<PAGE>
<PAGE>
As filed with the Securities and Exchange Commission on
May 29, 1998
Registration No. 333-45613
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________________
POST-EFFECTIVE AMENDMENT NO. 1
UNDER COVER OF FORM S-8 TO FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_________________________________________
COMMERCIAL FEDERAL CORPORATION
- ------------------------------------------------------
(Exact name of Registrant as Specified in Its Charter)
Nebraska 47-0658852
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2120 South 72nd Street
Omaha, Nebraska 68101
(402) 554-9200
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(Address of Principal Executive Offices)
Perpetual Midwest Financial, Inc. 1993 Stock Option
and Incentive Plan
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(Full Title of the Plan)
Mr. James A. Laphen, President
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
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(Name and Address of Agent For Service)
(402) 390-5361
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(Telephone number, including area code, of agent for service)
COPIES TO:
J. MARK POERIO, ESQUIRE
CYNTHIA R. CROSS, ESQUIRE
HOUSLEY KANTARIAN & BRONSTEIN, P.C.
1220 19TH STREET, N.W., SUITE 700
WASHINGTON, D.C. 20036
(202) 822-9611
Note. This Post-Effective Amendment No. 1 on Form S-8 to
the Registrant's Registration Statement on Form S-4 relates to
47,339 previously registered shares of the Registrant's common
stock (the "Common Stock"), par value $.01 per share, reserved
for issuance pursuant to the Perpetual Midwest Financial, Inc.
1993 Stock Option and Incentive Plan which the Registrant
assumed upon consummation of its acquisition of Perpetual
Midwest Financial, Inc. ("Perpetual") pursuant to the
Reorganization and Merger Agreement, dated December 15, 1997, by
and among the Registrant and Commercial Federal Bank, a Federal
Savings Bank, Perpetual, and Perpetual Savings Bank, FSB.<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
- ------ INFORMATION*
*Documents containing the information required by Part I
of this Registration Statement will be sent or given to
participants in the Perpetual Midwest Financial, Inc. 1993 Stock
Option and Incentive Plan (the "Plan") in accordance with Rule
428(b)(1). In accordance with Rule 424 and in reliance on Rule
428, such documents are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus
supplements. Commercial Federal Corporation (the "Company")
will maintain a file of such documents for a period of five
years after the date on which such documents are last used as
part of the prospectus used to offer or sell shares of the
Company's common stock, par value $.01 per share (the "Common
Stock") pursuant to the Plan. Upon request, the Company will
furnish the Commission or its staff a copy of any or all
documents included in this file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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The Company is subject to the informational requirements
of the Securities Exchange Act of 1934 (the "1934 Act") and,
accordingly, files periodic reports and other information with
the Commission. Reports, proxy statements and other information
concerning the Company filed with the Commission may be
inspected and copies may be obtained (at prescribed rates) at
the Commission's Public Reference Section, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also
maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants that file electronically with the Commission,
including the Company. The address for the Commission's Web
site is "http://www.sec.gov".
The following documents are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997 as filed with the Commission on
September 29, 1997 (Commission File No. 1-11515).
(b) The Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997 as filed with the
Commission on November 14, 1997 (Commission File No. 1-11515).
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997 as filed with the Commission on
February 17, 1998 (Commission File No. 1- 11515).
(d) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998, as filed with the Commission on
May 15, 1998 (Commission File No. 1-11515).
(e) The Company's Current Report on Form 8-K dated
August 18, 1997, as filed with the Commission.
(f) The Company's Current Report on Form 8-K dated
September 2, 1997, as filed with the Commission.
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(g) The Company's Current Report on Form 8-K dated
September 11, 1997, as filed with the Commission.
(h) The Company's Current Report on Form 8-K dated
November 18, 1997, as filed with the Commission.
(i) The Company's Current Report on Form 8-K dated
December 8, 1997, as filed with the Commission.
(j) The Company's Current Report on Form 8-K dated
December 15, 1997, as filed with the Commission.
(k) The Company's Current Report on Form 8-K dated
February 11, 1998, as filed with the Commission.
(l) The Company's Current Report on Form 8-K dated March
9, 1998, as filed with the Commission.
(m) The description of the Company's Common Stock set
forth in Item 1 of the Company's registration statement on Form
8-A dated July 17, 1995.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY PURSUANT
TO SECTIONS 13(A), 13(C), 14, AND 15(D) OF THE 1934 ACT AFTER
THE DATE HEREOF AND PRIOR TO THE FILING OF A POST-EFFECTIVE
AMENDMENT WHICH INDICATES THAT ALL SHARES OF COMMON STOCK
OFFERED HAVE BEEN SOLD OR WHICH DEREGISTER ALL SUCH COMMON STOCK
THEN REMAINING UNSOLD, SHALL BE DEEMED TO BE INCORPORATED BY
REFERENCE IN THIS REGISTRATION STATEMENT, AND TO BE A PART
HEREOF FROM THE DATE OF FILING OF SUCH DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
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Not applicable, as the Common Stock is registered under
Section 12 of the Securities and Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Indemnification of directors and officers of the Company
is provided under Article VI of the Articles of Incorporation of
the Company for judgments, fines, settlements, and expenses,
including attorney fees incurred in connection with any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative if
such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Article VI of the Company's Articles of Incorporation
provides that an outside director shall not be personally liable
to the Company or its stockholders for monetary damages for
breach of his fiduciary duty as a director and authorizes the
Company to indemnify such outside director against monetary
damages for such breach to the full extent permitted by law.
This provision applies to acts or omissions occurring after the
effective date of the amendment, and does not limit liability
for (i) any act or omission not in good faith which involves
intentional misconduct or a knowing violation of law, (ii) any
transaction from which the outside director derived an improper
direct or indirect financial benefit, (iii) paying a dividend or
approving a stock repurchase in violation of the Nebraska
Business Corporation Act or (iv) any act or omission which
violates a declaratory or injunctive order obtained by the
Company or its stockholders. For purposes of Article VI,
"outside director" is defined as any member of the Board of
Directors who is not an officer
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or a person who may control the conduct of the Company through
management agreements, voting trusts, directorships in related
corporations or any other device or relationship.
The Company has purchased director and officer liability
insurance that insures directors and officers against certain
liabilities in connection with the performance of their duties
as directors and officers, including liabilities under the
Securities Act of 1933, as amended, and provides for payment to
the Company of costs incurred by it in indemnifying its
directors and officers.
Under Nebraska law, indemnification of directors and
officers may be provided for judgments, fines, settlements, and
expenses, including attorney's fees, incurred in connection with
any threatened, pending, or completed action, suit, or
proceeding other than an action by or in the right of the
Company. This applies to any civil, criminal, investigative or
administrative action provided that the director or officer
involved acted in good faith, in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Indemnification of directors and officers may be also
provided for judgments, fines, settlements, and expenses,
including attorney's fees, incurred in connection with any
threatened, pending, or completed action, or suit by or in the
right of the corporation if such director or officer acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation. However,
no indemnification shall be made in respect of any claim, issue
or matter in which such person is adjudged to be liable for
negligence or misconduct in the performance of his duties to the
corporation unless the court in which the action is brought
deems indemnity proper.
The grant of indemnification to a director or officer
shall be determined by a majority of a quorum of disinterested
directors, by a written opinion from independent legal counsel,
or by the shareholders.
Indemnification shall be provided to any directors and
officers for expenses, including attorney's fees, actually and
reasonably incurred in the defense of any action, suit or
proceeding to the extent that he or she has been successful on
the merits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
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For a list of all exhibits filed or included as part of
this Registration Statement, see "Index to Exhibits" at the end
of this Registration Statement.
ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent
change in the maximum aggregate
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offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement
or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(d) If the registrant is a foreign private issuer,
to file a post-effective amendment to the registration statement
to include any financial statements required by Rule 3-19 of
this chapter at the start of any delayed offering or throughout
a continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Rule 3-19
of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
2. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
3. The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation
S-X are not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
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4. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of Omaha,
State of Nebraska, on May 28, 1998.
COMMERCIAL FEDERAL CORPORATION
By: *
------------------------------
William A. Fitzgerald
Chairman of the Board
and Chief Executive Officer
(Duly Authorized Representative)
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
* Principal Executive Officer May 28, 1998
- ----------------------------- and Director
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
/s/ James A. Laphen Principal Financial Officer May 28, 1998
- ------------------------------
James A. Laphen
President, Chief Operating Officer
and Chief Financial Officer
* Principal Accounting Officer
- -------------------------------
Gary L. Matter
Senior Vice President, Controller and
Secretary
* Director
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Talton K. Anderson
* Director
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Michael P. Glinsky
/TABLE
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<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
Director
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William A. Krause
* Director
- -------------------------------
Robert F. Krohn
* Director
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Carl G. Mammel
* Director
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Robert S. Milligan
* Director
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* Director
- -------------------------------
Robert D. Taylor
* Director
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Aldo J. Tesi
*By: /s/ James A. Laphen May 28, 1998
---------------------
James A. Laphen
Attorney-in-Fact
/TABLE
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INDEX TO EXHIBITS
Exhibit Description
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5.1 Opinion of Housley Kantarian & Bronstein, P.C. as to
the validity of the Common Stock being registered
23.1 Consent of Independent Auditors
23.2 Consent of Housley Kantarian & Bronstein, P.C.
(appears in their opinion filed as Exhibit 5.1)
24.1 Power of Attorney (contained in the signature page to
the Registration Statement on Form S-4 as filed with
the Commission on February 4, 1998)
99.1 Perpetual Midwest Financial, Inc. 1993 Stock Option
and Incentive Plan (the "Plan")
99.2 Form of Stock Option Agreement previously entered
into with Optionees with respect to Options granted
under the Plan
99.3 Form of 1998 Amendment to Stock Option Agreement
May 29, 1998
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re:Commercial Federal Corporation
Perpetual Midwest Financial, Inc. 1993 Stock Option
and Incentive Plan
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Post-Effective Amendment No.1 on Form S-8
to the Company's Registration Statement on Form S-4
Dear Board Members:
We have acted as special counsel to Commercial Federal
Corporation, a Nebraska corporation (the "Company"), in
connection with the preparation of Post-Effective Amendment No.1
on Form S-8 to the Company's Registration Statement on Form S-4
filed with the Securities and Exchange Commission (the
"Registration Statement") under the Securities Act of 1933, as
amended, relating to 47,339 shares of common stock (the "Common
Stock"), par value $.01 per share, of the Company which may be
issued pursuant to the exercise of stock options granted under
the Perpetual Midwest Financial, Inc. 1993 Stock Option and
Incentive Plan (the "Plan"), all as more fully described in the
Registration Statement. You have requested the opinion of this
firm with respect to issuance of the Common Stock pursuant to
the Plan.
We have examined such documents, records and matters of
law as we have deemed necessary for purposes of this opinion and
based thereon, we are of the opinion that the Common Stock when
issued pursuant to the exercise of stock options granted under
the Plan will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement on Form S-8 and to
references to our firm included under the caption "Legal
Opinion" in the Prospectus which is part of the Registration
Statement.
Very truly yours,
Housley Kantarian & Bronstein, P.C.
By:/s/ J. Mark Poerio
--------------------------------
J. Mark Poerio, Esquire
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Post-Effective Amendment No. 1 to Registration Statement No.
333-45613 of Commercial Federal Corporation Form S-4 filed on
Form S-8 of our report dated August 15, 1997 (September 11, 1997
as to Note 29) (which report expresses an unqualified opinion
and includes an explanatory paragraph referring to a change in
the method of accounting for mortgage servicing rights in fiscal
year 1996), appearing in the Annual Report on Form 10-K of
Commercial Federal Corporation for the year ended June 30, 1997
and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement No.
333-45613.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Omaha, Nebraska
May 29, 1998
<PAGE>
PERPETUAL MIDWEST FINANCIAL, INC.
1993 STOCK OPTION AND INCENTIVE PLAN
1. Plan Purpose. The purpose of the Plan is to promote the
long-term interests of the Corporation and its
stockholders by providing a means for attracting and
retaining directors, officers and employees of the
Corporation and its Affiliates. It is intended that
designated Options granted pursuant to the provisions of
this Plan to persons employed by the Corporation or its
Affiliates will qualify as Incentive Stock Options.
Options granted to persons who are not employees will be
Non-Qualified Stock Options.
2. Definitions. The following definitions are applicable to
the Plan:
"Affiliate" - means any "parent corporation" or
"subsidiary corporation" of the Corporation, as such terms
are defined in Section 424(e) and (f), respectively, of
the Code.
"Bank" - means Perpetual Savings Bank, FSB and any
successor entity.
"Award" - means the grant of an Incentive Stock Option, a
Non-Qualified Stock Option, a Stock Appreciation Right, a
Limited Stock Appreciation Right, or of Restricted Stock,
or any combination thereof, as provided in the Plan.
"Code" - means the Internal Revenue Code of 1986, as
amended.
"Committee" - means the Committee referred to in Section 3
hereof.
"Continuous Service" - means the absence of any
interruption or termination of service as a director,
advisory director, officer or employee of the Corporation
or an Affiliate, except that when used with respect to
persons granted an Incentive Option means the absence of
any interruption or termination of service as an employee
of the Corporation or an Affiliate. Service shall not be
considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the
Corporation or in the case of transfers between payroll
locations of the Corporation or between the Corporation,
its parent, its subsidiaries or its successor. With
respect to any advisory director, continuous service shall
mean availability to perform such functions as may be
required of the Bank's advisory directors.
"Corporation" - means Perpetual Midwest Financial, Inc., a
Delaware corporation.
"Employee" - means any person, including an officer or
director, who is employed by the Corporation or any
Affiliate.
"ERISA" - means the Employee Retirement Income Security
Act of 1974, as amended.
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"Exercise Price" - means (i) in the case of an Option, the
price per Share at which the Shares subject to such Option
may be purchased upon exercise of such Option and (ii) in
the case of a Right, the price per Share (other than the
Market Value per Share on the date of exercise and the
Offer Price per Share as defined in Section 10 hereof)
which, upon grant, the Committee determines shall be
utilized in calculating the aggregate value which a
Participant shall be entitled to receive pursuant to
Sections 9, 10 or 13 hereof upon exercise of such Right.
"Incentive Stock Option" - means an option to purchase
Shares granted by the Committee pursuant to Section 6
hereof which is subject to the limitations and
restrictions of Section 8 hereof and is intended to
qualify under Section 422 of the Code.
"Limited Stock Appreciation Right" - means a stock
appreciation right with respect
to Shares granted by the Committee pursuant to Sections 6
and 10 hereof.
"Market Value" - means the average of the high and low
quoted sales price on the date in question (or, if there
is no reported sale on such date, on the last preceding
date on which any reported sale occurred) of a Share on
the Composite Tape for the New York Stock Exchange-Listed
Stocks, or, if on such date the Shares are not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
the Shares are not listed or admitted to trading on such
Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of
1934 on which the Shares are listed or admitted to
trading, or, if the Shares are not listed or admitted to
trading on any such exchange, the mean between the closing
high bid and low asked quotations with respect to a Share
on such date on the National Association of Securities
Dealers, Inc., Automated Quotations System, or any similar
system then in use, or, if no such quotations are
available, the fair market value on such date of a Share
as the Committee shall determine.
