<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
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Registration No. 333-__________
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
EMPLOYEE STOCK PURCHASE 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
Title of securities Amount to be Proposed maximum maximum aggregate Amount of
to be registered registered offering price per unit* offering price* registration fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value per share . . . . . . . . . . 1,000,000 shares $26.1875 $26,187,500 $7,726
- ---------------------------------------------------------------------------------------------------------------------------------
</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 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
2
<PAGE>
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 Stock Purchase 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
(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;
3
<PAGE>
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.
4
<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
- -------------------------------
J. McDonald Williams
/s/ James D. Carreker Director April 20, 1998
- -------------------------------
James D. Carreker
/s/ William F. Concannon Director April 20, 1998
- -------------------------------
William F. Concannon
S-1
<PAGE>
/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 Stock Purchase 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
TRAMMELL CROW COMPANY
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the TRAMMELL CROW COMPANY Employee Stock
Purchase Plan (the "Plan") is to provide eligible employees with an incentive to
advance the interests of TRAMMELL CROW COMPANY (the "Company") by affording an
opportunity to purchase stock of the Company at a favorable price.
2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Benefits Committee of the Company (the "Committee") as appointed by the Board of
Directors of the Company (the "Board"). Subject to the provisions of the Plan,
the Committee shall interpret and construe the Plan and all options granted
under the Plan, shall make such rules as it deems necessary for the proper
administration of the Plan, shall make all other determinations necessary or
advisable for the administration of the Plan, including the determination of
eligibility to participate in the Plan and the amount of a participant's option
under the Plan, and shall correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any option granted under the Plan in the
manner and to the extent that the Committee deems desirable to carry the Plan or
any option into effect. The Committee shall, in its sole discretion exercised in
good faith, make such decisions or determinations and take such actions as it
deems appropriate, and all such decisions, determinations and actions taken or
made by the Committee pursuant to this and the other paragraphs of the Plan
shall be conclusive on all parties. The Committee shall not be liable for any
decision, determination or action taken in good faith in connection with the
administration of the Plan. The Committee may approve the use of a voice
response system through which Eligible Employees and the Committee may act under
the Plan, as an alternative to written forms, notices and elections.
3. PARTICIPATING COMPANIES. Each present and future parent or subsidiary
corporation of the Company (within the meaning of Sections 424(e) and (f) of the
Internal Revenue Code of 1986, as amended (the "Code")) that is eligible by law
to participate in the Plan shall be a "Participating Company" during the period
that such corporation is such a parent or subsidiary corporation; provided,
however, that the Committee may at any time and from time to time, in its sole
discretion, terminate a Participating Company's Plan participation. Any
Participating Company may, by appropriate action of its Board of Directors,
terminate its participation in the Plan. Transfer of employment among the
Company and Participating Companies (and among any other parent or subsidiary
corporation of the Company) shall not be considered a termination of employment
hereunder.
4. ELIGIBILITY. All employees of the Company and the Participating
Companies who have been continually employed by the Company or any Participating
Company (including any predecessor entity) for at least ninety (90) days
(including any authorized leave of absence meeting the requirements of Treasury
Regulation Section 1.421-7(h)(2)) as of the applicable date of grant (defined
below) and who are customarily employed at least 20 hours per week and at least
5 months per year
<PAGE>
shall be eligible to participate in the Plan; provided, however, that no option
shall be granted to an employee if such employee, immediately after the option
is granted, owns stock possessing five percent or more of the total combined
voting power or value of all classes of stock of the Company or of its parent or
subsidiary corporation (within the meaning of Sections 423(b)(3) and 424(d) of
the Code) ("Eligible Employee"). For the initial offering period commencing
March 1, 1998, an employee need not have been employed for ninety (90) days to
be eligible to participate, provided the employee meets the other eligibility
requirements and was employed by January 31, 1998.
5. STOCK SUBJECT TO THE PLAN. Subject to the provisions of paragraph 12
(relating to adjustment upon changes in stock), the aggregate number of shares
which may be sold pursuant to options granted under the Plan shall not exceed
one million (1,000,000) shares of the authorized $.01 par value common stock of
the Company ("Stock"), which shares may be unissued shares or reacquired shares
or shares bought on the market for purposes of the Plan. Should any option
granted under the Plan expire or terminate prior to its exercise in full, the
shares theretofore subject to such option may again be subject to an option
granted under the Plan. Any shares which are not subject to outstanding options
upon the termination of the Plan shall cease to be subject to the Plan.
