<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
Registration No. 333-__________
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
TRAMMELL CROW COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 75-2721454
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 ROSS AVENUE, SUITE 3400
DALLAS, TEXAS 75201
(Address of principal executive offices, including zip code)
____________________
TRAMMELL CROW COMPANY
LONG-TERM INCENTIVE PLAN
(Full title of the plan)
GEORGE L. LIPPE
CHIEF EXECUTIVE OFFICER
TRAMMELL CROW COMPANY
2001 ROSS AVENUE, SUITE 3400
DALLAS, TEXAS 75201
(214) 863-3000
(Name, address and telephone number of agent for service)
copy to:
DEREK R. MCCLAIN J. CHRISTOPHER KIRK
GENERAL COUNSEL VINSON & ELKINS L.L.P.
TRAMMELL CROW COMPANY 3700 TRAMMELL CROW CENTER
2001 ROSS AVENUE, SUITE 3400 2001 ROSS AVENUE
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201-2975
(214) 863-3000 (214) 220-7700
CALCULATION OF REGISTRATION FEE
<TABLE>
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Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered registered per unit* offering price* registration fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value per share 5,334,878 shares $26.1875 $139,707,118 $41,214
- ------------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 and based
on the average of the high asked and low bid price reported on the New
York Stock Exchange on April 17, 1998.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission by Trammell Crow Company, a Delaware corporation (the "Company"), and
are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed with the Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") on March 31,
1998; and
(b) The description of the Company's Common Stock, $0.01 par value per
share, contained in Item 1 of the Company's Registration Statement on
Form 8-A filed with the Commission pursuant to the Exchange Act on
October 23, 1997.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall also be deemed to be
incorporated by reference herein and to be a part hereof from the dates 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 Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement. Upon the written or oral request of any person to whom
a copy of this Registration Statement has been delivered, the Company will
provide without charge to such person a copy of any and all documents (excluding
exhibits thereto unless such exhibits are specifically incorporated by reference
into such documents) that have been incorporated by reference into this
Registration Statement but not delivered herewith. Requests for such documents
should be addressed to Trammell Crow Company, 2001 Ross Avenue, Suite 3400,
Dallas, Texas 75201, Attention: Secretary, (214) 863-3000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director of the
Company shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases; or (iv)
for any transaction from which the director derived an improper personal
benefit. The effect of these provisions is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting from grossly
negligent behavior), except in the situations described above.
Section 145 of the DGCL ("Section 145") permits indemnification of
directors, officers, agents and controlling persons of a corporation under
certain conditions and subject to certain limitations. Article Eleventh of the
Certificate of Incorporation of the Company provides that the Company shall
indemnify its officers and directors to the maximum
-2-
<PAGE>
extent allowed by the DGCL. Pursuant to Section 145, the Company generally has
the power to indemnify its present and former directors and officers against
expenses and liabilities incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
those positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, so long as they had no
reasonable cause to believe their conduct was unlawful. With respect to suits
by or in the right of the Company, however, indemnification is generally
limited to attorneys' fees and other expenses and is not available if the
person is adjudged to be liable to the Company, unless the court determines
that indemnification is appropriate. The statute expressly provides that the
power to indemnify authorized thereby is not exclusive of any rights granted
under any bylaw, agreement, vote of stockholders or disinterested directors,
or otherwise. The registrant also has the power to purchase and maintain
insurance for its directors and officers. The Company maintains officers' and
directors' liability insurance which insures against liabilities that officers
and directors of the Company may incur in such capacities. Additionally,
Article Eleventh of the Certificate of Incorporation provides that, in the
event that an officer or director files suit against the registrant seeking
indemnification of liabilities or expenses incurred, the burden will be on the
registrant to prove that the indemnification would not be permitted under the
DGCL. The preceding discussion of the registrant's Certificate of
Incorporation and Section 145 of the DGCL is not intended to be exhaustive and
is qualified in its entirety by the Certificate of Incorporation and Section
145 of the DGCL.
The Company has entered into indemnity agreements with its directors and
officers. Pursuant to such agreements, the Company will, to the extent
permitted by applicable law, indemnify such persons against all expenses,
judgments, fines and penalties incurred in connection with the defense or
settlement of any actions brought against them by reason of the fact that they
were directors or officers of the Company or assumed certain responsibilities at
the direction of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
4.1 -- Company's Long-Term Incentive Plan
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Vinson & Elkins L.L.P. (included as part of
Exhibit 5.1)
24.1 -- Power of Attorney (included on the signature pages of
this Registration Statement)
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) 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, as amended (the "Securities Act");
(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; and
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<PAGE>
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purposes of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Securities Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Dallas, State of Texas, on the 20th day of April,
1998.
TRAMMELL CROW COMPANY
By: /s/ George L. Lippe
---------------------------------------
George L. Lippe, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George L. Lippe, Asuka Nakahara and
William P. Leiser and each of them, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments, including pre- and post-effective amendments, to this Registration
Statement, and any registration statement relating to the offering covered by
this Registration Statement and filed pursuant to Rule 462(b) under the
Securities Act, and to file the same, with exhibits thereto and other documents
in connection therewith, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents or their
substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ George L. Lippe President and Chief Executive Officer April 20, 1998
- ------------------------- (Principal Executive Officer)
George L. Lippe
/s/ Asuka Nakahara Chief Financial Officer April 20, 1998
- ------------------------- (Principal Financial Officer)
Asuka Nakahara
/s/ William P. Leiser Executive Vice-President and Treasurer April 20, 1998
- ------------------------- (Principal Accounting Officer)
William P. Leiser
/s/ Harlan R. Crow Director April 20, 1998
- -------------------------
Harlan R. Crow
/s/ J. McDonald Williams Director April 20, 1998
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J. McDonald Williams
/s/ James D. Carreker Director April 20, 1998
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James D. Carreker
S-1
<PAGE>
/s/ William F. Concannon Director April 20, 1998
- -------------------------
William F. Concannon
/s/ James R. Erwin Director April 20, 1998
- -------------------------
James R. Erwin
/s/ Jeffrey M. Heller Director April 20, 1998
- -------------------------
Jeffrey M. Heller
/s/ Rowland Moriarty Director April 20, 1998
- -------------------------
Rowland Moriarty
/s/ Robert E. Sulentic Director April 20, 1998
- -------------------------
Robert E. Sulentic
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
4.1 -- Company's Long-Term Incentive Plan
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Vinson & Elkins L.L.P. (included as part of
Exhibit 5.1)
24.1 -- Power of Attorney (included on the signature pages of
this Registration Statement)
<PAGE>
EXHIBIT 4.1
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TRAMMELL CROW LONG-TERM INCENTIVE PLAN
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EFFECTIVE AS OF AUGUST 22, 1997
<PAGE>
TRAMMELL CROW COMPANY
LONG-TERM INCENTIVE PLAN
SCOPE AND PURPOSE OF PLAN
Trammell Crow Company, a Delaware corporation (the "CORPORATION"), has
adopted this Long-Term Incentive Plan (the "PLAN") to provide for the granting
of:
(a) Incentive Options to certain Employees;
(b) Nonstatutory Options to certain Employees, Non-employee Directors
and other persons;
(c) Performance Units to certain Employees and other persons;
(d) Restricted Stock Awards to certain Employees and other persons; and
(e) Stock Appreciation Rights to certain Employees and other persons.
The purpose of the Plan is to provide an incentive for Employees,
directors and certain consultants and advisors of the Corporation or its
Subsidiaries to remain in the service of the Corporation or its Subsidiaries, to
extend to them the opportunity to acquire a proprietary interest in the
Corporation so that they will apply their best efforts for the benefit of the
Corporation, and to aid the Corporation in attracting able persons to enter the
service of the Corporation and its Subsidiaries.
SECTION 1. DEFINITIONS
As used in this Plan, the following terms have the meanings set forth
below:
1.1 "Award" means the grant of any form of Option, Performance Unit,
Reload Option, Restricted Stock Award or Stock Appreciation Right under the
Plan, whether granted singly, in combination, or in tandem, to a Holder pursuant
to the terms, conditions, and limitations that the Committee may establish in
order to fulfill the objectives of the Plan.
1.2 "Award Agreement" means the written document or agreement delivered
to Holder evidencing the terms, conditions and limitations of an Award that the
Corporation granted to that Holder.
1.3 "Board of Directors" means the board of directors of the
Corporation.
1.4 "Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the State of Texas are authorized or
obligated by law or executive order to close.
1.5 "Cause," with respect to any Holder that is an Employee, means
termination of the Holder's employment by the Corporation because of : (a) the
Holder's conviction of, or plea of nolo contendere to, a felony or crime
involving moral turpitude; (b) the Holder's personal dishonesty, incompetence,
willful misconduct, willful violation of any law, rule or regulation (other than
minor traffic violations or similar offenses) or breach of fiduciary duty which
involves personal profit; (c) the Holder's commission of material mismanagement
in the conduct of his duties as assigned to him by the Board of Directors or the
Holder's
<PAGE>
supervising officer or officers of the Corporation or any Subsidiary; (d) the
Holder's willful failure to execute or comply with the policy of the Company or
any of its Subsidiaries or his stated duties as established by the Board of
Directors or the Holder's supervising officer or officers of the Corporation or
any Subsidiary or the Holder's intentional failure to perform the Holder's
stated duties; or (e) substance abuse or addiction on the part of the Holder.
Notwithstanding the foregoing, in the case of any Holder who, subsequent to the
effective date of this Plan, enters into an employment agreement with the
Corporation or any Subsidiary that contains the definition of "cause" (or any
similar definition), then during the term of such employment agreement the
definition contained in such Employment Agreement shall be the applicable
definition of "cause" under the Plan as to such Holder if such Employment
Agreement expressly so provides.
1.6 "Change in Control" means the occurrence of any of the following
events:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "PERSON") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (x) the then outstanding shares of Common
Stock of the Corporation (the "OUTSTANDING CORPORATION COMMON STOCK") or (y) the
combined voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of directors (the
"OUTSTANDING CORPORATION VOTING SECURITIES"); PROVIDED, HOWEVER, that for
purposes of this subsection (i), the following acquisitions shall not constitute
a Change of Control: (A) any acquisition directly from the Corporation, (B) any
acquisition by the Corporation, (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Corporation or any corporation
controlled by the Corporation or (D) any acquisition by any corporation pursuant
to a transaction which complies with clauses (A), (B) and (C) of paragraph (iii)
below; or
(ii) Individuals who, as of the date of this Plan, constitute the
Board of Directors cease for any reason to constitute at least a majority of the
Incumbent Board; or
(iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Corporation or an acquisition of assets of another corporation (a "BUSINESS
COMBINATION"), in each case, unless, following such Business Combination,
(A) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Corporation, or all
or substantially all of the Corporation's assets either directly or through one
or more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the case may be,
(B) no Person (excluding any employee benefit plan (or related trust) of the
Corporation or the corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership of the
Corporation existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
2
<PAGE>
(iv) Approval by the stockholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
1.7 "Code" means the Internal Revenue Code of 1986, as amended.
1.8 "Committee" means the committee or subcommittee appointed pursuant
to Section 3 by the Board of Directors to administer this Plan.
1.9 "Common Stock" means the authorized common stock, par value $.01
per share, as described in the Corporation's Certificate of Incorporation.