"Non-Employee Director" - means a director who a) is not
currently an officer or employee of the Corporation; b) is
not a former employee of the Corporation who receives
compensation for prior services (other than from a tax-
qualified retirement plan); c) has not been an officer of
the Corporation; d) does not receive remuneration from the
Corporation in any capacity other than as a director; and
e) does not possess an interest in any other transactions
or is not engaged in a business relationship for which
disclosure would be required under Item 404(a) or (b) of
Regulation S-K.
"Non-Qualified Stock Option" - means an option to purchase
Shares granted by the Committee pursuant to Section 6
hereof, which option is not intended to qualify under
Section 422(b) of the Code.
"Option" - means an Incentive Stock Option or a Non-
Qualified Stock Option.
2<PAGE>
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"Participant" - means any director, advisory director,
officer or employee of the Corporation or any Affiliate
who is selected by the Committee to receive an Award and
any director or advisory director of the Corporation who
is granted an Award pursuant to Section 21 hereof.
"Plan" - means the 1993 Stock Option and Incentive Plan of
the Corporation, including all amendments, if any.
"Related" - means (i) in the case of a Right, a Right
which is granted in connection with, and to the extent
exercisable, in whole or in part, in lieu of, an Option or
another Right and (ii) in the case of an Option, an Option
with respect to which and to the extent a Right is
exercisable, in whole or in part, in lieu thereof has been
granted.
"Restricted Period" - means the period of time selected by
the Committee for the purpose of determining when
restrictions are in effect under Section 11 hereof with
respect to Restricted Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been
contingently awarded to a Participant by the Committee
subject to the restrictions referred to in Section 11
hereof, so long as such restrictions are in effect.
"Right" - means a Limited Stock Appreciation Right or a
Stock Appreciation Right.
"Shares" - means the shares of common stock of the
Corporation.
"Stock Appreciation Right" - means a stock appreciation
right with respect to Shares granted by the Committee
pursuant to Sections 6 and 9 hereof.
3. Administration. The Plan shall be administered by a
Committee consisting of two or more members, each of whom
shall be a Non-Employee Director. The members of the
Committee shall be appointed by the Board of Directors of
the Corporation. Except as limited by the express
provisions of the Plan, the Committee shall have sole and
complete authority and discretion to (i) select
Participants and grant Awards; (ii) determine the number
of Shares to be subject to types of Awards generally, as
well as to individual Awards granted under the Plan; (iii)
determine the terms and conditions upon which Awards shall
be granted under the Plan; (iv) prescribe the form and
terms of instruments evidencing such grants; and (v)
establish from time to time regulations for the
administration of the Plan, interpret the Plan, and make
all determinations deemed necessary or advisable for the
administration of the Plan. A majority of the Committee
shall constitute a quorum, and the acts of a majority of
the members present at any meeting at which a quorum is
present, or acts approved in writing by a majority of the
Committee without a meeting, shall be acts of the
Committee.
4. Participation in Committee Awards. The Committee may
select from time to time
3<PAGE>
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Participants in the Plan from those directors (including
advisory directors), officers and employees, of the
Corporation or its Affiliates who, in the opinion of the
Committee, have the capacity for contributing to the
successful performance of the Corporation or its
Affiliates.
5. Shares Subject to Plan. Subject to adjustment by the
operation of Section 12 hereof, the maximum number of
Shares with respect to which Awards may be made under the
Plan is 12% of the total Shares issued in the Bank's
conversion to the capital stock form. The Shares with
respect to which Awards may be made under the Plan may be
either authorized and unissued shares or issued shares
heretofore or hereafter reacquired and held as treasury
shares. Shares which are subject to Related Rights and
Related Options shall be counted only once in determining
whether the maximum number of Shares with respect to which
Awards may be granted under the Plan has been exceeded.
An Award shall not be considered to have been made under
the Plan with respect to any Option or Right which
terminates or with respect to Restricted Stock which is
forfeited, and new Awards may be granted under the Plan
with respect to the number of Shares as to which such
termination or forfeiture has occurred.
6. General Terms and Conditions of Options and Rights. The
Committee shall have full and complete authority and
discretion, except as expressly limited by the Plan, to
grant Options and/or Rights and to provide the terms and
conditions (which need not be identical among
Participants) thereof. In particular, the Committee shall
prescribe the following terms and conditions: (i) the
Exercise Price of any Option or Right, which shall not be
less than the Market Value per Share at the date of grant
of such Option or Right, (ii) the number of Shares subject
to, and the expiration date of, any Option or Right, which
expiration date shall not exceed ten years from the date
of grant, (iii) the manner, time and rate (cumulative or
otherwise) of exercise of such Option or Right, and (iv)
the restrictions, if any, to be placed upon such Option or
Right or upon Shares which may be issued upon exercise of
such Option or Right. The Committee may, as a condition
of granting any Option or Right, require that a
Participant agree not to thereafter exercise one or more
Options or Rights previously granted to such Participant.
7. Exercise of Options or Rights.
(a) Except as provided herein, an Option or Right
granted under the Plan shall be exercisable
during the lifetime of the Participant to whom
such Option or Right was granted only by such
Participant and, except as provided in
paragraphs (c) and (d) of this Section 7, no
such Option or Right may be exercised unless
at the time such Participant exercises such
Option or Right, such Participant has
maintained Continuous Service since the date
of grant of such Option or Right.
(b) To exercise an Option or Right under the Plan,
the Participant to whom such Option or Right
was granted shall give written notice to the
Corporation in form
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satisfactory to the Committee (and, if partial
exercises have been permitted by the Committee,
by specifying the number of Shares with respect
to which such Participant elects to exercise such
Option or Right) together with full payment of
the Exercise Price, if any and to the extent
required. The date of exercise shall be the
date on which such notice is received by the
Corporation. Payment, if any is required,
shall be made either (i) in cash (including
check, bank draft or money order) or (ii) if
permitted by the Committee, by delivering (A)
Shares already owned by the Participant and
having a fair market value equal to the
applicable exercise price, such fair market
value to be determined in such appropriate
manner as may be provided by the Committee or
as may be required in order to comply with or
to conform to requirements of any applicable
laws or regulations, or (B) combination of
cash and such Shares.
(c) If a Participant to whom an Option or Right
was granted shall cease to maintain Continuous
Service for any reason (including total or
partial disability and normal or early
retirement at age 59 or later or termination
for any reason other than cause, but excluding
death and termination of employment by the
Corporation or any Affiliate for cause), such
Participant may, but only within the period of
three years immediately succeeding such
cessation of Continuous Service and in no
event after the expiration date of such Option
or Right, exercise such Option or Right to the
extent that such Participant was entitled to
exercise such Option or Right at the date of
such cessation, provided, however, that such
right of exercise after cessation of
Continuous Service shall not be available to a
Participant if the Committee otherwise
determines and so provides in the applicable
instrument or instruments evidencing the grant
of such Option or Right. If a Participant to
whom an Option or Right was granted shall
cease to maintain Continuous Service by reason
of death or disability then, unless the
Committee shall have otherwise provided in the
instrument evidencing the grant of an Option
or Stock Appreciation Right, all Options and
Rights granted and not fully exercisable shall
become exercisable in full upon the happening
of such event and shall remain so exercisable
(i) in the event of death for the period
described in paragraph (d) of this Section 7
and (ii) in the event of disability,
termination for any reason other than cause or
normal or early retirement, for a period of
three years following such date. If the
Continuous Service of a Participant to whom an
Option or Right was granted by the Corporation
is terminated for cause, all rights under any
Option or Right of such Participant shall
expire immediately upon the giving to the
Participant of notice of such termination.