6. GRANT OF OPTIONS. (a) GENERAL STATEMENT; "DATE OF GRANT"; "OPTION
PERIOD"; "DATE OF EXERCISE". Upon the effective date of the Plan and continuing
while the Plan remains in force, the Company shall offer options under the Plan
to all Eligible Employees to purchase shares of Stock. Except as otherwise
determined by the Committee, these options shall be granted on the first day of
the first payroll period beginning on or after March 1, 1998 and July 1, 1998,
and, thereafter, on the first day of the first payroll period beginning on or
after the first day of January and July of each subsequent year (each of which
dates is herein referred to as a "date of grant"). The term of each option
granted on the first day of the first payroll period beginning on or after March
1, 1998 shall be for a period of approximately four (4) months, ending on the
last day of the last payroll period ending on or immediately after June 30, 1998
and the term of each option granted thereafter shall be for a period of
approximately six (6) months, ending on the last day of the last payroll period
ending on or immediately after June 30 or December 31, as the case may be (each
such four (4)-month and six (6)-month period is herein referred to as an "option
period"), which shall begin on a date of grant. The last day of each option
period is herein referred to as a "date of exercise." The number of shares
subject to each option shall be the quotient of the sum of the payroll
deductions withheld on behalf of each participant in accordance with
subparagraph 6(b) and the payments made by such participant pursuant to
subparagraph 6(f) during the option period and any amount carried forward from
the preceding option period pursuant to subparagraph 7(a), divided by the
"option price" (defined in subparagraph 7(b)) of the Stock, excluding all
fractions; provided, however, that the maximum number of shares that may be
subject to any option may not exceed seven hundred (700) (subject to adjustment
as provided in paragraph 12).
(b) ELECTION TO PARTICIPATE; DEDUCTION AUTHORIZATION. Except as
provided in subparagraph 6(f), an Eligible Employee may participate in the Plan
only by means of payroll deduction. Except as provided in subparagraph 6(g),
each Eligible Employee who elects to participate in the Plan shall deliver to
the Company, within the time period prescribed by the Committee, a written
payroll deduction authorization on a form prepared by the Committee whereby
-2-
<PAGE>
he gives notice of his election to participate in the Plan as of the next
following date of grant, and whereby he designates an integral percentage or
specific amount (as determined by the Committee) of his "eligible compensation"
(as defined in subparagraph 6(d)) to be deducted from his compensation for each
pay period and credited to a book entry account established in his name. The
designated percentage or specific amount may not result in a deduction during
any payroll period of an amount less than $20.00. The designated percentage or
specific amount may not exceed either of the following: (i) 10% of the amount of
eligible compensation from which the deduction is made; or (ii) an amount which
will result in noncompliance with the limitations stated in subparagraphs 6(a)
or 6(e).
(c) CHANGES IN PAYROLL AUTHORIZATION. Except as provided in
subparagraph 8(a), the payroll deduction authorization referred to in
subparagraph 6(b) may not be changed during the option period.
(d) "ELIGIBLE COMPENSATION" DEFINED. The term "eligible
compensation" means the gross (before taxes are withheld) total of all wages,
salaries, commissions, overtime and bonuses received during the option period,
except that such term shall include elective contributions made on an employee's
behalf by the Company or a Participating Company that are not includable in
income under Section 125 or Section 402(e)(3) of the Code. Notwithstanding the
foregoing, "eligible compensation" shall not include (i) employer contributions
to or payments from any deferred compensation program, whether such program is
qualified under Section 401(a) of the Code (other than amounts considered as
employer contributions under Section 402(e)(3) of the Code) or nonqualified,
(ii) amounts realized from the receipt or exercise of a stock option that is not
an incentive stock option within the meaning of Section 422 of the Code, (iii)
amounts realized at the time property described in Section 83 of the Code is
freely transferable or no longer subject to a substantial risk of forfeiture,
(iv) amounts realized as a result of an election described in Section 83(b) of
the Code, and (v) any amount realized as a result of a disqualifying disposition
within the meaning of Section 421(b) of the Code.
