stand-alone profitability growth at Perpetual of 0% to 5%, and merger synergies
(expense reduction and revenue
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enhancement combined as a percentage of current Perpetual non-interest expense)
of 20% to 40%. Based on the foregoing factors, the Exchange Ratio and average
securities analyst estimates of Commercial earnings per share for the fiscal
year ending June 30, 1999 as reported by IBES, Edelman calculated that the
Merger would result in a per share profitability impact ranging from negative
1.2% to positive .1%.
Present Value Analysis. Edelman calculated the theoretical stand-alone
value of Perpetual shares on a present value basis across a range of 5-year
projections and valuation assumptions. Three scenarios were analyzed
reflecting, respectively, a) increases in September 30, 1997 quarter annualized
net income of 10%, 15% and 20% annually; b) trading values of 15.0, 17.5 and
20.0 times income in five years; and c) discount rates of 10%, 12.5% and 15%.
Dividend growth was assumed to be 5% annually. Based on dividends paid and
period-end stock trading value in the three scenarios, Edelman calculated
present values per share for Perpetual of $18.29, $23.13 and $28.71. Based on
the Commercial closing price on December 12, 1997, the value per Perpetual share
represented by the Exchange Ratio equaled to $30.44.
Edelman and Perpetual entered into an agreement relating to the services
Edelman is providing in connection with the Merger. Pursuant to this agreement,
Perpetual has paid Edelman fees totaling $52,500. Upon closing of the Merger,
Perpetual will also pay Edelman fees equal to a) .40% of transaction price (as
defined in the agreement), plus b) 4.0% of the amount by which transaction price
exceeds $48.9 million, minus c) a credit of $25,000 for an earlier progress
payment. Perpetual has also agreed to reimburse Edelman for out-of-pocket
expenses associated with its services subject to a maximum of $15,000 and to
indemnify Edelman against certain liabilities.
Conversion of Perpetual Common Stock
Exchange Ratio. Each share of Perpetual Common Stock issued and
outstanding immediately prior to the Acquisition Merger Effective Time, except
as hereinafter provided, will be converted into and represent solely the right
to receive .8636 of a share of Commercial Common Stock (the Exchange Ratio),
subject to adjustment as hereinafter described. At the Acquisition Merger
Effective Time, the holders of certificates representing shares of Perpetual
Common Stock shall cease to have any rights as stockholders of Perpetual, except
the right to receive the Merger Consideration. Perpetual Common Stock held by
Perpetual (except for shares held in any qualified plan of Perpetual or any of
its subsidiaries or otherwise held in a fiduciary capacity or in satisfaction of
a debt previously contracted) or by Commercial or any of Commercial's
subsidiaries (other than in a fiduciary capacity) at the Acquisition Merger
Effective Time shall be cancelled, and the certificates of such shares shall
thereafter be canceled and no shares of capital stock of Commercial shall be
issued or exchanged therefor.
The Exchange Ratio, the Average NYSE Closing Price, as well as all per
share data included herein with respect to Commercial for all periods prior to
December 15, 1997, have been adjusted to reflect a three-for-two stock split
effected in the form of a 50% stock dividend declared by Commercial on November
17, 1997 and distributed on December 15, 1997 to stockholders of record as of
November 28, 1997. If the holders of Commercial Common Stock shall have
received or shall become entitled to receive, without payment therefor, any
additional shares of Commercial Common Stock or other securities for their stock
by way of a stock split, stock dividend, reclassification, combination of
shares, spinoff or similar corporate rearrangement or Commercial shall exchange
Commercial Common Stock for a different number of kind of shares or securities
(Stock Adjustment), then the Exchange Ratio shall be proportionately adjusted to
take into account such Stock Adjustment. In addition, the Average NYSE Closing
Price, shall likewise be proportionately adjusted to compensate for any such
Stock Adjustment.
Under certain circumstances, the Exchange Ratio could be adjusted upward
pursuant to certain provisions of the Merger Agreement. The Merger Agreement
provides that Perpetual may elect to terminate the Merger Agreement during the
two business days commencing on the business day immediately following the end
of the Determination Period if the Average NYSE Closing Price is less than
$30.1666. If Perpetual elects to exercise its right to terminate the Merger
Agreement, it must give written notice of its intention no later than the end of
the aforementioned two day period. During the two business day period
immediately after Commercial's receipt of such notice, Commercial shall
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have the right to adjust the Exchange Ratio to equal the number (calculated to
four decimal places and rounded down) obtained by dividing $26.05 by the Average
NYSE Closing Price. If Commercial so elects, it must give written notice to
Perpetual of such election and the revised Exchange Ratio, and no termination of
the Merger Agreement will be deemed to have occurred.
No Fractional Shares. No fractional shares of Commercial Common stock will
be issued in the Acquisition Merger. Instead, cash will be paid in lieu of any
fractional share interests of Commercial Common Stock resulting from the Merger.
The applicable cash value of each fractional share interest will be equal to the
product of such fraction multiplied by the Average NYSE Closing Price for shares
of Commercial Stock.
Exchange of Perpetual Stock Certificates. Harris Trust Company of New York
is expected to act as the exchange agent (the "Exchange Agent") to effect the
exchange of stock certificates in connection with the Acquisition Merger. As
soon as practicable after the Acquisition Merger Effective Time but not later
than ten business days thereafter, the Exchange Agent will send a notice and
transmittal form to each Perpetual stockholder of record at such date whose
Perpetual Common Stock has been converted into Commercial Common Stock, advising
such stockholder of the effectiveness of the Acquisition Merger and the
procedure for surrendering to the Exchange Agent outstanding certificates
formerly evidencing Perpetual Common Stock in exchange for new certificates of
Commercial Common Stock and for cash in lieu of any fractional interest.
Promptly following receipt of such notice and transmittal form, holders of
Perpetual Common Stock certificates should surrender their certificates in
accordance with the specified procedures. Upon surrender, each Perpetual Common
Stock certificate will be canceled.
Until surrendered, certificates that prior to the Acquisition Merger
Effective Time represented outstanding shares of Perpetual Common Stock, except
for those shares not eligible to be converted into Commercial Common Stock as
described above, will be deemed for all purposes to evidence ownership of the
number of shares of Commercial Common Stock into which the shares of Perpetual
Common Stock formerly represented thereby were converted and the right to
receive cash in lieu of any fractional interest. Until such certificates are so
surrendered, no dividend or distribution payable to holders of Commercial Common
Stock as of any record date subsequent to the Acquisition Merger Effective Time
will be paid to the holders of such certificates. However, upon surrender of
such certificates, there will be paid to the record holder of the certificates
of Commercial Common Stock issued in exchange therefor the amount of dividends
or distributions that theretofore have become payable with respect to such
shares of Commercial Common Stock along with the amount of cash, if any, payable
to the holder in lieu of fractional shares. No interest will be payable with
respect to such dividends or cash paid in lieu of fractional shares.
If any certificate for shares of Commercial Common Stock is to be issued in
a name other than the name in which the surrendered certificate is registered,
it will be a condition of issuance that the certificate so surrendered is
properly endorsed and otherwise in proper form for transfer and that the person
requesting the issuance of such certificate either pay to the Exchange Agent any
transfer or other taxes required by reason of the issuance of the certificate in
a name other than the registered holder of the certificate surrendered or
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not payable.
HOLDERS OF PERPETUAL COMMON STOCK SHOULD NOT SURRENDER THEIR CERTIFICATES
UNTIL THEY RECEIVE WRITTEN INSTRUCTIONS FROM THE EXCHANGE AGENT.
Treatment of Perpetual Stock Options
At the Acquisition Merger Effective Time, each option outstanding under
the Perpetual Option Plan, whether or not then exercisable, shall continue
outstanding as an option to purchase, in place of the purchase of Perpetual
Common Stock, the number of shares (rounded to the nearest whole share) of
Commercial Common Stock that would have been received by the optionee in the
Acquisition Merger had the option been exercised in full (without regard to any
limitations contained therein on exercise) for shares of Perpetual Common Stock
immediately prior
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to the Acquisition Merger upon the same terms and conditions under the relevant
option as were applicable immediately prior to the Acquisition Merger Effective
Time, except for appropriate pro rata adjustments as to relevant option price
for shares of Commercial Common Stock substituted therefor so that the aggregate
option exercise price of shares subject to an option immediately following the
assumption and substitution shall be the same as the aggregate option exercise
price for such shares immediately prior to such assumption and substitution.
Commercial shall assume at the Acquisition Merger Effective Time each such
option, and such assumption shall be undertaken in such a manner that will not
constitute a "modification" under Section 424 of the Code as to any stock option
which is an "incentive stock option."
See " -- Interests of Certain Persons in the Merger" for information
regarding outstanding Perpetual stock options.
No Dissenters' Appraisal Rights
In accordance with the Delaware General Corporation Law, Perpetual's
stockholders do not have dissenters' rights of appraisal in connection with the
transactions contemplated by the Merger Agreement.
The Bank Merger
Following the Acquisition Merger, Perpetual Savings will merge into the
Bank, with the Bank as the surviving savings institution. The Bank Merger will
be undertaken subject to and upon the terms and conditions contained in the
Merger Agreement and in the Plan of Merger between Perpetual Savings and the
Bank dated December 15, 1997. At the Bank Merger Effective Time, the shares of
Perpetual Savings common stock issued and outstanding immediately prior thereto
will be canceled and the shares of capital stock of the Bank outstanding
immediately prior thereto will constitute the only outstanding shares of capital
stock of the Bank following consummation of the Bank Merger, the charter and
bylaws of the Bank in effect immediately before the Bank Merger will be the
charter and bylaws of the Bank immediately after the Bank Merger, the current
home office of the Bank will continue to be the home office of the Bank, and the
former home office of Perpetual Savings and all branch offices of the Bank and
former branch offices of Perpetual Savings will be branch offices of the Bank.
Following the Bank Merger, the Bank will continue to operate under the name
"Commercial Federal Bank, a Federal Savings Bank." For additional information,
see " -- Management after the Merger," " -- Employee Benefit Plans after the
Merger" and " -- Interests of Certain Persons in the Merger."
The obligations of the parties to consummate the Bank Merger are subject to
the receipt of OTS approval of the Bank Merger.
Management after the Merger
The directors and executive officers of Commercial and the Bank will not be
affected by the Merger.
Representations and Warranties
Commercial and the Bank, and Perpetual and Perpetual Savings, have given
certain representations and warranties to each other in the Merger Agreement
relating to, among other things, the following: the validity of their
organization; authorized capital; the ownership, organization and status of
their subsidiaries; the accuracy and completeness of certain internal books and
records and of their financial statements, reports and material relating to them
included in this Prospectus/Proxy Statement; the absence of any undisclosed
material adverse change in their business, financial conditions or results of
operations; the accuracy and completeness of information contained in this
Prospectus/Proxy Statement; disclosure of financial advisory, brokerage, finders
and similar fees; the absence of undisclosed material pending or threatened
litigation; the adequacy of certain types of insurance; their standing under and
compliance with applicable state and federal law, including compliance with
federal securities laws and state and federal tax laws, among others; certain
tax matters; ownership of all of their real property and undisturbed possession
of all material leases; their authority to enter into the Merger Agreement and
to undertake the transactions contemplated
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by it; the lack of undisclosed derivative contracts and the accuracy of all
information provided to each other in connection with the Acquisition Merger.
Perpetual and Perpetual Savings have made additional representations as to the
absence of undisclosed employment agreements or arrangements and employee
benefits; absence of any material contract defaults; the absence of
environmental hazards and claims; the quality of Perpetual Savings' loan
portfolio; and the adequacy of the present carrying values of any real estate
investments, joint ventures, construction loans or other investments or loans
under generally accepted accounting principles.
Covenants Pending the Acquisition Merger
In the Merger Agreement, Commercial, the Bank, Perpetual and Perpetual
Savings have agreed to use their best efforts, and to take all actions necessary
or appropriate, to consummate the transactions contemplated by the Merger
Agreement. Each party has also agreed to give to the other party and its
respective representatives and agents full access (to the extent lawful) to all
of the premises, books, records and employees of it and its subsidiaries at all
reasonable times, and to furnish and cause its subsidiaries to furnish to the
other party and its respective agents or representatives access to and true and
complete copies of such financial and operating data and all documents with
respect to matters to which reference is made in the Merger Agreement.
Pursuant to the Merger Agreement, Perpetual and its subsidiaries, including
Perpetual Savings, will conduct their businesses only in the ordinary course,
and maintain their books and records in accordance with past practices and not
take any action that would (i) adversely affect the ability to obtain any
governmental approvals contemplated in the Merger Agreement, or (ii) adversely
affect Perpetual's ability to perform its obligations under the Merger Agreement
or the Stock Option Agreement. Further, Perpetual has agreed that it will not,
without the prior written consent of Commercial: (i) declare, set aside or pay
any dividend or make any other distribution with respect to Perpetual's capital
stock, except for the declaration and payment of regular quarterly cash
dividends in an amount not to exceed $.075 per share of Perpetual Common Stock
with respect to any full calender quarter after December 15, 1997; (ii)
reacquire any of Perpetual's outstanding shares of capital stock; (iii) issue or
sell or buy any shares of capital stock of Perpetual or any Perpetual
subsidiary, except shares of Perpetual Common Stock issued pursuant to the
Perpetual Option Plan and the Stock Option Agreement; (iv) effect any stock
split, stock dividend or other reclassification of Perpetual Common Stock; or
(v) grant any options or issue any warrants exercisable for or securities
convertible or exchangeable into capital stock of Perpetual or any Perpetual
subsidiary or grant any stock appreciation or other rights with respect to
shares of capital stock of Perpetual or of any Perpetual subsidiary.
In addition, pursuant to the Merger Agreement, Perpetual and its
subsidiaries shall not, except as set forth in the Merger Agreement, without the
prior written consent of Commercial:
(i) sell or dispose of any significant assets of Perpetual or of any
Perpetual subsidiary other than in the ordinary course of business consistent
with past practices, except as set forth in the Merger Agreement;
(ii) merge or consolidate Perpetual or any Perpetual subsidiary with or
(except as set forth in the Merger Agreement) otherwise acquire any other
entity, or file any applications or make any contract with respect to branching
by Perpetual Savings or acquire or construct, or enter into any agreement to
acquire or construct, any interest in real property (other than with respect to
security interests in properties securing loans and properties acquired in
settlement of loans in the ordinary course) or improvements to real property in
the aggregate in excess of $100,000;
(iii) change the articles or certificate of incorporation, charter
documents or other governing instruments of Perpetual or any Perpetual
subsidiary, except as provided in the Merger Agreement or as required by law;
(iv) grant to any executive officer, director or employee of Perpetual or
any Perpetual subsidiary any increase in annual compensation, or any bonus type
payment, except for normal individual increases in compensation to employees in
the ordinary course of business consistent with past practice and except as
otherwise set forth in the Merger Agreement;
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<PAGE>
(v) adopt any new or amend or terminate any existing employee benefit
plans or arrangements of any type except as described in the Merger Agreement;
(vi) except as described in the Merger Agreement, authorize severance pay
or other benefits for any officer, director or employee of Perpetual or any
Perpetual subsidiary;
(vii) incur any material indebtedness or obligation or enter into or
extend any material agreement or lease, except in the ordinary course of
business consistent with past practices;
(viii) engage in any lending activities other than in the ordinary course
of business consistent with past practices;
(ix) form any new subsidiary or cause or permit a material change in the
activities presently conducted by any Perpetual subsidiary or make additional
investments in subsidiaries, except as set forth in the Merger Agreement;
(x) purchase any debt securities or derivative securities, including CMO
or REMIC products, that are defined as "high risk mortgage securities" under OTS
Thrift Bulletin No. 52 dated January 10, 1992 as revised or purchase any
derivatives contracts or structured notes;
(xi) purchase any equity securities other than Federal Home Loan Bank
stock, except as set forth in the Merger Agreement;
(xii) make any investment which would cause Perpetual Savings to not be a
qualified thrift lender under Section 10(m) of the HOLA, or not to be a
"domestic building and loan association" as defined in Section 7701(a)(19) of
the Code;
(xiii) make any loan with a principal balance of $750,000 or more;
(xiv) authorize capital expenditures other than in the ordinary course of
business;
(xv) adopt or implement any change in its accounting principles,
practices or methods other than as may be required by generally accepted
accounting principles or by a regulatory authority or adopt or implement any
change in its methods of accounting for Federal income tax purposes; or
(xvi) make any loan in which participation interests therein are to be
sold to other persons or entities or acquire a participation interest in a loan
originated by another person or entity in excess of $500,000.
Notwithstanding the foregoing, Perpetual Savings is permitted to engage in
any of the foregoing activities exclusively with the Bank.
Pursuant to the Merger Agreement, Perpetual also shall not authorize or
permit any representative of Perpetual or any subsidiary to initiate contact
with any person or entity in an effort to solicit, initiate or encourage any
"takeover proposal" (generally, any proposal other than as contemplated by the
Merger Agreement, for a merger or other business combination involving Perpetual
or Perpetual Savings, for the acquisition of a 10% or greater equity interest in
Perpetual or Perpetual Savings or for the acquisition of a substantial portion
of the assets of Perpetual or Perpetual Savings) or, except as the fiduciary
duties of Perpetual's Board of Directors may otherwise require, cooperate with,
negotiate with or enter into an agreement with any party relating to a takeover
proposal. Further, Perpetual has agreed to give prompt written notice to
Commercial upon becoming aware of any takeover proposal.
29
<PAGE>
Conditions to Consummation of the Merger
Pursuant to the Merger Agreement, the obligations of Commercial, the Bank,
Perpetual and Perpetual Savings to effect the Merger are subject to the
following conditions:
(i) holders of the outstanding shares of Perpetual Common Stock shall
have approved the Merger Agreement and Perpetual, as sole stockholder of
Perpetual Savings, shall have approved an amendment to Section 8 of Perpetual
Savings' Federal Stock Charter making inapplicable to Commercial and the Bank
the restrictions therein;
(ii) no order, decree or injunction shall have been entered and remain in
force restraining or prohibiting the Merger in any legal, administrative,
arbitration, investigatory or other proceedings by any governmental or judicial
or other authority;
(iii) to the extent required by applicable law or regulation, all
approvals of or filings with any governmental authority, including without
limitation those of the OTS, the FDIC, the Federal Trade Commission, the
Department of Justice, the Commission, and any state securities or blue sky
authorities, shall have been obtained or made and any waiting periods shall have
expired in connection with the consummation of the Merger and all other
statutory or regulatory requirements for the valid consummation of the Merger
and related transactions shall have been satisfied;
(iv) the Registration Statement of which this Prospectus/Proxy Statement
is a part shall have been declared effective and shall not be subject to a stop
order of the Commission and, if the offer and sale of Commercial's Common Stock
in the Acquisition Merger pursuant to the Merger Agreement is subject to the
blue sky laws of any state, shall not be subject to a stop order of any state
securities commissioner; and
(v) receipt of an opinion of Deloitte & Touche llp, in form and content
reasonably satisfactory to Commercial and Perpetual, and upon which Perpetual
stockholders may rely, as to certain of the federal income tax consequences of
the Merger (see " -- Federal Income Tax Consequences").
The obligations of Commercial and the Bank to effect the Merger and the
transactions contemplated in the Merger Agreement are subject to the following
additional conditions, among others, any of which may be waived by Commercial
and the Bank: (i) Commercial shall have received from Perpetual's counsel an
opinion dated as of the closing date of the Acquisition Merger covering certain
matters; (ii) Perpetual and Perpetual Savings shall have obtained all necessary
third party consents or approvals in connection with the Merger, the absence of
which would materially and adversely affect Perpetual and its subsidiaries,
taken as a whole; (iii) Commercial shall have received a letter from Perpetual's
independent public accountants regarding certain financial information included
in this Prospectus/Proxy Statement and other matters; (iv) between the date of
the Merger Agreement and the closing date of the Acquisition Merger, there shall
not have occurred any material adverse change in the financial condition,
business, results of operations or assets of Perpetual and any Perpetual
subsidiaries, taken as a whole, other than any such change attributable to or
resulting from any change in law, regulation or generally accepted accounting
principles which impairs both Perpetual and other comparably sized thrift
institutions in a substantially similar manner, and other than any such change
attributable to or resulting from changes in economic conditions applicable to
depository institutions generally or in general levels of interest rates
effecting both Perpetual and comparably sized thrift institutions to a similar
extent and in a similar manner; (v) the representations and warranties of
Perpetual and Perpetual Savings shall be true in all material respects at the
Acquisition Merger Effective Time with the same effect as though made at the
Acquisition Merger Effective Time (or on the date when made in the case of any
representation or warranty which specifically relates to an earlier date),
except for events or occurrences arising after the date of the Merger Agreement
which, individually or collectively, are not reasonably likely to result in a
material adverse effect on the business, financial condition or results of
operations of Perpetual and the Perpetual subsidiaries, taken as a whole;
Perpetual and Perpetual Savings shall have performed all obligations and
complied with each covenant, in all material respects, and all conditions under
the Merger Agreement on their parts to be performed or complied with at or prior
to the Acquisition
30
<PAGE>
Merger Effective Time; and Perpetual shall have delivered to Commercial a
certificate, dated the Acquisition Merger Effective Time and signed by its chief
executive officer and chief financial officer, to such effect; (vi) neither
Perpetual nor any of its subsidiaries shall be a party to any pending
litigation, reasonably probable of being determined adversely to Perpetual or
any Perpetual subsidiary, which would have a material adverse effect on the
business, financial condition or results of operations of Perpetual and its
subsidiaries, taken as a whole; (vii) all governmental approvals required by the
Merger Agreement to consummate the transactions contemplated thereby shall have
been obtained without the imposition of any conditions which Commercial
reasonably and in good faith determines to be unduly burdensome upon the conduct
of the business of Commercial or the Bank; and (viii) Commercial shall have
received letter agreements from all affiliates of Perpetual regarding
restrictions on resale of Commercial Common Stock received by them in the
Acquisition Merger to ensure compliance with applicable resale restrictions
imposed under the federal securities laws.
The obligations of Perpetual and Perpetual Savings to effect the Merger and
the transactions contemplated in the Merger Agreement are subject to the
following additional conditions, among others, any of which may be waived by
Perpetual and Perpetual Savings: (i) Perpetual shall have received from counsel
to Commercial opinions dated as of the closing date of the Acquisition Merger
covering certain matters; (ii) the representations and warranties of Commercial
and the Bank shall be true in all material respects at the Acquisition Merger
Effective Time with the same effect as though made at the Acquisition Merger
Effective Time (or on the date when made in the case of any representation or
warranty which specifically relates to an earlier date); Commercial and the Bank
shall have performed all obligations and complied with each covenant, in all
material respects, and all conditions under the Merger Agreement on their parts
to be performed or complied with at or prior to the Acquisition Merger Effective
Time; and Commercial shall have delivered to Perpetual a certificate, dated the
Acquisition Merger Effective Time and signed by its chief executive officer and
chief financial officer, to such effect; (iii) a certificate for the required
number of whole shares of Commercial Common Stock, as determined in accordance
with the Merger Agreement, and cash for fractional share interests shall have
been delivered to the Exchange Agent; (iv) in addition to governmental
approvals, Commercial and the Bank shall have obtained all necessary third party
consents or approvals in connection with the Merger, the absence of which would
materially and adversely affect Commercial and its subsidiaries, taken as a
whole; and (v) the shares of Commercial Common Stock issuable pursuant to the
Merger Agreement shall have been approved for listing on the NYSE, subject to
official notice of issuance.
There can be no assurance that the conditions to consummation of the Merger
will be satisfied or waived. In the event the conditions to either party's
obligations become impossible to satisfy in any material respect, the other
party may elect to terminate the Merger Agreement. See " -- Amendment or
Termination of the Merger Agreement."
Amendment or Termination of the Merger Agreement
The Merger Agreement may be terminated at any time before the Acquisition
Merger Effective Time, whether before or after approval by stockholders: (i) by
mutual consent of the parties; (ii) at the election of either party, if the
closing of the Acquisition Merger shall not have occurred on or before August
31, 1998, or such later date as may be agreed to in writing by the parties;
provided however that the right to terminate under this provision shall not be
available to any party whose failure to perform an obligation has been the cause
of, or has resulted in, the failure of the closing to occur on or before such
date; (iii) by Commercial upon delivery of written notice of termination to
Perpetual if any event occurs which renders impossible the satisfaction in any
material respect of one or more of the conditions to the obligations of
Commercial and the Bank to effect the Merger as set forth in the Merger
Agreement and noncompliance is not waived by Commercial; provided however that
the right to terminate under this provision shall not be available to Commercial
where Commercial's or the Bank's failure to perform an obligation has been the
cause of, or has resulted in, the failure of the closing to occur on or before
such date; (iv) by Perpetual upon delivery of written notice of termination to
Commercial if any event occurs which renders impossible the satisfaction in any
material respect one or more of the conditions to the obligations of Perpetual
and Perpetual Savings to effect the Merger as set forth in the Merger Agreement
and noncompliance is not waived by Perpetual; provided however that the right to
terminate under this provision shall not be available to Perpetual where
Perpetual's or Perpetual Savings' failure to perform an obligation has been the
cause of, or has resulted in, the failure of the closing to occur on or before
such date; (v) by
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<PAGE>
Perpetual at any time during the two business days commencing on the business
day immediately following the end of the Determination Period if the Average
NYSE Closing Price under the Merger Agreement shall be less than $30.1666 (as
adjusted in connection with any Stock Adjustment as described above, see " --
Conversion of Perpetual Common Stock."). However, in the event that Perpetual
attempts to terminate the Merger Agreement pursuant to subparagraph (v) above,
Perpetual must provide Commercial with written notice of that decision.
Commercial shall thereafter have the option to increase the consideration to be
received by the holders of Perpetual Common Stock by adjusting the Exchange
Ratio to equal the number (calculated to four decimal places and rounded down)
obtained by dividing (A) $26.05 by (B) the Average NYSE Closing Price.
Commercial shall give notice of its election to Perpetual no later than two days
after Commercial's receipt of Perpetual's notice to terminate the Merger
Agreement. In the event that Commercial makes its election and provides proper
notice, no termination shall have occurred and the Merger Agreement will remain
in full force and effect.
In the event that the Merger Agreement is terminated and abandoned pursuant
to the provisions outlined above, the Agreement shall become void and have no
effect, except for certain provisions of the Merger Agreement relating to
brokers and finders, publicity expenses and confidentiality. In addition, any
termination by Perpetual or Commercial pursuant to provisions of the Merger
Agreement outlined in (iii) and (iv) in the paragraph above will not relieve the
breaching party for an uncured intentional and willful breach of a
representation, warranty, covenant or agreement giving rise to such termination.
Except for agreements that are intended to be performed after the
Acquisition Merger Effective Time, the representations, warranties and
agreements of the parties set forth in the Merger Agreement shall not survive
the Acquisition Merger Effective Time, and shall be terminated and extinguished
at the Acquisition Merger Effective Time. From and after that time, none of the
parties shall have any liability to the other on account of any breach or
failure of any of those representations, warranties and agreements, except with
respect to agreements of the parties which by their terms are intended to be
performed after that time and with respect to liability for fraud, deception or
intentional misrepresentation.
The Merger Agreement may be amended, whether before or after any approval
by stockholders of Perpetual, by an agreement in writing executed in the same
manner as the Merger Agreement and authorized or ratified by the Boards of
Directors of Perpetual and Commercial, except that after approval of the Merger
Agreement by Perpetual's stockholders, no such amendment, without further
approval by Perpetual's stockholders may change the amount or form of the
consideration to be received by Perpetual's stockholders in the Acquisition
Merger.
Stock Option Agreement
As a condition to Commercial's entry into the Merger Agreement, Perpetual
and Commercial entered into the Stock Option Agreement pursuant to which
Perpetual granted to Commercial an option (the "Option"), to purchase 185,419
shares, subject to adjustment, of Perpetual Common Stock (9.9% of the issued and
outstanding shares of such stock excluding shares of Perpetual Common Stock to
be issued pursuant to the Stock Option Agreement) at a price per share of
$27.75, subject to adjustment. Under the Stock Option Agreement, Commercial,
or the holder of the Option (the "Holder"), would be permitted to exercise the
Option if an Initial Triggering Event (as hereinafter defined) and a Subsequent
Triggering Event (as hereinafter defined), shall have occurred prior to the
occurrence of an Exercise Termination Event (as hereinafter defined), and
provided further that Commercial or the Holder provides notice of such exercise
to Perpetual within six months of such Subsequent Triggering Event.
The Stock Option Agreement is intended to increase the likelihood that the
Merger will be consummated in accordance with the terms of the Merger Agreement.
Consequently, certain aspects of the Stock Option Agreement may have the effect
of discouraging persons who otherwise might be interested in acquiring all or a
significant interest in Perpetual from considering or proposing such an
acquisition, even if such persons were prepared to pay for the Perpetual Common
Stock a price in excess of that being paid by Commercial in the Acquisition
Merger.
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<PAGE>
The term Initial Triggering Event includes generally (i) the entry by
Perpetual or any significant subsidiary into an agreement with a person other
than Commercial (or a recommendation to do so by Perpetual's Board of Directors)
relating to an Acquisition Transaction (as hereinafter defined); (ii) any person
other than Commercial shall have acquired beneficial ownership of 10% or more of
the outstanding shares of Perpetual Common Stock; (iii) the stockholders of
Perpetual have voted and failed to adopt the Merger Agreement at a meeting held
for that purpose, or failure by Perpetual to hold such a meeting as required by
the Merger Agreement, in either case, after public disclosure of a proposed
Acquisition Transaction; (iv) the Perpetual Board of Directors shall have
withdrawn or modified in a manner adverse to Commercial its recommendation that
Perpetual stockholders approve the transactions contemplated by the Merger
Agreement, or shall have authorized, recommended or proposed an agreement to
engage in an Acquisition Transaction with anyone other than Commercial; (v) any
person other than Commercial shall have filed with the Commission a registration
statement or tender offer materials with respect to a potential exchange or
tender offer that would constitute an Acquisition Transaction; (vi) Perpetual
shall have willfully breached any covenant or obligation contained in the Merger
Agreement in anticipation of engaging in an Acquisition Transaction and
following such breach Commercial would be entitled to terminate the Merger
Agreement; or (vii) any person other than Commercial shall have filed an
application or notice with the OTS or other regulatory authority for approval to
engage in an Acquisition Transaction. The term Subsequent Triggering Event means
(i) the acquisition by any person other than Commercial of beneficial ownership
of 25% or more of the then outstanding Perpetual Common Stock; or (ii) the entry
by Perpetual or any significant subsidiary into an agreement with a person other
than Commercial (or a recommendation to do so by Perpetual's Board of Directors)
into an Acquisition Transaction involving the purchase or acquisition of 25% or
more of Perpetual's voting power.
For purposes of the Stock Option Agreement, an Acquisition Transaction
generally means (i) a merger or consolidation or similar transaction involving
Perpetual or its subsidiaries other than certain transactions involving solely
Perpetual and its wholly owned subsidiaries, provided the transaction is
permitted under the Merger Agreement; (ii) a purchase or other acquisition of
securities representing 10% or more of the voting power of Perpetual or any
Perpetual subsidiary; or (iii) a purchase, lease or other acquisition of all or
any substantial part of the assets or deposits of Perpetual or a Perpetual
subsidiary. The term Exercise Termination Event includes generally (i) the
Acquisition Merger Effective Time; (ii) termination of the Merger Agreement in
accordance with the Merger Agreement if the termination occurs prior to the
occurrence of an Initial Triggering Event except a termination by Commercial due
to a willful breach of certain specified covenants of Perpetual in the Merger
Agreement (a "Listed Termination"); or (iii) the passage of 18 months (or such
longer period as may be provided by an extension under the terms of the Stock
Option Agreement) after termination of the Merger Agreement if such termination
occurs after the occurrence of an Initial Triggering Event or is a Listed
Termination.