(d) In the event of the death of a Participant
while in the Continuous Service of the
Corporation or an Affiliate or within the
three year period referred to in paragraph (c)
of this Section 7, the person to whom any
Option or Right held by the Participant at the
time of his death is transferred, by will or
the laws of descent and distribution, or in
the case of an Award other than an Incentive
Stock Option, pursuant to a qualified domestic
relations order, as defined in the Code or
Title 1 of ERISA or the
5<PAGE>
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rules thereunder may, but only to the extent such
Participant was entitled to exercise such Option
or Right as set forth in paragraph (c) of this
Section 7, exercise such Option or Right at any
time within a period of one year succeeding the
date of death of such Participant, but in no
event later than ten years from the date of
grant of such Option or Right. Following the
death of any Participant to whom an Option was
granted under the Plan, irrespective of
whether any Related Right shall have
theretofore been granted to the Participant or
whether the person entitled to exercise such
Related Right desires to do so, the Committee
may, as an alternative means of settlement of
such Option, elect to pay to the person to
whom such Option is transferred by will or by
the laws of descent and distribution, or in
the case of an Option other than an Incentive
Stock Option, pursuant to a qualified domestic
relations order, as defined in the Code or
Title I of ERISA or the rules thereunder, the
amount by which the Market Value per Share on
the date of exercise of such Option shall
exceed the Exercise Price of such Option,
multiplied by the number of Shares with
respect to which such Option is properly
exercised. Any such settlement of an Option
shall be considered an exercise of such Option
for all purposes of the Plan.
8. Incentive Stock Options. Incentive Stock Options may be
granted only to Participants who are Employees. Any
provision of the Plan to the contrary notwithstanding, (i)
no Incentive Stock Option shall be granted more than ten
years from the date the Plan is adopted by the Board of
Directors of the Corporation and no Incentive Stock Option
shall be exercisable more than ten years from the date
such Incentive Stock Option is granted, (ii) the Exercise
Price of any Incentive Stock Option shall not be less than
the Market Value per Share on the date such Incentive
Stock Option is granted, (iii) any Incentive Stock Option
shall not be transferable by the Participant to whom such
Incentive Stock Option is granted other than by will or
the laws of descent and distribution, and shall be
exercisable during such Participant's lifetime only by
such Participant, (iv) no Incentive Stock Option shall be
granted to any individual who, at the time such Incentive
Stock Option is granted, owns stock possessing more than
ten percent of the total combined voting power of all
classes of stock of the Corporation or any Affiliate
unless the Exercise Price of such Incentive Stock Option
is at least 110 percent of the Market Value per Share at
the date of grant and such Incentive Stock Option is not
exercisable after the expiration of five years from the
date such Incentive Stock Option is granted, and (v) the
aggregate Market Value (determined as of the time any
Incentive Stock Option is granted) of the Shares with
respect to which Incentive Stock Options are exercisable
for the first time by a Participant in any calendar year
shall not exceed $100,000.
9. Stock Appreciation Rights. A Stock Appreciation Right
shall, upon its exercise, entitle the Participant to whom
such Stock Appreciation Right was granted to receive a
number of Shares or cash or combination thereof, as the
Committee in its discretion shall determine, the aggregate
value of which (i.e., the sum of the amount of cash and/or
Market Value of such Shares on date of exercise) shall
equal (as nearly possible, it being understood that the
Corporation shall not issue any fractional shares) the
amount by which the Market Value per
6<PAGE>
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Share on the date of such exercise shall exceed the
Exercise Price of such Stock Appreciation Right, multiplied
by the number of Shares with respect of which such Stock
Appreciation Right shall have been exercised. A Stock
Appreciation Right may be Related to an Option or may be
granted independently of any Option as the Committee shall
from time to time in each case determine. At the time of
grant of an Option the Committee shall determine whether
and to what extent a Related Stock Appreciation Right shall
be granted with respect thereto; provided, however, and
notwithstanding any other provision of the Plan, that if
the Related Option is an Incentive Stock Option, the
Related Stock Appreciation Right shall satisfy all the
restrictions and limitations of Section 8 hereof as if such
Related Stock Appreciation Right were an Incentive Stock
Option and as if other rights which are Related to
Incentive Stock Options were Incentive Stock Options. In
the case of a Related Option, such Related Option shall
cease to be exercisable to the extent of the Shares with
respect to which the Related Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related
Stock Appreciation Right shall terminate to the extent of
the Shares with respect to which the Related Option, any
Related Option was exercised or terminated.
10. Limited Stock Appreciation Rights. At the time of grant
of an Option or Stock Appreciation Right to any
Participant, the Committee shall have full and complete
authority and discretion to also grant to such Participant
a Limited Stock Appreciation Right which is Related to
such Option or Stock Appreciation Right; provided, however
and notwithstanding any other provision of the Plan, that
if the Related Option is an Incentive Stock Option, the
Related Limited Stock Appreciation Right shall satisfy all
the restrictions and limitations of Section 8 hereof as if
such Related Limited Stock Appreciation Right were an
Incentive Stock Option and as if all other Rights which
are Related to Incentive Stock Options were Incentive
Stock Options. Notwithstanding any other provision of the
Plan, a Limited Stock Appreciation Right shall be
exercisable only during the period beginning on the first
day following the date of expiration of any "offer" (as
such term is hereinafter defined) and ending on the forty-
fifth day following such date.
A Limited Stock Appreciation Right shall, upon its
exercise, entitle the Participant to whom such Limited
Stock Appreciation Right was granted to receive an amount
of cash equal to the amount by which the "Offer Price per
Share" (as such term is hereinafter defined) or the Market
Value on the date of such exercise, as shall have been
provided by the Committee in its discretion at the time of
grant, shall exceed the Exercise Price of such Limited
Stock Appreciation Right, multiplied by the number of
Shares with respect to which such Limited Stock
Appreciation Right shall have been exercised. Upon the
exercise of a Limited Stock Appreciation Right, any
Related Option and/or Related Stock Appreciation Right
shall cease to be exercisable to the extent of the Shares
with respect to which such Limited Stock Appreciation
Right was exercised. Upon the exercise or termination of
a Related Option or Related Stock Appreciation Right, any
Related Limited Stock Appreciation Right shall terminate
to the extent of the Shares with respect to which such
Related Option or Related Stock Appreciation Right was
exercised or terminated.
7<PAGE>
<PAGE>
For the purposes of this Section 10, the term "Offer" shall
mean any tender offer or exchange offer for Shares other
than one made by the Corporation, provided that the
corporation, person or other entity making the offer
acquires pursuant to such offer either (i) 25% of the
Shares outstanding immediately prior to the commencement
of such offer or (ii) a number of Shares which, together
with all other Shares acquired in any tender offer or
exchange offer (other than one made by the Corporation)
which expired within sixty days of the expiration date of
the offer in question, equals 25% of the Shares
outstanding immediately prior to the commencement of the
offer in question. The term "Offer Price per Share" as
used in this Section 10 shall mean the highest price per
Share paid in any Offer which Offer is in effect any time
during the period beginning on the sixtieth day prior to
the date on which a Limited Stock Appreciation Right is
exercised and ending on the date on which such Limited
Stock Appreciation Right is exercised. Any securities or
property which are part or all of the consideration paid
for Shares in the Offer shall be valued in determining the
Offer Price per Share at the higher of (A) the valuation
placed on such securities or property by the corporation,
person or other entity making such Offer or (B) the
valuation placed on such securities or property by the
Committee.
11. Terms and Conditions of Restricted Stock. The Committee
shall have full and complete authority, subject to the
limitations of the Plan, to grant awards of Restricted
Stock and, in addition to the terms and conditions
contained in paragraphs (a) through (f) of this Section
11, to provide such other terms and conditions (which need
not be identical among Participants) in respect of such
Awards, and the vesting thereof, as the Committee shall
determine and provide in the agreement referred to in
paragraph (d) of this Section 11.