1.10 "Common Stock Equivalent" means (without duplication with any other
Common Stock or Common Stock Equivalents) rights, warrants, options, convertible
securities, exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or indirectly,
Common Stock or securities convertible or exchangeable into Common Stock,
whether at the time the number of shares of Common Stock Equivalents are
determined or within sixty days of that date and that are traded or are of the
same class as securities that are traded on a national securities exchange or
quoted on the NASDAQ National Market System, NASDAQ, or National Quotation
Bureau Incorporated. The number of shares of Common Stock Equivalents
outstanding shall equal the number of shares of Common Stock plus the number of
shares of Common Stock issuable upon exercise, conversion or exchange of all
other Common Stock Equivalents.
1.11 "Corporation" means Trammell Crow Company, a Delaware corporation.
1.12 "Date of Grant" has the meaning given it in Paragraph 4.3.
1.13 "Disability" has the meaning given it in Paragraph 10.5.
1.14 "Effective Date" means August 22, 1997.
1.15 "Eligible Individuals" means (a) Employees, (b) Non-employee
Directors and (c) any other Person that the Committee designates as eligible for
an Award (other than for Incentive Options) because the Person performs bona
fide consulting or advisory services for the Corporation or any of its
Subsidiaries (other than services in connection with the offer or sale of
securities in a capital-raising transaction).
1.16 "Employee" means any employee of the Corporation or of any of its
Subsidiaries, including officers and directors of the Corporation who are also
employees of the Corporation or of any of its Subsidiaries.
1.17 "Exchange Act" means the Securities Exchange Act of 1934.
1.18 "Exercise Notice" has the meaning given it in Paragraph 5.5.
1.19 "Exercise Price" has the meaning given it in Paragraph 5.4.
1.20 "Fair Market Value" means, for a particular day:
3
<PAGE>
(a) If shares of Stock of the same class are listed or admitted
to unlisted trading privileges on any national or regional securities
exchange at the date of determining the Fair Market Value, then the last
reported sale price, regular way, on the composite tape of that exchange
on the last Business Day before the date in question or, if no such sale
takes place on that Business Day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to unlisted trading privileges on that securities
exchange; or
(b) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in Subparagraph
1.19(a) and if sales prices for shares of Stock of the same class in the
over-the-counter market are reported by the NASDAQ National Market System
(or a similar system then in use) at the date of determining the Fair
Market Value, then the last reported sales price so reported on the last
Business Day before the date in question or, if no such sale takes place
on that Business Day, the average of the high bid and low asked prices so
reported; or
(c) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in Subparagraph
1.19(a) and sales prices for shares of Stock of the same class are not
reported by the NASDAQ National Market System (or a similar system then
in use) as provided in Subparagraph 1.19(b), and if bid and asked prices
for shares of Stock of the same class in the over-the-counter market are
reported by NASDAQ (or, if not so reported, by the National Quotation
Bureau Incorporated) at the date of determining the Fair Market Value,
then the average of the high bid and low asked prices on the last
Business Day before the date in question; or
(d) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in Subparagraph
1.19(a) and sales prices or bid and asked prices therefor are not
reported by NASDAQ (or the National Quotation Bureau Incorporated) as
provided in Subparagraph 1.19(b) or Subparagraph 1.19(c) at the date of
determining the Fair Market Value, then the value determined in good
faith by the Committee, which determination shall be conclusive for all
purposes; or
(e) If shares of Stock of the same class are listed or admitted
to unlisted trading privileges as provided in Subparagraph 1.19(a) or
sales prices or bid and asked prices therefor are reported by NASDAQ (or
the National Quotation Bureau Incorporated) as provided in Subparagraph
1.19(b), Subparagraph 1.19(c) or Subparagraph 1.19(d) at the date of
determining the Fair Market Value, but the volume of trading is so low
that the Board of Directors determines in good faith that such prices are
not indicative of the fair value of the Stock, then the value determined
in good faith by the Committee, which determination shall be conclusive
for all purposes notwithstanding the provisions of Subparagraphs 1.19(a),
(b), (c) or (d).
For purposes of valuing Incentive Options, the Fair Market Value of Stock shall
be determined without regard to any restriction other than one that, by its
terms, will never lapse and will be determined on the date in question instead
of the last Business Day before the date in question. For purposes of the
redemption provided for in Subparagraph 9.3(e)(vi), Fair Market Value shall have
the meaning and shall be determined as provided above; PROVIDED, HOWEVER, that
the Committee, with respect to any such redemption, shall have the right to
determine that the Fair Market Value for purposes of the redemption should be an
amount measured by the value of the shares of stock, other securities, cash or
property otherwise being received by holders of shares of Stock in connection
with the Restructure, and upon that determination the Committee shall have the
power and authority to determine Fair Market Value for purposes of the
redemption based upon
4
<PAGE>
the value of such shares of stock, other securities, cash or property. Any such
determination by the Committee shall be conclusive for all purposes.
1.21 "Holder" means an Eligible Individual to whom an Award has been
granted.
1.22 "Incentive Option" means an incentive stock option as defined under
Section 422 of the Code and regulations thereunder.
1.23 "Incumbent Board" means the individuals who, as of the Effective
Date, constitute the Board of Directors and any other individual who becomes a
director of the Corporation after that date and whose election or appointment by
the Board of Directors or nomination for election by the Corporation's
stockholders was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Incumbent Board.
1.24 "NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotations, Inc.
1.25 "Non-employee Director" means a director of the Corporation who
while a director is not an Employee.
1.26 "Nonstatutory Option" means a stock option that does not satisfy
the requirements of Section 422 of the Code or that is designated at the Date of
Grant or in the applicable Option Agreement to be an option other than an
Incentive Option.
1.27 "Non-Surviving Event" means an event of Restructure as described in
either subparagraph (b) or (c) of Paragraph 1.37.
1.28 "Option Agreement" means an Award Agreement for an Incentive Option
or a Nonstatutory Option.
1.29 "Option" means either an Incentive Option or a Nonstatutory Option,
or both.
1.30 "Performance Period" means a period of one or more fiscal years of
the Corporation, beginning with the fiscal year for which Performance Units are
granted and over which performance is measured, for the purpose of determining
the payment value of Performance Units. A Performance Period shall not exceed
ten years.
1.31 "Performance Unit" means a unit representing a contingent right to
receive a specified amount of cash or shares of Stock at the end of a
Performance Period.
1.32 "Person" means any person or entity of any nature whatsoever,
specifically including (but not limited to) an individual, a firm, a company, a
corporation, a limited liability company, a partnership, a trust or other
entity. A Person, together with that Person's affiliates and associates (as
those terms are defined in Rule 12b-2 under the Exchange Act for purposes of
this definition only), and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate or other group (whether or
not formally
5
<PAGE>
organized), or otherwise acting jointly or in concert or in a coordinated or
consciously parallel manner (whether or not pursuant to any express agreement),
for the purpose of acquiring, holding, voting or disposing of securities of the
Corporation with that Person, shall be deemed a single "Person."
1.33 "Plan" means the Trammell Crow Company Long-Term Incentive Plan, as
it may be amended from time to time.
1.34 "Reload Option" has the meaning given it in Paragraph 5.9.
1.35 "Restricted Stock Award" means the grant or purchase, on the terms
and conditions that the Committee determines or on the terms and conditions of
Section 7, of Stock that is nontransferable or subject to substantial risk of
forfeiture until specific conditions are met.
1.36 "Restructure" means the occurrence of any one or more of the
following:
(a) The merger or consolidation of the Corporation with any
Person, whether effected as a single transaction or a series of related
transactions, with the Corporation remaining the continuing or surviving
entity of that merger or consolidation and the Stock remaining
outstanding and not changed into or exchanged for stock or other
securities of any other Person or of the Corporation, cash or other
property;
(b) The merger or consolidation of the Corporation with any
Person, whether effected as a single transaction or a series of related
transactions, with (i) the Corporation not being the continuing or
surviving entity of that merger or consolidation or (ii) the Corporation
remaining the continuing or surviving entity of that merger or
consolidation but all or a part of the outstanding shares of Stock are
changed into or exchanged for stock or other securities of any other
Person or the Corporation, cash, or other property; or
(c) The transfer, directly or indirectly, of all or substantially
all of the assets of the Corporation (whether by sale, merger,
consolidation, liquidation or otherwise) to any Person whether effected
as a single transaction or a series of related transactions.
1.37 "Retirement" means the separation of the Holder from employment
with the Corporation and its Subsidiaries on account of retirement.
1.38 "Rule 16b-3" means Rule 16b-3 under Section 16(b) of the Exchange
Act, or any successor rule, as it may be amended from time to time.
1.39 "SAR Exercise Price" has the meaning given it in Paragraph 1.43.
1.40 "Section 162(m)" means Section 162(m) of the Code and the rules and
regulations adopted from time to time thereunder, or any successor law or rule
as it may be amended from time to time.
1.41 "Securities Act" means the Securities Act of 1933.
1.42 "Stock" means Common Stock, or any other securities that are
substituted for Stock as provided in Section 9.
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1.43 "Stock Appreciation Right" means the right to receive an amount
equal to the excess of the Fair Market Value of a share of Stock (as determined
on the date of exercise) over, as appropriate, the Exercise Price of a related
Option or over a price specified in the related Award Agreement (the "SAR
EXERCISE PRICE") that is not less than eighty-five percent of the Fair Market
Value of the Stock on the Date of Grant of the Stock Appreciation Right.
1.44 "Subsidiary" means, with respect to any Person, any corporation,
limited partnership, limited liability company or other entity of which a
majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
1.45 "Total Shares" has the meaning given it in Paragraph 9.2.
1.46 "Voting Securities" means any securities that are entitled to vote
generally in the election of directors, in the admission of general partners, or
in the selection of any other similar governing body.
SECTION 2. SHARES OF STOCK SUBJECT TO THE PLAN
2.1 MAXIMUM NUMBER OF SHARES. Subject to the provisions of Section 9
of the Plan, the maximum aggregate number of shares of Stock in respect of which
Awards may be granted for all purposes under the Plan shall be 5,334,878.
2.2 RESTORATION OF UNUSED AND SURRENDERED SHARES. If Stock subject to
any Award is not issued or transferred, or ceases to be issuable or transferable
for any reason, including (but not exclusively) because an Award is forfeited,
terminated, expires unexercised, is settled in cash in lieu of Stock, or is
exchanged for other Awards, the shares of Stock that were subject to that Award
shall again be available for issue, transfer, or exercise pursuant to Awards
under the Plan to the extent of such forfeiture, termination, expiration,
settlement or exchange.
2.3 DESCRIPTION OF SHARES. The shares to be delivered under the Plan
shall be made available from (a) authorized but unissued shares of Stock, (b)
Stock held in the treasury of the Corporation, or (c) previously issued shares
of Stock reacquired by the Corporation, including shares purchased on the open
market, in each situation as the Board of Directors or the Committee may
determine from time to time at its sole option.
2.4 REGISTRATION AND LISTING OF SHARES. From time to time, the Board
of Directors and appropriate officers of the Corporation shall be, and are,
authorized to take whatever actions are necessary to file required documents
with governmental authorities, stock exchanges and other appropriate Persons to
make shares of Stock available for issuance pursuant to Awards.
