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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1997
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
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CRESCENT OPERATING, INC.
(Exact name of registrant as specified in charter)
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DELAWARE 75-2701931
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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777 MAIN STREET, SUITE 2100
FORT WORTH, TEXAS 76102
(817) 877-0477
(Address, including zip code, of Principal Executive Offices)
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1997 CRESCENT OPERATING, INC. STOCK INCENTIVE PLAN
(Full title of the Plan)
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GERALD W. HADDOCK, ESQ.
777 MAIN STREET, SUITE 2100
FORT WORTH, TEXAS 76102
(Name, address, including zip code, of agent for service)
(817) 877-0477
(Telephone number, including area code, of agent for service)
Copies to:
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ELLEN A. FREDEL, ESQ. DAVID M. DEAN, ESQ.
SHAW, PITTMAN, POTTS & TROWBRIDGE CRESCENT OPERATING, INC.
2300 N STREET, N.W. 777 MAIN STREET, SUITE 2100
WASHINGTON, D.C. 20037 FORT WORTH, TEXAS 76102
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT OF SHARES AGGREGATE OFFERING AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED TO BE REGISTERED PRICE PER SHARE PRICE REGISTRATION FEE
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Common Stock........................ 1,000,000(1) $0.99(2) $990,000 $300
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 1997 Crescent Operating, Inc. Stock
Incentive Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Estimated solely for the purpose of computing the registration fee. Pursuant
to Rule 457(h), the calculation of the registration fee is based on the
exercise price of options granted under the Plan and the book value of the
Common Stock computed as of June 12, 1997.
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>PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) The Registration Statement on Form S-1, including the prospectus
contained therein, as filed by Crescent Operating, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange
Commission on May 1, 1997, together with all amendments to such
Registration Statement (No. 333-25223).
In addition, 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 which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The holders of the Company's common stock, par value $0.01 per share (the
"Common Stock"), will be entitled to one vote for each share on all matters
voted on by stockholders, including election of directors, and, except as
otherwise required by law or provided in any resolution adopted by the Company's
Board of Directors (the "Board") with respect to any series of preferred stock,
the holders of such shares will possess all voting power. The Amended and
Restated Certificate of Incorporation (the "Charter") of the Company does not
provide for cumulative voting in the election of directors. Subject to any
preferential rights of any outstanding series of preferred stock created by the
Board from time to time, the holders of Common Stock will be entitled to such
dividends as may be declared from time to time by the Board from funds available
therefor, and upon liquidation will be entitled to receive pro rata all assets
of the Company available for distribution to such holders.
Various provisions of the Company's Charter and Bylaws may have the effect
of delaying, deferring or preventing a change in control of the Company or would
operate only with respect to an extraordinary corporate transaction involving
the Company.
STAGGERED BOARD OF DIRECTORS
The Charter and the Bylaws provide that the Board will be divided into
three classes of directors, each class constituting approximately one-third of
the total number of directors, with the classes serving staggered three-year
terms. The classification of the Board will have the effect of making it more
difficult for stockholders to change the composition of the Board, because only
a minority of the directors are up for election, and the Board may not be
replaced by vote of the stockholders, at any one time. The Company believes,
however, that the longer terms associated with the classified Board will help to
ensure continuity and stability of the Company's management and policies.
The classification provisions also could have the effect of discouraging a
third party from accumulating a large block of Common Stock or attempting to
obtain control of the Company, even though such an attempt might be beneficial
to the Company and some, or a majority, of its stockholders. Accordingly, under
certain circumstances stockholders could be deprived of opportunities to sell
their shares of Common Stock at a higher price than might otherwise be
available.