(a) At the time of an award of Restricted Stock,
the Committee shall establish for each
Participant a Restricted Period of not less
than six months during which or at the
expiration of which, as the Committee shall
determine and provide in the agreement
referred to in paragraph (d) of this Section
11, the Shares awarded as Restricted Stock
shall vest. Subject to any such other terms
and conditions as the Committee shall provide,
shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise
encumbered by the Participant, except as
hereinafter provided, during the Restricted
Period. Except for such restrictions, and
subject to paragraphs (c), (d) and (e) of this
Section 11 and Section 12 hereof, the
Participant as owner of such shares shall have
all the rights of a stockholder, including but
not limited to the right to receive all
dividends paid on such shares and the right to
vote such shares. The Committee shall have
the authority, in its discretion, to
accelerate the time at which any or all of the
restrictions shall lapse with respect to any
shares of Restricted Stock prior to the
expiration of the Restricted Period with
respect thereto, or to remove any or all of
such restrictions, whenever it may determine
that such action is appropriate by reason of
changes in applicable tax or other laws or
other changes in circumstances occurring after
the commencement of such Restricted Period.
8<PAGE>
<PAGE>
(b) Except as provided in Section 14 hereof, if a
Participant ceases to maintain Continuous
Service for any reason (other than death,
total or partial disability or normal or early
retirement) unless the Committee shall
otherwise determine, all shares of Restricted
Stock theretofore awarded to such Participant
and which at the time of such termination of
Continuous Service are subject to the
restrictions imposed by paragraph (a) of this
Section 11 shall upon such termination of
Continuous Service be forfeited and returned
to the Corporation. Unless the Committee
shall have provided in the agreement referred
to in paragraph (d) of this Section 11 for a
ratable lapse of restrictions with respect to
an award of shares of Restricted Stock during
the Restricted Period, if a Participant ceases
to maintain Continuous Service by reason of
death, total or partial disability or normal
or early retirement, such portion of such
shares of Restricted Stock awarded to such
Participant which at the time of such
termination of Continuous Service are subject
to the restrictions imposed by paragraph (a)
of this Section 11 as shall be equal to the
portion of the Restricted Period with respect
to such shares which have elapsed at the time
of such termination of Continuous Service
shall be free of restrictions and shall not be
forfeited.
(c) Each certificate in respect of shares of
Restricted Stock awarded under the Plan shall
be registered in the name of the Participant
and deposited by the Participant, together
with a stock power endorsed in blank, with the
Corporation and shall bear the following (or a
similar) legend:
"The transferability of this certificate
and the shares of stock represented
hereby are subject to the terms and
conditions (including forfeiture)
contained in the 1993 Stock Option and
Incentive Plan of Perpetual Midwest
Financial, Inc. and an Agreement entered
into between the registered owner and
Perpetual Midwest Financial, Inc.
Copies of such Plan and Agreement are on
file in the offices of the Secretary of
Perpetual Midwest Financial, Inc., 700
First Avenue, N.E., Cedar Rapids, Iowa,
52407."
(d) At the time of an award of shares of
Restricted Stock, the Participant shall enter
into an Agreement with the Corporation in a
form specified by the Committee, agreeing to
the terms and conditions of the award and such
other matters as the Committee shall in its
sole discretion determine.
(e) At the time of an award of shares of
Restricted Stock, the Committee may, in its
discretion, determine that the payment to the
Participant of dividends declared or paid on
such shares, or specified portion thereof, by
the Corporation shall be deferred until the
earlier to occur of (i) the lapsing of the
restrictions imposed under paragraph (a) of
this Section 11 or (ii) the forfeiture of such
shares under paragraph (b) of this Section 11,
and shall be held by the Corporation for the
account of the Participant until such time.
In the event of such deferral, there shall be
credited at the end of
9
<PAGE>
each year (or portion thereof) interest on the
amount of the account at the beginning of the
year at a rate per annum as the Committee, in its
discretion, may determine. Payment of deferred
dividends, together with interest accrued as
aforesaid, shall be made upon the earlier to
occur of the events specified in (i) and (ii) of
the immediately preceding sentence.
(f) At the expiration or lapse of the restrictions
imposed by paragraph (a) of this Section 11,
the Corporation shall redeliver to the
Participant (or where the relevant provision
of paragraph (b) of this Section 11 applies in
the case of a deceased Participant, to his
legal representative, beneficiary or heir) the
certificate(s) and stock power deposited with
it pursuant to paragraph (c) of this Section
11 and the Shares represented by such
certificate(s) shall be free of the
restrictions referred to in paragraph (a) of
this Section 11.
12. Adjustments Upon Changes in Capitalization. In the event
of any change in the outstanding Shares subsequent to the
effective date of the Plan by reason of any
reorganization, recapitalization, stock split, stock
dividend, combination or exchange of shares, merger,
consolidation or any change in the corporate structure or
Shares of the Corporation, the maximum aggregate number,
class and exercise price of shares as to which Awards may
be granted under the Plan and the number and class of
shares with respect to which Awards theretofore have been
granted under the Plan shall be appropriately adjusted by
the Committee, whose determination shall be conclusive.
Any shares of stock or other securities received, as a
result of any of the foregoing, by a Participant with
respect to Restricted Stock shall be subject to the same
restrictions and the certificate(s) or other instruments
representing or evidencing such shares or securities shall
be legended and deposited with the Corporation in the
manner provided in Section 11 hereof.
13. Effect of Merger. In the event of any merger,
consolidation or combination of the Corporation (other
than a merger, consolidation or combination in which the
Corporation is the continuing entity and which does not
result in the outstanding Shares being converted into or
exchanged for different securities, cash or other
property, or any combination thereof) pursuant to a plan
or agreement the terms of which are binding upon all
stockholders of the Corporation (except to the extent that
dissenting stockholders may be entitled, under statutory
provisions or provisions contained in the certificate of
incorporation, to receive the appraised or fair value of
their holdings), any Participant to whom an Option or
Right has been granted at least 6 months prior to such
event shall have the right (subject to the provisions of
the Plan and any limitation applicable to such Option or
Right), thereafter and during the term of each such Option
or Right, to receive upon exercise of any such Option or
Right an amount equal to the excess of the fair market
value on the date of such exercise of the securities, cash
or other property, or combination thereof, receivable
upon such merger, consolidation or combination in respect
of a Share over the Exercise Price of such Right or
Option, multiplied by the number of Shares with respect to
which such Option or Right shall have been exercised.
Such amount may be payable fully in cash, fully in one or
10<PAGE>
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more of the kind or kinds of property payable in such
merger, consolidation or combination, or partly in cash
and partly in one or more of such kind or kinds of
property, all in the discretion of the Committee. Unless
the Committee shall have provided otherwise in the
agreement referred to in paragraph (d) of Section 11
hereof, in the event of any such merger, consolidation or
combination any Restricted Period shall lapse with respect
to Shares of Restricted Stock awarded at least six months
prior to such event, all such Shares shall be fully vested
in the Participants to whom such Shares were awarded, and
the holders of such Shares shall be eligible to receive in
respect thereof the full amount receivable per Share in
such merger, consolidation or combination.
