<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 7, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
CRESCENT REAL ESTATE EQUITIES COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<C> <C>
TEXAS 52-1862813
(State or other jurisdiction (I.R.S. Employer
of organization) Identification No.)
</TABLE>
777 MAIN STREET, SUITE 2100
FORT WORTH, TEXAS 76102
TELEPHONE: (407) 877-0477
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
GERALD W. HADDOCK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CRESCENT REAL ESTATE EQUITIES COMPANY
777 MAIN STREET, SUITE 2100
FORT WORTH, TEXAS 76102
TELEPHONE: (407) 877-0477
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies to:
<TABLE>
<C> <C>
ROBERT B. ROBBINS, ESQ. DAVID M. DEAN, ESQ.
SYLVIA M. MAHAFFEY, ESQ. CRESCENT REAL ESTATE EQUITIES COMPANY
SHAW, PITTMAN, POTTS & TROWBRIDGE 777 MAIN STREET, SUITE 2100
2300 N STREET, N.W. FORT WORTH, TEXAS 76102
WASHINGTON, D.C. 20037
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of the Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
of the Securities Act of 1933, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, par value $.01....... 46,802 shares $54.69(1) $2,559,601.38(1) $776
==================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 and based upon prices on the
New York Stock Exchange on February 28, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED MARCH 7, 1997
PROSPECTUS
46,802 SHARES
[LOGO]
CRESCENT
REAL ESTATE EQUITIES COMPANY
COMMON SHARES
------------------------
All of the common shares of beneficial interest, par value $.01 per share
(the "Common Shares"), of Crescent Real Estate Equities Company ("Crescent
Equities"), offered hereby (the "Offering") are being offered by the Selling
Shareholders of Crescent Equities. See "Selling Shareholders." Crescent Equities
will not receive any of the proceeds from the sale of the Common Shares offered
hereby. The Common Shares are listed and traded on the New York Stock Exchange
(the "NYSE") under the symbol "CEI." On March 6, 1997, the closing sale price
for the Common Shares as reported on the NYSE was $59.00 per share.
The sale or distribution of all or any portion of the Common Shares offered
hereby may be effected from time to time by the Selling Shareholders directly,
indirectly through brokers or dealers or in a distribution by one or more
underwriters on a firm commitment or best efforts basis, on the NYSE, in the
over-the-counter market, on any national securities exchange on which the Common
Shares are listed or traded, in negotiated transactions or otherwise, at the
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE> 3
THE COMPANY
Crescent Real Estate Equities Company ("Crescent Equities"), together with
its subsidiaries, is a fully integrated real estate company operating as a real
estate investment trust for federal income tax purposes (a "REIT"). Crescent
Equities is organized as a Texas real estate investment trust and became the
successor to Crescent Real Estate Equities, Inc., a Maryland corporation (the
"Predecessor Corporation"), on December 31, 1996, through the merger (the
"Merger") of the Predecessor Corporation and CRE Limited Partner, Inc., a
Delaware corporation, into Crescent Equities. The term "Company" includes,
unless the context otherwise requires, Crescent Equities, the Predecessor
Corporation, Crescent Real Estate Equities Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), and the other subsidiaries of
the Crescent Equities.
As of December 31, 1996, the Company directly or indirectly owned a
portfolio of real estate assets (the "Properties") located primarily in 16
metropolitan submarkets in Texas and Colorado. The Properties include 53 office
properties with an aggregate of approximately 16.3 million net rentable square
feet, four full-service hotels with a total of 1,471 rooms and two destination
health and fitness resorts (the "Hotel Properties"), six retail properties with
an aggregate of approximately .6 million rentable square feet and real estate
mortgages and non-voting common stock in three residential development
corporations (the "Residential Development Corporations") that own all or a
portion of six single-family residential land developments and three
condominium/townhome developments. In addition, the Company owns one mortgage
note secured by a Class A office property.
The Company provides management, leasing and development services with
respect to certain of its Properties. As of December 31, 1996, the Company had
approximately 240 employees and its executive officers had over 100 years of
combined experience in the real estate industry.
The Company conducts all of its business through the Operating Partnership
and its other subsidiaries and indirectly through the Operating Partnership's
interest in the Residential Development Corporations. Crescent Real Estate
Equities, Ltd., a Delaware corporation which is the sole general partner of the
Operating Partnership (the "General Partner"), controls the Operating
Partnership, and the Company is the sole shareholder of the General Partner. In
addition, as of December 31, 1996, the Company owned an approximately 83.4%
limited partner interest in the Operating Partnership.
The Company's executive offices are located at 777 Main Street, Suite 2100,
Fort Worth, Texas 76102, and its telephone number is (817) 877-0477.