NUMBER OF DIRECTORS; REMOVAL; FILLING VACANCIES
The Charter provides that, subject to any rights of holders of preferred
stock to elect additional directors under specified circumstances ("Preferred
Holders' Rights"), the number of directors will be fixed by the Bylaws. The
Bylaws provide that, subject to any Preferred Holders' Rights, the number of
directors will be
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fixed by the Board, but must not be more than 25 nor less than three. In
addition, the Bylaws provide that, subject to any Preferred Holders' Rights, and
unless the Board otherwise determines, any vacancies (other than vacancies
created by an increase in the total number of directors) will be filled by the
affirmative vote of a majority of the remaining directors, though less than a
quorum, and any vacancies created by an increase in the total number of
directors may be filled by a majority of the entire Board. Accordingly, the
Board could temporarily prevent any stockholder from enlarging the Board and
then filling the new directorship with such stockholder's own nominees.
The Charter and the Bylaws provide that, subject to any Preferred Holders'
Rights, directors may be removed only for cause upon the affirmative vote of
holders of at least 80% of the entire voting power of all the then-outstanding
shares of stock entitled to vote generally in the election of directors, voting
together as a single class.
NO STOCKHOLDER ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS
The Charter and Bylaws provide that any action required or permitted to be
taken by the stockholders of the Company must be effected at a duly called
annual or special meeting of such holders and may not be effected by any consent
in writing by such holders. Except as otherwise required by law and subject to
the rights of the holders of any preferred stock, special meetings of
stockholders of the Company for any purpose or purposes may be called only by
the Chairman, Vice Chairman, President or the Board pursuant to a resolution
stating the purpose or purposes thereof, and any power of stockholders to call a
special meeting is specifically denied. No business other than that stated in
the notice shall be transacted at any special meeting. These provisions may have
the effect of delaying consideration of a stockholder proposal until the next
annual meeting unless a special meeting is called by the Chairman, Vice
Chairman, President or the Board.
ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER NOMINATIONS AND STOCKHOLDER PROPOSALS
The Bylaws establish an advance notice procedure for stockholders to make
nominations of candidates for directors or bring other business before an annual
meeting of stockholders of the Company (the "Stockholder Notice Procedure").
The Stockholder Notice Procedure provides that (i) only persons who are
nominated by, or at the direction of, the Board, or by a stockholder who has
given timely written notice containing specified information to the Secretary of
the Company prior to the meeting at which directors are to be elected, will be
eligible for election as directors of the Company and (ii) at an annual meeting,
only such business may be conducted as has been brought before the meeting by,
or at the direction of the Chairman or the Board or by a stockholder who has
given timely written notice to the Secretary of the Company of such
stockholder's intention to bring such business before such meeting. In general,
for notice of stockholders nominations or proposed business to be conducted at
an annual meeting to be timely, such notice must be received by the Company not
less than 70 days nor more than 90 days prior to the first anniversary of the
previous year's annual meeting.
The purpose of requiring stockholders to give the Company advance notice of
nominations and other business is to afford the Board a meaningful opportunity
to consider the qualifications of the proposed nominees or the advisability of
the other proposed business and, to the extent deemed necessary or desirable by
the Board, to inform stockholders and make recommendations about such nominees
or business, as well as to ensure an orderly procedure for conducting meetings
of stockholders. Although the Bylaws do not give the Board power to block
stockholder nominations for the election of directors or proposal for action,
they may have the effect of discouraging a stockholder from proposing nominees
or business, precluding a contest for the election of directors or the
consideration of stockholder proposals if procedural requirements are not met,
and deterring third parties from soliciting proxies for a non-management slate
of directors or proposal, without regard to the merits of such slate or
proposal.