Perpetual is required to follow specific procedures to notify Commercial in
writing of the occurrence of any Initial Triggering Event or Subsequent
Triggering Event.
The Stock Option Agreement also contains provisions whereby Perpetual may
be required to repurchase the Option from Commercial or the current Holder, or
to repurchase option shares from the current owner of those shares ("Owner").
More specifically, after the occurrence of a Repurchase Event (as defined
below), and at the request of the Holder, Perpetual would be obligated to
purchase the Option from the Holder for an amount equal to the amount that the
then-current market price/offer price of the Perpetual Common Stock exceeds the
option price of those shares. The market/offer price is the higher of (i) the
price per share at which a tender or exchange offer has been made; (ii) the
price per share to be paid by any third party who has entered into an agreement
with Perpetual; (iii) the highest closing price of the shares during the six-
month period preceding the date that the Holder gives notice of its repurchase
request; or (iv) a price per share determined from the net price paid by a third
party for all or substantially all of Perpetual's assets or deposits. Perpetual
would likewise be required to repurchase shares of stock sold pursuant to the
Stock Option Agreement from the Owner, at the request of the Owner, after a
Repurchase Event. Moreover, following a Repurchase Event, the Owner may
surrender the Option to Perpetual in exchange for cash in an amount equal to
$1.35 million (i) plus, if applicable, Commercial's purchase price with respect
to any Option shares and (ii) minus, if applicable, the excess of the net cash
amounts, if any, received by Commercial from any arm's length sales of Option
shares to any
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<PAGE>
unaffiliated party over the purchase price of such shares. This redemption right
may only be exercised if Perpetual has not already been required to repurchase
any portion of the Option or shares purchased pursuant to the Option.
A Repurchase Event shall be deemed to have occurred upon (i) the
acquisition by any person (other than Commercial or a Commercial subsidiary) of
beneficial ownership of 50% or more of the then outstanding Perpetual Common
Stock; or (ii) the consummation of any Acquisition Transaction as defined above
except that the purchase or acquisition of securities must equal 50% instead of
10% in either case prior to an Exercise Termination Event. The Holder or Owner
may exercise its right to require Perpetual to repurchase the option or any
option shares as described above by providing notice and surrendering certain
documents. Perpetual would then be required to provide appropriate payment,
subject to applicable laws and regulations, within five days thereafter. In the
event that Perpetual is precluded by law or regulation from repurchasing, in its
entirety, the Option or option shares from the Holder or Owner respectively,
Perpetual is nonetheless required to comply to the extent possible, and the
Holder and Owner may revoke its notice of repurchase in its entirety, or to the
extent of any prohibition on Perpetual's ability to comply.
The Stock Option Agreement also makes provisions for the survival of the
Option granted to Commercial in the event of certain occurrences involving
Perpetual. In the event that prior to an Exercise Termination Event, (i)
Perpetual consolidates or merges with or engages in a plan of exchange with any
person other than Commercial (or a Commercial subsidiary) and Perpetual or a
Perpetual subsidiary shall not be the surviving or continuing entity; (ii)
Perpetual permits any person, other than Commercial or its subsidiary, to merge
into Perpetual or be acquired by Perpetual in a plan of exchange and Perpetual
shall be the continuing or surviving entity, but in that transaction, the stock
of Perpetual shall be changed into or exchanged for stock or other securities of
any other person or cash or any other property or the then outstanding share of
Perpetual shall after such merger or plan of exchange represent less than 50% of
the outstanding shares or share equivalents of the merged or acquiring company;
or (iii) Perpetual sells or otherwise transfers all or a substantial part of its
or its subsidiary's assets or deposits to any person, other than Commercial or
its subsidiary, then the agreement governing such transaction must make
provisions so that the Option granted to Commercial under the Stock Option
Agreement shall be converted into or exchanged for a substitute option
("Substitute Option"), at the election of the Holder, of either the acquiring
entity or the person controlling that entity. The Substitute Option would
provide the Holder with substantially the same rights as those granted under the
Stock Option Agreement, to include the right to request that the issuer of the
Substitute Option repurchase the Substitute Option in a fashion similar to that
described above in connection with the Perpetual's obligations to the Holder and
Owner.
Neither Perpetual nor Commercial may assign any rights or obligations under
the Stock Option Agreement to any person without the express written consent of
the other party, except that in the event a Subsequent Triggering Event shall
have occurred prior to an Exercise Termination Event, Commercial may assign its
rights and obligations under the Stock Option Agreement subject to certain
restrictions after the OTS has approved an application by Commercial to acquire
the shares of Common Stock under the Stock Option Agreement.
Expenses and Termination Fee
Each of the parties to the Merger Agreement will bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated thereunder.
In order to induce Commercial and the Bank to enter into the Merger
Agreement, and as a means of compensating Commercial and the Bank for the
substantial direct and indirect monetary and other costs incurred and to be
incurred in connection with the Merger Agreement and the transactions
contemplated therein, Perpetual and Perpetual Savings have agreed pursuant to
the Merger Agreement that at such time as the Option granted by Perpetual to
Commercial pursuant to the Stock Option Agreement becomes exercisable (see " --
Stock Option Agreement" above), Perpetual and/or Perpetual Savings will upon
demand pay to Commercial or the Bank immediately available funds $1,350,000.
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<PAGE>
Required Regulatory Approvals
The Merger is subject to the approval of the OTS. Commercial has filed an
application with the OTS for approval of the Merger. As of the date of this
Prospectus/Proxy Statement, the approval of the OTS has not been received.
There can be no assurance as to the timing of such approval, if given, or as to
the conditions, if any, on which approval will be given. In addition, the
approval, if and when granted, may contain conditions which Commercial may find
unduly burdensome. When such approval is received, material changes to the
Merger Agreement, material conditions, or other changes of a material nature may
be imposed by regulatory authorities in connection therewith which could require
a resolicitation of Perpetual's stockholders for approval. Following OTS
approval of the Merger, the U.S. Department of Justice may review the Merger and
raise objections on antitrust grounds, though objections on such grounds are not
expected. If the required regulatory approvals are not obtained, the Merger
Agreement will be terminated, and the Merger will not occur.
Closing; Merger Effective Times
As soon as practicable following the satisfaction or waiver of all
conditions of the Merger Agreement, as agreed by the parties, but in no event
later than 30 days following such satisfaction or waiver, a closing shall take
place at which the parties thereto will exchange documents required by the
Merger Agreement. Immediately following the closing, and on the same day if
practicable, the Acquisition Merger shall become effective at the latest to
occur of the time (i) the Nebraska articles of merger are filed with the
appropriate authorities in Nebraska or (ii) the certificate of merger is filed
with the appropriate authorities of Delaware. Following the Acquisition Merger,
the Bank Merger shall become effective at the time the articles of combination
for such merger are endorsed by the OTS.
Employee Benefit Plans after the Merger
To the extent permitted by applicable law, the employees of Perpetual and
Perpetual Savings who become employees of Commercial or a Commercial subsidiary
after the Acquisition Merger Effective Time shall be eligible to participate in
all benefit plans sponsored by Commercial or a Commercial subsidiary to the same
extent as other similarly situated Commercial or Commercial subsidiary
employees, (i) with full credit for prior service with Perpetual or Perpetual
Savings for purposes of vesting, eligibility for participation and other
purposes other than determining the amount of benefit accruals under any defined
benefit plan, (ii) without any waiting periods, evidence of insurability, or
application of any pre-existing condition limitations, and (iii) with full
credit for claims arising prior to the Acquisition Merger Effective Time for
purposes of deductibles, out-of-pocket maximums, benefit maximums and all other
similar limitations for the applicable plan year during which the Merger is
consummated. Commercial shall honor all accrued vacation leave for the
employees of Perpetual and Perpetual subsidiaries following the Acquisition
Merger Effective Time. Except as provided in the Merger Agreement, Perpetual's
health (including Perpetual's supplemental care plan) and dental insurance plans
shall not be terminated by reason of the Merger but shall continue thereafter as
plans of Commercial until such time as the employees of Perpetual and Perpetual
Savings are integrated into Commercial's or other applicable Commercial
subsidiary's health and dental insurance plans. By the terms of the Merger
Agreement, Commercial and its subsidiaries are required to take such steps as
are necessary or required to integrate the employees of Perpetual and Perpetual
Savings in such plans as soon as practicable after the Acquisition Merger
Effective Time.
Commercial will provide to the employees of Perpetual and Perpetual Savings
full credit for prior service with Perpetual and Perpetual Savings for purposes
of severance benefits under Commercial's guidelines in respect of such matters,
which guidelines currently provide a severance benefit equivalent to one week's
salary for each year of service, with a maximum aggregate entitlement equal to
eight weeks of salary. In addition, Commercial or the Commercial Subsidiaries
will pay for accrued vacation upon termination of service and will offer
outplacement services or counseling to severed employees.
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<PAGE>
Interests of Certain Persons in the Merger
Certain members of Perpetual's management and its Board of Directors may be
deemed to have certain interests in the Acquisition Merger in addition to their
interests as stockholders of Perpetual generally. Perpetual's Board of
Directors was aware of these interests and considered them, among other matters,
in unanimously approving the Merger Agreement and the Acquisition Merger. See "
- -- Reasons for the Merger and Recommendation of Perpetual Board of Directors."
Stock Options. Commercial will assume at the Acquisition Merger Effective
Time, each option outstanding under the Perpetual Option Plan. Pursuant to the
terms of the Perpetual Option Plan, every option granted under the plan which is
not fully exercisable at the time of the Special Meeting will, upon adoption of
the Merger Agreement, become exercisable for a period of 60 days, after which it
will revert to being exercisable in accordance with its terms. The following
table sets forth as of the Record Date, information regarding the outstanding
options under the Perpetual Option Plan held by directors and executive officers
of Perpetual and Perpetual Savings. All options carry an exercise price of
$10.00 per share
<TABLE>
<CAPTION>
Options Aggregate
Options Exercisable Value of
Options Currently Upon Merger Such
Held Exercisable Consummation Options(1)
------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Directors:
William C. Fletcher 22,273 17,280 4,453 $417,619
Robert C. Tilden 14,044 10,236 3,808 263,325
Eugene J. Dowie 13,123 10,500 2,623 246,056
Douglas E. Anderson 12,047 9,636 2,411 225,881
Robert H. O'Meara 8,280 6,624 1,656 155,250
James L. Roberts 8,280 -- 8,280 155,250
Officers:
David W. Lodge 3,519 -- 3,519 65,981
Rick L. Brown 3,519 -- 3,519 65,981
Hal D. Gilchrist 3,519 -- 3,519 65,981
- -----------
</TABLE>
(1) Based on the closing price of Perpetual Common Stock ($28.75) on the Record
Date.
Recognition and Retention Plan. Commercial will assume and honor the terms
of Perpetual's Recognition and Retention Plan (the "RRP"). Pursuant to the
terms of the RRP, vesting is accelerated and the restrictive periods on the
Common Stock will lapse if the continuous service of any participant is
terminated for whatever reason, after a change in control. The following
tables sets forth, with respect to Perpetual's directors and executive officers,
the number of shares of restricted Perpetual Common Stock held by such
individuals as of the Record Date and the value of such shares.
<TABLE>
<CAPTION>
Unvested Value of
RRP Shares RRP Shares(1)
---------- -------------
<S> <C> <C>
Directors:
William C. Fletcher 1,350 $38,813
Robert C. Tilden 1,350 38,813
Eugene J. Dowie 1,350 38,813
Douglas E. Anderson 1,350 38,813
Robert H. O'Meara 1,350 38,813
James L. Roberts 3,000 86,250
Officers:
David W. Lodge 1,875 53,906
Rick L. Brown 1,500 43,125
Hal D. Gilchrist 1,125 32,344
- -------------
</TABLE>
(1) Based on the closing price of Perpetual Common Stock ($28.75) on the Record
Date.
36
<PAGE>
Executive Severance Policy. On June 13, 1997, Perpetual adopted an
executive severance policy (the "Executive Severance Policy") covering four
officers of Perpetual Savings. The Executive Severance Policy provides that upon
any separation from service with Perpetual and Perpetual Savings, other than
termination for cause, the officer is entitled to receive a payment equal to two
months' current salary plus one additional month's current salary for each year
the recipient has been in the employ of Perpetual Savings, up to a maximum of 14
months current salary. The severance payments currently payable under the
Executive Severance Policy are: David W. Lodge, $110,833; Rick L. Brown,
$96,833; Hal D. Gilchrist, $54,000; and Janice M. Klein, $41,819.
The Executive Severance Policy also provides for each covered executive to
receive for a period of 12 months, on the same basis as prior to termination,
group life insurance, health and medical insurance, and short term disability
insurance. Alternatively, the executive has the right, in lieu of such 12 months
coverage, to a lump sum in cash equal to the present value of the premiums and
other fees that would have been paid for such 12 months continuing coverage. In
addition, each executive will be paid for any unused accrued vacation time.
Roberts Employment Agreement. Perpetual has entered into an employment
agreement with James L. Roberts dated June 16, 1997 (the "Roberts Employment
Agreement"). This agreement provides that in the event of his termination (other
than due to death, disability or "for cause") or of his voluntary resignation
within the 24 months following a change in control, Mr. Roberts is entitled to
receive a lump sum payment equal to 299% of his base salary. The Acquisition
Merger will qualify as a "change in control" under the Roberts Employment
Agreement and Mr. Roberts has indicated his intention to resign following the
Merger. Accordingly, Mr. Roberts will receive a payment of $715,000 upon his
resignation following the Acquisition Merger Effective Time.
The Roberts Employment Agreement also provides that Mr. Roberts shall have
the right to sole use and possession of Perpetual Savings' owned vehicle and
Perpetual Savings' owned computer system in his personal possession at the time
of termination for a period of 24 months following cessation of employment; that
he and his spouse shall receive three years of hospitalization, medical,
prescription drug and other heath benefits coverage; and that he shall receive
moving expenses and temporary living expenses if he relocates to another state.
On or before the closing date of the Acquisition Merger, Commercial and Mr.
Roberts will enter into a consulting agreement under which Mr. Roberts will
render consulting services to Commercial for a period of six months on matters
regarding the business affairs and operations of Commercial as they relate to
former operations of Perpetual. Mr. Roberts will receive approximately $45,000
for his consulting services.
Indemnification; Directors and Officers Insurance. Commercial has also
agreed to indemnify the directors and officers of Perpetual and its
subsidiaries to the same extent they are indemnified under Perpetual's
Certificate of Incorporation or Bylaws in effect at the date of the Merger
Agreement or arising by operation of law for a period of three years following
the Acquisition Merger Effective Time or until the expiration of the applicable
statute of limitations, but in no event beyond six years following the
Acquisition Merger Effective Time. In addition, with respect to persons serving
as officers or directors of Perpetual immediately prior to the Acquisition
Merger Effective Time, Commercial has agreed to continue coverage under
Perpetual's existing directors' and officers' liability insurance policy for a
period of 18 months with respect to acts or omissions occurring prior to the
Acquisition Merger Effective Time, provided that Commercial is not obligated to
expend more than 150% of the current premium for such coverage.
37
<PAGE>
Federal Income Tax Consequences
Commercial and Perpetual will rely upon an opinion of Deloitte & Touche
llp, tax advisor to Commercial, to the following effect:
. the Acquisition Merger should qualify as a reorganization within the
meaning of Section 368(a)(1)(A) of the Code. Perpetual and Commercial
should each be a "party to a reorganization" within the meaning of
Section 368(b) of the Code;
. Perpetual should recognize no gain or loss on the transfer of its
assets to Commercial in exchange for the Commercial Common Stock,
cash, if any, and the assumption of its liabilities by Commercial, by
reason of the application of Sections 361(a), 361(b) and 357(a) of the
Code;
. no gain or loss should be recognized by Perpetual upon the
distribution of the Commercial Common Stock to the Perpetual
stockholders, by reason of the application of Section 361(c)(1) of the
Code;
. no gain or loss should be recognized by Commercial on the receipt of
Perpetual's assets in exchange for Commercial Common Stock, and the
assumption by Commercial of Perpetual's liabilities, by reason of the
application of Section 1032(a) of the Code;
. the basis of the assets of Perpetual in the hands of Commercial should
be the same as the basis of such assets in the hands of Perpetual
immediately prior to the Acquisition Merger, by reason of the
application of Section 362(b) of the Code;
. the holding period of the property acquired by Commercial from
Perpetual should include the holding period of such property in the
hands of Perpetual immediately prior to the Acquisition Merger, by
reason of the application of Section 1223(2) of the Code;
. no gain or loss should be recognized by the former Perpetual
stockholders upon the exchange of their Perpetual Common Stock for the
Commercial Common Stock (including fractional shares which they
otherwise might be entitled to receive) by reason of the application
of Code Section 354(a);
. the basis of the Commercial Common Stock (including fractional share
interests a Perpetual stockholder would otherwise be entitled to
receive) to be received by a Perpetual stockholder who exchanges
Perpetual Common Stock for Commercial Common Stock should be the same
as the basis of Perpetual Common Stock surrendered in the Acquisition
Merger by reason of Code Section 358(a)(1);
. the holding period of the Commercial Common Stock (including
fractional shares which they otherwise might be entitled to receive)
to be received by Perpetual stockholders should, in each instance,
include the holding period of the Perpetual shares surrendered in the
Acquisition Merger, provided Perpetual stock was held as a capital
asset on the date of the Acquisition Merger, by reason of the
application of Code Section 1223(1);
. Commercial as the survivor should succeed to and take into account as
of the close of the day of the distribution or transfer the items of
Perpetual described in Code Section 381(c), subject to the conditions
and limitations specified in Code Sections 381(b) and 381(c), by
reason of the application of Code Section 381(a)(2);
38
<PAGE>
. as provided in Code Section 381(c)(2) and Regulation Section
1.381(c)(2)-1, Commercial as the survivor should succeed to and take
into account the earnings and profits, or deficit in earnings and
profits, of Perpetual as of the date or dates of transfer. Any deficit
in earnings and profits of either Commercial or Perpetual should be
used only to offset earnings and profits accumulated after the date or
dates of transfer;
. cash received by a stockholder of Perpetual otherwise entitled to
receive a fractional share of Commercial Common Stock in exchange for
his Perpetual stock should be treated as if the fractional share was
distributed as part of the Acquisition Merger and then was redeemed by
Commercial. These cash payments should be treated as having been
received as distributions in full payment in exchange for the stock
redeemed as provided in Code Section 302(a). This receipt of cash
should result in gain or loss measured by the difference between the
basis of such fractional share interest and the cash received. Such
gain or loss should be capital gain or loss to the former Perpetual
stockholder, provided Perpetual Common Stock was a capital asset in
such former stockholder's hands and as such, will be subject to the
provisions and limitations of Subchapter P of Chapter 1 of the Code
(Rev. Rul. 66-365 and Rev. Rul. 77-41).
Deloitte & Touche LLP has also opined that the Bank Merger should qualify as a
reorganization under the Code and that in general, neither the Bank nor
Perpetual Savings should recognize taxable gain or loss on the transfer or
receipt of assets as a result of the Bank Merger and that Bank will have the
same basis in the assets received as Perpetual had in such assets immediately
prior to the transfer.
The opinion of Deloitte & Touche LLP has no binding effect on the IRS. The
opinion of Deloitte & Touche LLP is filed with the Commission as an exhibit to
Commercial's registration statement on Form S-4 of which this Prospectus/Proxy
Statement is a part. See " -- Additional Information."
Cash payments made to the holders of Perpetual Common Stock upon the
exchange thereof in connection with the Acquisition Merger (other than certain
exempt entities and persons) will be subject to a 31% backup withholding tax
under federal income tax law unless certain requirements are met. Generally,
Commercial will be required to deduct and withhold the tax if (i) the
stockholder fails to furnish a taxpayer identification number ("TIN") or fails
to certify under penalty of perjury that such TIN is correct, (ii) the IRS
notifies Commercial that the TIN furnished by the stockholder is incorrect,
(iii) the IRS notifies Commercial that the stockholder has failed to report
interest, dividends or original issue discount in the past, or (iv) there has
been a failure by the stockholder to certify under penalty of perjury that such
stockholder is not subject to the 31% backup withholding tax. Any amounts
withheld in collection of the 31% backup withholding tax will reduce the federal
income tax liability of the stockholders from whom such tax was withheld. The
TIN of an individual stockholder is that stockholder's Social Security number.
THE FOREGOING CONSTITUTES ONLY A GENERAL DESCRIPTION OF THE FEDERAL INCOME
TAX CONSEQUENCES OF THE MERGER, WITHOUT CONSIDERATION OF THE PARTICULAR FACTS
AND CIRCUMSTANCES OF EACH PERPETUAL STOCKHOLDER'S SITUATION. EACH PERPETUAL
STOCKHOLDER IS ENCOURAGED TO CONSULT HIS OR HER OWN TAX AND FINANCIAL ADVISORS
AS TO PARTICULAR FACTS AND CIRCUMSTANCES WHICH MAY BE UNIQUE TO SUCH STOCKHOLDER
AND NOT COMMON TO STOCKHOLDERS AS A WHOLE AND ALSO AS TO ANY ESTATE, GIFT,
STATE, LOCAL OR FOREIGN TAX CONSEQUENCES ARISING OUT OF THE MERGER AND/OR ANY
SALE THEREAFTER OF COMMERCIAL COMMON STOCK RECEIVED IN THE MERGER.
39
<PAGE>
Accounting Treatment
The Acquisition Merger is expected to be accounted for as a pooling of
interests in accordance with generally accepted accounting principles, under
which the recorded assets and liabilities of Commercial and Perpetual will be
carried forward to the surviving corporation in the Acquisition Merger
(Commercial) at their recorded amounts; income of the surviving corporation will
include income of Commercial and Perpetual for the entire fiscal year in which
the Acquisition Merger occurs; and the reported revenues and expenses of
Commercial and Perpetual for all prior periods presented will be combined and
restated as revenues and expenses of the surviving corporation (Commercial).
Resale of Commercial Common Stock; Restrictions on Transfer
The shares of Commercial Common Stock to be issued in the Acquisition
Merger will be registered under the Securities Act and will be freely
transferable under the Securities Act, except for shares issued to any
stockholder who may be deemed to be an "affiliate" of Perpetual or Commercial
for purposes of Rule 145 under the Securities Act (generally, individuals or
entities that control, are controlled by or are under common control with
Perpetual or Commercial). Affiliates may not sell their shares of Commercial
Common Stock acquired in connection with the Acquisition Merger except pursuant
to an effective registration statement under the Securities Act covering such
shares or in compliance with Rule 145 or another applicable exemption from the
registration requirements of the Securities Act.
Perpetual has agreed in the Merger Agreement to use its best efforts to
cause each director, executive officer and other person who is an affiliate (for
purposes of Rule 145) of Perpetual to deliver to Commercial a written agreement
intended to ensure compliance with the Securities Act.
New York Stock Exchange Listing
Commercial Common Stock is traded on the NYSE under the symbol "CFB". It
is expected that Commercial Common Stock will continue to be quoted on the NYSE
under the symbol "CFB" following the Acquisition Merger.
Vote Required
The affirmative vote of a majority of the outstanding Perpetual Common
Stock is required for Perpetual's stockholders to approve the adoption of the
Merger Agreement. Each share of Perpetual Common Stock outstanding at the close
of business on the Record Date is entitled to one vote on each matter to be
considered at the Special Meeting. Perpetual's directors and executive
officers, and their affiliates, are expected to vote substantially all of the
245,621 shares (representing approximately 12.6% of the issued and outstanding
shares of Perpetual Common Stock) beneficially owned by them as of the Record
Date for adoption of the Merger Agreement.
40
<PAGE>
BENEFICIAL OWNERSHIP OF PERPETUAL COMMON STOCK
Persons and groups owning in excess of 5% of the outstanding shares of
Perpetual Common Stock are required to file certain reports regarding such
ownership pursuant to the Exchange Act. The following table sets forth, as of
the Record Date, certain information as to Perpetual Common Stock beneficially
owned by persons and groups in excess of 5% of the outstanding shares of
Perpetual Common Stock and the ownership of all executive officers and directors
of Perpetual as a group. Management knows of no person other than those set
forth below who owns more than 5% of the outstanding shares of Perpetual Common
Stock at the Record Date.
Percent of Shares of
Amount and Nature of Perpetual Common
Name Beneficial Ownership(1) Stock Outstanding
- ---- ----------------------- -------------------
Directors:
William C. Fletcher 36,884 (2) 1.87%
Robert C. Tilden 33,500 (3) 1.71
Eugene J. Dowie 29,497 (4) 1.50
Douglas E. Anderson 21,049 (5) 1.07
Robert H. O'Meara 12,704 (6) .65
James L. Roberts 88,695 (6) 4.53
Officers:
David W. Lodge 38,113 (7) 1.95
Rick L. Brown 36,872 (7) 1.89
Hal D. Gilchrist 36,861 (7) 1.89
Total Directors and Executive
Officers
(as a group 9 persons) 334,225 16.40
- ---------------
(1) As to ownership of shares by executive officers and directors, includes
certain shares of Perpetual Common Stock owned by businesses in which the
director or executive officer is an officer or major stockholder, or by
spouses or as a custodian or trustee for minor children, over which shares
the named individual or all executive officers and directors as a group
effectively exercise sole or shared voting and investment power, unless
otherwise indicated.
(2) Includes 22,273 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
(3) Includes 14,044 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
(4) Includes 13,123 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
(5) Includes 12,047 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
(6) Includes 8,280 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
(7) Includes 3,519 shares which may be purchased pursuant to the exercise of
options within 60 days of the Record Date.
COMMON STOCK PRICES AND DIVIDENDS
The Commercial Common Stock is currently traded on the NYSE under the
symbol "CFB." Perpetual Common Stock is traded on the Nasdaq National Market
and is quoted under the symbol "PMFI."
The following table sets forth (1) the comparative market prices of
Commercial Common Stock and Perpetual Common Stock for the periods indicated,
indicated by the high and low closing sales prices for the common stock of each
company as reported on the Nasdaq National Market for Perpetual and as reported
on the NYSE for Commercial and (2) the dividends per share declared on such
stock.
41
<PAGE>
On November 17, 1997, the Board of Directors of Commercial authorized a
three-for-two stock split to be effected in the form of a 50% stock dividend to
stockholders of record on November 28, 1997. Par value remained at $.01 per
share. The stock dividend was distributed on December 15, 1997. Fractional
shares resulting from the stock split were paid in cash. All per share data
and stock prices for all periods prior to December 15, 1997, presented in this
Prospectus/Proxy Statement have been adjusted on a retroactive basis to reflect
the effect of this three-for-two stock split.
<TABLE>
<CAPTION>
Commercial Perpetual
Common Stock Common Stock
----------------------------- ---------------------------
Quarter Ended High Low Dividends High Low Dividends
- ------------- ---- --- --------- ---- --- ---------
<S> <C> <C> <C> <C> <C> <C>
Fiscal Year 1996
- ----------------
September 30, 1995 $ 16.45 $ 12.05 $ -- $17.75 $14.25 $ --
December 31, 1995 16.78 14.39 .089 17.50 16.25 .075
March 31, 1996 17.28 15.55 .045 17.50 16.00 .075
June 30, 1996 17.28 16.39 .045 17.75 16.75 .075
Fiscal Year 1997
- ----------------
September 30, 1996 19.11 16.00 .045 20.00 17.00 .075
December 31, 1996 21.55 18.61 .047 22.25 18.25 .075
March 31, 1997 26.00 20.75 .047 20.50 18.75 .075
June 30, 1997 25.08 20.75 .047 20.50 19.00 .075
Fiscal Year 1998
- ----------------
September 30, 1997 32.125 25.08 .047 23.00 18.75 .075
December 31, 1997 36.50 31.375 .055 31.00 22.50 .075
1998
- ----
March 31, 1998 35.6875 30.00 .055 29.50 22.75 .075
(through February 27, 1998)
</TABLE>
On December 12, 1997, the last trading day preceding the public
announcement of the execution of the Merger Agreement, the reported closing sale
price of Commercial Common Stock was $35.25 per share and the reported closing
sale price for Perpetual Common Stock was $27.75 per share. On February 27,
1998, the most recent practicable date prior to the mailing of this
Prospectus/Proxy Statement, the closing sale price for Commercial Common Stock
was $35.375 per share and the closing sale price for Perpetual Common Stock was
$28.75 per share. Based on an Exchange Ratio of .8636, the pro forma market
value of the shares of Commercial Common Stock to be received for each share of
Perpetual Common Stock was $30.44 as of December 12, 1997 and $30.55 as of
February 27, 1998.
COMPARISON OF STOCKHOLDER RIGHTS
Introduction. Upon consummation of the Merger, the holders of Perpetual
Common Stock, whose rights are presently governed by Delaware law and the
Perpetual Certificate of Incorporation ("Certificate") and Bylaws, will become
stockholders of Commercial, a Nebraska corporation. Accordingly, their rights
will be governed by Nebraska law and the Articles of Incorporation ("Articles")
and Bylaws of Commercial. Certain differences arise between the Perpetual
Certificate and Bylaws and the Articles and Bylaws of Commercial. The following
discussion is not intended to be a complete statement of all differences
affecting the rights of stockholders, but summarizes material differences
42
<PAGE>
and is qualified in its entirety by reference to the Articles, as amended, and
Bylaws of Commercial and the Certificate and the Bylaws of Perpetual . See
"Available Information."
Issuance of Capital Stock. The Articles of Commercial authorize the
issuance of 50,000,000 shares of Commercial Common Stock and 10,000,000 shares
of preferred stock, par value $0.01 per share. The Perpetual Certificate
authorizes the issuance of 6,000,000 shares of Perpetual Common Stock, par value
$.01 per share, and 3,000,000 shares of preferred stock, par value $.01 per
share. On February 27, 1998, 40,303,912 and 1,949,473 shares of Commercial
Common Stock and Perpetual Common Stock, respectively, were issued and
outstanding. Neither Commercial nor Perpetual had any shares of preferred stock
outstanding. Under Commercial's Articles of Incorporation and the Perpetual
Certificate, Commercial and Perpetual are authorized to issue additional shares
of capital stock up to the amount authorized without stockholder approval.
Voting Rights. Holders of Perpetual Common Stock are entitled to one vote
per share on all matters submitted to vote to the stockholders. There is no
cumulative voting. The Perpetual Certificate limits the voting rights of
persons acquiring beneficial ownership, directly or indirectly, in excess of 10%
of the outstanding Perpetual Common Stock. Those shares owned by a holder in
excess of 10% are not entitled nor permitted to any vote.
Holders of Commercial Common Stock are entitled to one vote per share on
all matters submitted to vote to the stockholders, other than during the
election of directors, where voting rights are cumulative.
Preemptive Rights. Neither the holders of Perpetual Common Stock nor the
holders of Commercial Common Stock have any preemptive or preferential right to
purchase or to subscribe for additional shares of Perpetual Common Stock or
Commercial Common Stock, respectively, or any other securities that either
Perpetual or Commercial may issue.