SECTION 3. ADMINISTRATION OF THE PLAN
3.1 COMMITTEE. The Board of Directors shall administer the Plan with
respect to all Eligible Individuals or may delegate all or part of its duties
under this Plan to the Committee or to any officer or committee of officers of
the Corporation, subject in each case to such conditions and limitations as the
Board of Directors may establish and subject to the following sentence. Unless
a majority of the members of the Board of Directors determines otherwise: (a)
the Committee shall be constituted in a manner that satisfies
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the requirements of Rule 16b-3, which Committee shall administer the Plan with
respect to all Eligible Individuals who are subject to Section 16 of the
Exchange Act in a manner that satisfies the requirements of Rule 16b-3; and (b)
the Committee shall be constituted in a manner that satisfies the requirements
of Section 162(m), which Committee shall administer the Plan with respect to
"performance-based compensation" for all Eligible Individuals who are reasonably
expected to be "covered employees" as those terms are defined in Section 162(m).
The number of persons that shall constitute the Committee shall be determined
from time to time by a majority of all the members of the Board of Directors.
Except for references in Paragraphs 3.1, 3.2, and 3.3 and unless the context
otherwise requires, references herein to the Committee shall also refer to the
Board of Directors as administrator of the Plan for Eligible Individuals or to
the appropriate delegate of the Committee or the Board of Directors.
3.2 DURATION, REMOVAL, ETC. The members of the Committee shall serve
at the pleasure of the Board of Directors, which shall have the power, at any
time and from time to time, to remove members from or add members to the
Committee. Removal from the Committee may be with or without cause. Any
individual serving as a member of the Committee shall have the right to resign
from membership in the Committee by at least three days written notice to the
Board of Directors. The Board of Directors, and not the remaining members of
the Committee, shall have the power and authority to fill vacancies on the
Committee, however caused.
3.3 MEETINGS AND ACTIONS OF COMMITTEE. The Board of Directors shall
designate which of the Committee members shall be the chairman of the Committee.
If the Board of Directors fails to designate a Committee chairman, the members
of the Committee shall elect one of the Committee members as chairman, who shall
act as chairman until he ceases to be a member of the Committee or until the
Board of Directors elects a new chairman. The Committee shall hold its meetings
at those times and places as the chairman of the Committee may determine. At
all meetings of the Committee, a quorum for the transaction of business shall be
required, and a quorum shall be deemed present if at least a majority of the
members of the Committee are present. At any meeting of the Committee, each
member shall have one vote. All decisions and determinations of the Committee
shall be made by the majority vote or majority decision of all of its members
present at a meeting at which a quorum is present; provided, however, that any
decision or determination reduced to writing and signed by all of the members of
the Committee shall be as fully effective as if it had been made at a meeting
that was duly called and held. The Committee may make any rules and regulations
as it may deem advisable for the conduct of its business that are not
inconsistent with the provisions of the Plan, the Certificate of Incorporation
and the by-laws of the Corporation, Rule 16b-3, so long as it is applicable, and
Section 162(m), so long as it is applicable.
3.4 COMMITTEE'S POWERS. Subject to the express provisions of the Plan
and any applicable law with which the Corporation intends the Plan to comply,
the Committee shall have the authority, in its sole and absolute discretion,
(a) to adopt, amend and rescind administrative and interpretive rules and
regulations relating to the Plan, including without limitation to adopt and
observe such procedures concerning the counting of Awards against the Plan and
individual maximums as it may deem appropriate from time to time; (b) to
determine the Eligible Individuals to whom, and the time or times at which,
Awards shall be granted; (c) to determine the amount of cash and the number of
shares of Stock, Stock Appreciation Rights, Restricted Stock Awards or
Performance Units, or any combination thereof, that shall be the subject of each
Award; (d) to determine the terms and provisions of each Award Agreement (which
need not be identical), including provisions defining or otherwise relating to
(i) the term and the period or periods and extent of exercisability of the
Options, (ii) the extent to which the transferability of shares of Stock issued
or transferred pursuant to any Award is restricted, (iii) the effect of
termination of employment on the Award, and (iv) the effect of approved leaves
of absence (consistent with any applicable regulations of the Internal Revenue
Service);
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(e) to accelerate, pursuant to Section 9, the time of exercisability of any
Option that has been granted or the time of vesting or settlement of any
Restricted Stock Award or Performance Unit; (f) to construe the respective Award
Agreements and the Plan; (g) to make determinations of the Fair Market Value of
the Stock pursuant to the Plan; (h) to delegate its duties under the Plan to
such agents as it may appoint from time to time, subject to the second sentence
of Paragraph 3.1; and (i) to make all other determinations, perform all other
acts, and exercise all other powers and authority necessary or advisable for
administering the Plan, including the delegation of those ministerial acts and
responsibilities as the Committee deems appropriate subject in all respects to
the last two sentences of Paragraph 5.12. The Committee may correct any defect,
supply any omission or reconcile any inconsistency in the Plan, in any Award, or
in any Award Agreement in the manner and to the extent it deems necessary or
desirable to carry the Plan into effect, and the Committee shall be the sole and
final judge of that necessity or desirability. The determinations of the
Committee on the matters referred to in this Paragraph 3.4 shall be final and
conclusive. The Committee shall not have the power to appoint members of the
Committee or to terminate, modify or amend the Plan. Those powers are vested in
the Board of Directors.
3.5 TRANSFERABILITY OF AWARDS. Notwithstanding any limitation on a
Holder's right to transfer an Award, the Committee may (in its sole discretion)
permit a Holder to transfer an Award, or may cause the Corporation to grant an
Award that otherwise would be granted to an Eligible Individual, in any of the
following circumstances: (a) pursuant to a qualified domestic relations order,
(b) to a trust established for the benefit of the Eligible Individual or one or
more of the children, grandchildren or spouse of the Eligible Individual; (c) to
a limited partnership in which all the interests are held by the Eligible
Individual and that Person's children, grandchildren or spouse; or (d) to
another Person in circumstances that the Committee believes will result in the
Award continuing to provide an incentive for the Eligible Individual to remain
in the service of the Corporation or its Subsidiaries and apply his or her best
efforts for the benefit of the Corporation or its Subsidiaries. If the
Committee determines to allow such transfers or issuances of Awards, any Holder
or Eligible Individual desiring such transfers or issuances shall make
application therefor in the manner and time that the Committee specifies and
shall comply with such other requirements as the Committee may require to assure
compliance with all applicable laws, including securities laws, and to assure
fulfillment of the purposes of this Plan. The Committee shall not authorize any
such transfer or issuance if it may not be made in compliance with all
applicable federal, state and foreign securities laws. The granting of
permission for such an issuance or transfer shall not obligate the Corporation
to register the shares of Stock to be issued under the applicable Award.
SECTION 4. ELIGIBILITY AND PARTICIPATION
4.1 ELIGIBLE INDIVIDUALS. Awards may be granted pursuant to the Plan
only to persons who are Eligible Individuals at the time of the grant thereof or
in connection with the severance or retirement of Eligible Individuals.
4.2 GRANT OF AWARDS. Subject to the express provisions of the Plan,
the Committee shall determine which Eligible Individuals shall be granted Awards
from time to time. In making grants, the Committee shall take into
consideration the contribution the potential Holder has made or may make to the
success of the Corporation or its Subsidiaries and such other considerations as
the Board of Directors may from time to time specify. The Committee shall also
determine the number of shares or cash amounts subject to each of the Awards and
shall authorize and cause the Corporation to grant Awards in accordance with
those determinations.
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4.3 DATE OF GRANT. The date on which an Award is granted (the "DATE OF
GRANT") shall be the date specified by the Committee as the effective date or
date of grant of an Award or, if the Committee does not so specify, shall be the
date as of which the Committee adopts the resolution approving the offer of an
Award to an individual, including the specification of the number (or method of
determining the number) of shares of Stock and the amount (or method of
determining the amount) of cash to be subject to the Award, even though certain
terms of the Award Agreement may not be determined at that time and even though
the Award Agreement may not be executed or delivered until a later time. In no
event shall a Holder gain any rights in addition to those specified by the
Committee in its grant, regardless of the time that may pass between the grant
of the Award and the actual execution or delivery of the Award Agreement by the
Corporation or the Holder. The Committee may invalidate an Award at any time
before the Award Agreement is signed by the Holder (if signature is required) or
is delivered to the Holder (if signature is not required), and such Award shall
be treated as never having been granted.
4.4 AWARD AGREEMENTS. Each Award granted under the Plan shall be
evidenced by an Award Agreement that incorporates those terms that the Committee
shall deem necessary or desirable. More than one Award may be granted under the
Plan to the same Eligible Individual and be outstanding concurrently. If an
Eligible Individual is granted both one or more Incentive Options and one or
more Nonstatutory Options, those grants shall be evidenced by separate Award
Agreements, one for each of the Incentive Option grants and one for each of the
Nonstatutory Option grants.
4.5 LIMITATION FOR INCENTIVE OPTIONS. Notwithstanding any provision
contained herein to the contrary, (a) a person shall not be eligible to receive
an Incentive Option unless he or she is an Employee of the Corporation or a
corporate Subsidiary (but not a partnership or other non-corporate Subsidiary),
and (b) a person shall not be eligible to receive an Incentive Option if,
immediately before the time the Incentive Option is granted, that person owns
(within the meaning of Sections 422 and 424 of the Code) stock possessing more
than ten percent of the total combined voting power or value of all classes of
stock of the Corporation or a Subsidiary. Nevertheless, this Subparagraph
4.5(b) shall not apply if, at the time the Incentive Option is granted, the
Exercise Price of the Incentive Option is at least one hundred and ten percent
of the Fair Market Value of the Stock underlying the Incentive Option and the
Incentive Option is not, by its terms, exercisable after the expiration of five
years from the Date of Grant.
4.6 NO RIGHT TO AWARD. The adoption of the Plan shall not be deemed to
give any person a right to be granted an Award.
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
All Options granted under the Plan shall comply with, and the related
Option Agreements shall be deemed to include and be subject to, the terms and
conditions set forth in this Section 5 (to the extent each term and condition
applies to the form of Option) and also to the terms and conditions set forth in
Paragraph 9.1 and Section 10; PROVIDED, HOWEVER, that the Committee may
authorize an Option Agreement that expressly contains terms and provisions that
differ from the terms and provisions of Section 10. The Committee may also
authorize an Option Agreement that contains any or all of the terms and
provisions of Paragraphs 9.2 and 9.3 or that contains terms and provisions
dealing with similar subject matter differently than do those Paragraphs;
nevertheless, no term or provision of Paragraph 9.2 or 9.3 (or any such
differing term or provision) shall apply to an Option Agreement unless the
Option Agreement expressly states that such term or provision applies.
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5.1 NUMBER OF SHARES. Each Option Agreement shall state the total
number of shares of Stock to which it relates.
5.2 VESTING. Each Option Agreement shall state the time, periods or
other conditions on which the right to exercise the Option or a portion thereof
shall vest and the number (or method of determining the number) of shares of
Stock for which the right to exercise the Option shall vest at each such time,
period or satisfaction of condition.
5.3 EXPIRATION OF OPTIONS. Nonstatutory Options and Incentive Options
may be exercised during the term determined by the Committee and set forth in
the Option Agreement; PROVIDED that no Incentive Option shall be exercised after
the expiration of a period of ten years commencing on the Date of Grant of the
Incentive Option.