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RELEVANT FACTORS TO BE CONSIDERED BY THE BOARD
The Charter, which provides that one of the purposes of the Company is to
perform an agreement with Crescent Real Estate Equities Limited Partnership (the
"Intercompany Agreement"), also provides that, in determining what is in the
best interest of the Company in evaluating a "business combination," "change in
control" or other transaction, a director of the Company shall consider all of
the relevant factors, which may include (i) the immediate and long-term effects
of the transaction on the Company's stockholders, including stockholders, if
any, who do not participate in the transaction; (ii) the social and economic
effects of the transaction on the Company's employees, suppliers, creditors and
customers and others dealing with the Company and on the communities in which
the Company operates and is located; (iii) whether the transaction is
acceptable, based on the historical and current operating results and financial
condition of the Company; (iv) whether a more favorable price would be obtained
for the Company's stock or other securities in the future; (v) the reputation
and business practices of the other party or parties to the proposed
transaction, including its or their management and affiliates, as they would
affect employees of the Company; (vi) the future value of the Company's
securities; (vii) any legal or regulatory issues raised by the transactions;
(viii) the effect on the Intercompany Agreement; and (ix) the business and
financial condition and earnings prospects of the other party or parties to the
proposed transactions including, without limitation, debt service and other
existing financial obligations, financial obligations to be incurred in
connection with the transaction and other foreseeable financial obligations of
such other party or parties. Pursuant to this provision, the Board may consider
subjective factors affecting a proposal, including certain nonfinancial matters,
and on the basis of these considerations, may oppose a business combination or
other transaction which, evaluated only in terms of its financial merits, might
be attractive to some, or a majority, of the Company's stockholders.
AMENDMENT
The Charter provides that the affirmative vote of the holders of at least
80% of the stock entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class, is required to amend
provisions of the Charter relating to stockholder action without a meeting; the
calling of special meetings; the number, election and term of the Company's
directors; the filling of vacancies; and the removal of directors. The Charter
further provides that the related Bylaws described above (including the
Stockholder Notice Procedure) may be amended only the Board or by the
affirmative vote of the holders of at least 80% of the voting power of the
outstanding shares of Voting Stock, voting together as a single class. In all
cases, amendments to the Charter require that the Board determine that the
proposed amendment is advisable.
RIGHTS PLAN
The Company adopted a Preferred Share Purchase Rights Plan (the "Rights
Plan") on June 11, 1997. Pursuant to the Rights Plan, the Board will cause to be
issued one Right for each share of the Company's Common Stock outstanding on the
Distribution Effective Date (as such term is used in the Rights Plan). Each
Right will entitle the registered holder to purchase from the Company
one-hundredth of a share of Series A Junior Preferred Stock, par value $.01 per
share, of the Company at a price of $5 (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights will be set forth in a
Rights Agreement (the "Rights Agreement"), between the Company and the
designated Rights Agent (the "Rights Agent"). The description set forth below is
intended as a summary only and is qualified in its entirety by reference to the
form of the Rights Agreement filed as an exhibit to this Registration Statement.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 10% or more of the outstanding
shares of the Company's Common Stock or (ii) 10 business days (or such later
date as may be determined by action of the Board prior to such time as any
person becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 10% or more of such outstanding shares of the Company's Common Stock
(the earlier of such dates being called the "Rights
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Distribution Date"), the Rights will be evidenced by the certificates
representing the Company's Common Stock.
The Rights Agreement will provide that, until the Rights Distribution Date
(or earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Company's Common Stock. Until the Rights
Distribution Date (or earlier redemption or expiration of the Rights), the
Company's Common Stock certificates will contain a notation incorporating the
Rights Agreement by reference. As soon as practicable following the Rights
Distribution Date, separate certificates evidencing the Rights (the "Right
Certificates") will be mailed to holders of record of the Company's Common Stock
as of the close of business on the Rights Distribution Date and such separate
Right Certificates alone will evidence the Rights.