Number and Terms of Directors. The Boards of Directors of both Perpetual
and Commercial are classified into three terms, so that only one class is
elected at each annual meeting of stockholders. Commercial's Board of Directors
consists of between nine and 12 persons with the precise number to be specified
in the Bylaws. Action to change the number of directors must be by the
affirmative vote of not less than 75% of all outstanding shares of Commercial
Common Stock. The membership of the Perpetual's Board is fixed from time to
time pursuant to a resolution adopted by a majority of the whole Board of
Directors.
Removal of Directors. The Perpetual Certificate provides for removal of any
director only for cause by an affirmative vote of not less than 80% of the
outstanding shares of capital stock entitled to vote generally in the election
of directors. The Articles and Bylaws of Commercial provide for removal of any
director or the entire Board of Directors at any time with an affirmative vote
of the holders of 75% or more of the shares entitled to vote.
Special Meetings. Under Perpetual's Certificate and Bylaws, special
meetings of stockholders may only be called pursuant to a resolution adopted by
a majority of the whole Board of Directors. A special meeting of Commercial's
stockholders may be called for any purpose and at any time by a majority of the
members of the Board of Directors, by the holders of 75% or more of shares
entitled to vote at such meeting, or by a committee of the Board of Directors
which has been duly designated by the Board of Directors to have the power to
call such special meetings. No other person or persons may call special
meetings.
Approval of Business Combination. Perpetual's Certificate requires the
affirmative vote of the holders of not less than 80% of the outstanding shares
of voting stock for approval of certain business combination transactions with
"interested shareholders,", as defined in the Certificate (each, a "Business
Combination"). A majority vote of holders is required for a business
combination transaction with "interested shareholders" when (i) the business
combination is approved by a majority of disinterested directors or (ii) certain
fair price criteria set forth in the Certificate are met, which are designed to
ensure Perpetual's stockholders receive a fair price for their shares in a
business combination. In addition, Section 203 of the Delaware General
Corporation Law restricts certain transactions between a Delaware
43
<PAGE>
corporation, such as Perpetual, and a holder of 15% or more of the corporation's
outstanding voting stock, together with affiliates or associates thereof. The
three-year ban does not apply if either the proposed transaction or the
transaction by which the 15% stockholder became a 15% stockholder is approved by
the board of directors prior to the date such stockholder became a 15%
stockholder.
Commercial's Articles require that any merger, reorganization, or
consolidation, or any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of at least 25% of the fair market value of the total assets of
Commercial with any affiliate or any person who beneficially owns in the
aggregate 20% or more of the outstanding shares of voting stock of Commercial
must first be approved by the affirmative vote of the holders of not less than
75% of the outstanding shares of voting stock and the affirmative vote of the
holders of not less than a majority of the outstanding shares of voting stock
held by stockholders other than a principal shareholder ( a person who owns at
least 20% of the outstanding shares of Commercial's voting stock). Commercial's
Articles also require that certain fair price criteria designed to ensure that
Commercial's stockholders receive a fair price for their shares in a business
combination are met, unless a business combination is first approved by three-
quarters of the board of directors who were directors prior to the time the
person became a principal shareholder.
Restriction on Acquisition of Securities. The Perpetual Certificate
provides that in no event shall any record owner of any Perpetual Common Stock
which is beneficially owned, directly or indirectly, by such person be entitled
or permitted to vote any shares in excess of 10% of the outstanding shares of
Perpetual Common Stock. Commercial's Articles do not contain a similar
provision.
Authorized Preferred Stock. The Perpetual Certificate authorizes 3,000,000
shares of serial preferred stock. The Board of Directors may, subject to
applicable be law and National Association of Securities Dealers, Inc. ("NASD")
rules, authorize the issuance of preferred stock at such times, for such
purposes and for such consideration as it may deem advisable without further
stockholder approval. Commercial's Articles authorize the issuance of 10,000,000
shares of preferred stock. The Board of Directors of Commercial could issue
these shares of preferred stock without stockholder approval.
Board Consideration of Certain Non-monetary Factors in the Event of an
Offer by Another Party. Perpetual's Certificate directs the Board of
Directors, in evaluating a Business Combination or a tender or exchange offer,
to consider all relevant factors in determining what is in the best interest of
Perpetual and its stockholders, including, without limitation, the social and
economic effect of acceptance of such offer upon Perpetual's present and future
customers, employees, and subsidiaries; the impact upon the communities in which
Perpetual and its subsidiaries operate; Perpetual's ability to fulfill its
objectives as a financial institution holding company; and Perpetual's
subsidiary financial institution's ability to fulfill the objectives of a
federally insured financial institution.
Commercial has no similar provision in its Articles or Bylaws.
Rights Plan. On December 19, 1988, the Board of Directors of Commercial
adopted a Shareholder Rights Plan (the "Rights Plan") and declared a
distribution of stock purchase rights (the "Rights") payable to stockholders of
record on December 30, 1988. The Rights consist of primary rights (the "Primary
Rights"), which generally entitle the holders thereof to purchase shares of
Commercial Common Stock at 20% of the market price of such shares in the event
any person acquires an interest in 15% or more of Commercial Common Stock
without complying with a procedure intended to ensure fair treatment of all
stockholders of Commercial, and secondary rights (the "Secondary Rights"), which
generally entitle the holders thereof to purchase shares of Series A Junior
Participating Cumulative Preferred Stock of Commercial (the "Preferred Shares")
in the event a person acquires an interest in 25% or more of the outstanding
shares of Commercial Common Stock without complying with such procedural
requirements. The December 30, 1988 distribution consisted of one Primary Right
and One Secondary Right for each share of Commercial Common Stock outstanding on
that date and, subject to adjustment under certain circumstances, unless the
Rights expire or are earlier redeemed, one Primary Right and one Secondary Right
shall be issued with each share of Commercial Common Stock issued following
December 30, 1988 until the Rights become exercisable under the terms of the
Rights Plan.
44
<PAGE>
The Primary Rights will become exercisable, subject to extension, ten
business days following a public announcement that any person (other than
certain entities who beneficially owned more than 15% of Commercial's
outstanding Commercial Common Stock as of the date of adoption of the Rights
Plan and certain persons who acquire their shares directly from Commercial) has
acquired, or has obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of Commercial Common Stock and has not complied
with the procedural requirements set forth in the Rights Plan (such person being
referred to as a "15% Person"). Secondary Rights will become exercisable upon
the earlier of (i) one business day following a public announcement that any
person (other than Commercial or certain related entities) has acquired, or has
obtained the right to acquire, beneficial ownership of 25% or more of the
outstanding shares of Commercial Common Stock, provided that such acquisition is
not deemed a "Fair Offer," as described in the Rights Plan (such person being
known as a "25% Person"), or (ii) one business day following the commencement of
a tender offer, other than a Fair Offer, or exchange offer, the consummation of
which would result in the beneficial ownership of 25% or more of the outstanding
shares of Commercial Common Stock by any person other than Commercial or certain
related entities. A public announcement for this purpose shall be made by
Commercial or, as the case may be, by a 15% Person or a 25% Person.
The number of shares which may be purchased upon exercise of each Primary
Right is determined by dividing (i) that number of shares which equals 50% of
the outstanding shares of Commercial Common Stock, as of the date a person
became a 15% Person, by (ii) the number of Primary Rights outstanding, exclusive
of Primary Rights beneficially owned by the 15% Person, which shall become void.
The per share exercise price of shares issued upon the exercise of a Primary
Right is 20% of the market price of such shares as of the date the 15% Person
became a 15% Person.
Unless the Secondary Rights are earlier redeemed, in the event a person
becomes a 25% Person, each holder of a Secondary Right (other than Secondary
Rights beneficially owned by such 25% Person, which will thereafter become void)
will have the Right to purchase one-hundredth of a share of Preferred Shares at
a price of $42.00 per one-hundredth of a share. Unless the Secondary Rights
are earlier redeemed, in the event that (i) Commercial is the surviving
corporation in a merger with a 25% Person and Commercial Common Stock is not
changed or exchanged in such merger, (ii) a 25% Person engages in one of a
number of "self dealing" transactions, including certain preferential sales,
transfers or exchanges of Commercial assets or securities, (iii) during such
time as there is a 25% Person, there shall be any reclassification of securities
or recapitalization of Commercial or any merger or consolidation of Commercial
with any of its subsidiaries or any other transaction or series of transactions
which has the effect of increasing by more than 1% the proportionate share of
the outstanding shares of any class of equity securities or of securities
exercisable for or convertible into securities of Commercial or any of its
subsidiaries which is beneficially owned by a 25% Person, or (iv) a person
(other than Commercial or certain related entities) becomes the beneficial owner
of 25% or more of the outstanding shares of Commercial Common Stock (other than
pursuant to certain transactions set forth in the Rights Plan), then each holder
of a Secondary Right will have the right to receive, upon exercise and payment
of the Secondary Right exercise price, Commercial Common Stock having a value
equal to two times the then current Secondary Right exercise price.
In the event Commercial is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earnings
power is sold, each holder of a Secondary Right will thereafter have the right
to receive, upon the exercise and payment of the Secondary Right exercise price,
that number of shares of common stock of the acquiring company which at the time
of such transaction has a value equal to two times the then current Secondary
Right exercise price.
A majority of the independent directors of Commercial may authorize the
redemption of either or both of the Primary or Secondary Rights at a price of
$0.01 per Right at any time prior to the close of business on the tenth business
day, subject to extension, following the date of a public announcement that any
person has become a 15% Person, other than pursuant to certain cash tender
offers described in the Rights Plan, and at any time prior to the public
announcement that any person has become a 25% Person, other than pursuant to
such a cash tender offer. Commercial's right of redemption with respect to the
Secondary Rights will be reinstated if each 25% Person reduces its beneficial
ownership to less than 15% of Commercial Common Stock in a transaction not
involving a purchase by Commercial or its
45
<PAGE>
subsidiaries. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders thereof
will be to receive the redemption price.
The terms of the Rights may be amended by the Board of Directors of
Commercial without the consent of the holders of the Rights, except that
following the date on which the Rights become exercisable, such amendment may
not adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of Commercial (other than rights resulting from such
holder's ownership of Commercial Common Stock), including, without limitation,
the right to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights could cause
substantial dilution to a person or group that attempts to acquire Commercial
without conditioning the offer on the Rights being redeemed or substantially all
of the Rights being acquired.
Perpetual does not have any similar shareholder rights plan.
Amendment of Bylaws. The Board of Directors of Perpetual may adopt, alter,
amend, or repeal the Bylaws by a majority vote of the whole Board. Stockholders
may also adopt, alter, amend or repeal the Bylaws by affirmative vote of holders
of 80% of shares entitled to vote generally in the election of directors.
The Board of Directors of Commercial are authorized to make, repeal, alter,
amend or rescind any or all of the Bylaws of the corporation. Stockholders may
make, repeal, alter, amend or rescind the Bylaws only upon the approval of 75%
or more of the total voting power of outstanding shares of each class of capital
stock entitled to vote.
Amendment of Certificate of Incorporation and Articles of Incorporation.
Perpetual may amend alter or repeal any provision of its Certificate by a
resolution adopted by a majority of the board of directors, and subsequent
approval by an affirmative vote of a majority of stockholders entitled to vote,
except where the amendment, alteration, change or act to repeal the Perpetual
Certificate is inconsistent with Article 4, Section C (dealing with limitation
upon beneficial ownership); Article 5, Clause c (dealing with action of
stockholders without a meeting); Article 5, Clause d (dealing with the power to
call a special meeting of stockholders); Article 6 (dealing with the classified
board, vacancies on the board, stockholder nominations and removal of
directors); Article 7 (dealing with the power of the board of director and
stockholders to amend the Bylaws); Article 8 (dealing with approval of Business
Combinations); Article 10 (dealing with the purchase of an equity security from
an interested person); Article 11 (dealing with indemnification of directors and
officers); and Article 13 (dealing with amendment to the Certificate), in which
case the stockholder approval must be at least 80% of the shares entitled to
vote at the election of directors.
Commercial reserves the right to amend, alter, change or repeal any
provision contained in its Articles in the manner prescribed under the Nebraska
Business Corporation Act except that Article VII (dealing with the number of
directors of the corporation), Article VIII (dealing with the classified board
of directors), Article IX (dealing with the removal of directors), Article X
(dealing with filing vacancies on the Board of Directors and newly created
directorships), Article XI (dealing with the power to call special meetings of
the stockholders), Article XII ( dealing with the amount of stock which can be
acquired), Article XIII (dealing with the approval of Business
Combinations),Article XIV (dealing with the market price of stock involved in
any business combination), Article XV (dealing with the amendment to the Bylaws
by directors and by stockholders) and Article XVI ( the provision explaining
these exceptions), may not be repealed or amended in any respect, unless such
repeal or amendment is approved by the affirmative vote of the holders of not
less than 75% of all outstanding shares of Commercial Common Stock entitled to
vote generally, other than in the election of directors, and the affirmative
vote of the holders of not less than a majority of the outstanding shares of
Commercial Common Stock entitled to vote generally, other than in the election
of directors and other than Principal Shareholders.
46
<PAGE>
Advance Notice Requirements for Nominations of Directors and Presentation
of New Business at Annual Meeting of Stockholders. The Perpetual Certificate
permits stockholder nominations of candidates for the election of directors.
Nominations by stockholders shall be made in writing and delivered or mailed to
and received, by the Secretary of the Corporation not less than 30 days prior to
the date of the meeting; provided, however, that in the event that less than 40
days notice of the date of the meeting is given to stockholders, notice by the
close of business on the 10th day following the day on which such notice of the
date of the meeting was mailed. The written notice by the stockholder must
include information required pursuant to Schedule 14A of the Exchange Act for
nominees for election of directors, as well as, for each nominee, a written
consent to be named in the Proxy Statement and to serve as director if elected.
The stockholder making the proposal must provide his or her name and address as
it appears on the transfer books, and the class and number of shares of
Perpetual capital stock beneficially owned by such stockholder.
The Commercial Bylaws provide that any stockholder entitled to vote in the
election of directors may make nominations for the election of directors and
proposals for new business to be taken up at any annual or special meeting.
Stockholder nominations for the election of directors must be delivered by first
class U.S. Mail, postage prepaid, to the Secretary of Commercial not less than
60 days prior to such meeting. The nomination must set forth the name, age,
business address, residence, the principal occupation of the nominee, and the
number of shares the nominee beneficially owns. Proposals by stockholders must
be delivered to the Secretary of Commercial in writing setting forth a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, the name and address of
stockholder making the proposal, the class and number of shares beneficially
owned by the stockholder proposing such business, and any material interest of
the stockholder in such business not less than 60 days prior to the annual or
special meeting to the Secretary.
Action of Stockholders Without a Meeting. The Perpetual Certificate and
Bylaws provide that no action required to be taken or which may be taken at any
annual or special meeting of stockholders of the corporation may be taken
without a meeting. The power for stockholders to consent in writing to take
action without a meeting is expressly denied.
The Bylaws of Commercial permit any action required to be taken at a
meeting of the stockholders, or any action which may be taken at a meeting of
the stockholders, may be taken without a meeting if a consent in writing,
setting for the action so taken, shall be signed by all of the stockholders
entitled to vote. Such written stockholder consent will have the effect of a
unanimous stockholder vote.
SOLICITATION OF PROXIES
The cost of soliciting proxies will be borne by Perpetual. Perpetual will
reimburse brokerage firms and other custodians, nominees and fiduciaries for
reasonable expenses incurred by them in sending proxy materials to the
beneficial owners of Perpetual Common Stock. In addition to solicitations by
mail, directors, officers and regular employees of Perpetual may solicit proxies
personally or by telegraph or telephone without additional compensation.
Regan & Associates, Inc. will assist in the solicitation of proxies by
Perpetual for a fee of $3,250 plus reasonable expenses associated with such
solicitation.
Perpetual's 1997 Annual Report to Stockholders, including financial
statements, and Quarterly Report on Form 10-Q for the quarter ended December 31,
1997, accompany this Prospectus/Proxy Statement.
47
<PAGE>
PERPETUAL FORM 10-KSB
A COPY OF PERPETUAL'S ANNUAL REPORT ON FORM 10-KSB FOR THE FISCAL YEAR ENDED
JUNE 30, 1997 WILL BE FURNISHED WITHOUT CHARGE TO STOCKHOLDERS AS OF THE RECORD
DATE UPON WRITTEN REQUEST TO THE SECRETARY, PERPETUAL MIDWEST FINANCIAL, INC.,
700 FIRST AVENUE, N.E., CEDAR RAPIDS, IOWA 52401.
LEGAL MATTERS
The legality of the Commercial Common Stock to be issued pursuant to the
Merger Agreement will be passed upon for Commercial by Fitzgerald, Schorr,
Barmettler & Brennan, P.C., Omaha, Nebraska.
Certain other legal matters in connection with the Merger will be passed
upon for Commercial by Housley Kantarian & Bronstein, P.C., Washington, D.C.,
and for Perpetual by Silver, Freedman & Taff, L.L.P., Washington, D.C.
EXPERTS
The consolidated financial statements of Commercial as of June 30, 1997 and
1996 and for each of the three years in the period ended June 30, 1997
incorporated in this Prospectus/Proxy Statement by reference from Commercial's
Annual Report on Form 10-K for the fiscal year ended June 30, 1997 have been
audited by Deloitte & Touche llp, independent auditors, as stated in their
report, which is incorporated by reference herein (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),
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
The consolidated financial statements of Perpetual as of June 30, 1997 and
1996 and for each of the three years in the period ended June 30, 1997,
incorporated by reference herein, have been audited by Crowe, Chizek and
Company llp, independent auditors, as stated in their report which is
incorporated by reference herein and have been so incorporated in reliance upon
the report of such firm given upon their authority, as experts in accounting and
auditing.
INDEPENDENT ACCOUNTANTS
Representatives of Crowe, Chizek and Company LLP, Perpetual's independent
certified public accountants, are not expected to be present at the Special
Meeting to respond to stockholder's questions and, as a result, will not have an
opportunity to make a statement at the Special Meeting.
OTHER MATTERS
The Perpetual Board of Directors is not aware of any business to come
before the Special Meeting other than those matters described in this
Prospectus/Proxy Statement. However, if any other matter should properly come
before the Special Meeting, it is intended that holders of the proxies will act
in accordance with their best judgment.
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<PAGE>
-------------------------------------
REORGANIZATION AND MERGER AGREEMENT
AS AMENDED
By and Among
COMMERCIAL FEDERAL CORPORATION
AND
COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK
And
PERPETUAL MIDWEST FINANCIAL, INC.
AND
PERPETUAL SAVINGS BANK, FSB
Dated as of December 15, 1997
-------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE I THE MERGER AND RELATED MATTERS................................................................2
1.1 Merger: Surviving Institution.................................................................2
1.2 Effective Time of the Merger..................................................................3
1.3 Conversion of Shares..........................................................................3
1.4 Surviving Corporation in the Acquisition Merger...............................................4
1.5 Authorization for Issuance of Commercial Common Stock;
Exchange of Certificates..................................................................5
1.6 No Fractional Shares..........................................................................7
1.7 Shareholders' Meeting.........................................................................7
1.8 Company Stock Options.........................................................................7
1.9 Registration Statement; Prospectus/Proxy Statement............................................8
1.10 Cooperation; Regulatory Approvals............................................................10
1.11 Closing......................................................................................10
1.12 Closing of Transfer Books....................................................................10
1.13 Bank Merger..................................................................................10
1.14 Option Agreement.............................................................................11
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY
AND SAVINGS..............................................................................11
2.1 Organization, Good Standing, Authority, Insurance, Etc.......................................11
2.2 Capitalization...............................................................................12
2.3 Ownership of Subsidiaries....................................................................12
2.4 Financial Statements and Reports.............................................................13
2.5 Absence of Changes...........................................................................14
2.6 Prospectus/Proxy Statement...................................................................14
2.7 No Broker's or Finder's Fees.................................................................15
2.8 Litigation and Other Proceedings.............................................................15
2.9 Compliance with Law..........................................................................15
2.10 Corporate Actions............................................................................16
2.11 Authority....................................................................................16
2.12 Employment Arrangements......................................................................17
2.13 Employee Benefits............................................................................17
2.14 Information Furnished........................................................................19
2.15 Property and Assets..........................................................................19
2.16 Agreements and Instruments...................................................................19
2.17 Material Contract Defaults...................................................................20
2.18 Tax Matters..................................................................................20
2.19 Environmental Matters........................................................................21
2.20 Loan Portfolio: Portfolio Management........................................................21
</TABLE>
i
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<TABLE>
<CAPTION>
<S> <C> <C>
2.21 Real Estate Loans and Investments............................................................22
2.22 Derivatives Contracts........................................................................22
2.23 Insurance....................................................................................22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF COMMERCIAL
AND THE BANK.............................................................................23
3.1 Organization, Good Standing, Authority, Insurance, Etc.......................................23
3.2 Capitalization...............................................................................23
3.3 Ownership of Subsidiaries....................................................................23
3.4 Financial Statements and Reports.............................................................24
3.5 Absence of Changes...........................................................................25
3.6 Prospectus/Proxy Statement...................................................................25
3.7 No Broker's or Finder's Fees.................................................................25
3.8 Compliance With Law..........................................................................26
3.9 Corporate Actions............................................................................26
3.10 Authority....................................................................................26
3.11 Information Furnished........................................................................27
3.12 Litigation and Other Proceedings.............................................................27
3.13 Agreements and Instruments...................................................................27
3.14 Tax Matters..................................................................................27
3.15 Property and Assets..........................................................................27
3.16 Derivatives Contracts........................................................................28
3.17 Insurance....................................................................................28
ARTICLE IV COVENANTS....................................................................................28
4.1 Investigations; Access and Copies............................................................28
4.2 Conduct of Business of the Company and the Company Subsidiaries..............................29
4.3 No Solicitation..............................................................................30
4.4 Shareholder Approval.........................................................................31
4.5 Filing of Holding Company and Merger Applications............................................31
4.6 Consents.....................................................................................31
4.7 Resale Letter Agreements.....................................................................31
4.8 Publicity....................................................................................32
4.9 Cooperation Generally........................................................................32
4.10 Additional Financial Statements and Reports..................................................32
4.11 Stock Listing................................................................................32
4.12 Allowance for Loan and Real Estate Owned Losses..............................................33
4.13 D&O Indemnification and Insurance............................................................33
4.14 Tax Treatment................................................................................34
4.15 Update Disclosure............................................................................34
4.16 Company's Employee Plans and Benefit Arrangements............................................34
4.17 Amendment of Savings' Federal Stock Charter..................................................36
4.18 Commercial Goodwill Claim....................................................................36
4.19 Environmental Reports........................................................................36
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE V CONDITIONS TO THE MERGER; TERMINATION
OF AGREEMENT.............................................................................37
5.1 General Conditions...........................................................................37
5.2 Conditions to Obligations of Commercial and Bank.............................................37
5.3 Conditions to Obligations of Company and Savings.............................................40
5.4 Termination of Agreement and Abandonment of Merger...........................................40
ARTICLE VI TERMINATION OF OBLIGATIONS; PAYMENT OF EXPENSES..............................................42
6.1 Termination; Lack of Survival of Representations and Warranties..............................42
6.2 Payment of Expenses..........................................................................42
ARTICLE VII CERTAIN POST-MERGER AGREEMENTS...............................................................42
7.1 Reports to the SEC...........................................................................42
7.2 Employees....................................................................................43
ARTICLE VIII GENERAL......................................................................................43
8.1 Amendments...................................................................................43
8.2 Confidentiality..............................................................................44
8.3 Governing Law................................................................................44
8.4 Notices......................................................................................44
8.5 No Assignment................................................................................45
8.6 Headings.....................................................................................45
8.7 Counterparts.................................................................................45
8.8 Construction and Interpretation..............................................................45
8.9 Entire Agreement.............................................................................45
8.10 Severability.................................................................................45
8.11 No Third Party Beneficiaries.................................................................46
8.12 Enforcement of Agreement.....................................................................46
<CAPTION>
<S> <C>
Schedules:
Schedule I Disclosure Schedule for the Company and Savings.............................................
Schedule II Disclosure Schedule for Commercial and the Bank.............................................
Schedule 4.2................................................................................................
Schedule 4.7................................................................................................
Schedule 4.16...............................................................................................
Exhibits:
Exhibit 1.1(a) Acquisition Plan of Merger..................................................................
Exhibit 1.1(b) Bank Plan of Merger.........................................................................
Exhibit 1.14 Option Agreement
Exhibit 5.2(a) Form of Opinion of Counsel for the Company..................................................
Exhibit 5.3(a) Form of Opinion of Counsel for Commercial...................................................
</TABLE>
iii
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REORGANIZATION AND MERGER AGREEMENT
================================================================================
THIS REORGANIZATION AND MERGER AGREEMENT ("Agreement") is dated as of
December 15, 1997, by and among COMMERCIAL FEDERAL CORPORATION, a Nebraska
corporation ("Commercial"), and COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK,
a Federally chartered savings bank and wholly-owned subsidiary of Commercial
("Bank"); and PERPETUAL MIDWEST FINANCIAL, INC., a Delaware corporation
("Company"), and Perpetual Savings Bank, FSB, a Federally chartered savings bank
and wholly-owned subsidiary of Company ("Savings").
WHEREAS, Commercial, a non-diversified, unitary savings and loan holding
company, with principal offices in Omaha, Nebraska, owns all of the issued and
outstanding capital stock of Bank, with its principal offices in Omaha,
Nebraska.
WHEREAS, the Company, a non-diversified, unitary savings and loan holding
company, with principal offices in Cedar Rapids, Iowa, owns all of the issued
and outstanding capital stock of Savings, with principal offices in Cedar
Rapids, Iowa;
WHEREAS, Commercial and the Company desire to combine their respective
holding companies through a tax-free exchange so that the respective
shareholders of both Commercial and the Company will have an equity ownership in
the combined holding company;
WHEREAS, following the combination of Commercial and the Company, it is
intended that Bank and Savings will be merged such that the resulting holding
company will retain the advantage of a unitary savings and loan holding company
status and that the resulting savings institution will achieve certain economies
of scale and efficiencies as a result of such subsequent merger;
WHEREAS, it is intended that to accomplish this result, the Company will be
acquired by means of a merger (the "Acquisition Merger") of the Company with and
into Commercial, followed by the merger of Savings with and into the Bank (the
"Bank Merger"). The Acquisition Merger and the Bank Merger are collectively
referred to as the "Merger";
WHEREAS, it is intended that for federal income tax purposes, the Merger
shall qualify as a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code") and this Agreement shall
constitute a plan of reorganization pursuant to Section 368 of the Code;
WHEREAS, as an inducement to and condition of Commercial's willingness to
enter into this Agreement, the Company will grant to Commercial an option
pursuant to the Stock Option Agreement, the form of which is attached hereto as
Exhibit 1.14 (the "Option Agreement"); and
1
<PAGE>
WHEREAS, the Boards of Directors of Commercial and the Company have
determined that this Agreement and the transactions contemplated hereby are in
the best interests of Commercial and the Company, respectively, and their
respective stockholders and have approved this Agreement and the Option
Agreement. Consummation of the Merger is subject to the prior approval of the
Office of Thrift Supervision ("OTS") and the approval of this Agreement by the
stockholders of the Company, among other conditions specified herein.
NOW THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree as follows:
ARTICLE I
THE MERGER AND RELATED MATTERS
1.1 Merger: Surviving Institution. Subject to the terms and conditions of
-----------------------------
this Agreement, and pursuant to the provisions of the Nebraska Business
Corporation Act ("NBCA"), the Delaware General Corporation Law ("DGCL"), the
Home Owners Loan Act, as amended ("HOLA"), and the rules and regulations
promulgated thereunder (the "Thrift Regulations"), (a) at the Acquisition Merger
Effective Time (as hereinafter defined), the Company shall be merged with and
into Commercial pursuant to the terms and conditions set forth herein and in the
Plan of Merger to be set forth as Exhibit 1.1(a) attached hereto (the
"Acquisition Plan of Merger"), (b) the separate corporate existence of the
Company shall cease and Commercial shall continue as the surviving corporation
(sometimes referred to herein as the "Surviving Corporation"), and (c)
thereafter, at the Bank Merger Effective Time (as hereinafter defined) Savings
shall be merged with and into the Bank pursuant to the terms and conditions set
forth herein and in a plan of merger set forth in Exhibit 1.1(b) (the "Bank Plan
of Merger"). The Acquisition Merger shall have the effects specified in the
NBCA and the DGCL, Section 1.4(e) hereof and the Acquisition Plan of Merger.
Upon consummation of the Bank Merger, the separate existence of Savings shall
cease and the Bank shall continue as the surviving institution of the Bank
Merger. The name of the Bank, as the surviving institution of the Bank Merger,
shall remain "Commercial Federal Bank, a Federal Savings Bank". From and after
the Bank Merger Effective Time, the Bank, as the surviving institution of the
Bank Merger, shall possess all of the properties and rights and be subject to
all of the liabilities and obligations of the Bank and Savings, all as more
fully described in the Thrift Regulations, Section 1.13 hereof and the Bank Plan
of Merger. Commercial may at any time change the method of effecting the Merger
if and to the extent it deems such change to be desirable, provided, however,
-------- -------
that no such change shall (A) alter or change the amount or kind of
consideration to be issued to holders of Company common stock as provided for in
this Agreement, (B) adversely affect the tax treatment to Company shareholders
as a result of receiving the consideration described in Section 1.3 herein or
(C) materially impede or delay receipt of any approval referred to in Section
5.1 hereof or the consummation of the transactions contemplated by this
Agreement.
2
<PAGE>
1.2 Effective Time of the Merger. As soon as practicable after each of
----------------------------
the conditions set forth in Article V hereof have been satisfied or waived,
Commercial and the Company will file, or cause to be filed, a certificate or
articles of merger with appropriate authorities of Nebraska and Delaware for the
Acquisition Merger and articles of combination with the OTS for the Bank Merger,
which certificate, articles of merger and articles of combination shall in each
case be in the form required by and executed in accordance with applicable
provisions of law and the Thrift Regulations, respectively. The Acquisition
Merger shall become effective at the latest to occur of the time (i) the
Nebraska articles of merger are filed with the appropriate authorities of
Nebraska or (ii) the certificate of merger is filed with the appropriate
authorities of Delaware (the "Acquisition Merger Effective Time"), which shall
be immediately following the Closing (as defined in Section 1.11 herein) and on
the same day as the Closing if practicable. The Bank Merger shall become
effective at the time the articles of combination for such merger are endorsed
by the OTS pursuant to Section 552.13(k) of the Thrift Regulations (the "Bank
Merger Effective Time"). The parties shall cause the Acquisition Merger to
become effective prior to the Bank Merger.
1.3 Conversion of Shares.
--------------------
(a)(i) At the Acquisition Merger Effective Time, by virtue of the
Acquisition Merger and without any action on the part of Commercial or the
Company or the holders of shares of Commercial or Company common stock, each
outstanding share of Company common stock issued and outstanding immediately
prior to the Acquisition Merger Effective Time shall be converted into and
represent solely the right to receive without any action by the holder, 0.5757
of a share of common stock, $.01 par value, of Commercial (the "Commercial
Common Stock") (the "Exchange Ratio"), subject to adjustment as provided in
clause (a)(iv) of this Section and Section 5.4(c)(the "Merger Consideration").