5.4 EXERCISE PRICE. Each Option Agreement shall state the exercise
price per share of Stock (the "EXERCISE PRICE"). The exercise price per share
of Stock subject to an Incentive Option shall not be less than the greater of
(a) the par value per share of the Stock or (b) 100% of the Fair Market Value
per share of the Stock on the Date of Grant of the Option. The exercise price
per share of Stock subject to a Nonstatutory Option shall not be less than the
greater of (a) the par value per share of the Stock or (b) eighty-five percent
of the Fair Market Value per share of the Stock on the Date of Grant of the
Option.
5.5 METHOD OF EXERCISE. Each Option shall be exercisable only by
written, recorded electronic or other notice of exercise in the manner specified
by the Committee from time to time (the "EXERCISE NOTICE") delivered to the
Corporation or to the Person designated by the Committee during the term of the
Option, which notice shall (a) state the number of shares of Stock with respect
to which the Option is being exercised, (b) be signed or otherwise given by the
Holder of the Option or by the person authorized to exercise the Option in the
event of the Holder's death or disability, (c) be accompanied by the Exercise
Price for all shares of Stock for which the Option is exercised, unless
provision for the payment of the Exercise Price has been made pursuant to
Paragraph 5.7 or 5.8 or in another manner permitted by law and approved in
advance by the Committee, and (d) include such other information, instruments,
and documents as may be required to satisfy any other condition to exercise
contained in the Option Agreement. The Option shall not be deemed to have been
exercised unless all of the requirements of the preceding provisions of this
Paragraph 5.5 have been satisfied.
5.6 INCENTIVE OPTION EXERCISES. During the Holder's lifetime, only the
Holder may exercise an Incentive Option. The Holder of an Incentive Option
shall immediately notify the Corporation in writing of any disposition of the
Stock acquired pursuant to the Incentive Option that would disqualify the
Incentive Option from the incentive option tax treatment afforded by Section 422
of the Code. The notice shall state the number of shares disposed of, the dates
of acquisition and disposition of the shares, and the consideration received
upon that disposition.
5.7 MEDIUM AND TIME OF PAYMENT. The Exercise Price of an Option shall
be payable in full upon the exercise of the Option (a) in cash or by an
equivalent means (such as that specified in Paragraph 5.8) acceptable to the
Committee, (b) on the Committee's prior consent, with shares of Stock owned by
the Holder (including shares received upon exercise of the Option or restricted
shares already held by the Holder) and having a Fair Market Value at least equal
to the aggregate Exercise Price payable in connection with such exercise, or
(c) by any combination of clauses (a) and (b). If the Committee chooses to
accept shares of Stock in payment of all or any portion of the Exercise Price,
then (for purposes of payment of the Exercise Price) those shares of Stock shall
be deemed to have a cash value equal to their aggregate Fair Market Value
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determined as of the date of the delivery of the Exercise Notice. If the
Committee elects to accept shares of restricted Stock in payment of all or any
portion of the Exercise Price, then an equal number of shares issued pursuant to
the exercise shall be restricted on the same terms and for the restriction
period remaining on the shares used for payment.
5.8 PAYMENT WITH SALE PROCEEDS. In addition, at the request of the
Holder and to the extent permitted by applicable law, the Committee may (but
shall not be required to) approve arrangements with a brokerage firm under which
that brokerage firm, on behalf of the Holder, shall pay to the Corporation the
Exercise Price of the Option being exercised (either as a loan to the Holder or
from the proceeds of the sale of Stock issued pursuant to that exercise of the
Option), and the Corporation shall promptly cause the exercised shares to be
delivered to the brokerage firm. Such transactions shall be effected in
accordance with the procedures that the Committee may establish from time to
time.
5.9 RELOAD PROVISIONS. Options may contain a provision pursuant to
which a Holder who pays all or a portion of the Exercise Price of an Option or
the tax required to be withheld pursuant to the exercise of an Option by
surrendering shares of Stock shall automatically be granted an Option for the
purchase of the number of shares of Stock equal to the number of shares
surrendered (a "RELOAD OPTION"). The Date of Grant of the Reload Option shall
be the date on which the Holder surrenders the shares of Stock in respect of
which the Reload Option is granted. The Reload Option shall have an Exercise
Price equal to the Fair Market Value of a share of Stock on the Date of Grant of
the Reload Option and shall have a term that is no longer than the original term
of the underlying Option.
5.10 LIMITATION ON AGGREGATE VALUE OF SHARES THAT MAY BECOME FIRST
EXERCISABLE DURING ANY CALENDAR YEAR UNDER AN INCENTIVE OPTION. Except as is
otherwise provided in subparagraph 9.2(b), with respect to any Incentive Option
granted under this Plan, the aggregate Fair Market Value of shares of Stock
subject to an Incentive Option and the aggregate Fair Market Value of shares of
Stock or stock of any Subsidiary (or a predecessor of the Corporation or a
Subsidiary) subject to any other incentive stock option (within the meaning of
Section 422 of the Code) of the Corporation or its Subsidiaries (or a
predecessor corporation of any such corporation) that first become purchasable
by a Holder in any calendar year may not (with respect to that Holder) exceed
$100,000, or such other amount as may be prescribed under Section 422 of the
Code or applicable regulations or rulings from time to time. As used in the
previous sentence, Fair Market Value shall be determined as of the date the
Incentive Option is granted. For purposes of this Paragraph 5.10 "predecessor
corporation" means (a) a corporation that was a party to a transaction described
in Section 424(a) of the Code (or which would be so described if a substitution
or assumption under that Section had been effected) with the Corporation, (b) a
corporation which, at the time the new incentive stock option (within the
meaning of Section 422 of the Code) is granted, is a Subsidiary of the
Corporation or a predecessor corporation of any such corporations, or (c) a
predecessor corporation of any such corporations. Failure to comply with this
provision shall not impair the enforceability or exercisability of any Option,
but shall cause the excess amount of shares to be reclassified in accordance
with the Code.
5.11 NO FRACTIONAL SHARES. The Corporation shall not in any case be
required to sell, issue, or deliver a fractional share with respect to any
Option. In lieu of the issuance of any fractional share of Stock, the
Corporation shall pay to the Holder an amount in cash equal to the same fraction
(as the fractional Stock) of the Fair Market Value of a share of Stock
determined as of the date of the applicable Exercise Notice.
5.12 MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to the
terms and conditions of and within the limitations of the Plan and any
applicable law, and any consent required by the last two sentences of this
Paragraph 5.12, the Committee may (a) modify, extend or renew outstanding
Options granted under
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the Plan, (b) accept the surrender of Options outstanding hereunder (to the
extent not previously exercised) and authorize the granting of new Options in
substitution for outstanding Options (to the extent not previously exercised),
and (c) amend the terms of an Incentive Option at any time to include provisions
that have the effect of changing the Incentive Option to a Nonstatutory Option.
Nevertheless, without the consent of the Holder, the Committee may not modify
any outstanding Options so as to specify a higher Exercise Price or accept the
surrender of outstanding Incentive Options and authorize the granting of new
Options in substitution therefor specifying a higher Exercise Price. In
addition, no modification of an Option granted hereunder shall, without the
consent of the Holder, materially alter or impair any rights of the Holder or
materially increase the obligations of a Holder under any Option theretofore
granted to that Holder under the Plan except, with respect to Incentive Options,
as may be necessary to satisfy the requirements of Section 422 of the Code or as
permitted in clause (c) of this Paragraph 5.12.
5.13 OTHER AGREEMENT PROVISIONS. The Option Agreements authorized under
the Plan shall contain such provisions in addition to those required by the Plan
(including, without limitation, restrictions or the removal of restrictions upon
the exercise of the Option and the retention or transfer of shares thereby
acquired) as the Committee may deem advisable. Each Option Agreement shall
identify the Option evidenced thereby as an Incentive Option or Nonstatutory
Option, as the case may be, and no Option Agreement shall cover both an
Incentive Option and a Nonstatutory Option. Each Agreement relating to an
Incentive Option granted hereunder shall contain such limitations and
restrictions upon the exercise of the Incentive Option to which it relates as
shall be necessary for the Incentive Option to which such Agreement relates to
constitute an incentive stock option, as defined in Section 422 of the Code.
SECTION 6. STOCK APPRECIATION RIGHTS
All Stock Appreciation Rights granted under the Plan shall comply with,
and the related Award Agreements shall be deemed to include and be subject to,
the terms and conditions set forth in this Section 6 (to the extent each term
and condition applies to the form of Stock Appreciation Right) and also to the
terms and conditions set forth in Paragraph 9.1 and Section 10; PROVIDED,
HOWEVER, that the Committee may authorize an Award Agreement relating to a Stock
Appreciation Right that expressly contains terms and provisions that differ from
the terms and provisions of Section 10. The Committee may also authorize an
Award Agreement relating to a Stock Appreciation Right that contains any or all
of the terms and provisions of Paragraphs 9.2 and 9.3 or that contains terms and
provisions dealing with similar subject matter differently than do those
Paragraphs; nevertheless, no term or provision of Paragraph 9.2 or 9.3 (or any
such differing term or provision) shall apply to an Award Agreement relating to
a Stock Appreciation Right unless the Award Agreement expressly states that such
term or provision applies.
6.1 FORM OF RIGHT. A Stock Appreciation Right may be granted to an
Eligible Individual (a) in connection with an Option, either at the time of
grant or at any time during the term of the Option, or (b) without relation to
an Option.
6.2 RIGHTS RELATED TO OPTIONS. A Stock Appreciation Right granted
pursuant to an Option shall entitle the Holder, upon exercise, to surrender that
Option or any portion thereof, to the extent unexercised, and to receive payment
of an amount computed pursuant to Subparagraph 6.2(b). That Option shall then
cease to be exercisable to the extent surrendered. Stock Appreciation Rights
granted in connection with an Option shall be subject to the terms of the Award
Agreement governing the Option, which shall comply with the following provisions
in addition to those applicable to Options:
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(a) EXERCISE AND TRANSFER. Subject to Paragraph 10.10, a Stock
Appreciation Right granted in connection with an Option shall be
exercisable only at such time or times and only to the extent that the
related Option is exercisable and shall not be transferable except to the
extent that the related Option is transferable. To the extent that an
Option has been exercised, the Stock Appreciation Rights granted in
connection with that Option shall terminate.
(b) VALUE OF RIGHT. Upon the exercise of a Stock Appreciation
Right related to an Option, the Holder shall be entitled to receive
payment from the Corporation of an amount determined by multiplying:
(i) The difference obtained by subtracting the Exercise
Price of a share of Stock specified in the related Option from the
Fair Market Value of a share of Stock on the date of exercise of
the Stock Appreciation Right, by
(ii) The number of shares as to which that Stock
Appreciation Right has been exercised.
6.3 RIGHT WITHOUT OPTION. A Stock Appreciation Right granted without
relationship to an Option shall be exercisable as determined by the Committee
and set forth in the Award Agreement governing the Stock Appreciation Right,
which Award Agreement shall comply with the following provisions:
(a) NUMBER OF SHARES. Each Award Agreement shall state the total
number of shares of Stock to which the Stock Appreciation Right relates.
(b) VESTING. Each Award Agreement shall state the time, periods
or other conditions on which the right to exercise the Stock Appreciation
Right or a portion thereof shall vest and the number of shares of Stock
for which the right to exercise the Stock Appreciation Right shall vest
at each such time, period or satisfaction of condition.