The Rights will not be exercisable until the Rights Distribution Date. The
Rights will expire on the 10th anniversary of the Distribution Effective Date
(the "Final Expiration Date"), unless the Final Expiration Date is extended or
unless the Rights are earlier redeemed or exchanged by the Company, in each
case, as summarized below.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, proper provision shall be made so that each holder
of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon
exercise that number of shares of the Company's Common Stock having a market
value of two times the exercise price of the Right. In the event that the
Company is acquired in a merger or other business combination transaction or 50%
or more of its consolidated assets or earning power are sold after a person or
group of affiliated or associated persons becomes an Acquiring Person, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then-current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 10% or more of the Company's
outstanding Common Stock and prior to the acquisition by such person or group of
50% or more of the Company's outstanding Common Stock, the Board may exchange
the Rights (other than Rights owned by such person or group which have become
void), in whole or in part, at an exchange ratio of one share of the Company's
Common Stock, or one-hundredth of a share of Series A Junior Preferred Stock (or
of a share of a class or series of the Preferred Stock having equivalent rights,
preference and privileges) per Right (subject to adjustment).
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 10% or more of the Company's
outstanding Common Stock, the Board may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time on such basis and with such
conditions as the Board, in its sole discretion, may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the holders of the Rights then will be eligible to receive only the
Redemption Price.
The terms of the Rights may be amended by the Board without the consent of
the holders of the Rights; provided, however, that from and after such time as
any person or group of affiliated or associated persons becomes an Acquiring
Person, no such amendment may adversely affect the interests of the holders of
the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The number of outstanding Rights and the number of one-hundredths of a
share of Series A Junior Preferred Stock issuable upon exercise of each Right
also will be subject to adjustment in the event of a split of the Company's
Common Stock, or a stock dividend on the Company's Common Stock payable in the
Company's Common Stock or subdivisions, consolidations or combinations of the
Company's Common Stock occurring, in any such case, prior to the Rights
Distribution Date.
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The Purchase Price payable, and the number of shares of Series A Junior
Preferred Stock or other securities or property issuable, upon exercise of the
Rights will be subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the shares of Series A Junior Preferred Stock, (ii) upon
the grant to holders of shares of Series A Junior Preferred Stock of certain
rights or warrants to subscribe for or purchase shares of Series A Junior
Preferred Stock at a price, or securities convertible into shares of Series A
Junior Preferred Stock with a conversion price, less than the then-current
market price of shares of Series A Junior Preferred Stock or (iii) upon the
distribution to holders of shares of Series A Junior Preferred Stock of
evidences of indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in shares of
Series A Junior Preferred Stock) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least one
percent in such Purchase Price. No fractional shares of Series A Junior
Preferred Stock will be issued (other than fractions which are integral
multiples of one-hundredth of a share of Series A Junior Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts) and in
lieu thereof, an adjustment in cash will be made based on the market price of
shares of Series A Junior Preferred Stock on the last trading day prior to the
date of exercise.
Shares of Series A Junior Preferred Stock purchasable upon exercise of the
Rights will not be redeemable. Each share of Series A Junior Preferred Stock
will be entitled to a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 100 times the dividend
declared per share of the Company's Common Stock. In the event of liquidation,
the holders of shares of Series A Junior Preferred Stock will be entitled to a
minimum preferential liquidation payment of $100 per share but will be entitled
to an aggregate payment of 100 times the payment made per share of the Company's
Common Stock. Each share of Series A Junior Preferred Stock will have 100 votes
voting together with the Company's Common Stock. Finally, in the event of any
merger, consolidation or other transaction in which shares of the Company's
Common Stock are exchanged, each share of Series A Junior Preferred Stock will
be entitled to receive 100 times the amount received per share of the Company's
Common Stock. These rights are protected by customary anti-dilution provisions.
Due to the nature of the shares of Series A Junior Preferred Stock's
dividend, liquidation and voting rights, the value of the one-hundredth interest
in a share of Series A Junior Preferred Stock purchasable upon exercise of each
Right should approximate the value of one share of the Company's Common Stock.
The Rights have certain antitakeover effects. The Rights will cause
substantial dilution to a person or group of persons that attempts to acquire
the Company on terms not approved by the Board. The Rights should not interfere
with any merger or other business combination approved by the Board prior to the
time that a person or group has acquired beneficial ownership of 10% or more of
the Company's Common Stock since the Rights may be redeemed by the Company at
the Redemption Price until such time.
