<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 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)
-----------------------
RESTRICTED STOCK TO CERTAIN EMPLOYEES
(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>
<CAPTION>
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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
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value per share . . . . . . . . . . 63,490 shares $22.4375 $1,424,557 $420.24
- ----------------------------------------------------------------------------------------------------------------------------------
</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 and low trading prices reported on the New
York Stock Exchange on October 6, 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/A (Amendment No. 1) for the
fiscal year ended December 31, 1997, filed with the Commission
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act")
on July 2, 1998;
(b) The Company's Quarterly Report on Form 10Q/A (Amendment No. 1) for the
quarterly period ended March 31, 1998, filed with the Commission
pursuant to the Exchange Act on July 17, 1998;
(c) The Company's Quarterly Report on Form 10Q for the quarterly period
ended June 30, 1998, filed with the Commission pursuant to the
Exchange Act on August 14, 1998; and
(d) 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.
2
<PAGE>
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 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 -- Certificate of Incorporation of the Company
(previously filed as an exhibit to the Company's
Registration Statement on Form S-1 (File Number
333-34859) initially filed with the Securities and
Exchange Commission on September 3, 1997, and
incorporated herein by reference)
4.2 -- Bylaws of the Company (previously filed as an exhibit to the
Company's Registration Statement on Form S-1 (File Number
333-34859) initially filed with the Securities and Exchange
Commission on September 3, 1997, and incorporated herein by
reference)
5.1 -- Opinion of Vinson & Elkins L.L.P.
10.1 -- Form of Restricted Stock Award Agreement
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)
3
<PAGE>
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;
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 7th
day of October, 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, Derek
R. McClain 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.
Signature Capacity Date
---------- -------- ----
/s/ George L. Lippe President and Chief October 7, 1998
-------------------------------- Executive Officer
George L. Lippe (Principal Executive
Officer)
/s/ Robert E. Sulentic Executive Vice President, October 7, 1998
-------------------------------- Chief Financial Officer
Robert E. Sulentic and Director
(Principal Financial
Officer)
/s/ William P. Leiser Executive Vice-President October 7, 1998
-------------------------------- and Treasurer (Principal
William P. Leiser Accounting Officer)
/s/ Harlan R. Crow Director October 7, 1998
--------------------------------
Harlan R. Crow
/s/ J. McDonald Williams Director October 7, 1998
--------------------------------
J. McDonald Williams
/s/ James D. Carreker Director October 7, 1998
--------------------------------
James D. Carreker
/s/ William F. Concannon Director October 7, 1998
--------------------------------
William F. Concannon
S-1
<PAGE>
/s/ James R. Erwin Director October 7, 1998
--------------------------------
James R. Erwin
/s/ Jeffrey M. Heller Director October 7, 1998
--------------------------------
Jeffrey M. Heller
/s/ Rowland Moriarty Director October 7, 1998
--------------------------------
Rowland Moriarty
/s/ Henry J. Faison Executive Vice President October 7, 1998
-------------------------------- and Director
Henry J. Faison
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
4.1 -- Certificate of Incorporation of the Company (previously filed as
an exhibit to the Company's Registration Statement on Form S-1
(File Number 333-34859) initially filed with the Securities and
Exchange Commission on September 3, 1997, and incorporated herein
by reference)
4.2 -- Bylaws of the Company (previously filed as an exhibit to the
Company's Registration Statement on Form S-1 (File Number
333-34859) initially filed with the Securities and Exchange
Commission on September 3, 1997, and incorporated herein by
reference)
5.1 -- Opinion of Vinson & Elkins L.L.P.
10.1 -- Form of Restricted Stock Award Agreement
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)
</TABLE>
<PAGE>
EXHIBIT 5.1
OPINION OF VINSON & ELKINS L.L.P.
October 7, 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 63,490 shares of
the Company's common stock, par value $0.01 per share (the "Shares"),
pursuant to the Company's Registration Statement on Form S-8 (the
"Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") on October 7, 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 terms of a Restricted Stock Award Agreement in
the form attached as an Exhibit to the Registration Statement (each, an
Agreement"), (ii) the full consideration for each Share shall be received by
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").
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 Agreements, 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.