14. Effect of Change in Control. Each of the events specified
in the following clauses (i) through (iii) of this Section
14 shall be deemed a "change of control": (1) any third
person, including a "group" as defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, shall become the
beneficial owner of shares of the Corporation with respect
to which 25% or more of the total number of votes for the
election of the Board of Directors of the Corporation may
be cast, (ii) as a result of, or in connection with, any
cash tender offer, exchange offer, merger or other
business combination, sale of assets or contested
election, or combination of the foregoing, the persons who
were directors of the Corporation shall cease to
constitute a majority of the Board of Directors of the
Corporation or (iii) the shareholders of the Corporation
shall approve an agreement providing either for a
transaction in which the Corporation will cease to be an
independent publicly owned entity or for a sale or other
disposition of all or substantially all the assets of the
Corporation. If the Continuous Service of any Participant
of the Corporation or any Affiliate is involuntarily
terminated for whatever reason, after a change in control,
unless the Committee shall have otherwise provided in the
agreement referred to in paragraph (d) of Section 11
hereof, any Restricted Period with respect to Restricted
Stock theretofore awarded to such Participant shall lapse
upon such termination and all Shares awarded as Restricted
Stock shall become fully vested in the Participant to whom
such Shares were awarded. If a tender offer or exchange
offer for Shares (other than such an offer by the
Corporation) is commenced, or if the event specified in
clause (iii) above shall occur, unless the Committee shall
have otherwise provided in the instrument evidencing the
grant of an Option or Stock Appreciation Right, all
Options and Stock Appreciation Rights theretofore granted
and not fully exercisable shall become exercisable in full
upon the happening of such event and shall remain so
exercisable for a period of sixty days following such
date, after which they shall revert to being exercisable
in accordance with their terms; provided, however, that no
Option or Stock Appreciation Right which has previously
been exercised or otherwise terminated shall become
exercisable.
15. Assignments and Transfers. No Award nor any right or
interest of a Participant under the Plan in any instrument
evidencing any Award under the Plan may be assigned,
encumbered or transferred except, in the event of the
death of a Participant, by will or the laws of descent and
distribution or in the case of Awards other than Incentive
Stock Options pursuant to a qualified domestic relations
order, as defined in the Code or Title I of ERISA or the
rules thereunder.
11<PAGE>
<PAGE>
16. Employee Rights Under the Plan. No director, officer or
employee shall have a right to be selected as a
Participant nor, having been so selected, to be selected
again as a Participant and no director, officer, employee
or other person shall have any claim or right to be
granted to an Award under the Plan or under any other
incentive or similar plan of the Corporation or any
Affiliate. Neither the Plan nor any action taken
thereunder shall be construed as giving any employee any
right to be retained in the employ of the Corporation or
any Affiliate.
17. Delivery and Registration of Stock. The Corporation's
obligation to deliver Shares with respect to an Award
shall, if the Committee so requests, be conditioned upon
the receipt of a representation as to the investment
intention of the Participant to whom such Shares are to be
delivered, in such form as the Committee shall determine
to be necessary of advisable to comply with the provisions
of the Securities Act of 1933 or any other Federal, state
or local securities legislation or regulation. It may be
provided that any representation requirement shall become
inoperative upon a registration of the Shares or other
action eliminating the necessity of such representation
under such Securities Act or other securities legislation.
The Corporation shall not be required to deliver any
Shares under the Plan prior to (i) the admission of such
shares to listing on any stock exchange on which Shares
may then be listed, and (ii) the completion of such
registration or other qualification of such Shares under
any state or Federal law, rule or regulation, as the
Committee shall determine to be necessary or advisable.
18. Withholding Tax. Upon the termination of the Restricted
Period with respect to any shares of Restricted Stock (or
any such earlier time, if any, that an election is made by
the Participant under Section 83(b) of the Code, or any
successor provision thereto, to include the value of such
shares in taxable income), the Corporation may, in its
sole discretion, retain a sufficient number of shares held
by it to cover the amount required to be withheld. The
Corporation may, in its sole discretion, have the right to
deduct from all dividends paid with respect to shares of
Restricted Stock the amount of any taxes which the
Corporation is required to withhold with respect to such
dividend payments.
The Corporation may, in its sole discretion, have the
right to deduct from all amounts paid in cash with respect
to the exercise of a Right under the Plan any taxes
required by law to be withheld with respect to such cash
payments. Where a Participant or other person is entitled
to receive Shares pursuant to the exercise of an Option or
Right pursuant to the Plan, the Corporation may, in its
sole discretion, shall have the right to require the
Participant or such other person to pay the Corporation
the amount of any taxes which the Corporation is required
to withhold with respect to such Shares.
19. Amendment or Termination. The Board of Directors of the
Corporation may amend, suspend or terminate the Plan or
any portion thereof at any time, but (except as provided
in Section 12 hereof) no amendment shall be made without
approval of the stockholders of the Corporation which
shall (i) materially increase the aggregate number of
Shares with respect to which Awards may be made under the
Plan, (ii) materially increase the aggregate number
12<PAGE>
<PAGE>
of Shares which may be subject to Awards to Participants
who are not Employees or (iii) change the class of persons
eligible to participate in the Plan; provided, however,
that no such amendment, suspension or termination shall
impair the rights of any Participant, without his consent,
in any Award therefore made pursuant to the Plan.
20. Effective Date and Term of Plan. The Plan shall become
effective upon its adoption by the Board of Directors of
the Corporation, subject to the Bank converting to a stock
institution and approval of the Plan by stockholders of
the Corporation. It shall continue in effect for a term
of ten years unless sooner terminated under Section 19
hereof.
21. Initial Grant. By, and simultaneously with, the adoption
of this Plan, each member of the Board of Directors of the
Corporation at the time of the Bank's conversion to stock
form who is not an Employee, is hereby granted a ten year,
Non-Qualified Stock Option to purchase a number of shares
equal to the sum of .40% and .026% multiplied by each year
of service as a member of the Board of Directors, of the
shares issued in the mutual to stock conversion of the
Bank provided, however, that any director elected in 1993
shall receive an award equal to .40% of the shares issued
in the mutual to stock conversion of the Bank, all at an
Exercise Price per share equal to the per share price at
which Shares are sold in conversion. In addition, each
non-employee director of the Corporation elected after
completion of the Bank's conversion to stock form is
hereby granted as of the date he or she is elected and
qualified ("election date") a ten year Non-Qualified Stock
Option to Purchase a number of shares equal to .40% of the
shares issued in the conversion at the applicable market
price on the election date. Each such Option shall be
evidenced by a Non-Qualified Stock Option Agreement in a
form approved by the Board of Directors and shall be
subject in all respects to the terms and conditions of
this Plan, which are controlling. All options granted
pursuant to this Section 21 shall be rounded down to the
nearest whole share to the extent necessary to ensure that
no options to purchase stock representing fractional
shares are granted.
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PERPETUAL MIDWEST FINANCIAL, INC.
STOCK OPTION AND INCENTIVE PLAN
STOCK OPTION AGREEMENT
SO No. 1
Options to purchase shares of stock are hereby awarded on
January 27, 1994 by Perpetual Midwest Financial, Inc. (the
"Corporation"), to <FirstName><LastName> (the "Grantee"), in
accordance with the following terms and conditions, and the
conditions contained in the 1993 Stock Option and Incentive Plan
and any future amendments or revisions (the "Plan"):
1. Option Award. The Corporation hereby awards the
Grantee <TotalAward> options (the "Options") to
purchase Common Stock, par value $.01 per share
("Common Stock"), of the Corporation at $10.00 per
share exercise price pursuant to the Plan, as the
same may from time to time be amended, and upon the
terms and conditions and subject to the restrictions
therein and hereinafter set forth. A copy of the
Plan as currently in effect is incorporated herein
by reference and is attached hereto.
2. General Terms and Conditions of Options and Rights.
The Committee referred to in Section 3 of the Plan
or its successor (the "Committee") shall have full
and complete authority and discretion, except as
limited by the Plan, to grant Options and/or Rights
and to provide the terms and conditions (which need
not be identical among Grantees) thereof. In
particular, the Committee shall prescribe the
following terms and conditions: (i) the Exercise
Price of any Option or Right, which shall not be
less than the Market Value per Share at the date of
grant of such Option or Right, (ii) the number of
Shares subject to, and expirations date of grant of
such Option or Right, which expiration date shall
not exceed ten years from the date of the grant,
(iii) the manner, time and rate (cumulative or
otherwise) of exercise of such Option or Right, and
(iv) the restrictions, if any, to be placed upon
such Option or Right or upon Shares which may be
issued upon exercise of such Option or Right. The
Committee may, as a condition of granting any Option
or Grant, require that a Grantee agree not to
thereafter exercise one or more Options or Rights
previously granted to such Grantee.