The Rights Plan contains certain provisions to exclude Crescent Real Estate
Equities Company, a Texas real estate investment trust ("Crescent REIT"), and
its affiliates from the operative provisions thereof.
DELAWARE BUSINESS COMBINATION STATUTE
Section 203 of the Delaware General Corporation Law (the "DGCL") provides
that, subject to certain exceptions specified therein, an "interested
stockholder" of a Delaware corporation shall not engage in any business
combination, including mergers or consolidations or acquisitions of additional
shares of the corporation, with the corporation for a three-year period
following the date that such stockholder becomes an interested stockholder
unless (i) prior to such date, the board of directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an interested stockholder, (ii) upon consummation of
the transaction which resulted in the stockholder becoming an "interested
stockholder," the interested stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced (excluding
certain shares), or (iii) on or subsequent to such date, the business
combination is approved by the board of directors of the corporation and
authorized at an annual or special meeting of stockholders by the affirmative
vote of at least 66-2/3% of the outstanding
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voting stock which is not owned by the interested stockholder. Except as
otherwise specified in Section 203, an interested stockholder is defined to
include (x) any person that is the owner of 15% or more of the outstanding
voting stock of the corporation, or is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within three years immediately prior to the date of
determination and (y) the affiliates and associates of any such person.
Under certain circumstances, Section 203 makes it more difficult for a
person who would be an interested stockholder to effect various business
combinations with a corporation for a three-year period. The Company has not
elected to be exempt from the restrictions imposed under Section 203. However,
the Charter excludes Crescent REIT and its affiliates from the definition of
"interested stockholder" pursuant to the terms of Section 203. The provisions of
Section 203 may encourage persons interested in acquiring the Company to
negotiate in advance with the Board, since the stockholder approval requirement
would be avoided if a majority of the directors then in office approves either
the business combination or the transaction which results in any such person
becoming an interested shareholder. Such provisions also may have the effect of
preventing changes in the management of the Company. It is possible that such
provisions could make it more difficult to accomplish transactions which the
Company's stockholders may otherwise deem to be in their best interests.
CONTROL SHARE ACQUISITION
The Charter provides that the holder of "control shares" of the Company
acquired in a control share acquisition have no voting rights with respect to
such control shares except to the extent approved by a vote of two-thirds of the
votes entitled to be cast by stockholders, excluding shares owned by the
acquirer, officers of the Company and employees of the Company who are also
directors. "Control shares" are shares which, if aggregated with all other
shares previously acquired which the person is entitled to vote, would entitle
the acquirer to vote (i) 20% or more but less than one-third, (ii) one-third or
more but less than a majority, or (iii) a majority of the outstanding shares.
Control shares do not include shares that the acquiring person is entitled to
vote on the basis of prior stockholder approval. A "control share acquisition"
means the acquisition of control shares subject to certain exceptions.
The Charter provides that a person who has made or proposed to make a
control share acquisition and who has obtained a definitive financing agreement
with a responsible financial institution providing for any amount of financing
not to be provided by the acquiring person may compel the Board to call a
special meeting of stockholders to be held within 50 days of demand to consider
the voting rights of the holder in respect of such control shares. If no request
for a meeting is made, the Charter permits the Company itself to present the
question at any stockholders' meeting.