<PAGE>
Trammell Crow Company
October 7, 1998
Page 2
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 10.1
FORM OF RESTRICTED STOCK AWARD AGREEMENT
RESTRICTED STOCK AWARD AGREEMENT
To: Date of Grant: August 5, 1998 Number of Shares:
Trammell Crow Company, a Delaware corporation (the "Corporation"), is
pleased to grant you (the "Award") an aggregate of _____________ shares (the
"Restricted Shares") of the Corporation's authorized Common Stock, par value
$0.01 per share, subject to the terms and conditions set forth in this
Restricted Stock Award Agreement (this "Agreement"). The Award is
specifically made subject to the filing and declaration of effectiveness of a
registration statement for such shares with the Securities and Exchange
Commission and the approval of a listing application for the shares on the
New York Stock Exchange. The Award is NOT governed by the Trammell Crow
Company Long-Term Incentive Plan, which was adopted effective as of August
22, 1997.
THIS AGREEMENT SETS FORTH THE TERMS OF THE AGREEMENT BETWEEN YOU AND THE
CORPORATION WITH RESPECT TO THE RESTRICTED SHARES. BY ACCEPTING THIS
AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE TERMS HEREOF.
1. DEFINITIONS. As used in this Agreement, the following terms have
the meanings set forth below:
(a) "Award" has the meaning set forth in the first paragraph of
this Agreement.
(b) "Board of Directors" means the board of directors of the
Corporation.
(c) "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.
(d) "Cause" means termination of your employment by the
Corporation because of : (i) your conviction of, or plea of nolo contendere
to, a felony or crime involving moral turpitude; (ii) your 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; (iii) your
commission of material mismanagement in the conduct of your duties as
assigned to you by the Board of Directors or your supervising officer or
officers of the Corporation or any Subsidiary; (iv) your willful failure to
execute or comply with the policy of the Corporation or any of its
Subsidiaries or your stated duties as established by the Board of Directors
or your supervising officer or officers of the Corporation or any Subsidiary
or your intentional failure to perform your stated duties; or (v) substance
abuse or addiction by you.
(e) "Change in Control" means the occurrence of any of the
following events:
1
<PAGE>
(i) The acquisition by any 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 in 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 Grant, 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
(iv) Approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(f) "Common Stock" means the authorized common stock, par value
$.01 per share, as described in the Corporation's Certificate of
Incorporation.
2
<PAGE>
(g) "Date of Grant" means August 5, 1998.
(h) "Disability" shall have the meaning given it in any employment
agreement between you and the Corporation; provided, however, that if you
have no employment agreement, "Disability" shall mean a physical or mental
impairment of sufficient severity that, in the opinion of the Corporation,
either you are unable to continue performing the duties you performed before
such impairment or your condition entitles you 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 your employment.
(i) "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.
(j) "Exchange Act" means the Securities Exchange Act of 1934.
(k) "Fair Market Value" 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 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
(ii) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in Paragraph 1(k)(i)
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
(iii) If shares of Stock of the same class are not listed or
admitted to unlisted trading privileges as provided in Paragraph 1(k)(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 Paragraph 1(k)(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 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 Paragraph 1(k)(i)
and sales prices or bid and asked prices therefor are not reported by
NASDAQ (or the National Quotation Bureau
3
<PAGE>
Incorporated) as provided in Paragraph 1(k)(ii) or Paragraph 1(k)(iii) at
the date of determining the Fair Market Value, then the value determined
in good faith by the Corporation, 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 Paragraph 1(k)(i) or
sales prices or bid and asked prices therefor are reported by NASDAQ (or
the National Quotation Bureau Incorporated) as provided in Paragraph
1(k)(ii), Paragraph 1(k)(iii) or Paragraph 1(k)(iv) 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 Corporation, which determination shall be conclusive for
all purposes notwithstanding the provisions of Paragraphs l(k)(i), (ii),
(iii) or (iv).
(l) "Incumbent Board" means the individuals who, as of the Date of
Grant, 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.
(m) "Non-Surviving Event" means an event of Restructure as
described in either subparagraph (ii) or (iii) of Paragraph 1(o).
(n) "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 (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), 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."
(o) "Restructure" means the occurrence of any one or more of the
following:
(i) 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;
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(ii) 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
(iii) 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.
(p) "Retirement" means your separation from employment with the
Corporation and its Subsidiaries on account of retirement.