(ii) Any shares of Company common stock which are owned or
held by the Company or any of its subsidiaries (except shares held in any
qualified plan of the Company or any of its subsidiaries or otherwise held in a
fiduciary capacity or in satisfaction of a debt previously contracted) or by
Commercial or any of Commercial's subsidiaries (other than in a fiduciary
capacity) at the Acquisition Merger Effective Time shall cease to exist, and the
certificates for such shares shall as promptly as practicable be canceled and no
shares of capital stock of Commercial shall be issued or exchanged therefor.
(iii) At the Acquisition Merger Effective Time, the holders
of certificates representing shares of the Company's common stock (the "Company
Common Stock") shall cease to have any rights as stockholders of the Company,
except the right to receive the Merger Consideration as provided herein.
(iv) If the holders of Commercial Common Stock shall have
received or shall have become entitled to receive, without payment therefor,
during the period commencing within five days prior to the date hereof and
ending with the Acquisition Merger Effective Time, additional shares of common
stock or other securities for their stock by way of a stock split, stock
3
<PAGE>
dividend, reclassification, combination of shares, spinoff or similar corporate
rearrangement or Commercial shall exchange Commercial Common Stock for a
different number or kind of shares or securities ("Stock Adjustment"), then the
amount of Commercial Common Stock to be exchanged at the Acquisition Merger
Effective Time for Company Common Stock shall be proportionately adjusted to
take into account such Stock Adjustment. In addition, the Average NYSE Closing
Price, as defined below, shall be proportionately adjusted to compensate for any
such Stock Adjustment.
(b) The term "NYSE Closing Price" shall mean the closing price per
share (carried to four decimal places and rounded down) of the Commercial Common
Stock on the New York Stock Exchange. The term "Average NYSE Closing Price"
shall mean the arithmetic mean of the NYSE Closing Prices of the Commercial
Common Stock for the 25/th/ through the sixth trading day, inclusive,
immediately preceding the business day prior to the later of (A) the date on
which all requisite federal and state regulatory approvals required to
consummate the transactions contemplated by this Agreement are obtained (and
Commercial shall notify the Company of the date when all such approvals are
obtained), including for this purpose the period of any requisite waiting
periods in respect thereof, (B) the date of the Company's meeting of
shareholders to be held pursuant to Section 1.7 herein or (C) the 25/th/ day of
the month immediately preceding the month in which the parties have scheduled in
writing the Closing to occur, or the next succeeding business day (the
"Determination Period").
(c) Each share of Commercial Common Stock to be issued to the
Company's shareholders pursuant to this Section 1.3 shall include the
corresponding number of rights associated with the Commercial Common Stock
pursuant to the Rights Agreement dated as of December 19, 1988 by and between
Commercial and Manufacturers Hanover Trust Company, as Rights Agent ("Commercial
Rights Agreement").
1.4 Surviving Corporation in the Acquisition Merger.
-----------------------------------------------
(a) The name of the Surviving Corporation shall be Commercial Federal
Corporation.
(b) The Articles of Incorporation of Commercial as in effect
immediately prior to the Acquisition Merger Effective Time shall be the Articles
of Incorporation of the Surviving Corporation, until amended as provided therein
or by law.
(c) The bylaws of Commercial as in effect immediately prior to the
Acquisition Merger Effective Time, shall thereafter be the bylaws of the
Surviving Corporation, until amended as provided therein or by law.
(d) The directors and officers of Commercial immediately prior to the
Acquisition Merger Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation following the Acquisition Merger,
until their successors shall be duly elected and qualified or otherwise duly
selected.
4
<PAGE>
(e) From and after the Acquisition Merger Effective Time:
(i) The Surviving Corporation shall possess all assets and
property of every description, and every interest in the assets and property,
wherever located, and the rights, privileges, immunities, powers, franchises,
and authority, of a public as well as of a private nature, of each of Commercial
and the Company, and all obligations belonging or due to each of Commercial and
Company, all of which are vested in the Surviving Corporation without further
act or deed. Title to any real estate or any interest in the real estate vested
in Commercial or the Company shall not revert or in any way be impaired by
reason of the Acquisition Merger.
(ii) The Surviving Corporation shall be liable for all the
obligations of each of Commercial and the Company. Any claim existing, or action
or proceeding pending, by or against the Company or Commercial, may be
prosecuted to judgement, with right of appeal, as if the Acquisition Merger had
not taken place, or the Surviving Corporation may be substituted in its place.
(iii) All the rights of creditors of each of the Company and
Commercial are preserved unimpaired, and all liens upon the property of the
Company and Commercial are preserved unimpaired, on only the property affected
by such liens immediately prior to the Acquisition Merger Effective Time.
1.5 Authorization for Issuance of Commercial Common Stock; Exchange of
------------------------------------------------------------------
Certificates.
------------
(a) Commercial shall reserve or will at Closing have available for
issuance a sufficient number of shares of the Commercial Common Stock for the
purpose of issuing its shares of Commercial Common Stock to the Company's
shareholders in accordance with this Article I, including Section 1.8.
Immediately prior to the Acquisition Merger Effective Time, Commercial shall
make available for exchange or conversion, by transferring to an exchange agent
appointed by Commercial (the "Exchange Agent") for the benefit of the holders of
Company Common Stock: (i) such number of whole shares of Commercial Common Stock
as shall be issuable in connection with the payment of the aggregate Merger
Consideration, and (ii) such funds as may be payable in lieu of fractional
shares of Commercial Common Stock.
(b) After the Acquisition Merger Effective Time, holders of
certificates theretofore evidencing outstanding shares of Company Common Stock
(other than as provided in Section 1.3(a)(ii)), upon surrender of such
certificates to the Exchange Agent, shall be entitled to receive certificates
representing the number of whole shares of Commercial Common Stock into which
shares of Company Common Stock theretofore represented by the certificates so
surrendered shall have been converted, as provided in Section 1.3 hereof and
cash payments in lieu of fractional shares as provided in Section 1.6 hereof.
As soon as practicable after the Acquisition Merger Effective Time but not later
than ten (10) business days thereafter, the Exchange Agent will send a notice
and transmittal form to each Company shareholder of record at the Acquisition
Merger Effective Time whose Company Common Stock shall have been
5
<PAGE>
converted into Commercial Common Stock advising such shareholder of the
effectiveness of the Acquisition Merger and the procedure for surrendering to
the Exchange Agent outstanding certificates formerly evidencing Company Common
Stock in exchange for new certificates for Commercial Common Stock and for cash
in lieu of any fractional interest. Upon surrender, each certificate evidencing
Company common stock shall be canceled.
(c) Until surrendered as provided in this Section 1.5, each
outstanding certificate which, prior to the Acquisition Merger Effective Time,
represented Company Common Stock (other than shares canceled at the Acquisition
Merger Effective Time pursuant to Section 1.3(a)(ii) hereof) will be deemed for
all purposes to evidence ownership of the number of shares of Commercial Common
Stock into which the shares of Company common stock formerly represented thereby
were converted and the right to receive cash in lieu of any fractional interest.
However, until such outstanding certificates formerly representing Company
common stock are so surrendered, no dividend or distribution payable to holders
of record of Commercial Common Stock shall be paid to any holder of such
outstanding certificates, but upon surrender of such outstanding certificates by
such holder there shall be paid to such holder the amount of any dividends or
distribution, without interest, theretofore paid with respect to such whole
shares of Commercial Common Stock, but not paid to such holder, and which
dividends or distribution had a record date occurring on or subsequent to the
Acquisition Merger Effective Time and the amount of any cash, without interest,
payable to such holder in lieu of fractional shares pursuant to Section 1.6
hereof. After the Acquisition Merger Effective Time, there shall be no further
registration of transfers on the records of the Company of outstanding
certificates formerly representing shares of Company common stock and, if a
certificate formerly representing such shares is presented to Commercial, it
shall be forwarded to the Exchange Agent for cancellation and exchanged for
certificates representing shares of Commercial Common Stock as herein provided.
(d) All shares of Commercial Common Stock and cash in lieu of any
fractional shares issued and paid upon the surrender for exchange of Company
common stock in accordance with the above terms and conditions shall be deemed
to have been issued in full satisfaction of all rights pertaining to such shares
of Company common stock.
(e) If any new certificate for Commercial Common Stock is to be
issued in the name other than that in which the certificate surrendered in
exchange thereof is registered, it shall be a condition of the issuance therefor
that the certificate surrendered in exchange shall be properly endorsed and
otherwise in proper form for transfer and that the person requesting such
transfer pay to the Exchange Agent any transfer or other taxes, if any, required
by reason of the issuance of a new certificate for shares of Commercial Common
Stock in any name other than that of the registered holder of the certificate
surrendered, or establish to the satisfaction of the Exchange Agent that such
tax has been paid or is not payable.
(f) In the event any certificate for Company common stock shall have
been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for
such lost, stolen or destroyed certificate, upon the making of an affidavit of
that fact by the holder thereof, such shares of Commercial Common Stock and cash
in lieu of fractional shares, if any, as may be required
6
<PAGE>
pursuant hereto; provided, however, that Commercial may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against
Commercial, the Company, the Exchange Agent or any other party with respect to
the certificate alleged to have been lost, stolen or destroyed.
1.6 No Fractional Shares. Notwithstanding any term or provision hereof,
--------------------
no fractional shares of Commercial Common Stock, and no certificates or scrip
therefor, or other evidence of ownership thereof, will be issued in exchange for
any shares of Company common stock; no dividend or distribution with respect to
Commercial Common Stock shall be payable on or with respect to any fractional
share interests; and no such fractional share interest shall entitle the owner
thereof to vote or to any other rights of a shareholder of Commercial. In lieu
of such fractional share interest, any holder of Company common stock who would
otherwise be entitled to a fractional share of Commercial Common Stock will,
upon surrender of his certificate or certificates representing Company common
stock outstanding immediately prior to the Acquisition Merger Effective Time, be
paid the applicable cash value of such fractional share interest, which shall be
equal to the product of the fraction multiplied by the Average NYSE Closing
Price. For the purposes of determining any such fractional share interests, all
shares of Company common stock owned by a Company shareholder shall be combined
so as to calculate the maximum number of whole shares of Commercial Common Stock
issuable to such Company shareholder in the Acquisition Merger.
1.7 Shareholders' Meeting. The Company shall, at the earliest practicable
---------------------
date after the effectiveness of the Registration Statement (as hereinafter
defined), hold a meeting of its shareholders (the "Company Shareholders'
Meeting") to submit for shareholder approval this Agreement and the Acquisition
Merger and all related matters necessary to the consummation of the transactions
contemplated hereby. The affirmative vote of the holders of at least a majority
of the issued and outstanding shares of Company Common Stock entitled to vote at
the Company Shareholders' Meeting shall be required for approval of the
Acquisition Merger and all such related matters.
1.8 Company Stock Options. At the Acquisition Merger Effective Time, each
---------------------
option outstanding under the Company's 1993 Stock Option and Incentive Plan (the
"Company Option Plan"), whether or not then exercisable, shall continue
outstanding as an option to purchase, in place of the purchase of each share of
Company common stock, the number of shares (rounded to the nearest whole share)
of Commercial Common Stock that would have been received by the optionee in the
Merger had the option been exercised in full (without regard to any limitations
contained therein on exercise) for shares of Company common stock immediately
prior to the Acquisition Merger upon the same terms and conditions under the
relevant option as were applicable immediately prior to the Acquisition Merger
Effective Time, except for appropriate pro rata adjustments as to the relevant
option price for shares of Commercial Common Stock substituted therefor so that
the aggregate option exercise price of shares subject to an option immediately
following the assumption and substitution shall be the same as the aggregate
option exercise price for such shares immediately prior to such assumption and
substitution. Commercial
7
<PAGE>
shall assume at the Acquisition Merger Effective Time each such option and the
Company Option Plan It is intended that the foregoing assumption shall be
undertaken consistent with and in a manner that will not constitute a
"modification" under Section 424 of the Code as to any stock option which is an
"incentive stock option." Commercial and Company agree to take such actions as
shall be necessary to give effect to the foregoing. The Compensation Committee
of the Company shall not authorize the payment of cash pursuant to Section 13 of
the Company Option Plan.
At all times after the Acquisition Merger Effective Time, Commercial shall
reserve for issuance such number of shares of Commercial Common Stock as are
necessary so as to permit the exercise of options granted under the Company
Option Plan in the manner contemplated by this Agreement and the instruments
pursuant to which such options were granted. Commercial shall make all filings
required under federal and state securities laws so as to permit the exercise of
such options and the sale of the shares received by the option holder upon such
exercise.
1.9 Registration Statement; Prospectus/Proxy Statement.
--------------------------------------------------
(a) For the purposes (i) of registering the Commercial Common Stock
to be issued to holders of Company common stock in connection with the Merger
and the shares issuable under the Company Option Plan pursuant to Section 1.8
hereof with the Securities and Exchange Commission ("SEC") and with applicable
state securities authorities, and (ii) of holding the Company Shareholders'
Meeting, the parties hereto shall cooperate in the preparation of an appropriate
registration statement (such registration statement, together with all and any
amendments and supplements thereto, being herein referred to as the
"Registration Statement"), including the prospectus/proxy statement satisfying
all applicable requirements of applicable state laws, and of the Securities Act
of 1933, as amended (the "1933 Act") and the Securities Exchange Act of 1934, as
amended (the "1934 Act") and the rules and regulations thereunder (such
prospectus/proxy statement, together with any and all amendments or supplements
thereto, being herein referred to as the "Prospectus/Proxy Statement"). At the
election of the Company, such Prospectus/Proxy Statement may also include
information necessary to conduct the annual meeting of shareholders of the
Company.
(b) Commercial shall furnish such information concerning Commercial
and the Commercial Subsidiaries (as defined in Section 3.1 hereof) as is
necessary in order to cause the Prospectus/Proxy Statement, insofar as it
relates to such corporations, to comply with Section 1.9(a) hereof. Commercial
agrees promptly to advise the Company if at any time prior to the Company
Shareholders' Meeting any information provided by Commercial in the
Prospectus/Proxy Statement becomes incorrect or incomplete in any material
respect and to provide the information needed to correct such inaccuracy or
omission. Commercial shall promptly file such supplemental information as may
be necessary in order to cause such Prospectus/Proxy Statement, insofar as it
relates to Commercial and the Commercial Subsidiaries, to comply with Section
1.9(a).
8
<PAGE>
(c) The Company shall furnish Commercial with such information
concerning the Company and the Company Subsidiaries (as defined in Section 2.1
hereof) as is necessary in order to cause the Prospectus/Proxy Statement,
insofar as it relates to such corporations, to comply with Section 1.9(a)
hereof. The Company agrees promptly to advise Commercial if at any time prior
to the Company Shareholders' Meeting any information provided by the Company in
the Prospectus/Proxy Statement becomes incorrect or incomplete in any material
respect and to provide Commercial with the information needed to correct such
inaccuracy or omission. The Company shall furnish Commercial with such
supplemental information as may be necessary in order to cause the
Prospectus/Proxy Statement, insofar as it relates to the Company and the Company
Subsidiaries, to comply with Section 1.9(a).
(d) Commercial shall promptly file the Registration Statement with
the SEC and applicable state securities agencies. Commercial shall use all
reasonable efforts to cause the Registration Statement to become effective under
the 1933 Act and applicable state securities laws at the earliest practicable
date. The Company authorizes Commercial to utilize in the Registration Statement
the information concerning the Company and the Company Subsidiaries provided to
Commercial for the purpose of inclusion in the Prospectus/Proxy Statement. The
Company shall have the right to review and approve the form of proxy statement
included in the Registration Statement prior to its filing with the SEC and
prior to its mailing to Company shareholders. Commercial shall advise the
Company promptly when the Registration Statement has become effective and of any
supplements or amendments thereto, and Commercial shall furnish Company with
copies of all such documents. Prior to the Acquisition Merger Effective Time or
the termination of this Agreement, each party shall consult with the other with
respect to any material (including the Prospectus/Proxy Statement) that might
constitute a "prospectus" relating to the Merger within the meaning of the 1933
Act.
(e) The Company shall consult with Commercial in order to determine
whether any directors, officers or shareholders of the Company may be deemed to
be "affiliates" of the Company ("affiliated persons") within the meaning of Rule
145 of the SEC promulgated under the 1933 Act. Commercial and the Company shall
each take such action as may be necessary or appropriate to ensure that their
respective affiliated persons are aware of and comply with the guidelines of the
SEC with respect to the sale by affiliates of stock of companies engaging in a
business combination transaction to be accounted for as a pooling of interests
as set forth in Topic 2-E of the SEC staff accounting bulletin series. All
shares of Commercial common stock issued to such Company affiliated persons (i)
in connection with the Merger or (ii) upon exercise of options received pursuant
to Section 1.8 hereof subsequent to the Acquisition Merger Effective Time, shall
bear a legend upon the face thereof stating that transfer of the securities is
or may be restricted by the provisions of the 1933 Act and pooling of interests
accounting requirements, and notice shall be given to Commercial's transfer
agent of such restriction. Such legend shall be removed by delivery of a
substitute certificate without such legend if (i) such Company affiliated person
shall have delivered to Commercial upon request an affidavit in form and
substance satisfactory to Commercial necessary to enable counsel to Commercial
to furnish a legal opinion or other document requested by the transfer agent, to
the effect that such legend is not required for purposes of the 1933 Act, (ii)
after the expiration of one year from the Acquisition Merger
9
<PAGE>
Effective Time if such person did not become an "affiliate" of Commercial within
the meaning of Rule 145 upon the Merger and Commercial has filed with the SEC
all of the reports it is required to file under the 1934 Act during such one
year period, or (iii) after the expiration of two years from the Acquisition
Merger Effective Time unless, in the opinion of the counsel for Commercial, such
person was an "affiliate" of Commercial within the meaning of Rule 145 within
three months prior to the expiration of such two year period. Commercial shall
use its best efforts to provide the transfer agent in a timely manner with any
required legal opinion or other documentation necessary for the sale or transfer
of any Commercial Common Stock received in the Merger. So long as shares of such
Commercial common stock bear such legend, no transfer of such Commercial Common
Stock shall be allowed unless and until the transfer agent is provided with such
information as may reasonably be requested by counsel for Commercial to assure
that such transfer will not violate applicable provisions of the 1933 Act, or
rules, regulations or policies of the SEC.
1.10 Cooperation; Regulatory Approvals. The parties shall cooperate and
---------------------------------
use reasonable best efforts to complete the transactions contemplated hereunder
as soon as practicable. Each party shall cause each of their affiliates and
subsidiaries to cooperate in the preparation and submission by them, as promptly
as reasonably practicable, of such applications, petitions, and other documents
and materials as any of them may reasonably deem necessary or desirable to the
OTS, Federal Trade Commission ("FTC"), Department of Justice ("DOJ"), SEC,
applicable Secretary of State, other regulatory authorities, holders of the
voting shares of Company Common Stock, and any other persons for the purpose of
obtaining any approvals or consents necessary to consummate the transactions
contemplated by this Agreement. At the date hereof, none of the parties is aware
of any reason that the regulatory approvals required to be obtained by it would
not be obtained.
1.11 Closing. If (i) this Agreement and the Acquisition Merger have been
-------
duly approved by the shareholders of the Company, and (ii) all relevant
conditions of this Agreement have been satisfied or waived, a closing (the
"Closing") shall take place as promptly as practicable thereafter at the
principal office of Commercial, or at such other place as Commercial and the
Company shall agree, at which the parties hereto will exchange certificates,
opinions, letters and other documents as required hereby and will make the
filings described in Section 1.2 hereof. Such Closing will take place as soon as
practicable as agreed by the parties, provided, however, that the Closing shall
-------- -------
be no more than 30 days after the satisfaction or waiver of all conditions
and/or obligations contained in Article V of this Agreement.
1.12 Closing of Transfer Books. At the Acquisition Merger Effective Time,
-------------------------
the transfer books for Company common stock shall be closed, and no transfer of
shares of Company common stock shall thereafter be made on such books.
1.13 Bank Merger.
-----------
(a) At the Bank Merger Effective Time, each share of common stock of
Savings ("Savings Common Stock") issued and outstanding immediately prior
thereto shall, by virtue of
10
<PAGE>
the Bank Merger, be canceled. No new shares of the capital stock or other
securities or obligations of the Bank shall be issued or be deemed issued with
respect to or in exchange for such canceled shares, and such canceled shares of
Savings Common Stock shall not be converted into any shares or other securities
or obligations of the Bank.
(b) The charter and bylaws of the Bank as in effect immediately prior
to the Bank Merger Effective Time shall be the charter and bylaws of the Bank,
as the surviving institution of the Bank Merger, until amended as provided
therein or by law.
(c) Except as otherwise provided herein, the directors and officers
of the Bank immediately prior to the Bank Merger Effective Time shall be the
directors and officers of the Bank, as the surviving institution of the Bank
Merger, until their successors shall be duly elected and qualified or otherwise
duly selected.
(d) The liquidation account established by Savings pursuant to the
plan of conversion adopted in connection with its conversion from mutual to
stock form shall continue to be maintained by the Bank after the Bank Merger
Effective Time for the benefit of those persons and entities who were savings
account holders of Savings on the eligibility record date for such conversion
and who continue from time to time to have rights therein. If required by the
rules and regulations of the OTS, the Bank shall amend its charter to
specifically provide for the continuation of the liquidation account established
by Savings.
1.14 Option Agreement. In connection with the execution of this
----------------
Agreement by the parties, Commercial and the Company intend to execute the
Option Agreement in the form of Exhibit 1.14.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SAVINGS
The Company and Savings represent and warrant to Commercial and the Bank
that, except as disclosed in Schedule I attached hereto and except that Savings
makes no representations or warranties regarding the Company:
2.1 Organization, Good Standing, Authority, Insurance, Etc. The Company
------------------------------------------------------
is a corporation duly organized, validly existing and, in the case of any
Company Subsidiary which is a corporation, in good standing under the laws of
the State of Delaware. Section 2.1 of Schedule I lists each "subsidiary" of the
Company and Savings within the meaning of Section 10(a)(1)(G) of HOLA
(individually a "Company Subsidiary" and collectively the "Company
Subsidiaries") (unless otherwise noted herein all references to a "Company
Subsidiary" or to the "Company Subsidiaries" shall include Savings). Each of
the Company Subsidiaries is duly organized, validly existing, and in good
standing under the laws of the respective jurisdiction under which it is
organized, as set forth in Section 2.1 of Schedule I. The Company and each
Company Subsidiary has all requisite power and authority and is duly qualified
and licensed to own, lease and operate its properties and conduct its business
as it is now being conducted. The
11
<PAGE>
Company has delivered to Commercial a true, complete and correct copy of the
certificate of incorporation, charter, or other organizing document and of the
bylaws, as in effect on the date of this Agreement, of Company and each Company
Subsidiary. To the Company's best knowledge, the Company and each Company
Subsidiary is qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which qualification is necessary under
applicable law, except to the extent that any failures to so qualify would not,
in the aggregate, have a material adverse effect on the business, financial
condition or results of operations of the Company and the Company Subsidiaries,
taken as a whole. Savings is a member in good standing of the Federal Home Loan
Bank of Des Moines and all eligible accounts issued by Savings are insured by
the Savings Association Insurance Fund ("SAIF") to the maximum extent permitted
under applicable law. Savings is a "domestic building and loan association" as
defined in Section 7701(a)(19) of the Code and is a "qualified thrift lender" as
defined in Section 10(m) of the HOLA and the Thrift Regulations. The Company is
registered as a savings and loan holding company under the HOLA.
The minute books of the Company and the Company's Subsidiaries contain
complete and accurate records of all meetings and other corporate actions held
or taken by their respective shareholders and Boards of Directors (including the
committees of such Boards) other than the meeting of the Board of Directors held
on December 14, 1997.
2.2 Capitalization. The authorized capital stock of the Company consists
--------------
of (i) 6,000,000 shares of common stock, par value $.01 per share, of which
1,872,925 shares were issued and outstanding as of the date of this Agreement,
and (ii) 3,000,000 shares of preferred stock, $.01 par value, of which no shares
were outstanding as of the date of this Agreement. All outstanding shares of
Company common stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Except for outstanding options to
purchase 171,152 shares of Company common stock under the Company Option Plan
and the option to be granted pursuant to the Option Agreement, as of the date of
this Agreement, there are no options, convertible securities, warrants, or other
rights (preemptive or otherwise) to purchase or acquire any of the Company's
capital stock from the Company and no oral or written agreement, contract,
arrangement, understanding, plan or instrument of any kind (collectively, "Stock
Contract") to which the Company or any of its affiliates is subject with respect
to the issuance, voting or sale of issued or unissued shares of the Company's
capital stock. A true and complete copy of the Company Option Plan, as in
effect on the date of this Agreement, is attached as Section 2.2 of Schedule I.
Except as disclosed at Schedule 2.2, neither the Company nor Savings is aware of
any event or circumstance (excluding actions or events by Commercial) which
could disqualify the Merger from being accounted for as a pooling of interests.
2.3 Ownership of Subsidiaries. Except as set forth in Section 2.3 of
-------------------------
Schedule I, all the outstanding shares of the capital stock of the Company
Subsidiaries are validly issued, fully paid, nonassessable and owned
beneficially and of record by the Company or a Company Subsidiary free and clear
of any lien, claim, charge, restriction or encumbrance (collectively,
"Encumbrance"). Except as set forth in Section 2.3 of Schedule I, all of the
outstanding capital stock or other ownership interests in all of the Company
Subsidiaries is owned either by the
12
<PAGE>
Company or Savings. Except as set forth in Section 2.3 of Schedule I, there are
no options, convertible securities, warrants, or other rights (preemptive or
otherwise) to purchase or acquire any capital stock of any Company Subsidiary
and no contracts to which the Company or any of its affiliates is subject with
respect to the issuance, voting or sale of issued or unissued shares of the
capital stock of any of the Company Subsidiaries. Neither the Company nor any
Company Subsidiary owns any material investment of the capital stock or other
equity securities (including securities convertible or exchangeable into such
securities) of or profit participations in any "company" (other than Company
Subsidiaries) (as defined in Section 10(a)(1)(C) of the HOLA) other than the
Federal Home Loan Bank of Des Moines or except as set forth in Section 2.3 of
Schedule I.
2.4 Financial Statements and Reports.
--------------------------------
(a) No registration statement, proxy statement, schedule or report
filed by the Company or any Company Subsidiary with the SEC or the OTS under the
1933 Act or the 1934 Act ("SEC Reports"), on the date of effectiveness in the
case of such registration statements, or on the date of filing in the case of
such reports or schedules, or on the date of mailing in the case of such proxy
statements, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Company and the Company Subsidiaries have timely filed all
reports and documents required to be filed by them with the SEC, the OTS, or the
Federal Deposit Insurance Corporation (the "FDIC") under various securities and
banking laws and regulations for the last five years (or such shorter period as
they may have been subject to such filing requirements), except to the extent
that all failures to so file, in the aggregate, would not have a material
adverse effect on the business, financial condition or results of operations of
the Company and the Company Subsidiaries, taken as a whole. All such documents,
as finally amended, complied in all material respects with applicable
requirements of law and, as of their respective date or the date as amended and,
with respect to the SEC Reports, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and, with respect to reports and documents
filed with banking regulatory agencies, were accurate in all material respects.
Except to the extent stated therein, all financial statements and schedules
included in the documents referred to in the preceding sentences (or to be
included in similar documents to be filed after the date hereof) (i) are or will
be (with respect to financial statements in respect of periods ending after June
30, 1997) in accordance with the Company's books and records and those of any of
the Company Subsidiaries, and (ii) present (and in the case of financial
statements in respect of periods ending after June 30, 1997, will present)
fairly the consolidated statement of financial condition and the consolidated
statements of income, changes in stockholders' equity and cash flows of the
Company and the Company Subsidiaries as of the dates and for the periods
indicated in accordance with generally accepted accounting principles (except
for the omission of notes to unaudited statements, year end adjustments to
interim results and changes to generally accepted accounting principles). The
audited consolidated financial statements of the Company at June 30, 1997 and
for the three years then ended and the consolidated financial statements for all
periods thereafter up to the
13
<PAGE>
Closing reflect or will reflect, to the extent required by generally accepted
accounting principles, as the case may be, all liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise, whether due or to become due
and regardless of when asserted), as of their respective dates, of the Company
and the Company Subsidiaries required to be reflected in such financial
statements according to generally accepted accounting principles and contain or
will contain, in the opinion of management, adequate reserves for losses on
loans and properties acquired in settlement of loans, taxes and all other
material accrued liabilities and for all reasonably anticipated material losses,
if any as of such date. There exists no set of circumstances that could
reasonably be expected to result in any liability or obligation material to the
Company or the Company Subsidiaries, taken as a whole, except as disclosed in
the audited consolidated financial statements at June 30, 1997 or for
transactions effected, actions occurring or omitted to be taken, or claims made
after June 30, 1997 (i) in the ordinary course of business, or (ii) as permitted
by this Agreement.
(b) The Company has delivered to Commercial each SEC Report filed,
used or circulated by it with respect to periods since June 30, 1994 through the
date of this Agreement and will promptly deliver each such SEC Report filed,
used or circulated after the date hereof, each in the form (including exhibits
and any amendments thereto) filed with the SEC or the OTS (or, if not so filed,
in the form used or circulated), including, without limitation, its Annual
Reports on Form 10-K and its Quarterly Reports on Form 10-Q.
2.5 Absence of Changes.
------------------
(a) Since June 30, 1997 there have been no material adverse changes
in the business, properties, financial condition, operations or assets of the
Company or any Company Subsidiary other than changes attributable to or
resulting from any change in law, regulation or generally accepted accounting
principles or regulatory accounting principles, which impair both the Company
and other comparably sized thrift institutions in a substantially similar manner
and other than changes attributable to or resulting from changes in economic
conditions applicable to depository institutions generally or in general levels
of interest rates affecting both the Company and other comparably sized thrift
institutions to a similar extent and in a similar manner. Since June 30, 1997 to
the date hereof, there has been no occurrence, event or development of any
nature existing, or to the knowledge of the Company, threatened, which is
reasonably expected to result in such a change.
(b) Since June 30, 1997, each of the Company and the Company
Subsidiaries has owned and operated their respective assets, properties and
businesses in the ordinary course of business and consistent with past practice.
2.6 Prospectus/Proxy Statement. At the time the Prospectus/ Proxy
--------------------------
Statement is mailed to the shareholders of the Company for the solicitation of
proxies for the approvals referred to in Section 1.7 hereof and at all times
subsequent to such mailings up to and including the times of such approval, such
Prospectus/Proxy Statement (including any supplements thereto), with respect to
all information set forth therein relating to the Company (including the Company
Subsidiaries),
14
<PAGE>
its shareholders and representatives, Company common stock and all other
transactions contemplated hereby, will:
(a) Comply in all material respects with applicable provisions of the
1934 Act and the rules and regulations under such Act; and
(b) Not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements contained therein, in light of the circumstances under which
it is made, not misleading.
2.7 No Broker's or Finder's Fees. Except as set forth at Section 2.7 of
----------------------------
Schedule I, no agent, broker, investment banker, person or firm acting on behalf
or under authority of the Company or any of the Company Subsidiaries is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee directly or indirectly in connection with the Merger or any other
transaction contemplated hereby, except the Company has engaged Edelman & Co.,
Ltd to provide financial advisory services and to deliver an opinion to the
effect that the consideration to be received by the Company shareholders in the
Merger is fair to the Company shareholders from a financial point of view. A
copy of the engagement agreement with Edelman & Co., Ltd is attached to Section
2.7 of Schedule I.
