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As filed with the Securities and Exchange Commission on December 24, 1997
File No. 000-22725
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
Crescent Operating, Inc.
((Exact name of registrant as specified in charter)
Delaware 75-2701931
(State or other jurisdiction (I.R.S. Employer
of incorporation organization) Identification No.)
306 West 7th Street, Suite 1025
Fort Worth, Texas 76102
(817) 339-1020
(Address, including zip code, of Principal Executive Offices)
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1997 Crescent Operating, Inc. Management Stock Incentive Plan
(Full title of the Plan)
------------------------------
Jeffrey L. Stevens
306 West 7th Street, Suite 1025
Fort Worth, Texas 76102
(Name, address, including zip code, of agent for service)
(817) 339-1010
(Telephone number, including area code, of agent for service)
Copies to:
Sylvia M. Mahaffey, Esq. Stephen R. Robinson, Esq.
Ellen A. Fredel, Esq. The Robinson Law Firm
Shaw, Pittman, Potts & Trowbridge Sinclair Building, Suite 901
2300 N Street, N.W. 512 Main Street
Washington, D.C. 20037 Fort Worth, TX 76102
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Title of Securities to Amount of Shares Proposed Maximum Proposed Maximum Amount of
be Registered to be Registered Offering Price per Share Aggregate Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000(1) $ 18.375 (2) $ 18,375,000 (2) $ 5,420.63
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
common stock, par value $0.01 per share, of Crescent Operating, Inc.
(the "Common Stock"), which become issuable under the 1997 Crescent
Operating, Inc. Management 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 calculating the registration fee.
Pursuant to Rule 457(c) of the Securities Act of 1933, as amended, the
calculation of the registration fee is based on the average of the high
and low sales prices of the Common Stock on the Nasdaq National Market
on December 16, 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) Registration Statement No. 333-25223 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 April 15, 1997, together with all amendments to such
Registration Statement;
(b) The Company's Registration Statement on Form 8-A, filed with the
Securities and Exchange Commission on June 20, 1997, registering the
Company's Common Stock under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(e) The Company's Current Report on Form 8-K dated June 13, 1997, and filed
on July 2, 1997, as amended on July 30, 1997;
(f) The Company's Current Report on Form 8-K dated July 31, 1997, and filed
on August 14, 1997, as amended on October 14, 1997;
(g) The Company's Current Report on Form 8-K dated August 31, 1997, and
filed on September 15, 1997, as amended on November 14, 1997; and
(h) The Company's Current Report on Form 8-K dated September 29, 1997, and
filed on October 14, 1997, as amended on November 25, 1997.
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 the filing of such documents.
Any statement contained herein or 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 (in the case of a statement in a
previously filed document incorporated or deemed to be incorporated by reference
herein), or in any other subsequently filed document that is also incorporated
or deemed to be incorporated by reference herein, modifies or supersedes
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such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement. Subject to the foregoing, all information appearing in
this Registration Statement is qualified in its entirety by the information
appearing in the documents incorporated by reference.
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 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 Delaware
General Corporation Law, as amended from time to time ("DGCL"), 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 the repeal of such
provisions 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 Company's 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 Company's 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 Company's 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 provision of the
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DGCL. Such rights are not exclusive of any other right which any person may
have or thereafter acquire under any statute, provision of the Company's
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 Company's 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 provision in the Company's Charter and Bylaws, they provide greater
assurance to directors and executive officers that indemnification will be
available, because, as contracts, they cannot be 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:
4.1 Specimen stock certificate of Crescent Operating, Inc. (Incorporated
by reference from Exhibit 4.1 to Registration Statement
No. 333-25223);
4.2 Preferred Share Purchase Rights Plan (Incorporated by reference from
Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997);
5.1 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 Arthur Andersen LLP (Filed herewith);
23.4 Consent of Arthur Andersen LLP (Filed herewith);
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23.5 Consent of Arthur Andersen LLP (Filed herewith);
23.6 Consent of Coopers & Lybrand L.L.P. (Filed herewith);
23.7 Consent of Ernst & Young LLP (Filed herewith);
23.8 Consent of Ernst & Young LLP (Filed herewith); and
23.9 Consent of Shaw, Pittman, Potts & Trowbridge (Included in its opinion
filed as Exhibit 5.1 to this Registration Statement).
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
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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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 December 23, 1997.