(q) "Stock" means Common Stock, or any other securities that are
substituted for Stock as provided in Paragraph 7.
(r) "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.
2. ESCROW OF RESTRICTED SHARES. The Corporation shall issue in your
name a certificate or certificates representing the Restricted Shares and
retain that certificate or those certificates until the restrictions on such
Restricted Shares expire as described in Paragraph 5 of this Agreement or the
Restricted Shares are forfeited as contemplated in Paragraph 4 of this
Agreement. You shall execute one or more stock powers in blank for those
certificates and deliver those stock powers to the Corporation. You hereby
agree that the Corporation shall hold the certificate or certificates
representing the Restricted Shares and the related stock powers pursuant to
the terms of this Agreement until such time as such certificate or
certificates are either delivered to you or canceled pursuant to this
Agreement.
3. OWNERSHIP OF RESTRICTED SHARES. From and after the time that a
certificate or certificates representing the Restricted Shares has been
issued in your name, you will be entitled to all the rights of absolute
ownership of the Restricted Shares, including the right to vote those shares
and to receive dividends thereon if, as, and when declared by the Board of
Directors of the Corporation, subject, however, to the terms, conditions and
restrictions set forth in this Agreement.
4. RESTRICTIONS; FORFEITURE. The Restricted Shares are restricted in
that they may not be sold, transferred or otherwise alienated or hypothecated
until such restrictions are removed or expire as described in Paragraph 5 of
this Agreement. The Restricted Shares are also subject to forfeiture at the
Corporation's election as set forth in this Agreement if your employment with
the Corporation is terminated on or prior to July 2, 2000 (either by you or
by the Corporation), subject to the provisions set forth in Paragraph 8(a) of
this Agreement. You hereby agree that if the Restricted Shares are forfeited
as provided in this Paragraph 4, the Corporation shall have the right to
deliver the certificate(s) representing the Restricted Shares, along with the
stock power(s)
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described in Paragraph 2 of this Agreement, to the Corporation's transfer
agent for cancellation or, at the Corporation's election, for transfer to the
Corporation to be held by the Corporation in treasury or any designee of the
Corporation.
5. EXPIRATION OF RESTRICTIONS AND RISK OF FORFEITURE. The
restrictions on all of the Restricted Shares granted pursuant to this
Agreement will expire on July 2, 2000; provided, however, that such
restrictions will expire on that date only if you have been an Employee
continuously from the Date of Grant through July 2, 2000. The Corporation
may, in its discretion, prospectively reduce the restriction period
applicable to the Restricted Shares and the period during which the
Restricted Shares may be forfeited as contemplated in Paragraph 4 of this
Agreement.
6. CHANGES IN ACCOUNTING RULES. Notwithstanding any other provision
of this Agreement to the contrary, if any changes in the financial or tax
accounting rules applicable to the Award 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
Corporation shall have the right and power to modify this Agreement as
necessary with respect to any then outstanding Restricted Shares as to which
the applicable restrictions have not expired.
7. ADJUSTMENT PROVISIONS.
(a) ADJUSTMENT OF AWARD. The terms of the Award and the number of
Restricted Shares granted hereunder shall be subject to adjustment, from time
to time, in accordance with the following provisions:
(i) 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 the number of Restricted Shares granted under the Award
shall be increased proportionately.
(ii) 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, the number of Restricted Shares granted under
the Award shall be decreased proportionately.
(iii) Whenever the number of Restricted Shares subject to the
Award is required to be adjusted as provided in this Paragraph 7(a), the
Corporation shall, within thirty (30) days following such adjustment,
prepare and give to you 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 the number of
Restricted Shares subject to the Award after giving effect to the
adjustment.
(iv) Adjustments under Paragraphs 7(a)(i) and (ii) shall be
made by the Corporation, 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 on account of any such adjustments.
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(b) CHANGE IN CONTROL. Upon the occurrence of a Change in
Control, but only if approved by the Corporation, the restriction period on
all Restricted Shares described in Paragraph 4 of this Agreement shall
immediately be accelerated, such restrictions shall expire and the Restricted
Shares shall no longer be subject to forfeiture. 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 you shall be entitled to receive (in lieu of the
number of Restricted Shares as to which the restriction period has not
expired) the number of shares of stock, other securities, cash or property to
which that number of Restricted Shares (assuming that the restriction period
had expired) would have been entitled in connection with such Restructure.