Provided that the Grantee maintains Continuous
Service (as defined in the Plan), the Shares will
vest pursuant to the following schedule:
<PAGE>
<PAGE>
Percentage
Of Initial
Date of Vesting Award Vested
September 30, 1994 20%
September 30, 1995 20%
September 30, 1996 20%
September 30, 1997 20%
September 30, 1998 20%
3. Exercise of Options or Rights.
(a) Except as provided in section 5 below, an
Option or Right granted under the Plan shall
be exercisable during the lifetime of the
Grantee only by such grantee, except as
provided in paragraphs (c) and (d) of this
Section 3, no such Option or Right may be
exercised unless at the time such Grantee
exercises such Option or Right, such Grantee
has maintained Continuous Service since the
date of grant of such Option or Right.
(b) To exercise an Option or Right under the Plan,
the Grantee shall give written notice to the
Corporation in form satisfactory to the
Committee (and, if partial exercises have been
permitted by the Committee, by specifying the
number of Shares with respect to which such
Grantee elects to exercise such Option or
Right) together with full payment of the
Exercise Price, if any and to the extent
required. The date of exercise shall be the
date on which such notice is received by the
Corporation. Payment, if any is required,
shall be made either (i) in cash (including
check, bank draft or money order) or (ii) if
permitted by the Committee, by delivering (A)
Shares already owned by the Grantee and having
a fair market value equal to the applicable
exercise price, such fair market value to be
determined in such appropriate manner as may
be provided by the Committee or as may be
required in order to comply with or conform to
requirements of any applicable laws or
regulations, or (B) a combination of cash and
such Shares.
(c) If a Grantee shall cease to maintain
Continuous Service for any reason (including
total or partial disability and normal or
early retirement at age 59 or later or
termination for any reason other than cause,
but excluding death and termination of
employment by the Corporation or any Affiliate
for cause), such Grantee may, but only within
the period of three years immediately
succeeding cessation of Continuous Service and
in no event after the expiration date of such
Option or Right, exercise such Option or Right
to the extent that such Grantee was entitled
to exercise such Option or Right at the date
of cessation. If a Grantee shall cease to
maintain Continuous Service by reason of death
or disability then, all Options and
SO-2<PAGE>
Rights granted and not fully exercisable shall
become exercisable in full upon the happening of
such event and shall remain so exercisable (i) in
the event of death for the period described in
section (d) of this Section 3 and (ii) in the
event of disability, termination for any
reason other than cause or normal or early
retirement, for a period of three years
following such date. If the Continuous
Service of a Grantee is terminated for cause,
all rights under any Option or Right of such
Grantee shall expire immediately upon the
giving to the Grantee of notice of such
termination.
(d) In the event of death of a Grantee while in
the Continuous Service of the Corporation or
an Affiliate or within the three year period
referred to in paragraph (c) of this Section
3, the person to whom any Option or Right held
by the Grantee at the time of his death is
transferred by will or by the laws of descent
and distribution, or in the case of an Award
other than an Incentive Stock Option, pursuant
to a qualified domestic relations order, as
defined in the Code or Title I of ERISA or the
rules thereunder may, but only to the extent
such Grantee was entitled to exercise such
Option or Right as set forth in paragraph (c)
of this Section 3, exercise such Option or
Right at any time within a period of one year
succeeding the date of death of such Grantee,
but in no event later than ten years from the
date of grant of such Option or Right.
Following the death of any Grantee,
irrespective of whether any Related Right
shall have theretofore been granted to the
Grantee or whether the person entitled to
exercise such Related Right desires to do so,
the Committee may, as an alternative means of
settlement of such Option, elect to pay the
person to whom such Option is transferred by
will or by the laws of descent and
distribution, or in the case of an Option
other than an Incentive Stock Option, pursuant
to a qualified domestic relations order, as
defined in the Code or Title I of ERISA or the
rules thereunder, the amount by which the
Market Value per Share on the date of exercise
of such Option shall exceed the Exercise Price
of such Option, multiplied by the number of
Shares with respect to which such Option is
properly exercised. Any such settlement of an
Option shall be considered an exercise of such
Option for all purposes of the Plan.
4. Incentive Stock Options. Incentive Stock Options
may be granted only to Employees. Any provision of
the Plan to the contrary not withstanding, (i) no
Incentive Stock Option shall be granted more than
ten years from the date the Plan is adopted by the
Board of Directors of the Corporation and no
Incentive Stock Option shall be exercisable more
than ten years from the date such Incentive Stock
Option is granted, (ii) the Exercise Price of any
Incentive Stock Option shall not be less than the
Market Value per Share on the date such Incentive
Stock Option is granted, (iii) any Incentive Stock
Option shall not be transferable by the Grantee
other than by will or the laws of descent and
distribution, and shall be exercisable during such
Grantee's lifetime only by such Grantee, (iv) no
Incentive Stock Option
SO-3<PAGE>
<PAGE>
shall be granted to any individual who, at the time
such Incentive Stock Option is granted, owns stock
possessing more than ten percent of the total combined
voting power of all classes of stock of the
Corporation or any Affiliate unless the Exercise Price
of such Incentive Stock Option is at 110 percent of
the Market Value per Share at the date of grant and
such Incentive Stock Option is not exercisable after
the expiration of five years from the date such
Incentive Stock Option is granted, and (v) the
aggregate Market Value (determined as of the time
any Incentive Stock Option is granted) of Shares
with respect to which Incentive Stock Options are
exercisable for the first time by a Grantee in any
calendar year shall not exceed $100,000.
5. Adjustments Upon Changes in Capitalization. In the
event of any change in the outstanding Shares
subsequent to the effective date of the Plan by
reason of any reorganization, recapitalization,
stock split, stock dividend, combination or exchange
of shares, merger, consolidation, or any change in
the corporate structure or Shares of the
Corporation, the maximum aggregate number, class and
exercise price of shares as to which Awards may be
granted under the Plan and the number and class of
shares with respect to which Awards therefore have
been granted under the Plan shall be appropriately
adjusted by the Committee, whose determination shall
be conclusive.
6. Effect of Merger. In the event of any merger,
consolidation or combination of the Corporation
(other than a merger, consolidation or combination
in which the Corporation is the continuing entity
and which does not result in the outstanding Shares
being converted into or exchanged for different
securities, cash or other property, or any
combination thereof) pursuant to a plan or agreement
the terms of which are binding upon all stockholders
of the Corporation (except to the extent that
dissenting stockholders may be entitled, under
statutory provisions or provisions contained in the
certificate of incorporation, to receive the
appraised or fair value of their holdings), any
Grantee who has received an Option or Right at least
6 months prior to such event shall have the right
(subject to the provisions of the Plan and any
limitation applicable to such Option or Right),
thereafter and during the term of each such Option
or Right, to receive upon exercise of any such
Option or Right an amount equal to the excess of the
fair market value on the date of such exercise of
securities, cash or other property, or combination
thereof, receivable upon such merger, consolidation
or combination in respect of a Share over the
Exercise Price of such Right or Option, multiplied
by the number of Shares with respect to which such
Option or Right shall have been exercised. Such
amount may be payable fully in cash, fully in one or
more of the kind or kinds of property payable in
such merger, consolidation or combination, or partly
in cash and partly in one or more of such kind or
kinds of property, all in the discretion of the
Committee.