CRESCENT OPERATING, INC.
a Delaware corporation
/s/ Gerald W. Haddock
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Gerald W. Haddock
President and Chief Operating 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
- ---- ----- ----
<S> <C> <C>
/s/ John C. Goff Vice Chairman December 23, 1997
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John C. Goff
/s/ Gerald W. Haddock Director, President and December 23, 1997
- ----------------------------------- Chief Executive Officer
Gerald W. Haddock (Principal Executive Officer)
/s/ Paul E. Rowsey, III Director December 23, 1997
- -----------------------------------
Paul E. Rowsey, III
/s/ Jeffrey L. Stevens Treasurer, Secretary and Chief December 23, 1997
- ----------------------------------- Financial Officer(Principal
Jeffrey L. Stevens Financial and Accounting Officer
and Director)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Specimen stock certificate of Crescent Operating, Inc. (Incorporated by reference from
Exhibit 4.1 to Registration Statement No. 333-25223)
4.2 Preferred Share Purchase Rights Plan (Incorporated by reference from Exhibit 4.2 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997)
5.1 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 Arthur Andersen LLP (Filed herewith)
23.4 Consent of Arthur Andersen LLP (Filed herewith)
23.5 Consent of Arthur Andersen LLP (Filed herewith)
23.6 Consent of Coopers & Lybrand L.L.P. (Filed herewith)
23.7 Consent of Ernst & Young LLP (Filed herewith)
23.8 Consent of Ernst & Young LLP (Filed herewith)
23.9 Consent of Shaw, Pittman, Potts & Trowbridge (included in its opinion filed as
Exhibit 5.1 to this Registration Statement)
</TABLE>
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EXHIBIT 5.1
December 23, 1997
Crescent Operating, Inc.
306 West Seventh Street, Suite 1025
Fort Worth, Texas 76102
Re: 1997 Crescent Operating, Inc. Management 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 of common stock, $0.01 par value, of the Company, (the "Shares"),
pursuant to a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Registration Statement"), relating to the 1997 Crescent
Operating, Inc. Management 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 5.1 to the
Registration Statement.
Very truly yours,
/s/ SHAW, PITTMAN, POTTS & TROWBRIDGE
-------------------------------------
Shaw, Pittman, Potts & Trowbridge
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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 reports dated
April 3, 1997 on Crescent Operating, Inc. and May 14, 1997 on Carter-Crowley
Asset Group included in Crescent Operating, Inc.'s Form S-1 and of our reports
dated November 13, 1997 on RoseStar Management L.L.C., November 10, 1997 on
Marriott Denver City Center, November 13, 1997 on Wine Country Hotel, L.L.C.,
November 13, 1997 on Canyon Ranch in the Berkshires, and November 13, 1997 on
Canyon Ranch in Tucson included in Crescent Operating, Inc.'s Form 8-K/A and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
December 22, 1997
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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
February 23, 1996 on the accounts maintained by Hyatt Corporation for the Hyatt
Regency Beaver Creek included in Crescent Operating, Inc.'s Form 8-K/A and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
December 22, 1997
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EXHIBIT 23.3
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.
included in Crescent Operating, Inc.'s Forms S-1 and 8-K/A and to all references
to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia,
December 19, 1997
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EXHIBIT 23.4
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 reports dated
November 11, 1997 and April 18, 1996 on Rahn Sonoma, Ltd. included in Crescent
Operating, Inc.'s Form 8-K/A and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
San Francisco, California
December 22, 1997
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EXHIBIT 23.5
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 March
14, 1997 on The Woodlands Corporation and subsidiaries included in Crescent
Operating, Inc.'s Form 8-K/A and to all references to our Firm included in this
Registration Statement. It should be noted that we have not audited any
financial statements of the Woodlands Corporation subsequent to January 31,
1997 or performed any audit procedures subsequent to the date of our report.
ARTHUR ANDERSEN LLP
Houston, Texas
December 22, 1997
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EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Crescent Operating, Inc. on Form S-8 (File No. 000-22725) of our report dated
January 30, 1996, on our audit of the statement of assets and liabilities of
the accounts maintained by Hyatt Corporation for Hyatt Regency Albuquerque as
of December 31, 1995, and the related statements of revenues and expenses
and cash flows as represented by such accounts for the year then ended.
Coopers & Lybrand, L.L.P.
El Paso, Texas
December 22, 1997
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EXHIBIT 23.7
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Crescent Operating, Inc. Management Stock
Incentive Plan of our report dated March 26, 1996 (except Note 7, as to which
the date is July 25, 1996) on the financial statements of Canyon Ranch, Inc. as
of December 31, 1995 and 1994 and for the years then ended included in the Form
8-K/A dated November 14, 1997 of Crescent Operating, Inc., filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Tucson, Arizona
December 17, 1997
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EXHIBIT 23.8
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Crescent Operating, Inc. Management Stock
Incentive Plan of Crescent Operating, Inc., of our report dated March 8, 1996,
with respect to the financial statements of Canyon Ranch-Bellefontaine
Associates Limited Partnership d/b/a Canyon Ranch in the Berkshires
incorporated by reference in the Form 8-K of Crescent Operating, Inc. dated
September 29, 1997, as amended, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Boston, Massachusetts
December 23, 1997