Pursuant to the Charter, if voting rights are not approved at a
stockholders' meeting or if the acquiring person does not deliver an acquiring
person's statement, which would disclose certain information about the
particular control share acquisition, as required by the Charter, then, subject
to certain conditions and limitations set forth in the Charter, the Company may
redeem any or all of the control shares, except those for which voting rights
have previously been approved, for "fair value." Fair value is determined,
without regard to the absence of voting rights, as of the date of the last
control share acquisition or of any meeting of stockholders at which the voting
rights of the holder in respect of such control shares are considered and not
approved, and means, for purposes of the redemption, the highest closing sale
price during the 30-day period immediately prior to and including the date in
question, of a share of such stock on the exchange on which the shares are
listed or, if not so listed, the highest closing bid quotation during such
30-day period or, if no such quotations are available, the fair market value as
determined by the Board. Under the Charter, if voting rights of the holder in
respect of such control shares are approved at a stockholders' meeting and, as a
result, the acquirer would be entitled to vote a majority of the shares entitled
to vote, then the Charter shall be amended to so state, and all other
stockholders will have the rights of dissenting stockholders under the DGCL. The
Charter provides that the fair value of the shares for purposes of such
appraisal rights may not be less than the highest price per share paid by the
acquirer in the control share acquisition, and that certain limitations and
restrictions of the DGCL otherwise applicable to the exercise of dissenters'
rights do not apply.
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The control share acquisition provisions do not apply to the holder in
respect of control shares acquired in a merger, consolidation or share exchange
if the Company is a party to the transaction, or if the acquisition is approved
or excepted by the Charter or Bylaws prior to a control share acquisition. The
control share provisions in the Charter do not apply to Crescent REIT and its
affiliates.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Charter provides that a director of the Company will not be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except, if required by the DGCL, as amended from
time to time, 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)
under Section 174 of the DGCL, which concerns unlawful payments of dividends,
stock purchases or redemptions, or (iv) for any transaction from which the
director derived an improper personal benefit. Neither the amendment nor repeal
of such provision will eliminate or reduce the effect of such provision in
respect of any matter occurring, or any cause of action, suit or claim that, but
for such provision, would accrue or arise prior to such amendment or repeal.
While the Charter provides directors with protection from awards for
monetary damages for breaches of their duty of care, it does not eliminate such
duty. Accordingly, the Charter will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care.
The Charter provides that each person who was threatened to be made a party
to or is involved in any proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
reasonably incurred or suffered by such person in connection therewith. Such
right to indemnification includes the right to have the Company pay the expenses
incurred in defending any such proceeding in advance of its final disposition,
subject to the provisions of the DGCL. Such rights are not exclusive of any
other right which any person may have or thereafter acquire under any statute,
provision of the Charter, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. No repeal or modification of such
provision will in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Company thereunder in respect of any
occurrence or matter arising prior to any such repeal or modification. The
Charter also specifically authorizes the Company to maintain insurance and to
grant similar indemnification rights to employees or agents of the Company.
The Company has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements require, among
other things, that the Company indemnify its officers and directors to the
fullest extent permitted by law, and advance to the officers and directors all
related expenses, subject to reimbursement if it is subsequently determined that
the indemnification is not permitted. The Company also must indemnify and
advance expenses incurred by officers and directors seeking to enforce their
rights under the indemnification agreements and cover officers and directors
under the Company's directors' and officers' liability insurance. Although the
indemnification agreements offer substantially the same scope of coverage
afforded by provisions in the Charter and Bylaws, they provide greater assurance
to directors and executive officers that indemnification will be available,
because, as contracts, they cannot be
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modified unilaterally in the future by the Board or by the stockholders to
alter, limit or eliminate the rights they provide.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement
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4.1 -- Specimen stock certificate of Crescent Operating, Inc.
(Incorporated by reference from Exhibit 4.1 to
Registration Statement No. 333-25223).
4.2 -- Form of Preferred Share Purchase Rights Plan
(Incorporated by reference from Exhibit 4.2 to
Registration No. 333-25223).
5 -- Opinion of Shaw, Pittman, Potts & Trowbridge, Counsel for
the Company, with respect to the legality of the Common
Stock of the Company registered hereunder (Filed
herewith.)
23.1 -- Consent of Arthur Andersen LLP (Filed herewith.)
23.2 -- Consent of Arthur Andersen LLP (Filed herewith.)
23.3 -- Consent of Shaw, Pittman, Potts & Trowbridge (Included in
its opinion filed as Exhibit 5 to this Registration
Statement.)
</TABLE>
ITEM 9. UNDERTAKINGS.