(e) $25,000 LIMITATION. No Eligible Employee shall be granted an
option under the Plan to the extent such grant would permit his rights to
purchase Stock under the Plan and under all other employee stock purchase plans
of the Company and its parent and subsidiary corporations (as such terms are
defined in Section 424(e) and (f) of the Code) to accrue at a rate which exceeds
$25,000 of Fair Market Value of Stock (determined at the time the option is
granted) for each calendar year in which any such option granted to such
employee is outstanding at any time (within the meaning of Section 423(b)(8) of
the Code).
(f) LEAVES OF ABSENCE. During a paid leave of absence approved by
the Company and meeting the requirements of Treasury Regulation Section
1.421-7(h)(2), a participant's elected payroll deductions shall continue. If a
participant takes an unpaid leave of absence, then such participant may not make
additional contributions under the Plan while on unpaid leave of absence, and
the participant's payroll deductions for the applicable option period shall
remain subject to the Plan and used to exercise options on the next following
date of exercise.
-3-
<PAGE>
(g) CONTINUING ELECTION. A participant (i) who has elected to
participate in the Plan pursuant to subparagraph 6(b) as of a date of grant and
(ii) who takes no action to change or revoke such election as of the next
following date of grant and/or as of any subsequent date of grant prior to any
such respective date of grant, shall be deemed to have made the same election,
including the same attendant payroll deduction authorization, for such next
following and/or subsequent date(s) of grant as was in effect for the date of
grant for which he made such election to participate. A participant who wants
to discontinue participation in the Plan for a subsequent option period shall
deliver to the Company a notice of withdrawal, on a form prepared by the
Committee, at least thirty (30) days prior to the beginning of the option
period.
7. EXERCISE OF OPTIONS. (a) GENERAL STATEMENT. Each Eligible Employee
who is a participant in the Plan, automatically and without any act on his part,
shall be deemed to have exercised his option on each date of exercise to the
extent that the cash balance then in his account under the Plan is sufficient to
purchase at the "option price" (as defined in subparagraph 7(b)) whole shares of
Stock. Any balance remaining in his account after payment of the purchase price
of those whole shares shall be carried forward and used towards the purchase of
whole shares in the next following option period.
(b) "OPTION PRICE" DEFINED. The option price per share of Stock to be
paid by each optionee on each exercise of his option shall be an amount equal to
the lesser of 85% of the Fair Market Value of the Stock on the date of exercise
or on the date of grant. For all purposes under the Plan, the "fair market
value" of a share of Stock means, for a particular day:
(i) 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 that business day 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, if no such closing
prices are available for that day, 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
(ii) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in subparagraph (i) and
if sales prices for shares of Stock of the same class in the
over-the-counter market are reported by the National Association of
Securities Dealers, Inc. Automated Quotations, Inc. ("NASDAQ") National
Market System at the date of determining the Fair Market Value, then the
last reported sales price so reported on that business day or, if no such
sale takes place on that business day, the average of the high bid and low
asked prices so reported or, if no such prices are available for that day,
the last reported sale price so reported on the last business day before
the date in question; or
(iii) If shares of Stock of the same class are not listed or
admitted to
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<PAGE>
unlisted trading privileges as provided in subparagraph (i) 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 (ii), 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 that business day or, if no such prices are available
for that day, the average of the high bid and low asked prices on the last
business day before the date in question; or
(iv) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in subparagraph (i) and
sales prices or bid and asked prices therefor are not reported by NASDAQ
(or the National Quotation Bureau Incorporated) as provided in subparagraph
(ii) or subparagraph (iii) 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
(v) If shares of Stock of the same class are listed or
admitted to unlisted trading privileges as provided in subparagraph (i) or
sales prices or bid and asked prices therefor are reported by NASDAQ (or
the National Quotation Bureau Incorporated) as provided in subparagraph
(ii) or subparagraph (iii) 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 (i), (ii) or (iii).