(c) EXPIRATION OF RIGHTS. Each Award Agreement shall state the
date at which the Stock Appreciation Rights shall expire if not
previously exercised.
(d) VALUE OF RIGHT. A Stock Appreciation Right granted without
relationship to an Option shall entitle the Holder, upon exercise of the
Stock Appreciation Right, to receive payment of an amount determined by
multiplying:
(i) The difference obtained by subtracting the SAR Exercise
Price from the Fair Market Value of a share of Stock on the date of
exercise of that Stock Appreciation Right, by
(ii) The number of rights as to which the Stock Appreciation
Right has been exercised.
6.4 LIMITATIONS ON RIGHTS. Notwithstanding Subparagraph 6.2(b) and
Subparagraph 6.3(d), the Committee may limit the amount payable upon exercise of
a Stock Appreciation Right. Any such limitation must be determined as of the
Date of Grant and be noted on the instrument evidencing the Stock Appreciation
Right.
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6.5 PAYMENT OF RIGHTS. Payment of the amount determined under
Subparagraph 6.2(b) or Subparagraph 6.3(d) and Paragraph 6.4 may, in the sole
discretion of the Committee, be made solely in whole shares of Stock valued at
Fair Market Value on the date of exercise of the Stock Appreciation Right or, in
the sole discretion of the Committee, solely in cash or a combination of cash
and Stock. If the Committee decides to make full payment in shares of Stock and
the amount payable results in a fractional share, payment for the fractional
share shall be made in cash.
6.6 OTHER AGREEMENT PROVISIONS. The Award Agreements authorized
relating to Stock Appreciation Rights shall contain such provisions in addition
to those required by the Plan (including, without limitation, restrictions or
the removal of restrictions upon the exercise of the Stock Appreciation Right
and the retention or transfer of shares thereby acquired) as the Committee may
deem advisable.
SECTION 7. RESTRICTED STOCK AWARDS
All Restricted Stock Awards granted under the Plan shall comply with, and
the related Award Agreements shall be deemed to include, and be subject to the
terms and conditions set forth in this Section 7 and also to the terms and
conditions set forth in Paragraph 9.1 and Section 10; PROVIDED, HOWEVER, that
the Committee may authorize an Award Agreement relating to a Restricted Stock
Award that expressly contains terms and provisions that differ from the terms
and provisions of Section 10. The Committee may also authorize an Award
Agreement relating to a Restricted Stock Award that contains any or all of the
terms and provisions of Paragraphs 9.2 and 9.3 or that contains terms and
provisions dealing with similar subject matter differently than do those
Paragraphs; nevertheless, no term or provision of Paragraph 9.2 or 9.3 (or any
such differing term or provision) shall apply to an Award Agreement relating to
a Restricted Stock Award unless the Award Agreement expressly states that such
term or provision applies.
7.1 RESTRICTIONS. All shares of Restricted Stock Awards granted or
sold pursuant to the Plan shall be subject to the following conditions:
(a) TRANSFERABILITY. The shares may not be sold, transferred or
otherwise alienated or hypothecated until the restrictions are removed or
expire.
(b) CONDITIONS TO REMOVAL OF RESTRICTIONS. Conditions to removal
or expiration of the restrictions may include, but are not required to be
limited to, continuing employment or service as a director, officer,
consultant or advisor or achievement of performance objectives described
in the Award Agreement.
(c) LEGEND. Each certificate representing Restricted Stock
Awards granted pursuant to the Plan shall bear a legend making
appropriate reference to the restrictions imposed.
(d) POSSESSION. At its sole discretion, the Committee may (i)
authorize issuance of a certificate for shares in the Holder's name only
upon lapse of the applicable restrictions, (ii) require the Corporation,
transfer agent or other custodian to retain physical custody of the
certificates representing Restricted Stock Awards during the restriction
period and may require the Holder of the Award to execute stock powers,
endorsed or in blank, for those certificates and deliver those stock
powers to the Corporation, transfer agent or custodian, or (iii) may
require the Holder to enter into an escrow agreement providing that the
certificates representing Restricted Stock Awards granted or sold
pursuant to the Plan shall remain in the physical custody of an escrow
holder until all
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restrictions are removed or expire. The Corporation may issue shares
subject to stop-transfer restrictions or may issue such shares subject
only to the restrictive legend described in subparagraph 7.1(c).
(e) OTHER CONDITIONS. The Committee may impose other conditions
on any shares granted or sold as Restricted Stock Awards pursuant to the
Plan as it may deem advisable, including, without limitation, (i)
restrictions under the Securities Act or Exchange Act, (ii) the
requirements of any securities exchange upon which the shares or shares
of the same class are then listed, and (iii) any state securities law
applicable to the shares.
7.2 EXPIRATION OF RESTRICTIONS. The restrictions imposed in Paragraph
7.1 on Restricted Stock Awards shall lapse as determined by the Committee and
set forth in the applicable Award Agreement, and the Corporation shall promptly
cause to be delivered to the Holder of the Restricted Stock Award a certificate
representing the number of shares for which restrictions have lapsed, free of
any restrictive legend relating to the lapsed restrictions. Each Restricted
Stock Award may have a different restriction period, in the discretion of the
Committee. The Committee may, in its discretion, prospectively reduce the
restriction period applicable to a particular Restricted Stock Award. The
foregoing notwithstanding, no restriction not required by law shall remain in
effect for more than ten years after the date of the Award.
7.3 CHANGES IN ACCOUNTING RULES. Notwithstanding any other provision
of the Plan to the contrary, if, during the term of the Plan, any changes in the
financial or tax accounting rules applicable to Restricted Stock Awards shall
occur that, in the sole judgement of the Board of Directors, may have a material
adverse effect on the reported earnings, assets, or liabilities of the
Corporation, the Committee shall have the right and power to modify as necessary
any then outstanding Restricted Stock Awards as to which the applicable
restrictions have not been satisfied.
7.4 RIGHTS AS STOCKHOLDER. Subject to the provisions of Paragraphs 7.1
and 10.11, the Committee may, in its discretion, determine what rights, if any,
the Holder shall have with respect to the Restricted Stock Awards granted or
sold, including the right to vote the shares and receive all dividends and other
distributions paid or made with respect thereto.
7.5 OTHER AGREEMENT PROVISIONS. The Award Agreements relating to
Restricted Stock Awards shall contain such provisions in addition to those
required by the Plan as the Committee may deem advisable.
SECTION 8. PERFORMANCE UNITS
All Performance Units granted under the Plan shall comply with, and the
related Award Agreements shall be deemed to include and be subject to, the terms
and conditions set forth in this Section 8 (to the extent each term and
condition applies to the form of Performance Unit) and also to the terms and
conditions set forth in Paragraph 9.1 and Section 10; PROVIDED, HOWEVER, that
the Committee may authorize an Award Agreement related to a Performance Unit
that expressly contains terms and provisions that differ from the terms and
provisions of Section 10. The Committee may also authorize an Award Agreement
related to a Performance Unit that contains any or all of the terms and
provisions of Paragraphs 9.2 and 9.3 or that contains terms and provisions
dealing with similar subject matter differently than do those Paragraphs;
nevertheless, no term or provision of Paragraph 9.2 or 9.3 (or any such
differing term or provision) shall apply to an Award Agreement related to a
Performance Unit unless the Award Agreement expressly states that such term or
provision applies.
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8.1 MULTIPLE GRANTS. The Committee may make grants of Performance
Units in such a manner that more than one Performance Period is in progress
simultaneously. At or before the beginning of each Performance Period, the
Committee will establish the contingent value of each Performance Unit, if any,
for that Performance Period, which may vary depending on the degree to which
performance objectives established by the Committee are met.
8.2 PERFORMANCE STANDARDS. At or before the beginning of each
Performance Period, the Committee will (a) establish the beginning and ending
dates of the Performance Period, (b) establish for that Performance Period
specific performance objectives as the Committee (in its sole discretion)
believes are relevant to the Corporation's overall business objectives, (c)
determine the minimum and maximum value of a Performance Unit and the value of a
Performance Unit based on the degree to which performance objectives are
achieved, exceeded or not achieved, (d) determine a minimum performance level
below which Performance Units will be assigned a value of zero, and a maximum
performance level above which the value of Performance Units will not increase,
and (e) notify each Holder of a Performance Unit for that Performance Period in
writing of the established performance objectives and minimum, target and
maximum Performance Unit value for that Performance Period.
8.3 MODIFICATION OF STANDARDS. If the Committee determines in its sole
discretion that the established performance measures or objectives are no longer
suitable to the Corporation's objectives because of a change in the
Corporation's business, operations, corporate structure, capital structure or
other conditions the Committee deems to be material, the Committee may modify
the performance measures and objectives as it considers appropriate and
equitable.
8.4 PAYMENT. The basis for payment of Performance Units for a given
Performance Period will be the achievement of those performance objectives
determined by the Committee at the beginning of the Performance Period. If
minimum performance is not achieved or exceeded for a Performance Period, no
payment will be made and all contingent rights will cease. If minimum
performance is achieved or exceeded, the value of a Performance Unit will be
based on the degree to which actual performance exceeded the pre-established
minimum performance standards. The amount of payment will be determined by
multiplying the number of Performance Units granted at the beginning of the
Performance Period by the final Performance Unit value. Payments will be made
in cash or Stock as soon as administratively possible following the close of the
applicable Performance Period.
8.5 OTHER AGREEMENT PROVISIONS. The Award Agreements, if any,
authorized relating to Performance Units shall contain such provisions in
addition to those required by the Plan (including, without limitation,
restrictions or the removal of restrictions upon the transfer of shares thereby
acquired) as the Committee may deem advisable.
SECTION 9. ADJUSTMENT PROVISIONS
The Committee may authorize an Award that contains any or all of the
terms and provisions of this Section 9 or, with respect to Paragraphs 9.2 and
9.3, that contains terms and provisions dealing with similar subject matter
differently than do those Paragraphs; nevertheless, no term or provision of
Paragraph 9.2 or 9.3 (or any such differing term or provision) shall apply to an
Award Agreement unless the Award Agreement expressly states that such term or
provision applies.
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9.1 ADJUSTMENT OF AWARDS AND AUTHORIZED STOCK. The terms of an Award,
the number of shares of Stock authorized pursuant to Paragraph 2.1 for issuance
under the Plan, and the number shares of Stock that constitute the individual
limitations in Paragraph 2.6 shall be subject to adjustment, from time to time,
in accordance with the following provisions:
(a) If at any time or from time to time, the Corporation shall
subdivide as a whole (by reclassification, by a Stock split, by the
issuance of a distribution on Stock payable in Stock or otherwise) the
number of shares of Stock then outstanding into a greater number of
shares of Stock, then (i) the maximum number of shares of Stock available
for the Plan and for any individual as provided in Paragraph 2.1 and
Paragraph 2.6, respectively, shall be increased proportionately, and the
kind of shares or other securities available for the Plan shall be
appropriately adjusted, (ii) the number of shares of Stock (or other kind
of shares or securities) that may be acquired under any Award shall be
increased proportionately, and (iii) the price (including Exercise Price)
for each share of Stock (or other kind of shares or unit of other
securities) subject to then outstanding Awards shall be reduced
proportionately, without changing the aggregate purchase price or value
as to which outstanding Awards remain exercisable or subject to
restrictions.