2.8 Litigation and Other Proceedings. Except as set forth in Section 2.8
--------------------------------
of Schedule I and except for matters which would not have a material adverse
effect on the business, financial condition or results of operations of the
Company and the Company Subsidiaries taken as a whole, neither the Company nor
any Company Subsidiary is a defendant in, nor is any of its property subject to,
any pending, or, to the best knowledge of the management of the Company,
threatened, claim, action, suit, investigation, or proceeding, or subject to any
judicial order, judgment or decree.
2.9 Compliance with Law.
-------------------
(a) The Company and the Company Subsidiaries are in compliance in all
material respects with all material laws and regulations applicable to their
respective business or operations or with respect to which compliance is a
condition of engaging in the business thereof, and neither the Company nor any
Company Subsidiary has received notice from any federal, state or local
government or governmental agency of any material violation of, and does not
know of any material violations of, any of the above.
(b) The Company and each of its Subsidiaries have all material
permits, licenses, certificates of authority, orders and approvals of, and have
made all material filings, applications and registrations with, all federal,
state, local and foreign governmental or regulatory bodies that are required in
order to permit them to carry on their respective business as they are presently
conducted.
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2.10 Corporate Actions.
-----------------
(a) The Boards of Directors of the Company and Savings have duly
authorized their respective officers to execute and deliver (as applicable) this
Agreement, the Acquisition Plan of Merger, the Bank Plan of Merger and the
Option Agreement and to take all action necessary to consummate the Merger and
the other transactions contemplated hereby. The Board of Directors of the
Company has authorized and directed the submission for shareholders' approval of
this Agreement, together with the Merger and any other action requiring such
approvals. All corporate authorization by the Board of Directors of the Company
and Savings required for the consummation of the Merger has been obtained or
will be given when required by applicable law.
(b) The Company's Board of Directors has taken all necessary action
to exempt this Agreement, the Acquisition Plan of Merger, the Bank Plan of
Merger, the Option Agreement and the transactions contemplated hereby and
thereby from, (i) any applicable state takeover laws, (ii) any Delaware laws
limiting or restricting the voting rights of shareholders, (iii) any Delaware
laws requiring a shareholder approval vote in excess of the vote normally
required in transactions of similar type not involving a "related person,"
"interested shareholder" or person or entity of similar type, and (iv) any
provision in its or any of the Company Subsidiaries' articles/certificate of
incorporation, charter or bylaws requiring a shareholder approval vote in excess
of the vote normally required in transactions of similar type not involving a
"related person," interested shareholder" or person or entity of similar type.
2.11 Authority. The execution, delivery and performance by the Company
---------
and Savings of their obligations under this Agreement and by the Company of its
obligations under the Option Agreement does not violate any of the provisions
of, or constitute a default under or give any person the right to terminate or
accelerate payment or performance under (i) subject to the effectiveness of the
amendment to Savings' Federal Stock Charter referred to in Section 4.17 hereof
(the "Charter Amendment"), the articles of incorporation or bylaws of the
Company, the articles of incorporation, charter or bylaws of any Company
Subsidiary, (ii) any regulatory restraint on the acquisition of the Company or
Savings or control thereof, (iii) any law, rule, ordinance, or regulation or
judgment, decree, order, award or governmental or non-governmental permit or
license to which it or any of the Company Subsidiaries is subject or (iv) except
as set forth in Section 2.4 of Schedule I, any other material agreement,
material lease, material contract, note, mortgage, indenture, arrangement or
other obligation or instrument ("Contract") to which the Company or any of the
Company Subsidiaries is a party or is subject or by which any of their
properties or assets is bound. The parties acknowledge that the consummation of
the Merger and the other transactions contemplated hereby is subject to various
regulatory approvals. Subject to the approval and effectiveness of the Charter
Amendment, the Company and Savings, as applicable, have all requisite corporate
power and authority to enter into this Agreement, the Acquisition Plan of Merger
and the Option Agreement and to perform their respective obligations hereunder
and thereunder, except, with respect to this Agreement, and the Acquisition
Merger, the approval of the Company's shareholders of this Agreement and the
Acquisition Merger required under applicable law and the effectiveness of the
Charter Amendment. Other than the receipt of Governmental Approvals (as defined
in Section 5.1(c)), the approval of shareholders of
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this Agreement and the Acquisition Merger, and the consents specified in Section
2.11 or 2.15 of Schedule I with respect to the Contracts, no consents or
approvals are required on behalf of Company or Savings in connection with the
consummation of the transactions contemplated by this Agreement and the
Acquisition Merger, the Acquisition Plan of Merger, the Bank Plan of Merger and
the Option Agreement. This Agreement, the Acquisition Plan of Merger, the Bank
Plan of Merger and the Option Agreement constitute the valid and binding
obligation of the Company and Savings, as applicable, and each is enforceable in
accordance with its terms, except as enforceability may be limited by applicable
laws relating to bankruptcy, insolvency or creditors rights generally and
general principles of equity.
2.12 Employment Arrangements. Except as disclosed in Section 2.12 of
-----------------------
Schedule I, there are no employment, severance or other agreements, plans or
arrangements with any current or former directors, officers or employees of
Company or any Company Subsidiary which may not be terminated without penalty
(including any augmentation or acceleration of benefits) on 30 days or less
notice to such person. No payments to directors, officers or employees of the
Company or the Company Subsidiaries resulting from the transactions contemplated
hereby will cause the imposition of excise taxes under Section 4999 of the Code
or the disallowance of a deduction to the Company or any Company Subsidiary
pursuant to Sections 162 or 280G of the Code. No later than 30 days prior to
consummation of the Merger, the Company shall furnish Commercial for its review
(i) a computation of the amounts expected to be payable under the employment and
severance agreements disclosed in Section 2.12 of Schedule I as a result of the
Merger, and (ii) a schedule reasonably satisfactory to Commercial demonstrating
that no "disqualified individual" within the meaning of Section 280G of the Code
will be receiving payments in contravention of the representation in the
preceding sentence.
2.13 Employee Benefits.
-----------------
(a) Neither the Company nor any of the Company Subsidiaries
maintains any funded deferred compensation plans (including profit sharing,
pension, savings or stock bonus plans), unfunded deferred compensation
arrangements or employee benefit plans as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), other
than any plans ("Employee Plans") set forth in Section 2.13 of Schedule I (true
and correct copies of which have been delivered to Commercial). None of Company
or any of the Company Subsidiaries has incurred or reasonably expects to incur
any liability to the Pension Benefit Guaranty Corporation except for required
premium payments which, to the extent due and payable, have been paid. The
Employee Plans intended to be qualified under Section 401(a) of the Code are so
qualified, and Company is not aware of any fact which would adversely affect the
qualified status of such plans. Except as set forth in Section 2.13 of Schedule
I, neither the Company nor any of the Company Subsidiaries (a) provides health,
medical, death or survivor benefits to any former employee or beneficiary
thereof, or (b) maintains any form of current (exclusive of base salary and base
wages) or deferred compensation, bonus, stock option, stock appreciation right,
benefit, severance pay, retirement, incentive, group or individual health
insurance, welfare or similar plan or arrangement for the benefit of any single
or class of directors, officers or employees, whether active or retired
(collectively "Benefit Arrangements").
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<PAGE>
Neither the Company nor any Company Subsidiary is a sponsor of or contributes to
any qualified or non-qualified defined benefit plan for employees, officers or
directors. No payments are more than 30 days past due on any Employee Plan or
Benefit Arrangement. With respect to each Employee Plan and Benefit Arrangement
of the Company or any Company Subsidiary, the Company will within 30 days of the
date of this Agreement furnish to Commercial (i) the net fair market value of
the assets held in any Benefit arrangement, and (ii) the amount of any
contribution or other obligation paid, accrued, or payable, or reasonably
expected to be payable between the date of this Agreement and the Closing,
including contributions by Company to its Employee Stock Ownership and 401(k)
Profit Sharing Plan to repay its loan in accordance with past practices (pro
rated through the Closing), subject to applicable tax law limitations. Neither
the Company nor any Company Subsidiary will make any contribution, or undertake
any obligation to contribute any amount to any Employee Plan or Benefit
Arrangement other than the amounts which the Company shall furnish to Commercial
within 30 days hereof and other than immaterial amounts in the ordinary course
of business and in accordance with past practice.
(b) Except as set forth in Section 2.13 of Schedule I, all Employee
Plans and Benefit Arrangements which are in effect were in effect for
substantially all of calendar year 1997 and there has been no material amendment
thereof (other than amendments required to comply with applicable law) or no
material increase in the cost thereof or benefits payable thereunder on or after
January 1, 1998.
(c) Each Employee Plan and Benefit Arrangement (i) has been
administered to date, and will be administered until the Closing, in accordance
with their terms and in compliance with the Code, ERISA, and all other
applicable rules and regulations, (ii) has, in a timely, accurate, and proper
manner, both filed all required government reports and made all required
employee communications, and (iii) between the date of this Agreement and the
Closing, will complete and file all such required reports. No condition exists
that could constitute grounds for the termination of any Employee Plan under
Section 4042 of ERISA; no "prohibited transaction," as defined in Section 406 of
ERISA and Section 4975 of the Code, has occurred with respect to any Employee
Plan, or any other employee benefit plan maintained by Company or any Company
Subsidiary which is covered by Title I of ERISA, which could subject any person
to liability under Title I of ERISA or to the imposition of any tax under
Section 4975 of the Code nor has any Employee Plan subject to Part III of
Subtitle B of Title I of ERISA or Section 412 of the Code, or both, incurred any
"accumulated funding deficiency," as defined in Section 412 of the Code, whether
or not waived; nor has Company or any Company Subsidiary failed to make any
contribution or pay any amount due and owing as required by the terms of any
Employee Plan or Benefit Arrangement. Neither Company nor any Company Subsidiary
has incurred or expects to incur, directly or indirectly, any liability under
Title IV of ERISA arising in connection with the termination of, or a complete
or partial withdrawal from, any plan covered or previously covered by Title IV
of ERISA which could constitute a liability of Commercial, or any of its
affiliates at or after the Acquisition Merger Effective Time.
(d) On or before 30 days after execution hereof, the Company will
provide Commercial with true and complete copies of the following documents
where applicable to any
18
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Employee Plan or Benefit Arrangement: (i) each plan document or agreement, and
any amendments thereto, and related trust agreements, insurance contracts and
policies, annuity contracts, and any other funding arrangement; (ii) the most
recent summary plan description and summary of material modifications; (iii) for
the three most recent plan years, Form 5500 Annual Return/Report and all
actuarial and financial reports and appraisals; and (iv) the most recent
determination letter received from the Internal Revenue Service, plus any open
requests and all other rulings received from any governmental agency. Within 60
days of the date hereof, the Company or Savings shall provide Commercial with
documentation, reasonably satisfactory to Commercial, demonstrating that the
requirements of Sections 401(k), 401(m), 404, 410, 412, 415, and 416 of the Code
have been satisfied by each Employee Plan that is intended to qualify under
Section 401 of the Code.
2.14 Information Furnished. No statement contained in any schedule,
---------------------
certificate or other document furnished (whether prior to or subsequent to the
date of this Agreement) or to be furnished in writing by or on behalf of Company
to Commercial pursuant to this Agreement contains or will contain any untrue
statement of a material fact or any material omission. No information material
to the Merger and which is necessary to make the representations and warranties
not misleading, to the best knowledge of the Company, has been withheld from
Commercial.
2.15 Property and Assets. The Company and the Company Subsidiaries have
-------------------
marketable title to all of their real property reflected in the financial
statements at June 30, 1997, referred to in Section 2.4 hereof, or acquired
subsequent thereto, free and clear of all Encumbrances, except for (a) such
items shown in such financial statements or in the notes thereto, (b) liens for
current real estate taxes not yet delinquent, (c) customary title exceptions
that have no material adverse effect upon the value of such property, (d)
property sold or transferred in the ordinary course of business since the date
of such financial statements, and (e) pledges or liens incurred in the ordinary
course of business. Company and the Company Subsidiaries enjoy peaceful and
undisturbed possession under all material leases for the use of real property
under which they are the lessee; all of such leases are valid and binding and in
full force and effect and neither Company nor any Company Subsidiary is in
default in any material respect under any such lease. No consent of the lessor
of any material real property or material personal property lease is required
for consummation of the Merger except as set forth in Section 2.15 of Schedule
I. There has been no material physical loss, damage or destruction, whether or
not covered by insurance, affecting the real properties of Company and the
Company Subsidiaries since June 30, 1997, except such loss, damage or
destruction which does not have a material adverse effect on the Company and the
Company Subsidiaries, taken as a whole. All property and assets material to
their business and currently used by Company and the Company Subsidiaries are,
in all material respects, in good operating condition and repair, normal wear
and tear excepted.
2.16 Agreements and Instruments. Except as set forth in Section 2.16 of
--------------------------
Schedule I or as reflected in the audited Company consolidated financial
statements as of June 30, 1997, neither the Company nor any Company Subsidiary
is a party to (a) any material agreement, arrangement or commitment not made in
the ordinary course of business, (b) any agreement, indenture or other
instrument relating to the borrowing of money by the Company or any Company
Subsidiary or the guarantee by the Company or any Company Subsidiary of any such
obligation (other than Federal
19
<PAGE>
Home Loan Bank advances with a maturity of one year or less from the date
hereof), (c) any agreements to make loans or for the provision, purchase or sale
of goods, services or property between Company or any Company Subsidiary and any
director or officer of Company or Savings, or any member of the immediate family
or affiliate of any of the foregoing, (d) any agreements with or concerning any
labor or employee organization to which Company or any Company Subsidiary is a
party, (e) any agreements between Company or any Company Subsidiary and any five
percent or more shareholder of Company, and (f) any agreements, directives,
orders, or similar arrangements between or involving the Company or any Company
Subsidiary and any state or federal savings institution regulatory authority.
2.17 Material Contract Defaults. Neither the Company nor any Company
--------------------------
Subsidiary nor the other party thereto is in default in any respect under any
contract, agreement, commitment, arrangement, lease, insurance policy, or other
instrument to which the Company or a Company Subsidiary is a party or by which
its respective assets, business, or operations may be bound or affected or under
which it or its respective assets, business, or operations receives benefits,
and which default is reasonably expected to have either individually or in the
aggregate a material adverse effect on the Company and any Company Subsidiary,
taken as a whole, and there has not occurred any event that, with the lapse of
time or the giving of notice or both, would constitute such a default.
2.18 Tax Matters.
-----------
(a) The Company and each of the Company Subsidiaries have duly and
properly filed all federal, state, local and other tax returns required to be
filed by them and have made timely payments of all taxes due and payable,
whether disputed or not; the current status of audits of such returns by the
Internal Revenue Service ("IRS") and other applicable agencies is as set forth
in Section 2.18 of Schedule I; and there is no agreement by the Company or any
Company Subsidiary for the extension of time or for the assessment or payment of
any taxes payable. Neither the IRS nor, except as set forth in Section 2.18 of
Schedule I, any other taxing authority is now asserting or, to the best
knowledge of Company, threatening to assert any deficiency or claim for
additional taxes (or interest thereon or penalties in connection therewith), nor
is the Company aware of any basis for any such assertion or claim. The Company
and each of the Company Subsidiaries have complied in all material respects with
applicable IRS backup withholding requirements and have filed all appropriate
information reporting returns for all tax years for which the statute of
limitations has not closed. The Company and each Company Subsidiary have
complied in all material respects with all applicable state law sales and use
tax collection and reporting requirements.
(b) Adequate provision for any federal, state, local, or foreign
taxes due or to become due for the Company or any of the Company Subsidiaries
for any period or periods through and including June 30, 1997, has been made and
is reflected on the June 30, 1997 audited Company consolidated financial
statements and has been or will be made in accordance with generally accepted
accounting principles with respect to periods ending after June 30, 1997.
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2.19 Environmental Matters. Except as set forth on Section 2.19 of
---------------------
Schedule I, to the best knowledge of the Company, neither the Company nor any
Company Subsidiary owns or leases any properties affected by toxic waste, radon
gas or other hazardous conditions or constructed in part with the use of
asbestos. Neither the Company nor any Company Subsidiary has knowledge of, nor
has the Company or any Company Subsidiary received written notice from any
governmental or regulatory body of, any conditions, activities, practices or
incidents which is reasonably likely to interfere with or prevent compliance or
continued compliance with hazardous substance laws or any regulation, order,
decree, judgment or injunction, issued, entered, promulgated or approved
thereunder, or which may give rise to any common law or legal liability, or
otherwise form the basis of any claim, action, suit, proceeding, hearing or
investigation based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling, or the emission,
discharge, release or threatened release into the environment, of any pollutant,
contaminant or chemical, or industrial, toxic or hazardous substance or waste.
There is no civil, criminal or administrative claim, action, suit, proceeding,
hearing or investigation pending or, to Company's knowledge, threatened against
Company or any Company Subsidiary relating in any way to such hazardous
substance laws or any regulation, order, decree, judgment or injunction issued,
entered, promulgated or approved thereunder.
2.20 Loan Portfolio: Portfolio Management.
-------------------------------------
(a) All evidences of indebtedness reflected as assets in the
consolidated balance sheet of the Company as of June 30, 1997, or acquired since
such date, are (except with respect to those assets which are no longer assets
of the Company or any Company Subsidiary) binding obligations of the respective
obligors named therein except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors rights
generally, and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding may be brought, and the payment of no material amount thereof (either
individually or in the aggregate with other evidences of indebtedness) is
subject to any defenses which have been asserted or, to the knowledge of the
Company threatened, against the Company or any Company Subsidiary. All such
indebtedness which is secured by an interest in real property is secured by a
valid and perfected mortgage lien having the priority specified in the loan
documents. All loans originated or purchased by Savings were at the time entered
into and at all times since have been in compliance in all material respects
with all applicable laws (including, without limitation, all consumer protection
laws) and regulations. Savings administers its loan and investment portfolios
(including, but not limited to, adjustments to adjustable mortgage loans) in all
material respects in accordance with all applicable laws and regulations and the
terms of applicable instruments. The records of Savings regarding all loans
outstanding on its books are accurate in all material respects and the risk
classification system has been established in accordance with the requirements
of the OTS.
(b) Section 2.20 of Schedule I sets forth a list, accurate and
complete in all material respects, of the aggregate amounts of loans, extensions
of credit and other assets of Savings and its subsidiaries that have been
adversely designated, criticized or classified by it as
21
<PAGE>
of June 30, 1997, separated by category of classification or criticism (the
"Asset Classification"); and no amounts of loans, extensions of credit or other
assets that have been adversely designated, classified or criticized as of the
date hereof by any representative of any government entity as "Special Mention,"
"Substandard," "Doubtful," "Loss" or words of similar import are excluded from
the amounts disclosed in the Asset Classification, other than amounts of loans,
extensions of credit or other assets that were charged off by it or any of the
Company Subsidiaries before the date hereof.
2.21 Real Estate Loans and Investments. Except for properties acquired in
---------------------------------
settlement of loans, there are no facts, circumstances or contingencies known to
the Company or any Company Subsidiary which exist which would require a material
reduction under generally accepted accounting principles in the present carrying
value of any of the real estate investments, joint ventures, construction loans,
other investments or other loans of the Company or any Company Subsidiary
(either individually or in the aggregate with other loans and investments).
2.22 Derivatives Contracts. Neither the Company nor any of its
---------------------
Subsidiaries is a party to or has agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor or collar financial
contract or any other contract not included on its Balance Sheet which is a
derivatives contract (including various combinations thereof) (each, a
"Derivatives Contract") or owns securities that are identified in Thrift
Bulletin No. 65 or otherwise referred to as structured notes (each, a
"Structured Note"), except for those Derivatives Contracts and Structured Notes
set forth in Section 2.22 of Schedule I, including a list, as applicable, of any
of its or any of its Subsidiaries' assets pledged as security for a Derivatives
Contract.
2.23 Insurance. The Company and the Company Subsidiaries have in effect
---------
insurance coverage which, in respect to amounts, types and risks insured, is
reasonably adequate for the business in which the Company and the Company
Subsidiaries are engaged. A schedule of all insurance policies in effect as to
the Company and the Company Subsidiaries (the "Insurance Policies") is as set
forth on Section 2.23 of Schedule I (other than policies pertaining to mortgage
loans made in the ordinary course of business). All Insurance Policies are in
full force and effect, all premiums with respect thereto covering all periods up
to and including the date of this Agreement have been paid, such premiums
covering all periods from the date hereof up to and including the Acquisition
Merger Effective Date shall have been paid on or before the Acquisition Merger
Effective Date, to the extent then due and payable (other than retrospective
premiums which may be payable with respect to worker's compensation insurance
policies, adequate reserves for which are reflected in the Company's financial
statements). The Insurance Policies are valid, outstanding and enforceable in
accordance with their respective terms and will not, except as set forth in
Section 2.11 of Schedule I, in any way be affected by, or terminated or lapsed
solely by reason of, the transactions contemplated by this Agreement. Neither
the Company nor any Company Subsidiary has been refused any insurance with
respect to any material properties, assets or operations, nor has any coverage
been limited or terminated by any insurance carrier to which it has applied for
any such insurance or with which it has carried insurance during the last three
years.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMMERCIAL AND THE BANK
Commercial and the Bank represent and warrant to Company and Savings that,
except as disclosed in Schedule II attached hereto, and except that Bank makes
no representations or warranties regarding Commercial:
3.1 Organization, Good Standing, Authority, Insurance, Etc. Commercial
------------------------------------------------------
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nebraska. Each of the subsidiaries of Commercial within
the meaning of Section 10(a)(1)(G) of HOLA (individually a "Commercial
Subsidiary" and collectively the "Commercial Subsidiaries") is duly organized,
validly existing, and in good standing under the laws of the respective
jurisdiction under which it is organized. Commercial and each Commercial
Subsidiary has all requisite power and authority and is duly qualified and
licensed to own, lease and operate its properties and conduct its business as it
is now being conducted. Commercial and each Commercial Subsidiary is qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which qualification is necessary under applicable law, except to
the extent that any failures to so qualify would not, in the aggregate, have a
material adverse effect on the business, financial condition or results of
operations of Commercial and the Commercial Subsidiaries, taken as a whole. The
Bank is a member in good standing of the Federal Home Loan Bank of Topeka, and
all eligible accounts issued by the Bank are insured by the SAIF to the maximum
extent permitted under applicable law. The Bank is a "domestic building and loan
association" as defined in Section 7701(a)(19) of the Code, and is a "qualified
thrift lender" as defined in Section 10(m) of the HOLA and the Thrift
Regulations. Commercial is duly registered as a savings and loan holding company
under the HOLA.
3.2 Capitalization. The authorized capital stock of Commercial consists
--------------
of 50,000,000 shares of Commercial common stock, par value $.01 per share, of
which 21,729,756 shares were issued and outstanding as of the date of this
Agreement (prior to the stock split paid as of the date hereof) and 10,000,000
shares of serial preferred stock, par value of $.01 per share, of which no
shares were outstanding as of the date of this Agreement. All outstanding shares
of Commercial common stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights.
3.3 Ownership of Subsidiaries. All the outstanding shares of the capital
-------------------------
stock of the Commercial Subsidiaries are validly issued, fully paid,
nonassessable and owned beneficially and of record by Commercial or a Commercial
Subsidiary free and clear of any Encumbrance. All of the outstanding capital
stock or other ownership interests in all of the Commercial Subsidiaries is
owned either by Commercial or the Bank. There are no options, convertible
securities, warrants, or other rights (preemptive or otherwise) to purchase or
acquire any capital stock of any Commercial Subsidiary and no contracts to which
Commercial or any of its affiliates is subject with respect to the issuance,
voting or sale of issued or unissued shares of the capital stock of any of the
Commercial Subsidiaries.
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3.4 Financial Statements and Reports.
--------------------------------
(a) No registration statement, proxy statement, schedule or report
filed by Commercial or any Commercial Subsidiary with the SEC or the OTS under
the 1933 Act, or the 1934 Act, on the date of effectiveness in the case of such
registration statements, or on the date of filing in the case of such reports or
schedules, or on the date of mailing in the case of such proxy statements,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. For
the past five years, Commercial and the Commercial Subsidiaries have timely
filed all documents required to be filed by them with the SEC, the OTS, or the
FDIC under various securities and financial institution laws and regulations,
except to the extent that all failures to so file, in the aggregate, would not
have a material adverse effect on the business, financial condition or results
of operations of Commercial and the Commercial Subsidiaries, taken as a whole;
and all such documents, as finally amended, complied in all material respects
with applicable requirements of law and, as of their respective date or the date
as amended, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Except to the extent stated therein, all financial statements
and schedules included in the documents referred to in the preceding sentences
(or to be included in similar documents to be filed after the date hereof) (i)
are or will be (with respect to financial statements in respect of periods
ending after June 30, 1997) in accordance with Commercial's books and records
and those of any of its Subsidiaries, and (ii) present (and in the case of
financial statements in respect of periods ending after June 30, 1997 will
present) fairly the consolidated statement of financial condition and the
consolidated statements of operations, stockholders' equity and cash flows of
Commercial and the Commercial Subsidiaries as of the dates and for the periods
indicated in accordance with generally accepted accounting principles (except
for the omission of notes to unaudited statements, year end adjustments to
interim results and changes in generally accepted accounting principles). The
audited consolidated financial statements of Commercial as of June 30, 1997 and
for the three years then ended and the consolidated financial statements for all
periods thereafter up to the Closing disclose or will disclose, to the extent
required by generally accepted accounting principles, as the case may be, all
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise,
whether due or due to become due and regardless of when asserted), as of their
respective dates, of Commercial and the Commercial Subsidiaries required to be
reflected in such financial statements according to generally accepted
accounting principles, other than liabilities which are not, in the aggregate,
material to Commercial and the Commercial Subsidiaries, taken as a whole, and
contain or will contain in the opinion of management adequate reserves for
losses on loans and properties acquired in settlement of loans, taxes and all
other material accrued liabilities and for all reasonably anticipated material
losses, if any as of such date. There exists no set of circumstances that could
reasonably be expected to result in any liability or obligation material to
Commercial or the Commercial Subsidiaries, taken as a whole, except as disclosed
in the audited consolidated financial statements at June 30, 1997, or for
transactions effected, actions occurring or omitted to be taken, or claims made
after June 30, 1997, (i) in the ordinary course of business, or (ii) as
permitted by this Agreement.
24
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(b) Commercial has delivered to the Company all periodic reports
filed with the SEC under the 1934 Act for periods since June 30, 1997 through
the date hereof and will through Closing upon written request promptly deliver
copies of 1934 Act reports for future periods.
3.5 Absence of Changes. Since June 30, 1997, there have been no material
------------------
adverse changes in the business, properties, financial condition, operations or
assets of Commercial or any Commercial Subsidiary, other than any changes
attributable to or resulting from any change in law, regulation or generally
accepted accounting principles or regulatory accounting principles, which
impairs both Commercial and other comparably sized thrift institutions in a
substantially similar manner and other than changes attributable to or resulting
from changes in economic conditions applicable to depository institutions
generally or in general levels of interest rates affecting Commercial and
comparably sized thrift institutions to a similar extent and in a similar
manner. Since June 30, 1997 to the date hereof, there has been no occurrence,
event or development of any nature existing, or to the knowledge of Commercial,
threatened, which is reasonably expected to result in such a change.
Since June 30, 1997 and through the date hereof, each of Commercial
and the Commercial Subsidiaries has owned and operated their respective assets,
properties and businesses in the ordinary course of business and consistent with
past practice.
3.6 Prospectus/Proxy Statement. At the time the Registration Statement
--------------------------
becomes effective and at the time the Prospectus/Proxy Statement is mailed to
the shareholders of the Company for the solicitation of proxies for the approval
referred to in Section 1.7 hereof and at all times subsequent to such mailings
up to and including the times of such approval, such Registration Statement and
Prospectus/Proxy Statement (including any amendments or supplements thereto),
with respect to all information set forth therein relating to Commercial
(including the Commercial Subsidiaries), its shareholders and representatives,
Commercial Common Stock, this Agreement, the Merger and all other transactions
contemplated hereby, will:
(a) comply in all material respects with applicable provisions of
the 1933 Act, the 1934 Act and the rules and regulations under such Acts; and
(b) not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements contained therein, in light of the circumstances under which
it is made, not misleading.
3.7 No Broker's or Finder's Fees. No agent, broker, investment banker,
----------------------------
person or firm acting on behalf or under authority of Commercial or any of the
Commercial Subsidiaries is or will be entitled to any broker's or finder's fee
or any other commission or similar fee directly or indirectly in connection with
the Merger or any other transaction contemplated hereby, except Commercial has
engaged Merrill Lynch & Co., an investment banking firm, to provide financial
advisory services to Commercial.
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3.8 Compliance With Law.
-------------------
(a) To the best knowledge of Commercial, Commercial and the
Commercial Subsidiaries are in compliance in all material respects with all
material laws and regulations applicable to their respective business or
operations or with respect to which compliance is a condition of engaging in the
business thereof, and neither Commercial nor any Commercial Subsidiary has
received notice from any federal, state or local government or governmental
agency of any material violation of, and does not know of any material
violations of, any of the above.
(b) To the best knowledge of Commercial, Commercial and each of it
Subsidiaries have all material permits, licenses, certificates of authority,
orders and approvals of, and have made all material filings, applications and
registrations with, all federal, state, local and foreign governmental or
regulatory bodies that are required in order to permit it to carry on its
respective business as it is presently conducted.
3.9 Corporate Actions. The Boards of Directors of Commercial and the
-----------------
Bank have duly authorized their respective officers to execute and deliver (as
applicable) this Agreement, the Acquisition Plan of Merger, the Bank Plan of
Merger and the Option Agreement and to take all action necessary to consummate
the Merger and the other transactions contemplated hereby. All corporate
authorizations by the Boards of Directors of Commercial and the Bank required
for the consummation of the Merger have been obtained, and no other corporate
action is required to be taken.
3.10 Authority. The execution, delivery and performance of this Agreement
---------
and the Option Agreement by Commercial and the Bank does not violate any of the
provisions of, or constitute a default under or give any person the right to
terminate or accelerate payment or performance under (i) the articles of
incorporation or bylaws of Commercial, the charter or bylaws of the Bank, or the
articles of incorporation or bylaws of any other Commercial Subsidiary, (ii) any
regulatory restraint on the acquisition of the Company or Savings or control
thereof, (iii) any law, rule, ordinance or regulation or judgment, decree,
order, award or governmental or non-governmental permit or license to which
Commercial or any of the Commercial Subsidiaries is subject or (iv) any other
Contract to which Commercial or any of the Commercial Subsidiaries is a party or
is subject to or by which any of their properties or assets is bound which
default, termination or acceleration would have a material adverse effect on the
financial condition, business or results of operations of Commercial and the
Commercial Subsidiaries, taken as a whole. The parties acknowledge that the
consummation of the Merger and the other transactions contemplated hereby is
subject to various regulatory approvals. Commercial and the Bank have all
requisite corporate power and authority to enter into this Agreement and the
Option Agreement and to perform their obligations hereunder. Other than the
receipt of Governmental Approvals, no consents or approvals are required on
behalf of Commercial or any Commercial Subsidiary in connection with the
consummation of the transactions contemplated by this Agreement, the Option
Agreement, the Acquisition Plan of Merger or the Bank Plan of Merger. This
Agreement, the Option Agreement, the Acquisition Plan of Merger and the Bank
Plan of Merger constitute the valid and binding obligations of Commercial and
the Bank, and are enforceable in accordance with
26
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their terms, except as enforceability may be limited by applicable laws relating
to bankruptcy, insolvency or creditors' rights generally and general principles
of equity.