The Registrant 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;
(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;
(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 registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of 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 of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement
8
<PAGE> 10
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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
9
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas, on June 11, 1997.
CRESCENT OPERATING, INC.
a Delaware corporation
/s/ GERALD W. HADDOCK
------------------------------------
Gerald W. Haddock
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ RICHARD E. RAINWATER Chairman of the Board of June 11, 1997
- ----------------------------------------------------- Directors
Richard E. Rainwater
/s/ JOHN C. GOFF Vice Chairman June 11, 1997
- -----------------------------------------------------
John C. Goff
/s/ GERALD W. HADDOCK Director, President and Chief June 11, 1997
- ----------------------------------------------------- Executive Officer (Principal
Gerald W. Haddock Executive Officer)
/s/ ANTHONY M. FRANK Director June 11, 1997
- -----------------------------------------------------
Anthony M. Frank
/s/ PAUL E. ROWSEY, III Director June 11, 1997
- -----------------------------------------------------
Paul E. Rowsey, III
/s/ CARL F. THORNE Director June 11, 1997
- -----------------------------------------------------
Carl F. Thorne
/s/ JEFFREY L. STEVENS Treasurer, Secretary and Chief June 11, 1997
- ----------------------------------------------------- Financial Officer (Principal
Jeffrey L. Stevens Financial Officer and Director)
</TABLE>
10
<PAGE> 12
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.1 -- Specimen stock certificate of Crescent Operating, Inc.
(Incorporated by reference from Exhibit 4.1 to
Registration Statement No. 333-25223)
4.2 -- Form of Preferred Share Purchase Rights Plan
(Incorporated by reference from Exhibit 4.2 to
Registration Statement No. 333-25223)
5 -- Opinion of Shaw, Pittman, Potts & Trowbridge as to the
legality of the Securities being registered by Crescent
Operating, Inc. (Filed herewith.)
23.1 -- Consent of Arthur Andersen LLP (Filed herewith.)
23.2 -- Consent of Arthur Andersen LLP (Filed herewith.)
23.3 -- Consent of Shaw, Pittman, Potts & Trowbridge (included in
its opinion filed as Exhibit 5 to this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 5
SHAW, PITTMAN, POTTS & TROWBRIDGE
2300 N Street, N.W.
Washington, D.C. 20037
June 10, 1997
Crescent Operating, Inc.
777 Main Street, Suite 2100
Fort Worth, Texas 76102
Re: 1997 Crescent Operating, Inc. Stock Incentive Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Crescent Operating, Inc., a Delaware
corporation (the "Company"), in connection with the registration of 1,000,000
shares (the "Shares") of the Common Stock, $0.01 par value, of the Company
pursuant to a Registration Statement on Form S-8 under the Securities Act of
1933 (the "Registration Statement"), relating to the 1997 Crescent Operating,
Inc. Stock Incentive Plan (the "Plan").
Based upon our examination of the originals or copies of such documents,
corporate records, certificates of officers of the Company and other instruments
as we have deemed necessary and upon the laws as presently in effect, we are of
the opinion that the Shares have been duly authorized for issuance by the
Company, and that upon issuance and delivery in accordance with the Plan
referred to in the Registration Statement, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ SHAW, PITTMAN, POTTS & TROWBRIDGE
--------------------------------------
Shaw, Pittman, Potts, & Trowbridge
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
April 3, 1997 on the balance sheet of Crescent Operating, Inc. and our report
dated May 14, 1997 on the combined financial statement of Carter-Crowley Asset
Group, which such reports appear in the Registration Statement on Form S-1
relating to the Common Stock of Crescent Operating, Inc. (No. 333-25223), and to
all references to our firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
June 11, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
November 7, 1996 on the Provider Segment of Magellan Health Services, Inc.,
which appears in the Registration Statement on Form S-1 relating to the Common
Stock of Crescent Operating, Inc. (No. 333-25223), and to all references to our
firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 11, 1997