(c) RESTRUCTURE AND NO CHANGE IN CONTROL. In the event a
Restructure should occur at any time prior to the expiration of the
restrictions described in Paragraph 4 hereof 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 the restriction
period of the Restricted Shares shall not immediately be accelerated nor
shall the restrictions expire merely because of the occurrence of the
Restructure.
8. TERMINATION OF EMPLOYMENT.
(a) TERMINATION AFTER CHANGE IN CONTROL. Notwithstanding the
terms and provisions set forth in Paragraph 7(b), if your employment
relationship with the Corporation and its Subsidiaries is terminated after,
but within one year from, the occurrence of a Change in Control and such
termination is by the Corporation and is for any reason other than Cause,
then the restriction period of the Restricted Shares shall immediately be
accelerated and the restrictions shall expire.
(b) OTHER TERMINATION. Subject to Paragraph 8(a), if your
employment relationship with the Corporation and its Subsidiaries is
terminated for any reason, including Retirement, but other than for your
death or Disability, then that portion, if any, of this Award 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 this Award for
which restrictions have expired as of the date of such termination shall
survive such termination.
9. DEATH. Upon your death, the restriction period of the Restricted
Shares shall immediately be accelerated and the restrictions shall expire.
10. DISABILITY. If your employment relationship is terminated by
reason of your Disability, then the restriction period of the Restricted
Shares shall immediately be accelerated and the restrictions shall expire.
11. LEAVE OF ABSENCE. With respect to the Award, the Corporation may,
in its sole discretion, determine that if you are on leave of absence for any
reason you will be considered to still be in the employ of the Corporation,
provided that rights to the Restricted Shares 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.
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12. DELIVERY OF CERTIFICATES OF STOCK. Promptly following the
expiration of the restrictions on the Restricted Shares as contemplated in
Paragraph 5 of this Agreement, and subject to Paragraph 13, the Corporation
shall cause to be issued and delivered to you or your designee a certificate
representing the number of Restricted Shares as to which restrictions have
lapsed, free of any restrictive legend relating to the lapsed restrictions,
upon receipt by the Corporation of any tax withholding as may be requested.
The value of such Restricted Shares shall not bear any interest owing to the
passage of time.
13. CONDITIONS TO DELIVERY OF STOCK. Nothing herein shall require the
Corporation to issue any shares with respect to the Award if that issuance
would, in the opinion of counsel for the Corporation, constitute a violation
of the Securities Act of 1933 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.
14. 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 of 1933.
15. LEGEND REGARDING RESTRICTIONS ON TRANSFER. Each certificate
representing shares issued to you pursuant to this Agreement shall bear the
following legend with respect to the restrictions on transferability
contained in this Agreement:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY IMPOSED BY THAT CERTAIN RESTRICTED
STOCK AWARD AGREEMENT BETWEEN TRAMMELL CROW COMPANY (THE
"CORPORATION") AND [______________] DATED AS OF AUGUST 5, 1998, AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE ALIENATED OR HYPOTHECATED
EXCEPT AS THEREIN PROVIDED. THE CORPORATION WILL FURNISH A COPY OF
SUCH AGREEMENT TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
ON REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR
REGISTERED OFFICE.
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16. RIGHTS AS A STOCKHOLDER. You shall have no right as a stockholder
with respect to any Restricted Shares until a certificate representing those
shares is issued in your 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 Paragraph 7.
17. FURNISH INFORMATION. You agree to 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.
18. REMEDIES. The Corporation shall be entitled to recover from you
reasonable attorneys' fees incurred in connection with the enforcement of the
terms and provisions of this Agreement whether by an action to enforce
specific performance or for damages for its breach or otherwise.
19. INFORMATION CONFIDENTIAL. As partial consideration for the
granting of the Award hereunder, you hereby agree with the Corporation that
you will keep confidential all information and knowledge that you have
relating to the terms and conditions of this Agreement; provided, however,
that such information may be disclosed as required by law and may be given in
confidence to your 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
Corporation, it shall take into consideration that breach in determining
whether to recommend the grant of any future similar award to you, as a
factor militating against the advisability of granting any such future award
to you.