3.11 Information Furnished. No statement contained in any schedule,
---------------------
certificate or other document furnished (whether prior to or subsequent to the
date of this Agreement) or to be furnished in writing by or on behalf of
Commercial to Company pursuant to this Agreement contains or will contain any
untrue statement of a material fact or any material omission. No information
material to the Merger and which is necessary to make the representations and
warranties not misleading, to the best knowledge of Commercial, has been
withheld from the Company.
3.12 Litigation and Other Proceedings. Except for matters which would
--------------------------------
not have a material adverse effect on the business, financial condition or
results of operations of Commercial and the Commercial Subsidiaries taken as a
whole, neither Commercial nor any Commercial Subsidiary is a defendant in, nor
is any of its property subject to, any pending, or, to the best knowledge of the
management of Commercial, threatened, claim, action, suit, investigation, or
proceeding, or subject to any judicial order, judgment or decree.
3.13 Agreements and Instruments. As of the date of this Agreement, there
--------------------------
are no agreements, directives, orders or similar arrangements between or
involving Commercial or any Commercial Subsidiary and any state or federal
savings institution regulatory authority.
3.14 Tax Matters. Commercial and each of the Commercial Subsidiaries
-----------
have duly and properly filed all federal, state, local and other tax returns
required to be filed by them and have made timely payments of all taxes due and
payable, whether disputed or not; there is no agreement by Commercial or any
Commercial Subsidiary for the extension of time or for the assessment or payment
of any taxes payable. Neither the IRS nor any other taxing authority is now
asserting or, to the best knowledge of Commercial, threatening to assert any
deficiency or claim for additional taxes (or interest thereon or penalties in
connection therewith), nor is Commercial aware of any basis for any such
assertion or claim. Commercial and each of the Commercial Subsidiaries have
complied in all material respects with applicable IRS backup withholding
requirements and have filed all appropriate information reporting returns for
all tax years for which the statute of limitations has not closed. Commercial
and each Commercial Subsidiary have complied in all material respects with all
applicable state law sales and use tax collection and reporting requirements.
3.15 Property and Assets. To the best knowledge of Commercial, Commercial
-------------------
and the Commercial Subsidiaries have marketable title to all of their real
property reflected in the financial statements at June 30, 1997, referred to in
Section 3.4 hereof, or acquired subsequent thereto, free and clear of all
Encumbrances, except for (a) such items shown in such financial statements or in
the notes thereto, (b) liens for current real estate taxes not yet delinquent,
(c) customary title exceptions that have no material adverse effect upon the
value of such property, (d) property sold or transferred in the ordinary course
of business since the date of such financial statements, and (e) pledges or
liens incurred in the ordinary course of business. Commercial and the Commercial
27
<PAGE>
Subsidiaries enjoy peaceful and undisturbed possession under all material leases
for the use of real property under which they are the lessee; all of such leases
are valid and binding and in full force and effect and neither Commercial nor
any Commercial Subsidiary is in default in any material respect under any such
lease. There has been no material physical loss, damage or destruction, whether
or not covered by insurance, affecting the real properties of Commercial and the
Commercial Subsidiaries since June 30, 1997, except such loss, damage or
destruction which does not have a material adverse effect on Commercial and
Commercial Subsidiaries, taken as a whole. All property and assets material to
their business and currently used by Commercial and Commercial Subsidiaries are,
in all material respects, in good operating condition and repair, normal wear
and tear excepted.
3.16 Derivatives Contracts. Neither Commercial nor any of the Commercial
---------------------
Subsidiaries is a party to or has agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor or collar financial
contract or any other contract not included on its Balance Sheet which is a
derivatives contract (including various combinations thereof) (each, a
"Derivatives Contract") or owns securities that are identified in Thrift
Bulletin No. 65 or otherwise referred to as structured notes (each, a
"Structured Note"), except for those Derivatives Contracts and Structured Notes
set forth in Section 3.16 of Schedule II, including a list, as applicable, of
any of its or any of its Subsidiaries' assets pledged as security for a
Derivatives Contract.
3.17 Insurance. Commercial and Commercial Subsidiaries have in effect
---------
insurance coverage which, in respect to amounts, types and risks insured, is
reasonably adequate for the business in which Commercial and Commercial
Subsidiaries are engaged. All insurance policies in effect as to Commercial and
the Commercial Subsidiaries are in full force and effect, all premiums with
respect thereto covering all periods up to and including the date of this
Agreement have been paid, such premiums covering all periods from the date
hereof up to and including the Acquisition Merger Effective Date shall have been
paid on or before the Acquisition Merger Effective Date, to the extent then due
and payable (other than retrospective premiums which may be payable with respect
to workers' compensation insurance policies, adequate reserves for which are
reflected in Commercial's financial statements). The insurance policies are
valid, outstanding and enforceable in accordance with their respective terms and
will not in any way be affected by, or terminated or lapsed solely by reason of,
the transactions contemplated by this Agreement. Neither Commercial nor any
Commercial Subsidiary has been refused any insurance with respect to any
material properties, assets or operations, nor has any coverage been limited or
terminated by any insurance carrier to which it has applied for any such
insurance or with which it has carried insurance during the last three years.
ARTICLE IV
COVENANTS
4.1 Investigations; Access and Copies. Between the date of this
---------------------------------
Agreement and the Acquisition Merger Effective Time, each party agrees to give
to the other party and its respective representatives and agents full access (to
the extent lawful) to all of the premises, books, records and employees of it
and its subsidiaries at all reasonable times, upon not less than three days'
prior
28
<PAGE>
notice, and to furnish and cause its subsidiaries to furnish to the other party
and its respective agents or representatives access to and true and complete
copies of such financial and operating data, all documents with respect to
matters to which reference is made in Articles II or III of this Agreement or on
any list, schedule or certificate delivered or to be delivered in connection
herewith, and such other documents, records, or information with respect to the
business and properties of it and its subsidiaries as the other party or its
respective agents or representative shall from time to time reasonably request;
provided, however, that any such inspection (a) shall be conducted in such
- -------- -------
manner as not to interfere unreasonably with the operation of the business of
the entity inspected and (b) shall not affect any of the representations and
warranties hereunder. Each party will also give prompt written notice to the
other party of any event or development (x) which, had it existed or been known
on the date of this Agreement, would have been required to be disclosed under
this Agreement, (y) which would cause any of its representations and warranties
contained herein to be inaccurate or otherwise materially misleading, or (z)
which materially relate to the satisfaction of the conditions set forth in
Article V of this Agreement.
4.2 Conduct of Business of the Company and the Company Subsidiaries.
---------------------------------------------------------------
Between the date of this Agreement and the Acquisition Merger Effective Time,
the Company and Savings agree:
(a) That the Company and the Company Subsidiaries shall conduct
their business only in the ordinary course, and maintain their books and records
in accordance with past practices and not to take any action that would (i)
adversely affect the ability to obtain the Governmental Approvals or (ii)
adversely affect the Company's ability to perform its obligations under this
Agreement or the Option Agreement;
(b) That the Company shall not, without the prior written consent
of Commercial: (i) declare, set aside or pay any dividend or make any other
distribution with respect to Company's capital stock, except for the declaration
and payment of regular quarterly cash dividends in an amount not to exceed $.075
per share of Company common stock with respect to any full calender quarter
after the date hereof; (ii) reacquire any of Company's outstanding shares of
capital stock; (iii) except as set forth at Schedule 4.2(c) hereof, issue or
sell or buy any shares of capital stock of the Company or any Company
Subsidiary, except shares of Company common stock issued pursuant to the Company
Option Plan and the Option Agreement; (iv) effect any stock split, stock
dividend or other reclassification of Company's common stock; or (v) grant any
options or issue any warrants exercisable for or securities convertible or
exchangeable into capital stock of Company or any Company Subsidiary or grant
any stock appreciation or other rights with respect to shares of capital stock
of Company or of any Company Subsidiary;
(c) That Company and the Company Subsidiaries shall not, without
the prior written consent of Commercial: (i) except as set forth at Schedule
4.2(c) hereof, sell or dispose of any significant assets of the Company or of
any Company Subsidiary other than in the ordinary course of business consistent
with past practices; (ii) merge or consolidate the Company or any Company
Subsidiary with or, except as set forth at Schedule 4.2(c) hereof, otherwise
acquire any other entity, or file any applications or make any contract with
respect to branching by Savings
29
<PAGE>
(whether de novo, purchase, sale or relocation) or acquire or construct, or
enter into any agreement to acquire or construct, any interest in real property
(other than with respect to security interests in properties securing loans and
properties acquired in settlement of loans in the ordinary course) or
improvements to real property in the aggregate in excess of $100,000; (iii)
change the articles or certificate of incorporation, charter documents or other
governing instruments of the Company or any Company Subsidiary, except as
provided in this Agreement or as required by law; (iv) grant to any executive
officer, director or employee of the Company or any Company Subsidiary any
increase in annual compensation, or any bonus type payment except for normal
individual increases in compensation to employees in the ordinary course of
business consistent with past practice (including, but not limited to, the
payment of bonuses for which such expense has previously been accrued) and
except as set forth on Schedule 4.2(c); (v) adopt any new or amend or terminate
any existing Employee Plans or Benefit Arrangements of any type except as
contemplated herein or as set forth at Schedule 4.2(c); (vi) except as set forth
on Schedule 4.2(c) or Schedule 4.16(d) hereof, authorize severance pay or other
benefits for any officer, director or employee of Company or any Company
Subsidiary; (vii) incur any material indebtedness or obligation or enter into or
extend any material agreement or lease, except in the ordinary course of
business consistent with past practices; (viii) engage in any lending activities
other than in the ordinary course of business consistent with past practices;
(ix) except as set forth at Schedule 4.2(c) hereof, form any new subsidiary or
cause or permit a material change in the activities presently conducted by any
Company Subsidiary or make additional investments in subsidiaries; (x) purchase
any debt securities or derivative securities, including CMO or REMIC products,
that are defined as "high risk mortgage securities" under OTS Thrift Bulletin
No. 52 dated January 10, 1992 as revised or purchase any Derivatives Contracts
or Structured Notes; (xi) except as set forth at Schedule 4.2(c) hereof,
purchase any equity securities other than Federal Home Loan Bank stock; (xii)
make any investment which would cause Savings to not be a qualified thrift
lender under Section 10(m) of the HOLA, or not to be a "domestic building and
loan association" as defined in Section 7701(a)(19) of the Code; (xiii) make any
loan with a principal balance of $750,000 or more; (xiv) authorize capital
expenditures other than in the ordinary course of business; (xv) adopt or
implement any change in its accounting principles, practices or methods other
than as may be required by generally accepted accounting principles or by a
regulatory authority or adopt or implement any change in its methods of
accounting for Federal income tax purposes; or (xvi) make any loan in which
participation interests therein are to be sold to other persons or entities or
acquire a participation interest in a loan originated by another person or
entity in excess of $500,000. The limitations contained in this Section 4.2(c)
shall also be deemed to constitute limitations as to the making of any
commitment with respect to any of the matters set forth in this Section 4.2(c).
Notwithstanding the foregoing, Savings may engage in any of the foregoing
activities exclusively with the Bank.
4.3 No Solicitation. The Company will not authorize any officer,
---------------
director, employee, investment banker, financial consultant, attorney,
accountant or other representative of Company or any Company Subsidiary,
directly or indirectly, to initiate contact with any person or entity in an
effort to solicit, initiate or encourage any "Takeover Proposal" (as such term
is defined below). Except as the fiduciary duties of the Company Board of
Directors may otherwise require under applicable law (as determined in
consultation with Company legal counsel), the Company will not
30
<PAGE>
authorize any officer, director, employee, investment banker, financial
consultant, attorney, accountant or other representative of the Company or any
Company Subsidiary, directly or indirectly, (A) to cooperate with, or furnish or
cause to be furnished any non-public information concerning its business,
properties or assets to, any person or entity in connection with any Takeover
Proposal; (B) to negotiate any Takeover Proposal with any person or entity; or
(C) to enter into any agreement, letter of intent or agreement in principle as
to any Takeover Proposal. The Company will promptly give written notice to
Commercial upon becoming aware of any Takeover Proposal, such notice to contain,
at a minimum, the identity of the persons submitting the Takeover Proposal, a
copy of any written inquiry or other communication, the terms of any Takeover
Proposal and any information requested or discussions sought to be initiated. As
used in this Agreement with respect to the Company, "Takeover Proposal" shall
mean any bona fide proposal, other than as contemplated by this Agreement, for a
merger or other business combination involving the Company or Savings or for the
acquisition of a 10% or greater equity interest in Company or Savings, or for
the acquisition of a substantial portion of the assets of Company or Savings
(other than loans or securities sold in the ordinary course).
4.4 Shareholder Approval. Subject to Section 1.7 herein, the Company
--------------------
shall call the meeting of its shareholders to be held for the purpose of voting
upon this Agreement, the Acquisition Merger and related matters, as referred to
in Section 1.7 hereof, as soon as practicable, but in no event later than sixty
(60) days after the Registration Statement becomes effective under the 1933 Act.
In connection with such meeting, the Company Board of Directors shall favorably
recommend approval of this Agreement and the Acquisition Merger, except as the
fiduciary duties of the Company's Board of Directors may otherwise require. The
Company shall use its best efforts to solicit from its shareholders proxies in
favor of approval and to take all other action necessary or helpful to secure a
vote of the holders of the shares of Company common stock in favor of the
Merger, except as the fiduciary duties of the Boards of Directors may otherwise
require.
4.5 Filing of Holding Company and Merger Applications. Commercial shall
-------------------------------------------------
use its best efforts promptly to prepare, submit and file within 75 days of the
date hereof a holding company application to the OTS pursuant to 12 C.F.R.
(S)574.3 for acquisition of control of Company and Savings and a merger
application to the OTS pursuant to the Bank Merger Act and 12 C.F.R. 563.22(a)
for the Bank Merger and any other applications required to be filed in
connection with the transactions contemplated hereby.
4.6 Consents. Company and Savings will use their best efforts to obtain
--------
the consent or approval of each person whose consent or approval shall be
required in order to permit Company or Savings, as the case may be, to
consummate the Merger.
4.7 Resale Letter Agreements. After execution of this Agreement, (i)
------------------------
Company shall use its best efforts to cause to be delivered to Commercial from
each person who may be deemed to be an "affiliate" of Company within the meaning
of Rule 145 under the 1933 Act, a written letter agreement in the form attached
at Schedule 4.7 regarding restrictions on resale of the shares of Commercial
Common Stock received by such persons in the Merger and upon exercise of
31
<PAGE>
options received under Section 1.8 hereof subsequent to the Acquisition Merger
Effective Time to ensure compliance with applicable resale restrictions imposed
under the federal securities laws and, to the extent applicable, to ensure
pooling of interest accounting treatment and (ii) neither Commercial nor the
Company (including the Company Subsidiaries) shall take any action which would
materially impede or delay consummation of the Merger, or prevent the
transactions contemplated hereby from (A) qualifying for accounting treatment as
a "pooling of interests" (if applicable) or (B) qualifying as a reorganization
within the meaning of Section 368 of the Code; provided that nothing hereunder
shall limit the ability of Commercial to exercise its rights under the Option
Agreement.
4.8 Publicity. Between the date of this Agreement and the Acquisition
---------
Merger Effective Time, neither Commercial, Company or any of their subsidiaries
shall, without the prior approval of the other, issue or make, or authorize any
of its directors, employees, officers or agents to issue or make, any press
release, disclosure or statement to the press or any third party with respect to
the Merger or the transactions contemplated hereto, except as required by law.
The parties shall cooperate when issuing or making any press release, disclosure
or statement with respect to Merger or the transactions contemplated hereby,
except as required by law or by applicable stock exchange rules.
4.9 Cooperation Generally. Except as otherwise contemplated hereby,
---------------------
between the date of this Agreement and the Acquisition Merger Effective Time,
Commercial, Company and their subsidiaries shall use their best efforts, and
take all actions necessary or appropriate, to consummate the Merger and the
other transactions contemplated by this Agreement at the earliest practicable
date. Commercial and the Bank, on one hand, and the Company and the Company
Subsidiaries, on the other hand, agree not to knowingly take any action that
would (i) adversely effect their respective ability to obtain the Governmental
Approvals or (ii) adversely affect their respective ability to perform their
obligations under this Agreement.
4.10 Additional Financial Statements and Reports. As soon as reasonably
-------------------------------------------
practicable after they become publicly available, the Company shall furnish to
Commercial and Commercial shall furnish to the Company, respectively, its
balance sheet and related statements of operations, cash flows and stockholders'
equity for all periods prior to the Closing. Such financial statements will be
prepared in conformity with generally accepted accounting principles applied on
a consistent basis and fairly present the financial condition, results of
operations and cash flows of the Company or Commercial, as the case may be
(subject, in the case of unaudited financial statements, to (a) normal year-end
audit adjustments, (b) any other adjustments described therein and (c) the
absence of notes which, if presented, would not differ materially from those
included in its most recent audited consolidated balance sheet), and all of such
financial statements will be prepared in conformity with the requirements of
Form 10-Q or Form 10-K, as the case may be, under the 1934 Act.
4.11 Stock Listing. Commercial agrees to use its best efforts to cause to
-------------
be listed on the New York Stock Exchange, subject to official notice of
issuance, the shares of Commercial
32
<PAGE>
Common Stock to be issued in the Merger and the shares issuable in accordance
with Section 1.8 hereto.
4.12 Allowance for Loan and Real Estate Owned Losses. At the request of
-----------------------------------------------
Commercial and in an amount specified by Commercial, immediately prior to the
Acquisition Merger Effective Time, the Company and Savings shall establish such
additional provisions for loan and real estate owned losses as may be necessary
in the sole determination of Commercial to conform the Company's and Savings'
loan and real estate owned allowance practices and methods to those of
Commercial and the Bank (as such practices and methods are to be applied to
Company and Savings from and after the Acquisition Merger Effective Time);
provided, however, that Company and Savings shall not be required to take such
action until: (i) Company and Savings provide to Commercial a written statement
dated the date of Closing certified by the Chairman of the Board, the President
and the Chief Financial Officer of the Company and Savings, that the conditions
in Sections 5.1 and 5.2 to be satisfied by the Company or Savings or both of
them have been satisfied by either or both of them or, alternatively, setting
forth in detail the circumstances that have prevented such conditions from being
satisfied (the "Reliance Certificate"), and Commercial and Bank provide to
Company and Savings a Reliance Certificate relating to the satisfaction of the
conditions in Sections 5.1 and 5.3; and (ii) Commercial and the Bank, after
reviewing the Reliance Certificate, provide the Company and Savings a written
waiver of any right either entity may have to terminate the Agreement which
waiver shall contain an express condition precedent that Company and Savings
have established such additional provisions for loan and real estate losses as
requested by Commercial pursuant to this Section 4.12; and provided further that
the Company shall not be required to take any action that is not consistent with
generally accepted accounting principles. No additional provision for loan and
real estate owned losses taken by Savings pursuant to this Section 4.12 shall be
deemed in and of itself to be a breach or violation of any representation,
warranty, covenant, condition or other provision of this Agreement.
4.13 D&O Indemnification and Insurance. For a period of three (3) years
---------------------------------
following the Acquisition Merger Effective Time or until the expiration of the
applicable statute of limitations, but in no event beyond six years following
the Acquisition Merger Effective Time, Commercial and Bank shall indemnify, and
advance expenses in matters that may be subject to indemnification to, persons
who served as directors and officers of Company or Savings or any other Company
Subsidiaries on or before the Acquisition Merger Effective Time with respect to
liabilities and claims (and related expenses, including fees and disbursements
of counsel) made against them resulting from their service as such prior to the
Acquisition Merger Effective Time in accordance with and subject to the
requirements and other provisions of the Certificate of Incorporation or Charter
and Bylaws of Company and Savings as in effect on the date of this Agreement and
applicable provisions of law. Commercial shall cause the persons serving as
officers and directors of the Company immediately prior to the Acquisition
Merger Effective Time to be covered for a period of 18 months from the
Acquisition Merger Effective Time by the directors' and officers' liability
insurance policy maintained by the Company (provided that Commercial may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are not materially less advantageous than
such policy) with respect to acts or omissions occurring prior to the
Acquisition Merger Effective Time which were committed by such officers and
33
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directors in their capacity as such; provided, however, that in no event shall
Commercial be required to expend more than 150% of the amount currently expended
by the Company on an annual basis to maintain or procure insurance coverage for
such 18 month period pursuant hereto. This Section 4.13 shall be construed as an
agreement as to which the directors and officers of Company and Savings referred
to herein are intended to be third party beneficiaries and shall be enforceable
by such persons and their heirs and representatives.
4.14 Tax Treatment. Commercial and Company shall use their best efforts
-------------
to cause the Merger to qualify as a reorganization under Section 368(a)(1) of
the Code. The Company agrees to consent to the form of representation letter
provided by Deloitte & Touche LLP or other tax advisor for purposes of issuing
its federal tax opinion pursuant to Section 5.1(e) of this Agreement no later
than thirty (30) days prior to the Closing.
4.15 Update Disclosure. From and after the date hereof until the
-----------------
Acquisition Merger Effective Time, the Company shall promptly, but not less
frequently than monthly, update Schedule I hereto by notice to Commercial to
reflect any matters which have occurred from and after the date hereof which, if
existing on the date hereof, would have been required to be described therein
and which, in the case of all such updates other than the last such update prior
to the Acquisition Merger Effective Time, reflect a material change from the
information provided in Schedule I as of the date hereof; provided, however,
that no such update shall affect the conditions to the obligation of Company and
Savings to consummate the transactions contemplated hereby, and any and all
changes reflected in any such update shall be considered in determining whether
such conditions have been satisfied.
4.16 Company's Employee Plans and Benefit Arrangements.
-------------------------------------------------
(a) Except as otherwise provided in this Section, if Commercial so
requests, the Company and any Company Subsidiary shall develop a plan and
timetable for terminating each Employee Plan and Benefit Arrangement as of the
date of Closing, and, with the advance written consent of Commercial, shall
proceed with the implementation of said termination plan and timetable. The
Company shall be solely responsible for all costs, expenses, and other
obligations whatsoever arising out of or resulting from termination of any
Employee Plan or Benefit Arrangement. Neither the Company nor any Company
Subsidiary will establish any new benefit plan or arrangement for directors,
officers, or employees, or amend (or commit to distribute any assets from) any
Employee Plan or Benefit Arrangement without Commercial's prior written
approval, except as provided in Section 4.2(c) of Schedule I, this Section 4.16
or in Section 7.2 hereof.
(b) With respect to any benefit plan that provides for vesting of
benefits, there shall be no discretionary acceleration of vesting, except as set
forth at Section 4.2(c) of Schedule I or Schedule 4.16(b), except in connection
with the termination of any Employee Plan or Benefit Arrangements.
34
<PAGE>
(c) Commercial shall assume and honor the terms of Company's
Recognition and Retention Plan and, subject to the provisions of Section 1.8,
the Company Option Plan, and all provisions for vested benefits or other vested
amounts earned or accrued through the Acquisition Merger Effective Time under
the Employee Plans and Benefit Arrangements.
(d) Commercial shall honor in accordance with their terms the
employment, severance and deferred compensation agreements and policies set
forth at Schedule 4.16(d). Commercial acknowledges that for purposes of the
Employment Agreement dated June 16, 1997 by and between the Company and James L.
Roberts, that Mr. Roberts' resignation within 24 months following the
Acquisition Merger Effective Time shall entitle him to the payments and benefits
set forth in Section 6(h) and, if applicable, Section 3(f) of such agreement.
(e) Commercial and Company acknowledge that the Company Employee
Stock Ownership Plan (the "Company ESOP") has unallocated assets with a fair
market value exceeding the outstanding balance of the loan secured by those
assets. Prior to the Acquisition Merger Effective Time, the Company and its
subsidiaries shall be entitled to make their contributions to the Company ESOP
in accordance with past business practices (except contributions may be made
monthly instead of quarterly) to the extent permitted by the Code and applicable
law. The parties agree that the Company ESOP shall be operated and administered
after the Acquisition Merger Effective Time in a manner to maximize the
allocation of unallocated assets to those participants with account balances at
the Acquisition Merger Effective Time in accordance with their respective
account balances on such date. Consistent with the foregoing, after the
Acquisition Merger Effective Time and until termination of the Company ESOP
(whenever this may occur), (1) the Company ESOP will be continued for the sole
benefit of the participants in the Company ESOP immediately prior to the
Acquisition Merger Effective Time in accordance with its terms, (2) each
participant in the Company ESOP immediately prior to the Acquisition Merger
Effective Time shall be permitted to maintain his/her account in the Company
ESOP (regardless of the size of the account balance) unless the participant
otherwise elects in accordance with the diversification provision said plan as
of the date hereof, and (3) upon termination of the Company ESOP unallocated
assets after retirement of the Company ESOP loan shall be allocated to account
balances as earnings to the maximum extent permitted by the Code and applicable
law. Any request for a favorable determination letter relating to the tax-
qualified status of the Company ESOP on termination under Code Section 401(a)
shall be subject to prior review, comment and approval (which approval shall not
be unreasonably withheld) of the Committee (as hereinafter defined). Prior to
the Acquisition Merger Effective Time the Company may amend the ESOP to
(i) waive any service condition that may restrict the right of a participant in
the Company ESOP to share in any allocations that occur due to Company ESOP loan
repayments after the Acquisition Merger Effective Time, (ii) postpone
distribution of the account balance of a participant following a break in
service (unless otherwise elected by the participant) with such account balance
fully participating in the allocation of earnings including unallocated assets
on plan termination, and (iii) implement the intent and provisions of this
subsection (e); provided, however, no amendments shall be made that either
adversely affects the tax-qualified status of the Company ESOP or adversely
affects the ability of the Merger to qualify for pooling of interests accounting
treatment. The parties further agree that the Company's 401(k) Profit Sharing
Plan ("401(k) Plan") shall be continued for the sole benefit of the participants
in the 401(k) Plan immediately prior to the Acquisition Merger Effective Time
and will not be merged into any Commercial plan.
(f) At the Acquisition Merger Effective Time, the administrative and
other authority previously exercised with respect to the 401(k) Plan and Company
ESOP by the Board of Directors of the Company or the Plan Administrator shall be
exercised solely by a committee consisting of four members, two of whom shall be
appointed and selected by Commercial and two of whom shall be appointed and
selected by the Board of Directors of the Company immediately prior to the
Acquisition Merger Effective Time. The Committee's authority shall include but
not be limited to (1) the appointment and removal of trustees, (2) the right to
make amendments to carry out the provisions of Section 4.16(e) hereof, (3) the
right to make administrative decisions and determinations relating to plan
operations and (4) the right to make determinations with respect to plan
distributions (whether on an operating or terminating basis) including making
provision for rollover distributions to eligible individual retirement accounts.
(g) Any provision within paragraphs (e) and (f) of this section shall
be ineffective, null, and void to the extent it would result in the Merger not
qualifying for pooling of interests accounting treatment.
35
<PAGE>
4.17 Amendment of Savings' Federal Stock Charter. Company and Savings
-------------------------------------------
will take all actions necessary to effectuate an amendment to Section 8 of
Savings' Federal Stock Charter to make inapplicable to Commercial and Bank the
restrictions therein, provided that Company and Savings may make such amendment
contingent upon consummation of the Merger.
4.18 Commercial Goodwill Claim. Between the date hereof and the Closing,
-------------------------
Commercial and the Bank shall not spin-off or otherwise distribute the rights to
receive payment upon resolution of the claims against the FDIC or other agency
of the Federal government with respect to the confiscation of the goodwill as
capital of the Bank.
4.19 Environmental Reports. Commercial, at its expense, shall undertake
---------------------
within 15 days of the date hereof to order, and shall within 40 days (subject to
extension with the consent of the Company) after ordering, receive, a Phase I
Environmental Risk Report (as contemplated in OTS Thrift Bulletin #16)
("Report") on (i) all commercial real estate owned by, (ii) all offices and
premises used as facilities by, and (iii) all properties which serve as security
for any commercial real estate loan having an original principal balance of
$1,000,000 or more of, the Company and Savings. Failure to order such Report on
any particular properties within such 15 day period shall constitute a waiver of
such condition with respect to such property. In the event that Commercial
believes in good faith that such Report indicates a reasonable likelihood that
the costs to cleanup, remove, remediate, or take any other action necessary to
bring any such property or properties into material compliance with Company's or
any Company Subsidiary's obligations under any environmental laws exceed
$500,000 in the aggregate, Commercial shall, within 15 days of its receipt of
such Report, provide Company with written notice to that effect. Commercial
shall thereafter undertake to order within 15 days of receipt of such Report and
shall within 30 days of ordering receive a Phase II Environmental Report (as
contemplated in OTS Thrift Bulleting #16) to confirm such belief. Failure to
order such Phase II report ("Phase II Report") on any particular properties
within such 15 day period shall constitute a waiver of such condition with
respect to such property. Commercial shall within seven days of receipt of such
Phase II Report either deliver written notice to Company of its termination of
this Agreement in that the aggregate costs to cleanup, remove, remediate or take
such other action necessary to bring such properties into material compliance
with the Company's or any Company Subsidiary's obligations under any
environmental laws will exceed $500,000 determined in good faith and that
Commercial shall elect to terminate this Agreement, or Commercial shall deliver
in writing notice of its waiver of the condition contained at Section 5.2(i)
hereof. Failure to deliver such written notice of its termination of the
Agreement shall constitute waiver of this condition as provided at Section
5.2(i). Commercial shall deliver complete copies of all Phase I and Phase II
reports to Company within five days of receipt of any such reports. The contents
of such reports shall remain confidential whether or not the Merger is
consummated.
36
<PAGE>
ARTICLE V
CONDITIONS TO THE MERGER; TERMINATION OF AGREEMENT
5.1 General Conditions. The obligations of Commercial, the Bank, the
------------------
Company and Savings to effect the Acquisition Merger and the Bank Merger shall
be subject to the following conditions:
(a) Stockholder Approval and Effectiveness of Charter Amendment. The
-----------------------------------------------------------
holders of the outstanding shares of Company common stock shall have approved
this Agreement and the Acquisition Merger as specified in Section 1.7 hereof or
as otherwise required by applicable law and the Charter Amendment shall be
effective under applicable law.
(b) No Proceedings. No order, decree or injunction shall have been
--------------
entered and remain in force restraining or prohibiting the Merger in any legal,
administrative, arbitration, investigatory or other proceedings (collectively,
"Proceedings").
(c) Government Approvals. To the extent required by applicable law
--------------------
or regulation, all approvals of or filings with any governmental authority
(collectively, "Governmental Approvals"), including without limitation those of
the OTS, the FDIC, the Federal Trade Commission, DOJ, the SEC, and any state
securities or Blue Sky authorities, shall have been obtained or made and any
waiting periods shall have expired in connection with the consummation of the
Merger. All other statutory or regulatory requirements for the valid
consummation of the Merger and related transactions shall have been satisfied.
(d) Registration Statement. The Registration Statement shall have
----------------------
been declared effective and shall not be subject to a stop order of the SEC and,
if the offer and sale of Commercial Common Stock in the Merger pursuant to this
Agreement is subject to the Blue Sky laws of any state, shall not be subject to
a stop order of any state securities commissioner.