(c) DELIVERY OF SHARE CERTIFICATES. As soon as practicable after
each date of exercise, the Company shall issue one or more certificates
representing the total number of whole shares of Stock respecting exercised
options in the aggregate of all of the Eligible Employees hereunder. Any such
certificate shall be held by the Company (or its agent) and may be held in
street name. If the Company issues a certificate representing the shares of more
than one Eligible Employee, the Company shall keep accurate records of the
beneficial interests of each Eligible Employee in each such certificate by means
of a Company stock account. Each Eligible Employee shall be provided with such
periodic statements as may be directed by the Committee reflecting all activity
in any such Company stock account. In the event the Company is required to
obtain from any commission or agency authority to issue any such certificate,
the Company shall seek to obtain such authority. Inability of the Company to
obtain from any such commission or agency authority which counsel for the
Company deems necessary for the lawful issuance of any such certificate shall
relieve the Company from liability to any participant in the Plan except to
return to him the amount of the balance in his account. A participant may, on
the form prescribed by the Committee, request the Company to deliver to such
participant a certificate issued in his name representing all or a part of the
aggregate whole number of shares of Stock then held
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<PAGE>
by the Company on his behalf under the Plan. Further, upon the termination of
an participant's employment with the Company and its parent or subsidiary
corporations for any reason whatsoever, the Company shall deliver to such
employee a certificate issued in his name representing the aggregate whole
number of shares of Stock then held by the Company on his behalf under the Plan.
While shares of Stock are held by the Company (or its agent), such shares may
not be sold, assigned, pledged, exchanged, hypothecated or otherwise
transferred, encumbered or disposed of by the employee who has purchased such
shares; provided, however, that such restriction shall not apply to the transfer
of such shares of Stock pursuant to (i) a plan of reorganization of the Company,
but the stock, securities or other property received in exchange therefor shall
be held by the Company pursuant to the provisions hereof or (ii) a divorce. The
Committee may cause the Stock certificates issued in connection with the
exercise of options under the Plan to bear such legend or legends, and the
Committee may take such other actions, as it deems appropriate in order to
reflect the provisions of this subparagraph 7(c) and to assure compliance with
applicable securities laws. Neither the Company nor the Committee shall have
any liability with respect to a delay in the delivery of a Stock certificate
pursuant to this subparagraph 7(c).
8. WITHDRAWAL FROM THE PLAN. (a) GENERAL STATEMENT. Any participant may
withdraw in whole from the Plan at any time prior to thirty (30) days before the
exercise date relating to a particular option period. Partial withdrawals shall
not be permitted. A participant who wishes to withdraw from the Plan must timely
deliver to the Company a notice of withdrawal on a form prepared by the
Committee. The Company, promptly following the time when the notice of
withdrawal is delivered, shall refund to the participant the amount of the cash
balance in his account under the Plan; and thereupon, automatically and without
any further act on his part, his payroll deduction authorization and his
interest in unexercised options under the Plan shall terminate.
(b) ELIGIBILITY FOLLOWING WITHDRAWAL. A participant who withdraws
from the Plan shall not be eligible to participate in the Plan during the then
current option period, but shall be eligible to participate again in the Plan in
a subsequent option period (provided that he is otherwise eligible to
participate in the Plan at such time and complies with the enrollment
procedures).
9. TERMINATION OF EMPLOYMENT. If the employment of a participant
terminates for any reason whatsoever (including death), his participation in the
Plan automatically and without any act on his part shall terminate as of the
date of the termination of his employment. The Company shall refund to him the
amount of the cash balance in his account under the Plan, and thereupon his
interest in unexercised options under the Plan shall terminate.
10. RESTRICTION UPON ASSIGNMENT OF OPTION. An option granted under the
Plan shall not be transferable otherwise than by will or the laws of descent and
distribution. Each option shall be exercisable, during his lifetime, only by the
employee to whom granted. The Company shall not recognize and shall be under no
duty to recognize any assignment or purported assignment by an employee of his
option or of any rights under his option, and any such attempt may be treated by
the Company as an election to withdraw from the Plan.
11. NO RIGHTS OF STOCKHOLDER UNTIL CERTIFICATE ISSUES. With respect to
shares of Stock subject to an option, a participant shall not be deemed to be a
stockholder, and he shall not have any of the rights or privileges of a
stockholder. A participant shall have the rights and privileges of a stockholder
upon, but not until, a certificate for shares has been issued following exercise
of his
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option. With respect to a participant's Stock held by the Company (or its
agent) pursuant to subparagraph 7(c), the Company shall, as soon as practicable,
pay the participant any cash dividends attributable thereto and facilitate the
participant's voting rights attributable thereto.