(b) If at any time or from time to time the Corporation shall
consolidate as a whole (by reclassification, reverse Stock split, or
otherwise) the number of shares of Stock then outstanding into a lesser
number of shares of Stock, (i) the maximum number of shares of Stock
available for the Plan and for any individual as provided in Paragraph
2.1 and Paragraph 2.6, respectively shall be decreased proportionately,
and the kind of shares or other securities available for the Plan shall
be appropriately adjusted, (ii) the number of shares of Stock (or other
kind of shares or securities) that may be acquired under any Award shall
be decreased proportionately, and (iii) the price (including Exercise
Price) for each share of Stock (or other kind of shares or unit of other
securities) subject to then outstanding Awards shall be increased
proportionately, without changing the aggregate purchase price or value
as to which outstanding Awards remain exercisable or subject to
restrictions.
(c) Whenever the number of shares of Stock subject to outstanding
Awards and the price for each share of Stock subject to outstanding
Awards are required to be adjusted as provided in this Paragraph 9.1, the
Committee shall promptly prepare a notice setting forth, in reasonable
detail, the event requiring adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the change in price
and the number of shares of Stock, other securities, cash or property
purchasable subject to each Award after giving effect to the adjustments.
The Committee shall promptly give each Holder such a notice.
(d) Adjustments under Paragraph 9(a) and (b) shall be made by the
Committee, and its determination as to what adjustments shall be made and
the extent thereof shall be final, binding and conclusive. No fractional
interest shall be issued under the Plan on account of any such
adjustments.
9.2 CHANGES IN CONTROL. Upon the occurrence of a Change in Control,
but only if approved by the Committee, for Awards held by Participants who are
employees or directors of the Corporation (and their permitted transferees
pursuant to Paragraph 3.5), (a) all outstanding Stock Appreciation Rights and
Options shall immediately become fully vested and exercisable in full, including
that portion of any Stock Appreciation Right or Option that pursuant to the
terms and provisions of the applicable Award Agreement had not yet become
exercisable (the total number of shares of Stock as to which a Stock
Appreciation Right or Option is exercisable upon the occurrence of a Change in
Control is referred to herein as the "TOTAL SHARES"); (b) the restriction period
of any Restricted Stock Award shall immediately be accelerated and the
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restrictions shall expire; and (c) the target payout opportunity attainable
under the Performance Units will be deemed to have been fully earned for all
Performance Periods upon the occurrence of the Change in Control and the Holder
will be paid a pro rata portion of all associated targeted payout opportunities
(based on the number of complete and partial calendar months elapsed as of the
occurrence of the Change in Control) in cash within thirty days following the
Change in Control or in Stock effective as of the Change in Control, for cash
and stock-based Performance Units, respectively. If a Change in Control
involves a Restructure or occurs in connection with a series of related
transactions involving a Restructure and if such Restructure is in the form of a
Non-Surviving Event and as a part of such Restructure shares of stock, other
securities, cash or property shall be issuable or deliverable in exchange for
Stock, then the Holder of an Award shall be entitled to purchase or receive (in
lieu of the Total Shares that the Holder would otherwise be entitled to purchase
or receive), as appropriate for the form of Award, the number of shares of
stock, other securities, cash or property to which that number of Total Shares
would have been entitled in connection with such Restructure (and, for Options,
at an aggregate exercise price equal to the Exercise Price that would have been
payable if that number of Total Shares had been purchased on the exercise of the
Option immediately before the consummation of the Restructure). Nothing in this
Paragraph 9.2 shall impose on a Holder the obligation to exercise any Award
immediately before or upon the Change of Control, and, unless otherwise provided
in the Award Agreement relating to the Award, no Holder shall forfeit the right
to exercise the Award during the remainder of the original term of the Award
because of a Change in Control or because the Holder's employment is terminated
for any reason following a Change in Control.
9.3 RESTRUCTURE AND NO CHANGE IN CONTROL. In the event a Restructure
should occur at any time while there is any outstanding Award hereunder and that
Restructure does not occur in connection with a Change in Control or in
connection with a series of related transactions involving a Change in Control,
then:
(a) no Holder of an Option shall automatically be granted
corresponding Stock Appreciation Rights;
(b) neither any outstanding Stock Appreciation Rights nor any
outstanding Options shall immediately become fully vested and exercisable
in full merely because of the occurrence of the Restructure;
(c) the restriction period of any Restricted Stock Award shall
not immediately be accelerated nor shall the restrictions expire merely
because of the occurrence of the Restructure; and
(d) the target payout opportunity attainable under the
Performance Units will not be deemed to have been fully earned for all
Performance Periods merely because of the occurrence of the Restructure.
The Corporation shall promptly notify each Holder of any election or action
taken by the Corporation under this Paragraph 9.3. In the event of any election
or action taken by the Corporation pursuant to this Paragraph 9.3 that requires
the amendment or cancellation of any Award Agreement as may be specified in any
notice to the Holder thereof, that Holder shall promptly deliver that Award
Agreement to the Corporation in order for that amendment or cancellation to be
implemented by the Corporation and the Committee. The failure of the Holder to
deliver any such Award Agreement to the Corporation as provided in the preceding
sentence shall not in any manner affect the validity or enforceability of any
action taken by the Corporation and the Committee under this Paragraph 9.3,
including, without limitation, any redemption of an Award as of the consummation
of a Restructure. Any cash payment to be made by the Corporation pursuant to
this Paragraph 9.3 in connection with the redemption of any outstanding Awards
shall be paid to the Holder thereof currently
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with the delivery to the Corporation of the Award Agreement evidencing that
Award; provided, however, that any such redemption shall be effective upon the
consummation of the Restructure notwithstanding that the payment of the
redemption price may occur subsequent to the consummation. If all or any
portion of an outstanding Award is to be exercised or accelerated upon or after
the consummation of a Restructure that is in the form of a Non-Surviving Event
and as a part of that Restructure shares of stock, other securities, cash or
property shall be issuable or deliverable in exchange for Stock, then the Holder
of the Award shall thereafter be entitled to purchase or receive (in lieu of the
number of shares of Stock that the Holder would otherwise be entitled to
purchase or receive) the number of shares of stock, other securities, cash or
property to which such number of shares of Stock would have been entitled in
connection with the Restructure (and, for Options, at an aggregate exercise
price equal to the Exercise Price that would have been payable if that number of
Total Shares had been purchased on the exercise of the Option immediately before
the consummation of the Restructure).
9.4 NOTICE OF CHANGE IN CONTROL OR RESTRUCTURE. The Corporation shall
attempt to keep all Holders informed with respect to any Change in Control or
Restructure or of any potential Change in Control or Restructure to the same
extent that the Corporation's stockholders are informed by the Corporation of
any such event or potential event.
SECTION 10. ADDITIONAL PROVISIONS
10.1 TERMINATION OF EMPLOYMENT. Subject to the last sentence of
Paragraph 9.2, if a Holder is an Eligible Individual because the Holder is an
Employee and if that employment relationship is terminated for any reason other
than Retirement or that Holder's death or Disability, then the following
provisions shall apply to all Awards held by that Holder that were granted
because that Holder was an Employee:
(a) If the termination is by the Holder's employer, then the
following provisions shall apply: (i) if the termination is for Cause,
then that portion, if any, of any and all Awards held by that Holder that
are not yet exercisable (or for which restrictions have not lapsed) as of
the date of termination shall become null and void; provided, however,
that the portion, if any, of any and all Awards held by that Holder which
are exercisable (or for which restrictions have lapsed) as of the date of
such termination shall survive such termination and shall be exercisable
by such Holder for a period of the lesser of (A) the remainder of the
term of the Award or (B) three (3) days following the date of such
termination or (ii) if the termination is not for Cause, then that
portion, if any, of any and all Awards held by that Holder that are not
yet exercisable (or for which restrictions have not lapsed) as of the
date of the termination shall become null and void as of the date of the
termination; provided, however, that the portion, if any, of any and all
Awards held by that Holder which are exercisable (or for which
restrictions have lapsed) as of the date of such termination shall
survive such termination and shall be exercisable by such Holder for a
period of the lesser of (A) the remainder of the term of the Award or
(B) 180 days following the date of such termination.
(b) If such termination is by the Holder, then, unless otherwise
agreed to by the Corporation, any and all Awards held by that Holder,
whether or not then exercisable and whether or not restrictions thereon
have lapsed (except in full), shall become null and void as of the date
of the termination.
10.2 OTHER LOSS OF ELIGIBILITY. If a Holder is an Eligible Individual
because the Holder is serving in a capacity other than as an Employee and if
that capacity is terminated for any reason other than the
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Holder's death, then that portion, if any, of any and all Awards held by the
Holder that were granted because of that capacity which are not yet exercisable
(or for which restrictions have not lapsed) as of the date of the termination
shall become null and void as of the date of the termination; provided, however,
that the portion, if any, of any and all of the Awards held by the Holder that
are exercisable (or for which restrictions have lapsed) as of the date of the
termination shall survive the termination and shall be exercisable by such
Holder for a period of the lesser of (a) the remainder of the term of the Award
or (b) 90 days following the date of such termination.
10.3 DEATH. Upon the death of a Holder, then any and all Awards held by
the Holder, including those portions of the Awards that pursuant to the terms
and provisions of the applicable Award Agreement had not yet become exercisable,
shall immediately become fully vested and exercisable in full by the Holder, his
guardians or his legal representatives, legatees or distributees for a period of
the lesser of (a) the remainder of the term of the Award or (b) one year
following the date of the Holder's death. Any portion of an Award not exercised
upon the expiration of the periods specified in (a) or (b) shall be null and
void. Except as expressly provided in this Paragraph 10.3, all Awards held by a
Holder shall not be exercisable after the death of that Holder.
10.4 RETIREMENT. If a Holder is an Eligible Individual because the
Holder is an Employee and if that employment relationship is terminated by
reason of the Holder's Retirement, then the portion, if any, of any and all
Awards held by the Holder that are not yet exercisable (or for which
restrictions have not lapsed) as of the date of that retirement shall become
null and void as of the date of retirement; provided, however, that the portion,
if any, of any and all Awards held by the Holder that are exercisable as of the
date of that Retirement shall survive the Retirement and shall be exercisable by
such Holder for a period of the lesser of (a) the remainder of the terms of the
Award or (b) ninety days following the date of retirement.
10.5 DISABILITY. If a Holder is an Eligible Individual because the
Holder is an Employee and if that employment relationship is terminated by
reason of the Holder's Disability, then any and all Awards held by the Holder,
including those portions of the Awards that pursuant to the terms and provisions
of the applicable Award Agreement had not yet become exercisable (or for which
restrictions had not lapsed), shall immediately become fully vested and
exercisable in full by the Holder, his guardians or his legal representatives
for a period of the lesser of (a) the remainder of the term of the Award or (b)
one year following the date on which the Holder's employment is terminated due
to such Holder's Disability. "Disability" shall have the meaning given it in
the employment agreement of the Holder; provided, however, that if that Holder
has no employment agreement, "Disability" shall mean a physical or mental
impairment of sufficient severity that, in the opinion of the Corporation,
either the Holder is unable to continue performing the duties he performed
before such impairment or the Holder's condition entitles him to disability
benefits under any insurance or employee benefit plan of the Corporation or its
Subsidiaries and that impairment or condition is cited by the Corporation as the
reason for termination of the Holder's employment.