(e) Federal Tax Opinion. Receipt of an opinion of Deloitte & Touche
-------------------
LLP, in form and content reasonably satisfactory to Commercial and the Company,
to the effect that (i) the Acquisition Merger will constitute a reorganization
within the meaning of Section 368(a) of the Code, (ii) the exchange in the
Acquisition Merger of Company common stock for Commercial Common Stock will not
give rise to gain or loss to shareholders of the Company with respect to such
exchange (except to the extent of any cash received), and (iii) neither the
Company nor Commercial will recognize gain or loss as a consequence of the
Acquisition Merger or the Bank Merger.
5.2 Conditions to Obligations of Commercial and Bank. The obligations of
------------------------------------------------
Commercial and Bank to effect the Merger and the transactions contemplated
herein shall be subject to the following additional conditions to the extent not
waived:
37
<PAGE>
(a) Opinion of Counsel for Company. Commercial shall have received
------------------------------
from Silver, Freedman & Taff, L.L.P. an opinion dated as of the Closing covering
the matters to be set forth in Exhibit 5.2(a).
(b) Required Consents. In addition to Governmental Approvals,
-----------------
Company and Savings shall have obtained all necessary third party consents or
approvals required by or in connection with the Merger, the absence of which
would materially and adversely affect Company and the Company Subsidiaries,
taken as a whole. In this connection, the Company and Savings shall use its
reasonable best efforts to obtain consents from all lessors to their respective
real estate leases that may be required for consummation of the Merger.
(c) Company Accountants' Letter. Commercial at its expense shall
---------------------------
have received from Crowe, Chizek and Company, LLP letters dated the date of
mailing the Prospectus/Proxy Statement and the date of the Closing to the effect
that: (i) with respect to the Company they are independent accountants within
the meaning of the 1933 Act and 1934 Act and the applicable rules and
regulations thereunder, (ii) it is their opinion that the audited financial
statements of the Company included in or incorporated by reference into the
Prospectus/Proxy Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and 1934 Act and the
applicable published accounting rules and regulations thereunder, (iii) on the
basis of such procedures as are set forth therein but without performing an
examination in accordance with generally accepted auditing standards nothing has
come to their attention which would cause them to believe that (A) any unaudited
interim financial statements appearing in the Prospectus/Proxy Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and 1934 Act and the published rules and
regulations thereunder; (B) said financial statements are not stated on a basis
substantially consistent with that of the audited financial statements; (C) (1)
at the date of the latest available consolidated financial statements of the
Company and at a specific date not more than five (5) business days prior to the
date of each such letter there has been, except as specified in such letter, any
increase in the outstanding capital stock, or indebtedness for borrowed money of
the Company (other than deposits and Federal Home Loan Bank advances with a
maturity of one year or less) or any decrease in the stockholders' equity
thereof as compared with amounts shown in the latest statement of financial
condition included in the Prospectus/Proxy Statement, or (2) for the period from
the date of the latest audited financial statements of the Company included in
or incorporated by reference into the Prospectus/Proxy Statement to a specific
date not more than five (5) business days prior to the date of each such letter,
there were, except as specified in such letter, any decreases, as compared with
the corresponding period in the preceding year, in consolidated net income for
Company excluding expenses associated with the Merger, or any increase, as
compared with the corresponding period in the preceding year, in the provision
for loan losses for Company, (iv) they have performed certain specific
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature included in the Prospectus/Proxy
Statement and requested by Commercial and agreed upon by such accountants, which
is expressed in dollars (or percentages obtained from such dollar amounts) and
obtained from accounting records which are subject to the internal controls of
the Company's accounting system or which has been derived directly from such
accounting records by analysis or
38
<PAGE>
computation is in agreement with such records or computations made therefrom
(excluding any questions of legal interpretation), and (v) on the basis of such
procedures as are set forth in such letter, nothing came to their attention with
respect to the Company which would cause them to believe that the pro forma
financial statements had not been properly compiled on the pro forma basis
described therein.
(d) No Material Adverse Change. Between the date of this Agreement
--------------------------
and the date of Closing, there shall not have occurred any material adverse
change in the financial condition, business, results of operations or assets of
Company and the Company Subsidiaries, taken as a whole, other than any such
change attributable to or resulting from any change in law, regulation or
generally accepted accounting principles which impairs both the Company and
other comparably sized thrift institutions in a substantially similar manner,
and other than any such change attributable to or resulting from changes in
economic conditions applicable to depository institutions generally or in
general levels of interest rates affecting both the Company and other comparably
sized thrift institutions to a similar extent and in a similar manner. No
payments made or expenses incurred in accordance with Section 4.16 hereof or
otherwise contemplated by this Agreement shall be deemed to constitute a
material adverse change under this Section 5.2(d).
(e) Representations and Warranties to be True; Fulfillment of
---------------------------------------------------------
Covenants and Conditions. The representations and warranties of the Company and
- ------------------------
Savings shall be true in all material respects at the Acquisition Merger
Effective Time with the same effect as though made at the Acquisition Merger
Effective Time (or on the date when made in the case of any representation or
warranty which specifically relates to an earlier date) except for events or
occurrences arising after the date of this Agreement, which individually or
collectively, are not reasonably likely to result in a material adverse effect
on the business, financial condition or results of operations of the Company and
the Company Subsidiaries, taken as a whole; Company and Savings shall have
performed all obligations and complied with each covenant, in all material
respects, and all conditions under this Agreement on their parts to be performed
or complied with at or prior to the Acquisition Merger Effective Time; and
Company shall have delivered to Commercial a certificate, dated the Acquisition
Merger Effective Time and signed by its chief executive officer and chief
financial officer, to such effect.
(f) No Litigation. Neither the Company nor any Company Subsidiary
-------------
shall be a party to any pending litigation, reasonably probable of being
determined adversely to the Company or any Company Subsidiary, which would have
a material adverse effect on the business, financial condition or results of
operations of the Company and the Company Subsidiaries, taken as a whole.
(g) Regulatory Approval. All Governmental Approvals required
-------------------
hereunder to consummate the transactions contemplated hereby shall have been
obtained without the imposition of any conditions which Commercial reasonably
and in good faith determine to be unduly burdensome upon the conduct of the
business of Commercial or the Bank.
39
<PAGE>
(h) Affiliates Letters. Commercial shall have received the letter
------------------
agreements from all affiliates of the Company as contemplated in Section 4.7(i)
herein.
(i) Environmental Reports. Commercial shall not have exercised its
---------------------
right to terminate this Agreement pursuant to Section 4.19.
5.3 Conditions to Obligations of Company and Savings. The obligations of
------------------------------------------------
Company and Savings to effect the Acquisition Merger and the transactions
contemplated herein shall be subject to the following additional conditions:
(a) Opinion of Counsel for Commercial. Company shall have received
---------------------------------
from Housley Kantarian & Bronstein, P.C., special counsel to Commercial, and
Fitzgerald, Schorr, Barmettler & Brennan, P.C. an opinion dated as of the
Closing covering the matters to be set forth in Exhibit 5.3(a).
(b) Representations and Warranties to be True; Fulfillment of
---------------------------------------------------------
Covenants and Conditions. The representations and warranties of Commercial and
- ------------------------
the Bank shall be true in all material respects at the Acquisition Merger
Effective Time with the same effect as though made at the Acquisition Merger
Effective Time (or on the date when made in the case of any representation or
warranty which specifically relates to an earlier date); Commercial and the Bank
shall have performed all obligations and complied with each covenant, in all
material respects, and all conditions under this Agreement on their parts to be
performed or complied with at or prior to the Acquisition Merger Effective Time;
and Commercial shall have delivered to Company a certificate, dated the
Acquisition Merger Effective Time and signed by its chief executive officer and
chief financial officer, to such effect.
(c) Commercial Common Stock. A certificate for the required number
-----------------------
of whole shares of Commercial Common Stock, as determined pursuant to Section
1.3 hereof, and cash for fractional share interests, as so determined, shall
have been delivered to the Exchange Agent.
(d) Required Consents. In addition to Governmental Approvals,
-----------------
Commercial and the Bank shall have obtained all necessary third party consents
or approvals in connection with the Merger, the absence of which would
materially and adversely affect Commercial and the Commercial Subsidiaries,
taken as a whole.
(e) NYSE Listing. The shares of Commercial Common Stock issuable
------------
pursuant to this Agreement shall have been approved for listing on the NYSE,
subject to official notice of issuance.
5.4 Termination of Agreement and Abandonment of Merger. This Agreement
--------------------------------------------------
and the Acquisition Plan of Merger may be terminated at any time before the
Acquisition Merger Effective Time, whether before or after approval thereof by
shareholders of Company, as provided below:
40
<PAGE>
(a) Mutual Consent. By mutual consent of the parties, evidenced by
--------------
their written agreement.
(b) Closing Delay. At the election of either party, evidenced by
-------------
written notice, if the Closing shall not have occurred on or before August 31,
1998, or such later date as shall have been agreed to in writing by the parties;
provided, however, that the right to terminate under this Section 5.4(b) shall
- -------- -------
not be available to any party whose failure to perform an obligation hereunder
has been the cause of, or has resulted in, the failure of the Closing to occur
on or before such date.
(c) Conditions to Commercial Performance Not Met. By Commercial upon
--------------------------------------------
delivery of written notice of termination to Company if any event occurs which
renders impossible the satisfaction in any material respect one or more of the
conditions to the obligations of Commercial and the Bank to effect the Merger
set forth in Sections 5.1 and 5.2 and noncompliance is not waived by Commercial,
provided, however, that the right to terminate under this Section 5.4(c) shall
- -------- -------
not be available to Commercial where Commercial's or Bank's failure to perform
an obligation hereunder has been the cause of, or has resulted in, the failure
of the Closing to occur on or before such date.
(d) Conditions to Company Performance Not Met. By the Company upon
-----------------------------------------
delivery of written notice of termination to Commercial if any event occurs
which renders impossible of satisfaction in any material respect one or more of
the conditions to the obligations of Company and Savings to effect the Merger
set forth in Sections 5.1 and 5.3 and noncompliance is not waived by Company,
provided, however, that the right to terminate under this Section 5.4(d) shall
- -------- -------
not be available to the Company where the Company's or Savings' failure to
perform an obligation hereunder has been the cause of, or has resulted in, the
failure of the Closing to occur on or before such date.
(e) Average NYSE Closing Price. By the Company at any time during
--------------------------
the two business day period commencing on the business day immediately after the
end of the Determination Period, if the Average NYSE Closing Price shall be less
than $45.25 (adjusted as indicated in Section 1.3(a)(iv)), subject, however, to
the following three sentences. If the Company elects to exercise its
termination right pursuant to this Section 5.4(e), it shall give written notice
to Commercial no later than the end of the aforementioned two business day
period. During the two business day period commencing with the business day
after its receipt of such notice, Commercial shall have the option to increase
the consideration to be received by the holders of Company common stock
hereunder, by adjusting the Exchange Ratio to equal the number (calculated to
four decimal places and rounded down) obtained by dividing (A) $26.05 by (B) the
Average NYSE Closing Price. If Commercial so elects within such two day period,
it shall give written notice to the Company no later than the end of the
aforementioned two day period of such election and the revised Exchange Ratio,
whereupon no termination shall have occurred pursuant to this Section 5.4(e) and
this Agreement shall remain in effect in accordance with its terms (except as
the Exchange Ratio shall have been so modified).
41
<PAGE>
For purposes of this Section 5.4, "Average NYSE Closing Price" and
"Determination Period" shall have the meanings specified in Section 1.3(b).
ARTICLE VI
TERMINATION OF OBLIGATIONS; PAYMENT OF EXPENSES
6.1 Termination; Lack of Survival of Representations and Warranties. In
---------------------------------------------------------------
the event of the termination and abandonment of this Agreement pursuant to
Section 5.4 of this Agreement, this Agreement shall become void and have no
effect, except that (i) the provisions of Sections 2.7 and 3.7 (Brokers and
Finders), 4.8 (Publicity), this Section 6.1, 6.2 (Expenses) and 8.2
(Confidentiality) of this Agreement shall survive any such termination and
abandonment, and (ii) a termination pursuant to Sections 5.4(c) or 5.4(d) of
this Agreement shall not relieve the breaching party from liability for an
uncured intentional and willful breach of a representation, warranty, covenant,
or agreement giving rise to such termination.
The representations, warranties and agreements of the parties set forth in
this Agreement shall not survive the Acquisition Merger Effective Time, and
shall be terminated and extinguished at the Acquisition Merger Effective Time,
and from and after the Acquisition Merger Effective Time none of the parties
hereto shall have any liability to the other on account of any breach or failure
of any of those representations, warranties and agreement; provided, however,
-------- -------
that the foregoing clause shall not (i) apply to agreements of the parties which
by their terms are intended to be performed after the Acquisition Merger
Effective Time, and (ii) shall not relieve any person for liability for fraud,
deception or intentional misrepresentation.
6.2 Payment of Expenses.
-------------------
(a) Each of the parties hereto shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder.
(b) Notwithstanding any provision in this Agreement to the contrary,
in order to induce Commercial and the Bank to enter into this Agreement and as a
means of compensating Commercial and the Bank for the substantial direct and
indirect monetary and other costs incurred and to be incurred in connection with
this Agreement and the transactions contemplated hereby, the Company and Savings
agree that at such time as the option granted by the Company to Commercial
pursuant to the Option Agreement becomes exercisable under the Option Agreement,
the Company or Savings will upon demand pay to Commercial or the Bank in
immediately available funds $1,350,000.
ARTICLE VII
CERTAIN POST-MERGER AGREEMENTS
7.1 Reports to the SEC. Commercial shall continue to file all reports and
------------------
data with the SEC necessary to permit the shareholders of Company who may be
deemed "underwriters" (within the meaning of Rule 145 under the 1933 Act) of
Company common stock to sell the Company
42
<PAGE>
common stock received by them in connection with the Merger pursuant to Rules
144 and 145(d) under such Act if they would otherwise be so entitled.
7.2 Employees.
---------
(a) Employees of the Company and the Company Subsidiaries who become
employees of Commercial or a Commercial Subsidiary after the Acquisition Merger
Effective Time shall be eligible to participate in all benefit plans sponsored
by Commercial or a Commercial Subsidiary to the same extent as other similarly
situated Commercial or any Commercial Subsidiary employees, (i) with full credit
for prior service with the Company or Company Subsidiaries for purposes of
vesting, eligibility for participation and other purposes other than determining
the amount of benefit accruals under any defined benefit plan, (ii) without any
waiting periods, evidence of insurability, or application of any pre-existing
condition limitations, and (iii) with full credit for claims arising prior to
the Acquisition Merger Effective Time for purposes of deductibles, out-of-pocket
maximums, benefit maximums and all other similar limitations for the applicable
plan year during which the Merger is consummated. Commercial shall honor all
accrued vacation leave for the employees of Company and the Company Subsidiaries
following the Acquisition Merger Effective Time. Except as otherwise provided
herein, the Company's health (including the Company's supplemental care plan)
and dental insurance plans shall not be terminated by reason of the Merger but
shall continue thereafter as plans of the Surviving Corporation until such time
as the employees of the Company and the Company Subsidiaries are integrated into
Commercial's or other applicable Commercial Subsidiary's health and dental
insurance plans. Commercial and the Commercial Subsidiaries shall take such
steps as are necessary or required to integrate the employees of the Company and
the Company Subsidiaries in such plans as soon as practicable after the
Acquisition Merger Effective Time.
(b) Commercial as the Surviving Corporation shall provide to the
employees of the Company and Company Subsidiaries full credit for prior service
with the Company and with the Company Subsidiaries for purposes of severance
benefits under Commercial's guidelines in respect of such matters, which
guidelines currently provide a severance benefit equivalent to one week's salary
for each year of service, with a maximum aggregate entitlement equal to eight
weeks of salary. In addition, Commercial or the Commercial Subsidiaries will
pay for accrued vacation upon termination of service and will offer outplacement
services or counseling to severed employees.
ARTICLE VIII
GENERAL
8.1 Amendments. Subject to applicable law, this Agreement may be amended,
----------
whether before or after any relevant approval of shareholders, by an agreement
in writing executed in the same manner as this Agreement and authorized or
ratified by the Boards of Directors of the parties hereto, provided that, after
-------------
the adoption of the Agreement by the shareholders of the Company, no such
amendment without further shareholder approval may reduce the amount or change
the form of the consideration to be received by the Company shareholders in the
Merger.
43
<PAGE>
8.2 Confidentiality. All information disclosed hereafter by any party to
---------------
this Agreement to any other party to this Agreement, including, without
limitation, any information obtained pursuant to Section 4.1 hereof, shall be
kept confidential by such other party and shall not be used by such other party
otherwise than as herein contemplated except to the extent that (i) it was known
by such other party when received, (ii) it is or hereafter becomes lawfully
obtainable from other sources, (iii) it is necessary or appropriate to disclose
to the OTS, the FDIC or any other regulatory authority having jurisdiction over
the parties or their subsidiaries or as may otherwise be required by law, or
(iv) to the extent such duty as to confidentiality is waived by the other party.
In the event of the termination of this Agreement, each party shall use all
reasonable efforts to return upon request to the other parties all documents
(and reproductions thereof) received from such other parties (and, in the case
of reproductions, all such reproductions made by the receiving party) that
include information not within the exceptions contained in the first sentence of
this Section 8.2.
8.3 Governing Law. This Agreement and the legal relations between the
-------------
parties shall be governed by and construed in accordance with the laws of the
State of Nebraska without taking into account a provision regarding choice of
law, except to the extent certain matters may be governed by federal law by
reason of preemption.
8.4 Notices. Any notices or other communications required or permitted
-------
hereunder shall be sufficiently given if sent by registered mail or certified
mail, postage prepaid, addressed, if to Commercial or Bank, to
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
Attention: William A. Fitzgerald, Chairman of the Board
and Chief Executive Officer
with a copy to:
Housley Kantarian & Bronstein, P.C.
Suite 700
1220 19th Street, N.W.
Washington, DC 20036
Attention: Cynthia R. Cross, Esquire
and if to Company or Savings, to
Perpetual Midwest Financial, Inc.
700 First Avenue, N.E.
Cedar Rapids, Iowa 52401
Attention: James L. Roberts, President and
Chief Executive Officer
44
<PAGE>
with a copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
Attention: Barry P. Taff, P.C.
Christopher R. Kelly, P.C.
or such other address as shall be furnished in writing by any such party, and
any such notice or communication shall be deemed to have been given two business
days after the date of such mailing (except that the notice of change of address
shall not be deemed to have been given until received by the addressee).
Notices may also be sent by telegram, telex, facsimile transmission or hand
delivery and in such event shall be deemed to have been given as of the date
received.
8.5 No Assignment. This Agreement may not be assigned by any of the
-------------
parties hereto, by operation of law or otherwise, without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
8.6 Headings. The description heading of the several Articles and
--------
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
8.7 Counterparts. This Agreement may be extended in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to each of the other parties hereto.
8.8 Construction and Interpretation. Except as the context otherwise
-------------------------------
requires, (a) all references herein to any state or federal regulatory agency
shall also be deemed to refer to any predecessor or successor agency, and (b)
all references to state and federal statutes or regulations shall also be deemed
to refer to any successor statute or regulation.
8.9 Entire Agreement. This Agreement, together with the schedules,
----------------
lists, exhibits and certificates required to be delivered hereunder, and any
amendment hereafter executed and delivered in accordance with Section 8.1,
constitutes the entire agreement of the parties, and supersedes any prior
written or oral agreement or understanding among any of the parties hereto
pertaining to the Merger, except for the Confidentiality and Non-Disclosure
Agreement between the Company and Commercial dated October 1, 1997, which shall
remain in full force and effect. This Agreement is not intended to confer upon
any other persons any rights or remedies hereunder except as expressly set forth
herein.
8.10 Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision
45
<PAGE>
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of the Agreement.
8.11 No Third Party Beneficiaries. Nothing in this Agreement shall
----------------------------
entitle any person (other than the Company, Savings, Commercial or the Bank and
their respective successors and assigns permitted hereby) to any claim, cause of
action, remedy or right of any kind, except as otherwise expressly provided
herein.
8.12 Enforcement of Agreement. The parties hereto agree that irreparable
------------------------
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
46
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunder duly authorized, all as of the
date set forth above.
COMMERCIAL FEDERAL CORPORATION PERPETUAL MIDWEST FINANCIAL, INC.
By: By:
------------------------------ ------------------------------
Name: James A. Laphen Name: James L. Roberts
Title: President and Chief Title: President and Chief
Operating Officer Executive Officer
COMMERCIAL FEDERAL BANK, A PERPETUAL SAVINGS BANK, FSB
FEDERAL SAVINGS BANK
By: By:
------------------------------ ------------------------------
Name: James A. Laphen Name: James L. Roberts
Title: President and Chief Title: President and Chief
Operating Officer Executive Officer
47
<PAGE>
[LETTERHEAD OF EDELMAN & CO., LTD]
December 14, 1997
Board of Directors
Perpetual Midwest Federal, Inc.
700 First Avenue, N.E.
Cedar Rapids, IA 52401
Gentlemen:
We understand that Perpetual Midwest Federal, Inc. ("PMFI") and Commercial
Federal Corporation ("Commercial") propose to enter into an Agreement and Plan
of Reorganization to be dated on or about December 15, 1997, a draft of which
was delivered to us on December 12, 1997 (the "Agreement"), providing for the
acquisition of 100% of the outstanding shares of common stock of PMFI by
Commercial pursuant to a merger transaction (the "Merger"). Under the Agreement,
upon consummation of the Merger, each share of PMFI common stock, $.01 par value
("PMFI Common Stock") issued and outstanding will be exchanged for .5757 shares
of Commercial common stock, $.01 par value ("Commercial Common Stock"), subject
to adjustment as set forth in section 1.3(a) of the Agreement (the "Exchange
Ratio"). The terms and conditions of the Merger are more fully set forth in the
Agreement.
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of PMFI Common Stock of the Exchange Ratio.
In forming our opinion, we have reviewed, among other things, (i) with respect
to PMFI, the Prospectus dated February 10, 1994 relating to PMFI's initial
public offering of PMFI Common stock; Annual Reports on Form 10-K and Annual
Reports to shareholders for the six months ended June 30, 1994 and the fiscal
years ended June 30, 1995 through 1997; and the Quarterly Report on Form 10-Q
for the quarter ended September 30, 1997; (ii) with respect to Commercial,
Annual Reports on Form 10-K and Annual Reports to shareholders for the fiscal
years ended June 30, 1993 through 1997; (iii) the Agreement; (iv) certain
other information concerning the future prospects of PMFI and Commercial, and of
the combined entity, as furnished by the respective companies, which we
discussed separately with the senior management of PMFI and Commercial; (v)
historical market price and trading data for PMFI and Commercial Common Stock;
(vi) the financial performance and condition of PMFI and Commercial and similar
data for other financial institutions which we believed to be relevant; and
(vii) the financial terms of other mergers which we believed to be relevant; and
(viii) such other information as we deemed appropriate.
We met with certain senior officers of PMFI and Commercial to discuss the
foregoing as well as other matters relevant to our opinion including the past
and current business operations, financial condition and future prospects of
PMFI and Commercial. We also took into account our assessment of general
economic, market and financial conditions, and such additional financial and
other factors as we deemed relevant.
<PAGE>
Perpetual Midwest Financial, Inc.
December 14, 1997
Page 2
In conducting our review and preparing our opinion, we relied upon the accuracy
and completeness of the financial and other information regarding PMFI and
Commercial provided to us by the respective managements of PMFI and Commercial,
and on certain other publicly available financial and other information, and did
not independently verify any such information. We relied upon the management of
PMFI and Commercial in forming a view of the future prospects of PMFI and
Commercial, and in forming assumptions regarding a range of potential synergies
resulting from the Merger. We assumed, without independent verification, that
the aggregate allowances for loan losses at PMFI and Commercial were adequate to
cover such losses. We did not inspect any properties, assets or liabilities of
PMFI or Commercial and did not make or obtain any evaluations or appraisals of
any properties, assets or liabilities of PMFI or Commercial. In rendering our
opinion, we have assumed that the Merger will be consummated on the terms
described in the Agreement.
In addition to our services in connection with rendering this opinion, we have
acted as financial advisor to the PMFI Board of Directors in connection with
this transaction and will receive a fee for our services upon closing of the
Merger.
Our engagement and the opinion expressed herein are for the benefit of the PMFI
Board of Directors. Our opinion is directed solely to the fairness, from a
financial point of view, of the Exchange Ratio and does not address the decision
to effect the Merger or constitute a recommendation to any PMFI shareholder as
to how such shareholder should vote on the Merger. It is further understood that
our opinion is based on economic and market conditions and other circumstances
existing as of December 14, 1997, and does not represent an opinion as to what
the value of Commercial Common Stock will be when issued to the shareholders of
PMFI upon consummation of the Merger or thereafter.
It is understood that, except for inclusion in full in the Proxy
Statement/Prospectus relating to the Merger, this letter may not be disclosed or
otherwise referred to without our prior written consent, which will not
unreasonably be withheld, except as may otherwise be required by law or by a
court of competent jurisdiction.
Based on and subject to the foregoing and such other factors as we deem
relevant, we are of the opinion that the Exchange Ratio is fair, from a
financial point of view, to the holders of PMFI Common Stock.
Sincerely,
/s/ Edelman & Co., Ltd.
Edelman & Co., Ltd.
<PAGE>
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 15, 1997, between Commercial
Federal Corporation, a Nebraska corporation ("Grantee"), and Perpetual Midwest
Financial, Inc., a Delaware corporation ("Issuer").
W I T N E S S E T H:
WHEREAS, Grantee and Issuer have entered into an Agreement and Plan of Merger
(the "Merger Agreement");
WHEREAS, as an inducement to the willingness of Grantee to continue to pursue
the transactions contemplated by the Merger Agreement, Issuer has agreed to
grant Grantee the Option (as hereinafter defined); and
WHEREAS, the Board of Directors of Issuer has approved the grant of the
Option and the Merger Agreement prior to the date hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Merger Agreement, the parties hereto
agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional, irrevocable option
(the "Option") to purchase, subject to the terms hereof, up to an aggregate of
185,419 fully paid and nonassessable shares of the common stock, par value $.01
per share, of Issuer ("Common Stock") at a price per share equal to the average
of last reported sale prices per share of Common Stock as reported on the Nasdaq
National Market System on December 12, 1997; provided, however, that in the
event Issuer issues or agrees to issue any shares of Common Stock (other than
shares of Common Stock issued pursuant to stock options granted prior to the
date hereof) at a price less than such price per share (as adjusted pursuant to
subsection (b) of Section 5), such price shall be equal to such lesser price
(such price, as adjusted if applicable, the "Option Price"); provided, further,
that in no event shall the number of shares for which this Option is exercisable
exceed 9.9% of the issued and outstanding shares of Common Stock. The number of
shares of Common Stock that may be received upon the exercise of the Option and
the Option Price are subject to adjustment as herein set forth.
(b) In the event that any additional shares of Common Stock are issued or
otherwise become outstanding after the date of this Agreement (other than
pursuant to this Agreement and other than pursuant to an event described in
Section 5(a) hereof), the number of shares of Common Stock subject to the Option
shall be increased so that, after such issuance, such number together with any
shares of Common Stock previously issued pursuant hereto, equals 9.9% of the
number of shares of Common Stock then issued and outstanding without giving
effect to any shares subject or issued pursuant to the Option. Nothing
contained in this Section l(b) or elsewhere in this Agreement shall be deemed to
authorize Issuer to issue shares in breach any provision of the Merger
Agreement.
<PAGE>
2. (a) The Holder (as hereinafter defined) may exercise the Option, in whole
or part, if, but only if, both an Initial Triggering Event (as hereinafter
defined) and a Subsequent Triggering Event (as hereinafter defined) shall have
occurred prior to the occurrence of an Exercise Termination Event (as
hereinafter defined), provided that the Holder shall have sent the written
notice of such exercise (as provided in subsection (e) of this Section 2) within
six (6) months following such Subsequent Triggering Event (or such later period
as provided in Section 10). Each of the following shall be an Exercise
Termination Event: (i) the Effective Time of the Merger; (ii) termination of the
Merger Agreement in accordance with the provisions thereof if such termination
occurs prior to the occurrence of an Initial Triggering Event except a
termination by Grantee pursuant to Section 5.4(c) due to a breach of the
Company's covenants at Sections 4.2, 4.3, 4.4, 4.6 or 4.9 or the condition at
Section 5.2(e) of the Merger Agreement (but only if the breach giving rise to
the termination was willful) (each, a "Listed Termination"); or (iii) the
passage of eighteen (18) months (or such longer period as provided in Section
10) after termination of the Merger Agreement if such termination follows the
occurrence of an Initial Triggering Event or is a Listed Termination. The term
"Holder" shall mean the holder or holders of the Option. Notwithstanding
anything to the contrary contained herein, (i) the Option may not be exercised
at any time when Grantee shall be in material breach of any of its covenants or
agreements contained in the Merger Agreement such that Issuer shall be entitled
to terminate the Merger Agreement as a result of a material breach.
(b) The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring on or after the date hereof:
(i) Issuer or any Significant Subsidiary (as defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange Commission (the
"SEC")) (an "Issuer Subsidiary"), without having received Grantee's prior
written consent, shall have entered into an agreement to engage in an
Acquisition Transaction (as hereinafter defined) with any person (the term
"person" for purposes of this Agreement having the meaning assigned thereto
in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the rules and regulations thereunder) other
than Grantee or any of its Subsidiaries (each a "Grantee Subsidiary") or the
Board of Directors of Issuer (the "Issuer Board") shall have recommended that
the shareholders of Issuer approve or accept any Acquisition Transaction
other than as contemplated by the Merger Agreement. For purposes of this
Agreement, (a) "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Issuer or any Issuer
Subsidiary (other than mergers, consolidations or similar transactions
involving solely Issuer and/or one or more wholly-owned (except for
directors' qualifying shares and a de minimis number of other shares)
Subsidiaries of the Issuer, provided, any such transaction is not entered
into in violation of the terms of the Merger Agreement), (y) a purchase,
lease or other acquisition of all or any substantial part of the assets or
deposits of Issuer or any Issuer Subsidiary, or (z) a purchase or other
acquisition (including by way of merger, consolidation, share exchange or
otherwise) of securities representing 10% or more of the voting power of
Issuer or any Issuer Subsidiary and (b) "Subsidiary" shall have the meaning
set forth in Rule 12b-2 under the 1934 Act;
2
<PAGE>
(ii) Any person other than the Grantee or any Grantee Subsidiary shall
have acquired beneficial ownership or the right to acquire beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the term
"beneficial ownership" for purposes of this Agreement having the meaning
assigned thereto in Section 13(d) of the 1934 Act, and the rules and
regulations thereunder);
(iii) The shareholders of Issuer shall have voted and failed to adopt
the Merger Agreement at a meeting which has been held for that purpose or any
adjournment or postponement thereof, or such meeting shall not have been held
in violation of the Merger Agreement or shall have been cancelled prior to
termination of the Merger Agreement if, prior to such meeting (or if such
meeting shall not have been held or shall have been cancelled, prior to such
termination), it shall have been publicly announced that any person (other
than Grantee or any of its Subsidiaries) shall have made, or publicly
disclosed an intention to make, a proposal to engage in an Acquisition
Transaction;
(iv) The Issuer Board shall have withdrawn or modified (or publicly
announced its intention to withdraw or modify) in any manner adverse in any
respect to Grantee its recommendation that the shareholders of Issuer approve
the transactions contemplated by the Merger Agreement, or Issuer or any
Issuer Subsidiary shall have authorized, recommended, proposed (or publicly
announced its intention to authorize, recommend or propose) an agreement to
engage in an Acquisition Transaction with any person other than Grantee or a
Grantee Subsidiary;
(v) Any person other than Grantee or any Grantee Subsidiary shall have
filed with the SEC a registration statement or tender offer materials with
respect to a potential exchange or tender offer that would constitute an
Acquisition Transaction (or filed a preliminary proxy statement with the SEC
with respect to a potential vote by its shareholders to approve the issuance
of shares to be offered in such an exchange offer);
(vi) Issuer shall have willfully breached any covenant or obligation
contained in the Merger Agreement in anticipation of engaging in an
Acquisition Transaction, and following such breach Grantee would be entitled
to terminate the Merger Agreement (whether immediately or after the giving of
notice or passage of time or both); or
(vii) Any person other than Grantee or any Grantee Subsidiary shall
have filed an application or notice with the Office of Thrift Supervision
(the "OTS") or other federal or state bank regulatory or antitrust authority,
which application or notice has been accepted for processing, for approval to
engage in an Acquisition Transaction.
