<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1999
Registration No. 333-50579
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
By a Registration Statement on Form S-8, Registration No. 333-50579
filed on April 21, 1998 (the "Registration Statement"), Trammell Crow Company,
a Delaware corporation (the "Company"), registered 1,000,000 shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), in
connection with the Trammell Crow Company Employee Stock Purchase Plan (the
"Plan"). The original Plan required employees to have been continuously
employed by the Company or Participating Companies (as defined in the Plan) for
at least ninety (90) days before qualifying as an Eligible Employee (as defined
in the Plan). The Company has amended the Plan, effective January 1, 1999, to
allow the Benefits Committee of the Company to award certain newly hired
employees a ninety (90) days service credit so that such employee or employees
can qualify as Eligible Employees without having been employed by the Company
for ninety (90) days. The Registration Statement is hereby amended to
incorporate such amendment into the Plan and the Prospectus related thereto.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and
Exchange Commission by 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, 1998, filed with the Commission pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act")
on March 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed with the Commission May 14, 1999;
and
(c) 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 Post-Effective Amendment No.
1 to the 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 Post-Effective Amendment No. 1 to
the Registration Statement. Upon the written or oral request of any person to
whom a copy of this Post-Effective Amendment No. 1 to the 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 Post-Effective Amendment No. 1 to
the 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.
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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 Eleven 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 Eleven 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.
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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(1)
4.1.1 -- First Amendment to the Company's Stock Purchase Plan
5.1 -- Opinion of Vinson & Elkins L.L.P.(1)
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Vinson & Elkins L.L.P.(1)
24.1 -- Power of Attorney(1)
- ------------
1. Previously filed as an exhibit to the Company's Registration Statement on
Form S-8 (File Number 333-50579) filed with the Securities and Exchange
Commission on April 21, 1998 and incorporated herein by reference.
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.
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(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.
5
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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
Post-Effective Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Dallas, State of Texas, on the 24th day of June, 1999.
TRAMMELL CROW COMPANY
By: /s/ Robert E. Sulentic
-------------------------------------
Robert E. Sulentic, Executive Vice
President, Chief Financial Officer
and Director
Pursuant to the requirements of the Securities Act, this Post-Effective
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ George L. Lippe* President and Chief Executive Officer June 24, 1999
- ---------------------------------------------------- (Principal Executive Officer)
George L. Lippe
/s/ Robert E. Sulentic Executive Vice President, Chief Financial June 24, 1999
- ----------------------------------------------------
Robert E. Sulentic Officer and Director
(Principal Financial Officer)
/s/ William P. Leiser* Executive Vice-President and Treasurer June 24, 1999
- ---------------------------------------------------- (Principal Accounting Officer)
William P. Leiser
/s/ Harlan R. Crow* Director June 24, 1999
- ----------------------------------------------------
Harlan R. Crow
/s/ J. McDonald Williams* Director June 24, 1999
- ----------------------------------------------------
J. McDonald Williams
/s/ James D. Carreker* Director June 24, 1999
- ----------------------------------------------------
James D. Carreker
/s/ William F. Concannon* Director June 24, 1999
- ----------------------------------------------------
William F. Concannon
/s/ James R. Erwin* Director June 24, 1999
- ----------------------------------------------------
James R. Erwin
/s/ Jeffrey M. Heller* Director June 24, 1999
- ----------------------------------------------------
Jeffrey M. Heller
/s/ Rowland Moriarty* Director June 24, 1999
- ----------------------------------------------------
Rowland Moriarty
</TABLE>
S-1
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*By: /s/ Asuka Nakahara
------------------------------------------------
Asuka Nakahara
ATTORNEY-IN-FACT
S-2
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<S> <C>
4.1 -- Company's Stock Purchase Plan(1)
4.1.1 -- First Amendment to the Company's Stock Purchase Plan*
5.1 -- Opinion of Vinson & Elkins L.L.P.(1)
23.1 -- Consent of Ernst & Young LLP*
23.2 -- Consent of Vinson & Elkins L.L.P.(1)
24.1 -- Power of Attorney(1)
</TABLE>
- ----------------
* Filed herewith
1. Previously filed as an exhibit to the Company's Registration Statement
on Form S-8 (File Number 333-50579) filed with the Securities and
Exchange Commission on April 21, 1998 and incorporated herein by
reference.
<PAGE> 1
EXHIBIT 4.1.1
FIRST AMENDMENT TO THE
TRAMMELL CROW COMPANY
EMPLOYEE STOCK PURCHASE PLAN
THIS FIRST AMENDMENT is effective as set forth below and is made by
the Benefits Committee of Trammell Crow Company, a Delaware corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, the Company has previously established the Trammell Crow
Company Employee Stock Purchase Plan effective March 1, 1998 (the "Plan") for
the benefit of eligible employees;
WHEREAS, the Company has established a benefits committee (the
"Benefits Committee") to administer certain plans maintained by the Company;
WHEREAS, the Benefits Committee is responsible for the administration
of the Plan;
WHEREAS, pursuant to paragraph 15 of the Plan, the Benefits Committee
has the right to make certain amendments to the Plan;
WHEREAS, the Benefits Committee desires to amend the Plan such that
certain employees, determined on a case-by-case basis, may be granted service
credit for purposes of the Plan's eligibility waiting period; and
WHEREAS, an amendment to the eligibility waiting period within the
scope of the Benefits Committee's powers.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Paragraph 4 is hereby amended in its entirety effective January 1,
1999 to read as follows:
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 ss. 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 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"). Notwithstanding that set forth above,
any newly hired employee or group of employees, if designated
by the Committee, shall be awarded 90 days of continuous
service credit and shall become an Eligible Employee at such
time the other eligibility requirements of this paragraph 4
are satisfied for the applicable employee.
NOW, THEREFORE, be it further provided that, except as stated above,
the Plan shall continue to read in its current state.
<PAGE> 2
IN WITNESS WHEREOF, this First Amendment has been executed by a duly
authorized officer of the Company as of the date specified below and effective
as set forth herein.
TRAMMELL CROW COMPANY,
a Delaware corporation
By: /s/ Derek R. McClain
-----------------------------------------------
Name: Derek R. McClain
---------------------------------------------
Title: Executive Vice President and General Counsel
--------------------------------------------
Dated: June 23, 1999
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in Post-Effective Amendment No. 1
to the Registration Statement (Form S-8 No. 333-50579) pertaining to the
Employee Stock Purchase Plan of Trammell Crow Company of our report dated
February 17, 1999, with respect to the consolidated financial statements and
schedule of Trammell Crow Company included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Dallas, Texas
June 17, 1999