10.6 LEAVE OF ABSENCE. With respect to an Award, the Committee may, in
its sole discretion, determine that any Holder who is on leave of absence for
any reason will be considered to still be in the employ of the Corporation,
provided that rights to that Award during a leave of absence will be limited to
the extent to which those rights were earned or vested when the leave of absence
began.
10.7 TRANSFERABILITY OF AWARDS. In addition to such other terms and
conditions as may be included in a particular Award Agreement, an Award
requiring exercise shall be exercisable during a Holder's lifetime only by that
Holder or by that Holder's guardian or legal representative. An Award requiring
exercise shall
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not be transferrable other than by will or the laws of descent and distribution,
except as permitted in accordance with Paragraph 3.5.
10.8 FORFEITURE AND RESTRICTIONS ON TRANSFER. Each Award Agreement may
contain or otherwise provide for conditions giving rise to the forfeiture of the
Stock acquired pursuant to an Award or otherwise and may also provide for those
restrictions on the transferability of shares of the Stock acquired pursuant to
an Award or otherwise that the Committee in its sole and absolute discretion may
deem proper or advisable. The conditions giving rise to forfeiture may include,
but need not be limited to, the requirement that the Holder render substantial
services to the Corporation or its Subsidiaries for a specified period of time.
The restrictions on transferability may include, but need not be limited to,
options and rights of first refusal in favor of the Corporation and stockholders
of the Corporation other than the Holder of such shares of Stock who is a party
to the particular Award Agreement or a subsequent holder of the shares of Stock
who is bound by that Award Agreement.
10.9 DELIVERY OF CERTIFICATES OF STOCK. Subject to Paragraph 10.10, the
Corporation shall promptly issue and deliver a certificate representing the
number of shares of Stock as to which (a) an Option has been exercised after the
Corporation receives an Exercise Notice and upon receipt by the Corporation of
the Exercise Price and any tax withholding as may be requested; (b) a Stock
Appreciation Right has been exercised and upon receipt by the Corporation of any
tax withholding as may be requested; (c) restrictions have lapsed with respect
to a Restricted Stock Award and upon receipt by the Corporation of any tax
withholding as may be requested; and (d) performance objectives have been
achieved during a Performance Period relating to a Performance Unit for Stock.
The value of the shares of Stock, cash or notes transferable because of an Award
under the Plan shall not bear any interest owing to the passage of time, except
as may be otherwise provided in an Award Agreement. If a Holder is entitled to
receive certificates representing Stock received for more than one form of Award
under the Plan, separate Stock certificates shall be issued with respect to each
such Award and for Incentive Options and Nonstatutory Stock Options separately.
10.10 CONDITIONS TO DELIVERY OF STOCK. Nothing herein or in any Award
granted hereunder or any Award Agreement shall require the Corporation to issue
any shares with respect to any Award if that issuance would, in the opinion of
counsel for the Corporation, constitute a violation of the Securities Act or any
similar or superseding statute or statutes, any other applicable statute or
regulation, or the rules of any applicable securities exchange or securities
association, as then in effect. At the time of any exercise of an Option or
Stock Appreciation Right, or at the time of any grant of a Restricted Stock
Award or Performance Unit, the Corporation may, as a condition precedent to the
exercise of such Option or Stock Appreciation Right or vesting of any Restricted
Stock Award or Performance Unit, require from the Holder of the Award (or in the
event of his death, his legal representatives, heirs, legatees, or distributees)
such written representations, if any, concerning the Holder's intentions with
regard to the retention or disposition of the shares of Stock being acquired
pursuant to the Award and such written covenants and agreements, if any, as to
the manner of disposal of such shares as, in the opinion of counsel to the
Corporation, may be necessary to ensure that any disposition by that Holder (or
in the event of the Holder's death, his legal representatives, heirs, legatees,
or distributees) will not involve a violation of the Securities Act or any
similar or superseding statute or statutes, any other applicable state or
federal statute or regulation, or any rule of any applicable securities exchange
or securities association, as then in effect.
10.11 CERTAIN DIRECTORS AND OFFICERS. With respect to Awards granted to
Holders who are directors or officers of the Corporation or any Subsidiary and
who are subject to Section 16(b) of the Exchange Act, Awards shall contain such
other terms and conditions as may be required by Rule 16b-3 unless the majority
of the Board of Directors or the Holder has determined not to have the Award
comply with Rule 16b-3.
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10.12 SECURITIES ACT LEGEND. Certificates for shares of Stock, when
issued, may have the following legend, or statements of other applicable
restrictions endorsed thereon and may not be immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED,
TRANSFERRED, OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF
PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE
DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE,
TRANSFER, OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL
OR STATE LAWS.
This legend shall not be required for shares of Stock issued pursuant to an
effective registration statement under the Securities Act.
10.13 LEGEND FOR RESTRICTIONS ON TRANSFER. Each certificate representing
shares issued to a Holder pursuant to an Award granted under the Plan shall, if
such shares are subject to any transfer restriction, including a right of first
refusal, provided for under this Plan or an Award Agreement, bear a legend that
complies with applicable law with respect to the restrictions on transferability
contained in this Paragraph 10.13, such as:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY IMPOSED BY THAT CERTAIN INSTRUMENT
ENTITLED "TRAMMELL CROW COMPANY LONG-TERM INCENTIVE PLAN" AS
ADOPTED BY TRAMMELL CROW COMPANY (THE "CORPORATION") ON AUGUST 22,
1997, AND AN AGREEMENT THEREUNDER BETWEEN THE CORPORATION AND
[HOLDER] DATED ______________________, ____, AND MAY NOT BE
TRANSFERRED, SOLD, OR OTHERWISE DISPOSED OF EXCEPT AS THEREIN
PROVIDED. THE CORPORATION WILL FURNISH A COPY OF SUCH INSTRUMENT
AND AGREEMENT TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE ON REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS OR REGISTERED OFFICE.
10.14 RIGHTS AS A STOCKHOLDER. A Holder shall have no right as a
stockholder with respect to any shares covered by his Award until a certificate
representing those shares is issued in his name. No adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash or other property) or
distributions or other rights for which the record date is before the date that
certificate is issued, except as contemplated by Section 9. Nevertheless,
dividends and dividend equivalent rights may be extended to and made part of any
Award denominated in Stock or units of Stock, subject to such terms, conditions,
and restrictions as the Committee may establish. The Committee may also
establish rules and procedures for the crediting of interest on deferred cash
payments and dividend equivalents for deferred payment denominated in Stock or
units of Stock.
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10.15 FURNISH INFORMATION. Each Holder shall furnish to the Corporation
all information requested by the Corporation to enable it to comply with any
reporting or other requirement imposed upon the Corporation by or under any
applicable statute or regulation.
10.16 OBLIGATION TO EXERCISE. The granting of an Award hereunder shall
impose no obligation upon the Holder to exercise the same or any part thereof.
10.17 ADJUSTMENTS TO AWARDS. Subject to the general limitations set
forth in Sections 5, 6 and 9, the Committee may make any adjustment in the
exercise price of, the number of shares subject to or the terms of a
Nonstatutory Option or Stock Appreciation Right by canceling an outstanding
Nonstatutory Option or Stock Appreciation Right and regranting a Nonstatutory
Option or Stock Appreciation Right. Such adjustment shall be made by amending,
substituting or regranting an outstanding Nonstatutory Option or Stock
Appreciation Right. Such amendment, substitution or regrant may result in terms
and conditions that differ from the terms and conditions of the original
Nonstatutory Option or Stock Appreciation Right. The Committee may not,
however, impair the rights of any Holder to previously granted Nonstatutory
Options or Stock Appreciation Rights without that Holder's consent. If such
action is effected by amendment, the effective date of such amendment shall be
the date of the original grant.
10.18 REMEDIES. The Corporation shall be entitled to recover from a
Holder reasonable attorneys' fees incurred in connection with the enforcement of
the terms and provisions of the Plan and any Award Agreement whether by an
action to enforce specific performance or for damages for its breach or
otherwise.
10.19 INFORMATION CONFIDENTIAL. As partial consideration for the
granting of each Award hereunder, the Holder shall agree with the Corporation
that he will keep confidential all information and knowledge that he has
relating to the manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Holder's spouse, tax and financial advisors, or to a
financial institution to the extent that such information is necessary to secure
a loan. In the event any breach of this promise comes to the attention of the
Committee, it shall take into consideration that breach in determining whether
to recommend the grant of any future Award to that Holder, as a factor
militating against the advisability of granting any such future Award to that
individual.
10.20 CONSIDERATION. No Option or Stock Appreciation Right shall be
exercisable, no restriction on any Restricted Stock Award shall lapse, and no
Performance Unit shall be settled in Stock with respect to a Holder unless and
until the Holder shall have paid cash or property to, or performed services for,
the Corporation or any of its Subsidiaries that the Committee believes is equal
to or greater in value then the par value of the Stock subject to such Award.
10.21 PAYMENT OF TAXES. The Committee may, in its discretion, require a
Holder to pay to the Corporation (or the Corporation's Subsidiary if the Holder
is an employee of a Subsidiary of the Corporation), at the time of the exercise
of an Award, the amount that the Committee deems necessary to satisfy the
Corporation's or its Subsidiary's current or future obligation to withhold
federal, state or local income or other taxes that the Holder incurs by
exercising an Award. Upon the exercise of an Award requiring tax withholding, a
Holder may (a) direct the Corporation to withhold from the shares of Stock to be
issued to the Holder the number of shares necessary to satisfy the Corporation's
obligation to withhold taxes, that determination to be based on the shares' Fair
Market Value as of the date of exercise; (b) deliver to the Corporation
sufficient shares of Stock (based upon the Fair Market Value at date of
exercise) to satisfy the Corporation's tax withholding obligations, based on the
shares' Fair Market Value as of the date of exercise; or (c) deliver sufficient
cash to the Corporation to satisfy its tax withholding obligations. Holders
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who elect to use such a stock withholding feature must make the election at the
time and in the manner that the Committee prescribes. The Committee may, at its
sole option, deny any Holder's request to satisfy withholding obligations
through Stock instead of cash. In the event the Committee subsequently
determines that the aggregate Fair Market Value (as determined above) of any
shares of Stock withheld as payment of any tax withholding obligation is
insufficient to discharge that tax withholding obligation, then the Holder shall
pay to the Corporation, immediately upon the Committee's request, the amount of
that deficiency.
SECTION 11. DURATION AND AMENDMENT OF PLAN
11.1 DURATION. No Awards may be granted hereunder after the date that
is ten (10) years from the date the last amendment to this Plan involving an
increase in authorized shares is approved by the stockholders of the
Corporation.
11.2 AMENDMENT. The Board of Directors may, insofar as permitted by
law, with respect to any shares which, at the time, are not subject to Awards,
suspend or discontinue the Plan or revise or amend it in any respect whatsoever,
and may amend any provision of the Plan or any Award Agreement to make the Plan
or the Award Agreement, or both, comply with Section 16(b) of the Exchange Act
and the exemptions therefrom, the Code, the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the regulations promulgated under the Code or
ERISA, or any other law, rule or regulation that may affect the Plan. The Board
of Directors may also amend, modify, suspend or terminate the Plan for the
purpose of meeting or addressing any changes in other legal requirements
applicable to the Corporation or the Plan or for any other purpose permitted by
law. The Plan may not be amended without the consent of the holders of a
majority of the shares of Stock then outstanding to increase materially the
aggregate number of shares of Stock that may be issued under the Plan (except
for adjustments pursuant to Section 9 of the Plan).