SO-4<PAGE>
<PAGE>
7. Effect of Change in Control. Each of the events
specified in the following clauses (i) through (iii)
of this Section 7 shall be deemed a "change of
control": (i) any third person, including a "group"
as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, shall become the beneficial
owner of shares of the Corporation or Perpetual
Savings Bank, FSB (the "Bank") with respect to which
25% or more of the total number of votes for the
election of the Board of Directors of the
Corporation may be cast, (ii) as a result of, or in
connection with, any cash tender offer, merger or
other business combination, sale of assets or
contested election, or combination of the foregoing,
the persons who were directors of the Corporation
shall cease to constitute a majority of the Board of
Directors of the Corporation, or (iii) the
shareholders of the Corporation shall approve an
agreement providing either for a transaction in
which the Corporation will cease to be an
independent publicly owned entity or for a sale or
other disposition of all or substantially all the
assets of the Corporation. If a tender offer or
exchange offer for Shares (other than such an offer
by the Corporation) is commenced, or if the event
specified in clause (iii) above shall occur, all
Options theretofore granted and not fully
exercisable shall become exercisable in full upon
the happening of such event and shall remain so
exercisable for a period of sixty days following
such date, after which they shall revert to being
exercisable in accordance with their terms;
provided, however, that no Option which has
previously been exercised or otherwise terminated
shall become exercisable.
8. Assignments and Transfers. No award nor any right
or interest of a Grantee under the Plan in any
instrument evidencing any Award under the Plan may
be assigned, encumbered or transferred except, in
the event of death of a Grantee, by will or the laws
of descent and distribution or in the case of Awards
other than Incentive Stock Options pursuant to a
qualified domestic relations order, as defined in
the Code or Title I of ERISA or the rules
thereunder.
9. Delivery and Registration of Shares of Common Stock.
The Corporation's obligation to deliver shares of
Common Stock hereunder shall, if the Committee so
requests, be conditioned upon the receipt of a
representation as to the investment intention of the
Grantee or any other person to whom such shares are
to be delivered, in such form as the Committee shall
determine to be necessary or advisable to comply
with the provisions of the Securities Act of 1933,
as amended, or any other Federal, state or local
securities legislation or regulation. It may be
provided that any representation requirement shall
become inoperative upon a registration of such
shares or other action eliminating the necessity of
such representation under such Securities Act or
other securities regulation. The Corporation shall
not be required to deliver any shares under the Plan
prior to (i) the admission of such shares to listing
on any stock exchange on which the shares of Common
Stock may then be listed, and (ii) the completion of
such registration
SO-5<PAGE>
<PAGE>
or other qualification of such shares under any state
or Federal law, rule or regulation, as the Committee
shall determine to be necessary or advisable.
10. Plan and Plan Interpretations as Controlling. The
Options or Rights hereby awarded and the terms and
conditions herein set forth are subject in all
respects to the terms and conditions of the Plan,
which are controlling. All determinations and
interpretations of the Committee shall be binding
and conclusive upon the Grantee or his legal
representative with regard to any question arising
hereunder or under the Plan.
11. Grantee Service. Nothing in this Agreement shall
limit the right of the Corporation or any of its
Affiliates to terminate the Grantee's service as a
director, advisory director, officer or employee, or
otherwise impose upon the Corporation or any of its
Affiliates any obligation to employ or accept the
services of the Grantee.
12. Withholding Tax. Upon the termination of the
Restricted Period with respect to any shares of
Restricted Stock (or at any such earlier time, if
any, that an election is made by the Grantee under
Section 83(b) of the Code, or any successor
provision thereto, to include the value of such
shares in taxable income), the Corporation may, in
its sole discretion, retain a sufficient number of
shares held by it to cover the amount required to be
withheld. The Corporation may, in its sole
discretion, have the right to deduct from all
dividends paid with respect to shares of Restricted
Stock the amount of any taxes which the Corporation
is required to withhold with respect to such
dividend payments.
The Corporation may, in its sole discretion, have
the right to deduct from all amounts paid in cash
with respect to the exercise of a Right under the
Plan any taxes required by law to be withheld with
respect to such cash payments. The Corporation may,
in its sole discretion, have the right to require
the Grantee or other such person to pay the
Corporation the amount of any taxes which the
Corporation is required to withhold with respect to
such Shares.
13. Grantee Acceptance. The Grantee shall signify his
acceptance of the terms and conditions of this
Agreement by signing in the space provided below and
returning a signed copy thereof. IF A FULLY
EXECUTED COPY HEREOF HAS NOT BEEN RECEIVED BY THE
CORPORATION, THE CORPORATION MAY REVOKE THIS AWARD,
AND CANCEL ALL OBLIGATIONS UNDER THIS AGREEMENT.
SO-6<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
STOCK OPTION AGREEMENT to be executed as of the date first above
written.
Perpetual Midwest Financial, Inc.
By__________________________
William C. Fletcher
Chairman of the Board
ACCEPTED:
_____________________________
<FirstName><LastName>
_____________________________
(Street Address)
_____________________________
(City, State & Zip Code)
SO-7
<PAGE>
COMMERCIAL FEDERAL CORPORATION
PERPETUAL MIDWEST FINANCIAL, INC.
1993 STOCK OPTION AND INCENTIVE PLAN
_____________________________________
1998 Amendment to Stock Option Agreement
_____________________________________
WHEREAS, Commercial Federal Corporation ("CFC") and
Commercial Federal Bank, a Federal Savings Bank (the "Bank")
have entered into a reorganization and merger agreement (the
"Merger Agreement") with Perpetual Midwest Financial, Inc.
("Perpetual") and Perpetual Savings Bank, FSB on December 15,
1997, whereby Perpetual will merge with and into CFC and
Perpetual Savings Bank, FSB will merge with and into the Bank;
WHEREAS, Perpetual maintains the Perpetual Midwest
Financial, Inc. 1993 Stock Option and Incentive Plan (the
"Plan"), and CFC intends to assume the Plan and all obligations
thereunder following the closing of the merger;
WHEREAS, Section 1.8(a) of the Merger Agreement provides
that each option outstanding under the Plan shall continue
outstanding as an option to purchase shares of CFC's common
stock ("Common Stock") and under the same terms and conditions
as were applicable immediately prior to the closing of the
merger (the "Closing"), except that the exercise price of each
outstanding stock option (and associated number of shares of
Common Stock covered by the option) shall be proportionately
adjusted in accordance with the Exchange Ratio set forth in
Section 1.3 of the Merger Agreement; and
WHEREAS, Perpetual previously entered into a Stock Option
Agreement dated ________________ ___, 19__ (the "Option Agree-
ment") with (the "Optionee"), and the Optionee received the
following grants of incentive stock options ("ISOs") and/or
non-incentive stock options ("Non-ISOs"):
Shares of
Perpetual's
ISO or Common Stock
Grant Date Non-ISO Subject to the Option Exercise Price
- ---------- ------- --------------------- --------------
<PAGE>
<PAGE>
Perpetual Midwest Financial, Inc. 1993 Stock Option and
Incentive Plan
1998 Amendment to Stock Option Agreement
Page 2
NOW, THEREFORE, BE IT RESOLVED that the Optionee shall
receive shares of Common Stock upon exercise of the stock
options granted to him or her under the Plan; and be it
RESOLVED FURTHER, that the provisions of the Option
Agreement that specify the number of shares of common stock
covered by the option and the option price for each share shall
be amended pursuant to the terms of the Merger Agreement to
provide as follows:
Shares of CFC's
ISO or Common Stock Adjusted
Grant Date Non-ISO Subject to the Option Exercise Price
- ---------- ------- --------------------- --------------
Nothing contained herein shall be held to alter, vary or
affect any of the terms, provisions, or conditions of the Plan
or the Option Agreement other than as stated above.
COMMERCIAL FEDERAL CORPORATION
By _____________________________
Its _____________________________
___________________
Date Attest: ___________________(Seal)