(c) The term "Subsequent Triggering Event" shall mean any of the following
events or transactions occurring after the date hereof:
3
<PAGE>
(i) The acquisition by any person (other than Grantee or any Grantee
Subsidiary) of beneficial ownership of 25% or more of the then outstanding
Common Stock; or
(ii) The occurrence of the Initial Triggering Event described in clause
(i) of subsection (b) of this Section 2, except that the percentage referred
to in clause (z) of the second sentence thereof shall be 25%.
(d) Issuer shall notify Grantee promptly in writing of the occurrence of any
Initial Triggering Event or Subsequent Triggering Event (together, a "Triggering
Event"), it being understood that the giving of such notice by Issuer shall not
be a condition to the right of the Holder to exercise the Option.
(e) In the event the Holder is entitled to and wishes to exercise the Option
(or any portion thereof), it shall send to Issuer a written notice (the date of
which being herein referred to as the "Notice Date") specifying (i) the total
number of shares it will purchase pursuant to such exercise and (ii) a place and
date not earlier than three business days nor later than 60 business days from
the Notice Date for the closing of such purchase (the "Closing Date"); provided,
that if prior notification to or approval of the OTS or any other regulatory or
antitrust agency is required in connection with such purchase, the Holder shall
promptly file the required notice or application for approval, shall promptly
notify Issuer of such filing, and shall expeditiously process the same and the
period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which any required notification periods have expired or
been terminated or such approvals have been obtained and any requisite waiting
period or periods shall have passed. Any exercise of the Option shall be deemed
to occur on the Notice Date relating thereto.
(f) At the closing referred to in subsection (e) of this Section 2, the
Holder shall (i) pay to Issuer the aggregate purchase price for the shares of
Common Stock purchased pursuant to the exercise of the Option in immediately
available funds by wire transfer to a bank account designated by Issuer and (ii)
present and surrender this Agreement to Issuer at its principal executive
offices, provided that the failure or refusal of the Issuer to designate such a
bank account or accept surrender of this Agreement shall not preclude the Holder
from exercising the Option.
(g) At such closing, simultaneously with the delivery of immediately
available funds as provided in subsection (f) of this Section 2, Issuer shall
deliver to the Holder a certificate or certificates representing the number of
shares of Common Stock purchased by the Holder and, if the Option should be
exercised in part only, a new Option evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder.
(h) Certificates for Common Stock delivered at a closing hereunder may be
endorsed with a restrictive legend that shall read substantially as follows:
4
<PAGE>
"The transfer of the shares represented by this certificate is subject to
certain provisions of an agreement, dated as of December 15, 1997, between
the registered holder hereof and Issuer and to resale restrictions arising
under the Securities Act of 1933, as amended. A copy of such agreement is on
file at the principal office of Issuer and will be provided to the holder
hereof without charge upon receipt by Issuer of a written request therefor."
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act of 1933, as amended (the "1933 Act") in the above legend
shall be removed by delivery of substitute certificate(s) without such reference
if the Holder shall have delivered to Issuer a copy of a letter from the staff
of the SEC, or an opinion of counsel, in form and substance reasonably
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the 1933 Act; (ii) the reference to the provisions of this Agreement
in the above legend shall be removed by delivery of substitute certificate(s)
without such reference if the shares have been sold or transferred in compliance
with the provisions of this Agreement and under circumstances that do not
require the retention of such reference in the opinion of Counsel to the Holder;
and (iii) the legend shall be removed in its entirety if the conditions in the
preceding clauses (i) and (ii) are both satisfied. In addition, such
certificates shall bear any other legend as may be required by law.
(i) Upon the giving by the Holder to Issuer of the written notice of exercise
of the Option provided for under subsection (e) of this Section 2 and the tender
of the applicable purchase price in immediately available funds, the Holder
shall be deemed subject to the receipt of any necessary regulatory approvals to
be the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of Issuer shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder. Issuer shall pay all expenses, and
any and all United States federal, state and local taxes and other charges that
may be payable in connection with the preparation, issue and delivery of stock
certificates under this Section 2 in the name of the Holder or its assignee,
transferee or designee.
3. Issuer agrees: (i) that it shall at all times maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be exercised without additional
authorization of Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Common Stock; (ii)
that it will not, by charter amendment or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act, avoid or
seek to avoid the observance or performance of any of the covenants,
stipulations or conditions to be observed or performed hereunder by Issuer;
(iii) promptly to take all action as may from time to time be required
(including (x) complying with all applicable premerger notification, reporting
and waiting period requirements specified in 15 U.S.C. Section 18a and
regulations promulgated thereunder and (y) in the event, under the Savings and
Loan Holding Company Act ("SLHCA"), or the Change in Bank Control Act of 1978,
as amended, or any state or other federal banking law, prior approval of or
notice to the OTS or to any state or other federal regulatory authority is
necessary before the Option may be exercised, cooperating fully with the Holder
in preparing such applications or notices and providing such information to the
OTS or such
5
<PAGE>
state or other federal regulatory authority as they may require) in order to
permit the Holder to exercise the Option and Issuer duly and effectively to
issue shares of Common Stock pursuant hereto; and (iv) promptly to take all
action provided herein to protect the rights of the Holder against dilution.
4. This Agreement (and the Option granted hereby) are exchangeable, without
expense, at the option of the Holder, upon presentation and surrender of this
Agreement at the principal office of Issuer, for other Agreements providing for
Options of different denominations entitling the holder thereof to purchase, on
the same terms and subject to the same conditions as are set forth herein, in
the aggregate the same number of shares of Common Stock purchasable hereunder.
The terms "Agreement" and "Option" as used herein include any Agreements and
related Options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon receipt by Issuer of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Agreement, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Agreement, if mutilated, Issuer will
execute and deliver a new Agreement of like tenor and date. Any such new
Agreement executed and delivered shall constitute an additional contractual
obligation on the part of Issuer, whether or not the Agreement so lost, stolen,
destroyed or mutilated shall at any time be enforceable by anyone.
5. In addition to the adjustment in the number of shares of Common Stock
that are purchasable upon exercise of the Option pursuant to Section 1 of this
Agreement, the number of shares of Common Stock purchasable upon the exercise of
the Option and the Option Price shall be subject to adjustment from time to time
as provided in this Section 5.
(a) In the event of any change in, or distributions in respect of, the Common
Stock by reason of stock dividends, split-ups, mergers, recapitalizations,
combinations, subdivisions, conversions, exchanges of shares or the like, the
type and number of shares of Common Stock purchasable upon exercise hereof shall
be appropriately adjusted and proper provision shall be made so that, in the
event that any additional shares of Common Stock are to be issued or otherwise
become outstanding as a result of any such change (other than pursuant to an
exercise of the Option), the number of shares of Common Stock that remain
subject to the Option shall be increased so that, after such issuance and
together with shares of Common Stock previously issued pursuant to the exercise
of the Option (as adjusted on account of any of the foregoing changes in the
Common Stock), it equals 9.9% of the number of shares of Common Stock then
issued and outstanding.
(b) Whenever the number of shares of Common Stock purchasable upon exercise
hereof is adjusted as provided in this Section 5, the Option Price shall be
adjusted by multiplying the Option Price by a fraction, the numerator of which
shall be equal to the number of shares of Common Stock purchasable prior to the
adjustment and the denominator of which shall be equal to the number of shares
of Common Stock purchasable after the adjustment.
6
<PAGE>
6. Upon the occurrence of a Subsequent Triggering Event that occurs prior to
an Exercise Termination Event, Issuer shall, at the request of Grantee delivered
within twelve (12) months (or such later period as provided in Section 10) of
such Subsequent Triggering Event (whether on its own behalf or on behalf of any
subsequent holder of this Option (or part thereof) or any of the shares of
Common Stock issued pursuant hereto), promptly prepare, file and keep current a
registration statement under the 1933 Act covering any shares issued and
issuable pursuant to this Option and shall use its reasonable best efforts to
cause such registration statement to become effective and remain current in
order to permit the sale or other disposition of any shares of Common Stock
issued upon total or partial exercise of this Option ("Option Shares") in
accordance with any plan of disposition requested by Grantee. Issuer will use
its reasonable best efforts to cause such registration statement promptly to
become effective and then to remain effective for such period not in excess of
180 days from the day such registration statement first becomes effective or
such shorter time as may be reasonably necessary to effect such sales or other
dispositions. Grantee shall have the right to demand two such registrations.
The Issuer shall bear the costs of such registrations (including, but not
limited to, Issuer's attorneys' fees, printing costs and filing fees, except for
underwriting discounts or commissions, brokers' fees and the fees and
disbursements of Grantee's counsel related thereto). The foregoing
notwithstanding, if, at the time of any request by Grantee for registration of
Option Shares as provided above, Issuer is in registration with respect to an
underwritten public offering by Issuer of shares of Common Stock, and if in the
good faith judgment of the managing underwriter or managing underwriters, or, if
none, the sole underwriter or underwriters, of such offering the offer and sale
of the Option Shares would interfere with the successful marketing of the shares
of Common Stock offered by Issuer, the number of Option Shares otherwise to be
covered in the registration statement contemplated hereby may be reduced;
provided, however, that after any such required reduction the number of Option
Shares to be included in such offering for the account of the Holder shall
constitute at least 25% of the total number of shares to be sold by the Holder
and Issuer in the aggregate; and provided further, however, that if such
reduction occurs, then Issuer shall file a registration statement for the
balance as promptly as practicable thereafter as to which no reduction pursuant
to this Section 6 shall be permitted or occur and the Holder shall thereafter be
entitled to one additional registration and the twelve (12) month period
referred to in the first sentence of this section shall be increased to twenty-
four (24) months. Each such Holder shall provide all information reasonably
requested by Issuer for inclusion in any registration statement to be filed
hereunder. If requested by any such Holder in connection with such
registration, Issuer shall become a party to any underwriting agreement relating
to the sale of such shares, but only to the extent of obligating itself in
respect of representations, warranties, indemnities and other agreements
customarily included in such underwriting agreements for Issuer. Upon receiving
any request under this Section 6 from any Holder, Issuer agrees to send a copy
thereof to any other person known to Issuer to be entitled to registration
rights under this Section 6, in each case by promptly mailing the same, postage
prepaid, to the address of record of the persons entitled to receive such
copies. Notwithstanding anything to the contrary contained herein, in no event
shall the number of registrations that Issuer is obligated to effect be
increased by reason of the fact that there shall be more than one Holder as a
result of any assignment or division of this Agreement.
7
<PAGE>
7. (a) At any time after the occurrence of a Repurchase Event (as defined
below) (i) at the request of the Holder, delivered prior to an Exercise
Termination Event (or such later period as provided in Section 10), Issuer (or
any successor thereto) shall repurchase the Option from the Holder at a price
(the "Option Repurchase Price") equal to the amount by which (A) the
market/offer price (as defined below) exceeds (B) the Option Price, multiplied
by the number of shares for which this Option may then be exercised and (ii) at
the request of the owner of Option Shares from time to time (the "Owner"),
delivered prior to an Exercise Termination Event (or such later period as
provided in Section 10), Issuer (or any successor thereto) shall repurchase such
number of the Option Shares from the Owner as the Owner shall designate at a
price (the "Option Share Repurchase Price") equal to the market/offer price
multiplied by the number of Option Shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of Common Stock at
which a tender or exchange offer therefor has been made, (ii) the price per
share of Common Stock to be paid by any third party pursuant to an agreement
with Issuer, (iii) the highest closing price for shares of Common Stock within
the six-month period immediately preceding the date the Holder gives notice of
the required repurchase of this Option or the Owner gives notice of the required
repurchase of Option Shares, as the case may be, or (iv) in the event of a sale
of all or any substantial part of Issuer's assets or deposits, the sum of the
net price paid in such sale for such assets or deposits and the current market
value of the remaining net assets of Issuer as determined by a nationally
recognized investment banking firm selected by the Holder or the Owner, as the
case may be, and reasonably acceptable to Issuer, divided by the number of
shares of Common Stock of Issuer outstanding at the time of such sale. In
determining the market/offer price, the value of consideration other than cash
shall be determined by a nationally recognized investment banking firm selected
by the Holder or Owner, as the case may be, and reasonably acceptable to Issuer.
(b) The Holder and the Owner, as the case may be, may exercise its right to
require Issuer to repurchase the Option and any Option Shares pursuant to this
Section 7 by surrendering for such purpose to Issuer, at its principal office, a
copy of this Agreement or certificates for Option Shares, as applicable,
accompanied by a written notice or notices stating that the Holder or the Owner,
as the case may be, elects to require Issuer to repurchase this Option and/or
the Option Shares in accordance with the provisions of this Section 7. As
promptly as practicable, and in any event within five business days after the
surrender of the Option and/or certificates representing Option Shares and the
receipt of such notice or notices relating thereto, Issuer shall deliver or
cause to be delivered to the Holder the Option Repurchase Price and/or to the
Owner the Option Share Repurchase Price therefor or the portion thereof that
Issuer is not then prohibited under applicable law and regulation from so
delivering.
(c) To the extent that Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from repurchasing the
Option and/or the Option Shares in full, Issuer shall immediately so notify the
Holder and/or the Owner and thereafter deliver or cause to be delivered, from
time to time, to the Holder and/or the Owner, as appropriate, the portion of the
Option Repurchase Price and the Option Share Repurchase Price, respectively,
that it is no longer prohibited from delivering, within five business days after
the date on which Issuer is no longer so
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prohibited; provided, however, that if Issuer at any time after delivery of a
notice of repurchase pursuant to paragraph (b) of this Section 7 is prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from delivering to the Holder and/or the Owner, as appropriate, the
Option Repurchase Price and the Option Share Repurchase Price, respectively, in
full (and Issuer hereby undertakes to use its reasonable best efforts to obtain
all required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish such repurchase), the Holder or
Owner may revoke its notice of repurchase of the Option and/or the Option Shares
whether in whole or to the extent of the prohibition, whereupon, in the latter
case, Issuer shall promptly (i) deliver to the Holder and/or the Owner, as
appropriate, that portion of the Option Repurchase Price and/or the Option Share
Repurchase Price that Issuer is not prohibited from delivering; and (ii)
deliver, as appropriate, either (A) to the Holder, a new Agreement evidencing
the right of the Holder to purchase that number of shares of Common Stock
obtained by multiplying the number of shares of Common Stock for which the
surrendered Agreement was exercisable at the time of delivery of the notice of
repurchase by a fraction, the numerator of which is the Option Repurchase Price
less the portion thereof theretofore delivered to the Holder and the denominator
of which is the Option Repurchase Price, and/or (B) to the Owner, a certificate
for the Option Shares it is then so prohibited from repurchasing. If an Exercise
Termination Event shall have occurred prior to the date of the notice by Issuer
described in the first sentence of this subsection (c), or shall be scheduled to
occur at any time before the expiration of a period ending on the thirtieth day
after such date, the Holder shall nonetheless have the right to exercise the
Option until the expiration of such 30-day period.
(d) For purposes of this Section 7, a "Repurchase Event" shall be deemed to
have occurred upon the occurrence of any of the following events or transactions
after the date hereof:
(i) the acquisition by any person (other than Grantee or any Grantee
Subsidiary) of beneficial ownership of 50% or more of the then outstanding
Common Stock; or
(ii) the consummation of any Acquisition Transaction described in
Section 2(b)(i) hereof, except that the percentage referred to in clause (z)
shall be 50%.
8. (a) In the event that prior to an Exercise Termination Event, Issuer
shall enter into an agreement (i) to consolidate with or merge into any person,
other than Grantee or a Grantee Subsidiary, or engage in a plan of exchange with
any person, other than Grantee or a Grantee Subsidiary and Issuer shall not be
the continuing or surviving corporation of such consolidation or merger or the
acquirer in such plan of exchange, (ii) to permit any person, other than Grantee
or a Grantee Subsidiary, to merge into Issuer or be acquired by Issuer in a plan
of exchange and Issuer shall be the continuing or surviving or acquiring
corporation, but, in connection with such merger or plan of exchange, the then
outstanding shares of Common Stock shall be changed into or exchanged for stock
or other securities of any other person or cash or any other property or the
then outstanding shares of Common Stock shall after such merger or plan of
exchange represent less than 50% of the outstanding shares and share equivalents
of the merged or acquiring company, or (iii)
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to sell or otherwise transfer all or a substantial part of its or the Issuer
Subsidiary's assets or deposits to any person, other than Grantee or a Grantee
Subsidiary, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of the Holder, of either (x) the Acquiring Corporation
(as hereinafter defined) or (y) any person that controls the Acquiring
Corporation.
(b) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or surviving
person of a consolidation or merger with Issuer (if other than Issuer), (ii)
the acquiring person in a plan of exchange in which Issuer is acquired, (iii)
the Issuer in a merger or plan of exchange in which Issuer is the continuing
or surviving or acquiring person, and (iv) the transferee of all or a
substantial part of Issuer's assets or deposits (or the assets or deposits of
the Issuer Subsidiary).
(ii) "Substitute Common Stock" shall mean the common stock issued by
the issuer of the Substitute Option upon exercise of the Substitute Option.
(iii) "Assigned Value" shall mean the market/offer price, as defined in
Section 7.
(iv) "Average Price" shall mean the average closing price of a share of
the Substitute Common Stock for one year immediately preceding the
consolidation, merger or sale in question, but in no event higher than the
closing price of the shares of Substitute Common Stock on the day preceding
such consolidation, merger or sale; provided that if Issuer is the issuer of
the Substitute Option, the Average Price shall be computed with respect to a
share of common stock issued by the person merging into Issuer or by any
company which controls or is controlled by such person, as the Holder may
elect.
(c) The Substitute Option shall have the same terms as the Option, provided
that if the terms of the Substitute Option cannot, for legal reasons, be the
same as the Option, such terms shall be as similar as possible and in no event
less advantageous to the Holder. The issuer of the Substitute Option shall also
enter into an agreement with the then Holder or Holders of the Substitute Option
in substantially the same form as this Agreement (after giving effect for such
purpose to the provisions of Section 9), which agreement shall be applicable to
the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of shares of
Substitute Common Stock as is equal to the Assigned Value multiplied by the
number of shares of Common Stock for which the Option was exercisable
immediately prior to the event described in the first sentence of Section 8(a),
divided by the Average Price. The exercise price of the Substitute Option per
share of Substitute Common Stock shall then be equal to the Option Price
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock for which the
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Option was exercisable immediately prior to the event described in the first
sentence of Section 8(a) and the denominator of which shall be the number of
shares of Substitute Common Stock for which the Substitute Option is
exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 9.9% of the shares of Substitute
Common Stock outstanding prior to exercise of the Substitute Option. In the
event that the Substitute Option would be exercisable for more than 9.9% of the
shares of Substitute Common Stock outstanding prior to exercise but for this
clause (e), the issuer of the Substitute Option (the "Substitute Option Issuer")
shall make a cash payment to Holder equal to the excess of (i) the value of the
Substitute Option without giving effect to the limitation in this clause (e)
over (ii) the value of the Substitute Option after giving effect to the
limitation in this clause (e). This difference in value shall be determined by
a nationally recognized investment banking firm selected by the Holder.
(f) Issuer shall not enter into any transaction described in subsection (a)
of this Section 8 unless the Acquiring Corporation and any person that controls
the Acquiring Corporation assume in writing all the obligations of Issuer
hereunder.
9. (a) At the request of the holder of the Substitute Option (the
"Substitute Option Holder"), the issuer of the Substitute Option (the
"Substitute Option Issuer") shall repurchase the Substitute Option from the
Substitute Option Holder at a price (the "Substitute Option Repurchase Price")
equal to the amount by which (i) the Highest Closing Price (as hereinafter
defined) exceeds (ii) the exercise price of the Substitute Option, multiplied by
the number of shares of Substitute Common Stock for which the Substitute Option
may then be exercised, and at the request of the owner (the "Substitute Share
Owner") of shares of Substitute Common Stock (the "Substitute Shares"), the
Substitute Option Issuer shall repurchase the Substitute Shares at a price (the
"Substitute Share Repurchase Price") equal to the Highest Closing Price
multiplied by the number of Substitute Shares so designated. The term "Highest
Closing Price" shall mean the highest closing price for shares of Substitute
Common Stock within the six-month period immediately preceding the date the
Substitute Option Holder gives notice of the required repurchase of the
Substitute Option or the Substitute Share Owner gives notice of the required
repurchase of the Substitute Shares, as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as the case
may be, may exercise its respective rights to require the Substitute Option
Issuer to repurchase the Substitute Option and the Substitute Shares pursuant to
this Section 9 by surrendering for such purpose to the Substitute Option Issuer,
at its principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and/or certificates for
Substitute Shares accompanied by a written notice or notices stating that the
Substitute Option Holder or the Substitute Share Owner, as the case may be,
elects to require the Substitute Option Issuer to repurchase the Substitute
Option and/or the Substitute Shares in accordance with the provisions of this
Section 9. As promptly as practicable and in any event within five business days
after the surrender of the Substitute Option and/or certificates representing
Substitute Shares and the receipt of such notice
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or notices relating thereto, the Substitute Option Issuer shall deliver or cause
to be delivered to the Substitute Option Holder the Substitute Option Repurchase
Price and/or to the Substitute Share Owner the Substitute Share Repurchase Price
therefor or the portion thereof which the Substitute Option Issuer is not then
prohibited under applicable law and regulation from so delivering.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing the Substitute Option and/or the Substitute Shares in part or in
full, the Substitute Option Issuer shall immediately so notify the Substitute
Option Holder and/or the Substitute Share Owner and thereafter deliver or cause
to be delivered, from time to time, to the Substitute Option Holder and/or the
Substitute Share Owner, as appropriate, the portion of the Substitute Option
Repurchase Price and/or the Substitute Share Repurchase Price, respectively,
which it is no longer prohibited from delivering, within five (5) business days
after the date on which the Substitute Option Issuer is no longer so prohibited;
provided, however, that if the Substitute Option Issuer is at any time after
delivery of a notice of repurchase pursuant to subsection (b) of this Section 9
prohibited under applicable law or regulation, or as a consequence of
administrative policy, from delivering to the Substitute Option Holder and/or
the Substitute Share Owner, as appropriate, the Substitute Option Repurchase
Price and the Substitute Share Repurchase Price, respectively, in full (and the
Substitute Option Issuer shall use its reasonable best efforts to receive all
required regulatory and legal approvals as promptly as practicable in order to
accomplish such repurchase), the Substitute Option Holder and/or Substitute
Share Owner may revoke its notice of repurchase of the Substitute Option or the
Substitute Shares either in whole or to the extent of prohibition, whereupon, in
the latter case, the Substitute Option Issuer shall promptly (i) deliver to the
Substitute Option Holder or Substitute Share Owner, as appropriate, that portion
of the Substitute Option Repurchase Price or the Substitute Share Repurchase
Price that the Substitute Option Issuer is not prohibited from delivering; and
(ii) deliver, as appropriate, either (A) to the Substitute Option Holder, a new
Substitute Option evidencing the right of the Substitute Option Holder to
purchase that number of shares of the Substitute Common Stock obtained by
multiplying the number of shares of the Substitute Common Stock for which the
surrendered Substitute Option was exercisable at the time of delivery of the
notice of repurchase by a fraction, the numerator of which is the Substitute
Option Repurchase Price less the portion thereof theretofore delivered to the
Substitute Option Holder and the denominator of which is the Substitute Option
Repurchase Price, and/or (B) to the Substitute Share Owner, a certificate for
the Substitute Option Shares it is then so prohibited from repurchasing. If an
Exercise Termination Event shall have occurred prior to the date of the notice
by the Substitute Option Issuer described in the first sentence of this
subsection (c), or shall be scheduled to occur at any time before the expiration
of a period ending on the thirtieth day after such date, the Substitute Option
Holder shall nevertheless have the right to exercise the Substitute Option until
the expiration of such 30-day period.
10. The 30-day, 6-month, 12-month, 18-month or 24-month periods for exercise
of certain rights under Sections 2, 6, 7, 9, 12 and 14 shall be extended: (i) to
the extent necessary to obtain all regulatory approvals for the exercise of such
rights (for so long as the Holder, Owner, Substitute Option Holder or Substitute
Share Owner, as the case may be, is using commercially reasonable
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efforts to obtain such regulatory approvals), and for the expiration of all
statutory waiting periods; and (ii) to the extent necessary to avoid liability
under Section 16(b) of the 1934 Act by reason of such exercise.
11. Issuer hereby represents and warrants to Grantee as follows:
(a) Issuer has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Issuer Board
prior to the date hereof and no other corporate proceedings on the part of
Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by Issuer.
(b) Issuer has taken all necessary corporate action to authorize and reserve
and to permit it to issue, and at all times from the date hereof through the
termination of this Agreement in accordance with its terms will have reserved
for issuance upon the exercise of the Option, that number of shares of Common
Stock equal to the maximum number of shares of Common Stock at any time and from
time to time issuable hereunder, and all such shares, upon issuance pursuant
thereto, will be duly authorized, validly issued, fully paid, nonassessable, and
will be delivered free and clear of all claims, liens, encumbrance and security
interests and not subject to any preemptive rights.
12. Neither of the parties hereto may assign any of its rights or
obligations under this Agreement or the Option created hereunder to any other
person, without the express written consent of the other party, except that in
the event a Subsequent Triggering Event shall have occurred prior to an Exercise
Termination Event, Grantee, subject to the express provisions hereof, may assign
in whole or in part its rights and obligations hereunder; provided, however,
that until the date 15 days following the date on which the OTS has approved an
application by Grantee to acquire the shares of Common Stock subject to the
Option, Grantee may not assign its rights under the Option except in (i) a
widely dispersed public distribution, (ii) a private placement in which no one
party acquires the right to purchase in excess of 2% of the voting shares of
Issuer, (iii) an assignment to a single party (e.g., a broker or investment
banker) for the purpose of conducting a widely dispersed public distribution on
Grantee's behalf or (iv) any other manner approved by the OTS.
13. Each of Grantee and Issuer will use its reasonable best efforts to make
all filings with, and to obtain consents of, all third parties and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement, including, without limitation, applying to the OTS under the
SLHCA for approval to acquire the shares issuable hereunder, but Grantee shall
not be obligated to apply to state banking authorities for approval to acquire
the shares of Common Stock issuable hereunder until such time, if ever, as it
deems appropriate to do so.
14. (a) Grantee may, at any time following a Repurchase Event and prior to
the occurrence of an Exercise Termination Event (or such later period as
provided in Section 10), relinquish the
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Option (together with any Option Shares issued to and then owned by Grantee) to
Issuer in exchange for a cash fee equal to the Surrender Price; provided,
however, that Grantee may not exercise its rights pursuant to this Section 14 if
Issuer has repurchased the Option (or any portion thereof) or any Option Shares
pursuant to Section 7. The "Surrender Price" shall be equal to $1.35 million (i)
plus, if applicable, Grantee's purchase price with respect to any Option Shares
and (ii) minus, if applicable, the excess of (B) the net cash amounts, if any,
received by Grantee pursuant to the arms' length sale of Option Shares (or any
other securities into which such Option Shares were converted or exchanged) to
any unaffiliated party, over (B) Grantee's purchase price of such Option Shares.
(b) Grantee may exercise its right to relinquish the Option and any Option
Shares pursuant to this Section 14 by surrendering to Issuer, at its principal
office, a copy of this Agreement together with certificates for Option Shares,
if any, accompanied by a written notice stating (i) that Grantee elects to
relinquish the Option and Option Shares, if any, in accordance with the
provisions of this Section 14 and (ii) the Surrender Price. The Surrender Price
shall be payable in immediately available funds on or before the second business
day following receipt of such notice by Issuer.
(c) To the extent that Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from paying the
Surrender Price to Grantee in full, Issuer shall immediately so notify Grantee
and thereafter deliver or cause to be delivered, from time to time, to Grantee,
the portion of the Surrender Price that it is no longer prohibited from paying,
within five business days after the date on which Issuer is no longer so
prohibited; provided, however, that if Issuer at any time after delivery of a
notice of surrender pursuant to paragraph (b) of this Section 14 is prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from paying to Grantee the Surrender Price in full, (i) Issuer shall (A)
use its reasonable best efforts to obtain all required regulatory and legal
approvals and to file any required notices as promptly as practicable in order
to make such payments, (B) within five days of the submission or receipt of any
documents relating to any such regulatory and legal approvals, provide Grantee
with copies of the same, and (c) keep Grantee advised of both the status of any
such request for regulatory and legal approvals, as well as any discussions with
any relevant regulatory or other third party reasonably related to the same and
(ii) Grantee may revoke such notice of surrender by delivery of a notice of
revocation to Issuer and, upon delivery of such notice of revocation, the
Exercise Termination Date shall be extended to a date six months from the date
on which the Exercise Termination Date would have occurred if not for the
provisions of this Section 14(c) (during which period Grantee may exercise any
of its rights hereunder, including any and all rights pursuant to this Section
14).
15. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be enforceable by either party hereto
through injunctive or other equitable relief. In connection therewith both
parties waive the posting of any bond or similar requirement.
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16. If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated. If for any reason such court or regulatory agency determines
that the Holder is not permitted to acquire, or Issuer is not permitted to
repurchase pursuant to Section 7, the full number of shares of Common Stock
provided in Section l(a) hereof (as adjusted pursuant to Section l(b) or Section
5 hereof), it is the express intention of Issuer to allow the Holder to acquire
or to require Issuer to repurchase such lesser number of shares as may be
permissible, without any amendment or modification hereof.
17. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in person, by
fax, telecopy, or by registered or certified mail (postage prepaid, return
receipt requested) at the respective addresses of the parties set forth in the
Merger Agreement.
18. This Agreement shall be governed by and construed in accordance with the
laws of the State of Nebraska, without regard to the conflict of law principles
thereof (except to the extent that mandatory provisions of Federal law are
applicable).
19. This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute one and the
same agreement.
20. Except as otherwise expressly provided herein, each of the parties hereto
shall bear and pay all costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, including fees and
expenses of its own financial consultants, investment bankers, accountants and
counsel.
21. Except as otherwise expressly provided herein or in the Merger Agreement,
this Agreement contains the entire agreement between the parties with respect to
the transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assignees. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, and their respective successors except as assignees,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
22. Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned thereto in the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
COMMERCIAL FEDERAL CORPORATION PERPETUAL MIDWEST FINANCIAL, INC.
By: By:
-------------------------- ----------------------------
Name: Name:
Title: Title:
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