SECTION 12. GENERAL
12.1 APPLICATION OF FUNDS. The proceeds received by the Corporation
from the sale of shares pursuant to Awards shall be used for general corporate
purposes.
12.2 RIGHT OF THE CORPORATION AND SUBSIDIARIES TO TERMINATE EMPLOYMENT.
Nothing contained in the Plan or in any Award Agreement shall confer upon any
Holder the right to continue in the employ of the Corporation or any Subsidiary,
or interfere in any way with the rights of the Corporation or any Subsidiary to
terminate his or her employment at any time.
12.3 NO LIABILITY FOR GOOD FAITH DETERMINATIONS. Neither the members of
the Board of Directors nor any member of the Committee shall be liable for any
act, omission or determination taken or made in good faith with respect to the
Plan or any Award granted under it, and members of the Board of Directors and
the Committee shall be entitled to indemnification and reimbursement by the
Corporation in respect of any claim, loss, damage or expense (including
attorneys' fees, the costs of settling any suit, provided such settlement is
approved by independent legal counsel selected by the Corporation, and amounts
paid in satisfaction of a judgment, except a judgment based on a finding of bad
faith) arising therefrom to the full extent permitted by law and under any
directors and officers liability or similar insurance coverage that may from
time to time be in effect. This right to indemnification shall be in addition
to, and not a limitation on, any other indemnification rights any member of the
Board of Directors or the Committee may have.
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12.4 OTHER BENEFITS. Participation in the Plan shall not preclude the
Holder from eligibility in any other stock or stock option plan of the
Corporation or any Subsidiary or any old age benefit, insurance, pension, profit
sharing, retirement, bonus or other extra compensation plans that the
Corporation or any Subsidiary has adopted or may, at any time, adopt for the
benefit of its Employees. Neither the adoption of the Plan by the Board of
Directors nor the submission of the Plan to the stockholders of the Corporation
for approval shall be construed as creating any limitations on the power of the
Board of Directors to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of stock options and the
awarding of stock and cash otherwise than under the Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
12.5 EXCLUSION FROM PENSION AND PROFIT-SHARING COMPENSATION. By
acceptance of an Award (whether in Stock or cash), as applicable, each Holder
shall be deemed to have agreed that the Award is special incentive compensation
that will not be taken into account in any manner as salary, compensation or
bonus in determining the amount of any payment under any pension, retirement or
other employee benefit plan of the Corporation or any Subsidiary. In addition,
each beneficiary of a deceased Holder shall be deemed to have agreed that the
Award will not affect the amount of any life insurance coverage, if any,
provided by the Corporation or a Subsidiary on the life of the Holder that is
payable to the beneficiary under any life insurance plan covering employees of
the Corporation or any Subsidiary.
12.6 EXECUTION OF RECEIPTS AND RELEASES. Any payment of cash or any
issuance or transfer of shares of Stock or other property to the Holder, or to
his legal representative, heir, legatee or distributee, in accordance with the
provisions hereof, shall, to the extent thereof, be in full satisfaction of all
claims of such persons hereunder. The Committee may require any Holder, legal
representative, heir, legatee or distributee, as a condition precedent to such
payment, to execute a release and receipt therefor in such form as it shall
determine.
12.7 UNFUNDED PLAN. Insofar as it provides for Awards of cash and
Stock, the Plan shall be unfunded. Although bookkeeping accounts may be
established with respect to Holders who are entitled to cash, Stock, other
property or rights thereto under the Plan, any such accounts shall be used
merely as a bookkeeping convenience. The Corporation shall not be required to
segregate any assets that may at any time be represented by cash, Stock, other
property or rights thereto, nor shall the Plan be construed as providing for
such segregation, nor shall the Corporation nor the Board of Directors nor the
Committee be deemed to be a trustee of any cash, Stock, other property or
rights thereto to be granted under the Plan. Any liability of the Corporation
to any Holder with respect to a grant of cash, Stock, other property or rights
thereto under the Plan shall be based solely upon any contractual obligations
that may be created by the Plan and any Award Agreement; no such obligation of
the Corporation shall be deemed to be secured by any pledge or other encumbrance
on any property of the Corporation. Neither the Corporation nor the Board of
Directors nor the Committee shall be required to give any security or bond for
the performance of any obligation that may be created by the Plan.
12.8 NO GUARANTEE OF INTERESTS. The Board of Directors, the Committee
and the Corporation do not guarantee the Stock of the Corporation from loss or
depreciation.
12.9 PAYMENT OF EXPENSES. All expenses incident to the administration,
termination or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Corporation or its Subsidiaries; provided,
however, the Corporation or a Subsidiary may recover any and all damages, fees,
expenses and costs arising out of any actions taken by the Corporation to
enforce its right to purchase Stock under this Plan.
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12.10 CORPORATION RECORDS. Records of the Corporation or its
Subsidiaries regarding the Holder's period of employment, termination of
employment and the reason therefor, leaves of absence, re-employment, and other
matters shall be conclusive for all purposes hereunder, unless determined by the
Committee to be incorrect.
12.11 INFORMATION. The Corporation and its Subsidiaries shall, upon
request or as may be specifically required hereunder, furnish or cause to be
furnished, all of the information or documentation which is necessary or
required by the Committee to perform its duties and functions under the Plan.
12.12 CORPORATION ACTION. Any action required of the Corporation shall
be by resolution of its Board of Directors or by a person authorized to act by
resolution of the Board of Directors.
12.13 SEVERABILITY. If any provision of this Plan is held to be illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions hereof, but such provision shall be fully severable and the
Plan shall be construed and enforced as if the illegal or invalid provision had
never been included herein. If any of the terms or provisions of this Plan
conflict with the requirements of Rule 16b-3 (as those terms or provisions are
applied to Eligible Individuals who are subject to Section 16(b) of the Exchange
Act) or Section 422 of the Code (with respect to Incentive Options), then those
conflicting terms or provisions shall be deemed inoperative to the extent they
so conflict with the requirements of Rule 16b-3 or Section 422 of the Code
unless the Committee has determined that the Plan should not comply with such
requirements. With respect to Incentive Options, if this Plan does not contain
any provision required to be included herein under Section 422 of the Code, that
provision shall be deemed to be incorporated herein with the same force and
effect as if that provision had been set out at length herein; provided,
further, that, to the extent any Option that is intended to qualify as an
Incentive Option cannot so qualify, that Option (to that extent) shall be deemed
a Nonstatutory Option for all purposes of the Plan.
12.14 NOTICES. Whenever any notice is required or permitted hereunder
other than any Exercise Notice or notice to exercise an Stock Appreciation
Right, such notice must be in writing and personally delivered or sent by mail.
Any such notice required or permitted to be delivered hereunder shall be deemed
to be delivered on the date on which it is personally delivered, or, whether
actually received or not, on the third Business Day after it is deposited in the
United States mail, certified or registered, postage prepaid, addressed to the
person who is to receive it at the address which such person has theretofore
specified by written notice delivered in accordance herewith. The Corporation or
a Holder may change, at any time and from time to time, by written notice to the
other, the address which it or he had previously specified for receiving
notices. Until changed in accordance herewith, the Corporation and each Holder
shall specify as its and his address for receiving notices the address set forth
in the Award Agreement pertaining to the shares to which such notice relates.
Any Exercise Notice or notice to exercise a Stock Appreciation Right shall be
valid only when it is in fact received by the Corporation or the Person it
designates in accordance with procedures that the Committee may adopt from time
to time.
12.15 WAIVER OF NOTICE. Any person entitled to notice hereunder may
waive such notice.
12.16 SUCCESSORS. The Plan shall be binding upon the Holder, his legal
representatives, heirs, legatees and distributees, upon the Corporation, its
successors and assigns, and upon the Committee and its successors.
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12.17 HEADINGS. The titles and headings of Sections and Paragraphs are
included for convenience of reference only and are not to be considered in
construction of the provisions hereof.
12.18 GOVERNING LAW. All questions arising with respect to the
provisions of the Plan shall be determined by application of the laws of the
State of Delaware except to the extent Delaware law is preempted by federal law.
Questions arising with respect to the provisions of an Award Agreement that are
matters of contract law shall be governed by the laws of the state specified in
the Award Agreement, except to the extent Delaware corporate law conflicts with
the contract law of such state, in which event Delaware corporate law shall
govern. The obligation of the Corporation to sell and deliver Stock hereunder
is subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of
such Stock.
12.19 WORD USAGE. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Plan dictates, the
plural shall be read as the singular and the singular as the plural.
IN WITNESS WHEREOF, Trammell Crow Company, acting by and through its
officer hereunto duly authorized, has executed this Trammell Crow Company
Long-Term Incentive Plan this 22nd day of August, 1997.
TRAMMELL CROW COMPANY
By: /s/ George L. Lippe
---------------------------------------------
Name: George L. Lippe
Title: President and Chief Executive Officer
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Exhibit 5.1
[LETTERHEAD OF VINSON & ELKINS L.L.P.]
April 21, 1998
Trammell Crow Company
3400 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as counsel for Trammell Crow Company, a Delaware corporation
(the "Company"), in connection with the Company's registration under the
Securities Act of 1933, as amended (the "Act"), of 5,334,878 shares of common
stock, par value $0.01 per share (the "Shares"), of the Company pursuant to the
Company's Registration Statement on Form S-8 (the "Registration Statement")
filed with the Securities and Exchange Commission (the "Commission") on April
21, 1998.
In reaching the opinions set forth herein, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of such documents and records of the Company and such statutes,
regulations and other instruments as we deemed necessary or advisable for
purposes of this opinion, including (i) the Registration Statement, (ii) the
Certificate of Incorporation of the Company, as filed with the Secretary of
State of the State of Delaware, (iii) the Bylaws of the Company, and (iv)
certain minutes of meetings of, and resolutions adopted by, the Board of
Directors of the Company.
We have assumed that (i) all information contained in all documents we
reviewed is true, correct and complete, (ii) all signatures on all documents we
reviewed are genuine, (iii) all documents submitted to us as originals are true
and complete, (iv) all documents submitted to us as copies are true and complete
copies of the originals thereof, and (v) all persons executing and delivering
the documents we examined were competent to execute and deliver such documents.
In addition, we have assumed that (i) the Shares will be issued in accordance
with the Trammell Crow Company Long-Term Incentive Plan (the "Plan"), (ii) the
full consideration for each Share shall be paid to the Company and in no event
will be less than the par value for each Share, and (iii) certificates
evidencing the Shares will be properly executed and delivered by the Company in
accordance with the Delaware General Corporation Law (the "DGCL").
<PAGE>
Trammell Crow Company
April 21, 1998
Page 2
Based on the foregoing, and having due regard for the legal considerations
we deem relevant, we are of the opinion that the Shares, when issued by the
Company in accordance with the Plan, will be legally issued, fully paid and
non-assessable.
This opinion is limited in all respects to the laws of the State of Texas,
the DGCL and the federal laws of the United States of America. You should be
aware that we are not admitted to the practice of law in the State of Delaware.
This opinion letter may be filed as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm in the Registration Statement on
Form S-8 pertaining to the Long-Term Incentive Plan of Trammell Crow Company and
to the incorporation by reference therein of our report dated March 4, 1998,
with respect to the consolidated financial statements of Trammell Crow Company
and Subsidiaries included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
April 14, 1998