12. CHANGES IN STOCK; ADJUSTMENTS. Whenever any change is made in the
Stock, by reason of a stock dividend or by reason of subdivision, stock split,
reverse stock split, recapitalization, reorganization, combinations,
reclassification of shares, or other similar change, appropriate action will be
taken by the Committee to adjust accordingly the number of shares subject to the
Plan, the maximum number of shares that may be subject to any option, and the
number and option price of shares subject to options outstanding under the Plan.
Upon the occurrence of a Change in Control, unless a surviving corporation
assumes or substitutes new options (within the meaning of Section 424(a) of the
Code) for all options then outstanding or the Committee elects to continue the
options then outstanding without change, the date of exercise for all options
then outstanding shall be accelerated to a date fixed by the Committee prior to
the effective date of such Change in Control.
"Change in Control" means the occurrence of any of the following events:
(i) The agreement to acquire or tender offer for beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934 ("Exchange Act") 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 50% or more of either (x) the then
outstanding shares of Common Stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election
of directors (the "Outstanding Company Voting Securities"); PROVIDED,
HOWEVER, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company 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 cease for any reason to constitute at least a majority of the
Incumbent Board, which shall be defined as the individuals who, as of the
Effective Date, constitute the Board and any other individual who becomes a
director of the Company after that date and whose election or appointment
by the Board or nomination for election by the Company'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; or
(iii) Consummation of a reorganization, merger or consolidation
or sale
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<PAGE>
or other disposition of all or substantially all of the assets of the
Company 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 Company Common Stock
and Outstanding Company 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
Company, or all or substantially all of the Company'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 Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding any
employee benefit plan (or related trust) of the Company 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 Company 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
(iv) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
13. USE OF FUNDS; NO INTEREST PAID. All funds received or held by the
Company under the Plan shall be included in the general funds of the Company
free of any trust or other restriction, and may be used for any corporate
purpose. No interest shall be paid to any participant or credited to his account
under the Plan.
14. TERM OF THE PLAN. The Plan shall be effective as of March 1, 1998,
provided the Plan is approved by the stockholders of the Company within 12
months of the date of adoption by the Board. Notwithstanding any provision in
the Plan, no option granted under the Plan shall be exercisable prior to such
stockholder approval, and, if the stockholders of the Company do not approve the
Plan within 12 months after its adoption by the Board, then the Plan shall
automatically terminate.
15. AMENDMENT OR TERMINATION THE PLAN. The Board in its discretion may
terminate the Plan at any time with respect to any shares for which options have
not theretofore been granted. The Committee shall have the right to alter or
amend the Plan or any part thereof from time to time without the approval of the
stockholders of the Company; provided, that no change in any option theretofore
granted may be made which would impair the rights of the participant without the
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<PAGE>
consent of such participant; and provided, further, that the Committee may not
make any alteration or amendment which would increase the aggregate number of
shares which may be issued pursuant to the provisions of the Plan (other than as
a result of the anti-dilution provisions of the Plan), change the class of
individuals eligible to receive options under the Plan, or cause options issued
under the Plan to fail to meet the requirements for employee stock purchase
plans as defined in Section 423 of the Code without the approval of the
stockholders of the Company.
16. SECURITIES LAWS. The Company shall not be obligated to issue any Stock
pursuant to any option granted under the Plan at any time when the shares
covered by such option have not been registered under the Securities Act of
1933, as amended, and such other state and federal laws, rules or regulations as
the Company or the Committee deems applicable and, in the opinion of legal
counsel for the Company, there is no exemption from the registration
requirements of such laws, rules or regulations available for the issuance and
sale of such shares. Further, all Stock acquired pursuant to the Plan shall be
subject to the Company's policy or policies, if any, concerning compliance with
securities laws and regulations, as the same may be amended from time to time.
17. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company or any subsidiary from taking any
corporate action which is deemed by the Company or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any award made under the Plan. No employee,
beneficiary or other person shall have any claim against the Company or any
subsidiary as a result of any such action.
EXECUTED this 1st day of March, 1998.
TRAMMELL CROW COMPANY
By: /s/ ASUKA NAKAHARA
-----------------------------------
Name: Asuka Nakahara
---------------------------------
Title: Executive Vice President and
Chief Financial Officer
--------------------------------
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<PAGE>
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 1,000,000 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 Employee Stock Purchase 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 Employee Stock Purchase 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