20. CONSIDERATION. No restriction on the Restricted Shares shall lapse
unless and until you have performed services for the Corporation or any of
its Subsidiaries that the Corporation believes is equal to or greater in
value than the par value of the Stock subject to this Award.
21. PAYMENT OF TAXES. The Corporation may from time to time, in its
discretion, require you to pay to the Corporation (or the Corporation's
Subsidiary if you are an employee of a Subsidiary of the Corporation), the
amount that the Corporation 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 you incur as a result of the Award. With
respect to any required tax withholding, you may (a) direct the Corporation
to withhold from the shares of Stock to be issued to you 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 at the time as of
which such determination is made; (b) deliver to the Corporation sufficient
shares of Stock to satisfy the Corporation's tax withholding obligations,
based on the shares' Fair Market Value at the time as of which such
determination is made; or (c) deliver sufficient cash to the Corporation to
satisfy its tax withholding obligations. If you elect to use such a stock
withholding feature, you must make the election at the time and in the manner
that the Corporation prescribes. The Corporation may, at its sole option,
deny your request to satisfy withholding obligations through Stock instead of
cash. In the event the Corporation 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
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withholding obligation, then you shall pay to the Corporation, immediately
upon the Corporation's request, the amount of that deficiency.
22. RIGHT OF THE CORPORATION AND SUBSIDIARIES TO TERMINATE EMPLOYMENT.
Nothing contained in this Agreement shall confer upon you 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
your employment at any time.
23. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. The Corporation and the
members of the Board of Directors shall not be liable for any act, omission
or determination taken or made in good faith with respect to this Agreement
or the Restricted Shares granted hereunder.
24. EXCLUSION FROM PENSION AND PROFIT-SHARING COMPENSATION. You hereby
agree that this 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, you
hereby agree that in the event of your death, each of your beneficiaries
shall be deemed to have agreed that this Award will not affect the amount of
any life insurance coverage, if any, provided by the Corporation or a
Subsidiary on your life that is payable to the beneficiary under any life
insurance plan covering employees of the Corporation or any Subsidiary.
25. EXECUTION OF RECEIPTS AND RELEASES. Any payment of cash or any
issuance or transfer of shares of Stock or other property to you, or to your
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 Corporation may require you or your
legal representative, heir, legatee or distributee, as a condition precedent
to such payment or issuance, to execute a release and receipt therefor in
such form as it shall determine.
26. NO GUARANTEE OF INTERESTS. The Board of Directors and the
Corporation do not guarantee the Stock of the Corporation from loss or
depreciation.
27. CORPORATION RECORDS. Records of the Corporation or its
Subsidiaries regarding your 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
Corporation to be incorrect.
28. 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.
29. SEVERABILITY. If any provision of this Agreement 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 this Agreement shall be construed and enforced as if the
illegal or invalid provision had never been included herein.
30. NOTICES. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
such notice required or permitted to be
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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 you 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.
The Corporation and you agree that any notices shall be given to the
Corporation or to you at the following addresses:
Corporation or Trammell Crow Company
Board of Directors: 2001 Ross Avenue, Suite 3400
Dallas, Texas 75201
Attn: Human Resources
Holder: At your current address as shown in the
Corporation's records.
31. WAIVER OF NOTICE. Any person entitled to notice hereunder may
waive such notice.
32. SUCCESSORS. This Agreement shall be binding upon you, your legal
representatives, heirs, legatees and distributees, and upon the Corporation,
its successors and assigns.
33. HEADINGS. The titles and headings of Paragraphs are included for
convenience of reference only and are not to be considered in construction of
the provisions hereof.
34. GOVERNING LAW. All questions arising with respect to the
provisions of this Agreement shall be determined by application of the laws
of the State of Delaware except to the extent Delaware law is preempted by
federal law. 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.
35. WORD USAGE. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Agreement
dictates, the plural shall be read as the singular and the singular as the
plural.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed by its duly authorized officer as of the Date of Grant first above
written.
TRAMMELL CROW COMPANY
By:
-------------------------------------------
Derek R. McClain
Executive Vice President
ACKNOWLEDGED AND AGREED:
- -------------------------------------------
Name:
--------------------------------------
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to Restricted Stock to Certain Employees of
Trammell Crow Company of our report dated March 4, 1998, with respect to the
consolidated financial statements and schedule 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
October 5, 1998
1