SELLING SHAREHOLDERS
This Prospectus relates to the offer and sale from time to time of up to
46,802 common shares (the "Shares") of beneficial interest, par value $.01 per
share (the "Common Shares"). The Shares are offered by the following nine
individuals or entities: Harry H. Frampton III, Ross E. Bowker, James A.
Telling, John V. Evans, Peter G. Dann, Christina V. Wright, the Joshua Nicholas
Smith S Trust, the Zachary Charles Smith S Trust and the Anastasia Elisabeth
Smith S Trust (collectively, the "Selling Shareholders"). Mr. Frampton is a
director, officer and stockholder, and Mr. Telling and Ms. Wright are officers,
of one of the Residential Development Corporations, which has borrowed $20.2
million from the Company. In addition, Mr. Frampton is an equity owner and a
managing member of the limited liability company that is the lessee of two of
the Company's Hotel Properties. In 1995, an entity in which Mr. Frampton is an
equity owner sold one of the Hotel Properties to the Company for cash and the
right to receive certain payments based on operating results of the Hotel
Property. In addition, Mr. Frampton is an equity owner of an entity that is
entitled, under a five-year asset management arrangement relating to the Hotel
Property, to receive 5% of monthly gross revenues from the Hotel Property. In
1996, an entity in which each of the Selling Shareholders is an owner sold
certain assets to the Company in exchange for cash and partnership units in the
Operating Partnership (the "Units"). In connection with such sale, an entity
which is owned 50% by such selling entity and 50% by the Residential Development
Corporation in which certain of the Selling Shareholders are owners or officers
has borrowed approximately $3.1 million from the Company.
2
<PAGE> 4
The following chart shows the number of Units currently held by each
Selling Shareholder and the number of Shares of each Selling Shareholder
issuable upon conversion of the Units and being offered hereby:
<TABLE>
<CAPTION>
UNITS BENEFICIALLY NUMBER OF
NAME OF OWNED PRIOR TO SHARES OFFERED
SELLING SHAREHOLDER OFFERING HEREBY(1)
------------------- ------------------ ----------------
<S> <C> <C>
Harry S. Frampton III....................... 22,753 22,753
Ross E. Bowker.............................. 9,751 9,751
James A. Telling............................ 3,250 3,250
John V. Evans............................... 3,250 3,250
Peter G. Dann............................... 1,300 1,300
Christina V. Wright......................... 1,950 1,950
Joshua Nicholas Smith S Trust............... 1,516 1,516
Zachary Charles Smith S Trust............... 1,516 1,516
Anastasia Elisabeth Smith S Trust........... 1,516 1,516
------- -------
Total Shares................................ 46,802 46,802
======= =======
</TABLE>
- ---------------
(1) Based on the number of Units and Common Shares owned as of the date hereof,
and assuming the sale of all of the Shares offered hereby, the Selling
Shareholders will not own any Units or Common Shares upon completion of the
Offering.
PLAN OF DISTRIBUTION
The sale or distribution of all or any portion of the Shares may be
effected from time to time by the Selling Shareholders directly, indirectly
through brokers or dealers or in a distribution by one or more underwriters on a
firm commitment or best efforts basis, on the NYSE, in the over-the-counter
market, on any other national securities exchange on which the Common Shares are
listed or traded, in negotiated transactions or otherwise, at the market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company will not receive any of the proceeds
from the sale of the Shares.
The methods by which the Shares may be sold or distributed include, without
limitation, (i) a block trade (which may involve crosses) in which the broker or
dealer so engaged will attempt to sell the Shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction, (ii)
purchases by a broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this Prospectus, (iii) exchange distributions and/or
secondary distributions in accordance with the rules of the NYSE, (iv) ordinary
brokerage transactions and transactions in which the broker solicits purchasers,
(v) pro rata distributions as part of the liquidation and winding up of the
affairs of the Selling Shareholders, and (vi) privately negotiated transactions.
The Selling Shareholders may from time to time deliver all or a portion of the
Shares to cover a short sale or sales or upon the exercise, settlement or
closing of a call equivalent position or a put equivalent position. The Selling
Shareholders and the broker-dealers participating in the distribution of the
Shares may be deemed "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act") and any profit on the sale of the Shares
by the Selling Shareholders and any commissions received by any such
broker-dealers may be regarded as underwriting commissions under the Securities
Act. Underwriters, brokers, dealers or agents may be entitled, under agreements
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act. The Selling
Shareholders may sell all or any portion of the Shares in reliance upon Rule 144
under the Securities Act. The Shares may be sold from time to time at varying
prices determined at the time of sale or at negotiated prices.
The Company will pay all expenses in connection with the registration of
the Shares. The Selling Shareholders will pay for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of the Shares.
3
<PAGE> 5
Shares not sold pursuant to the registration statement on Form S-3 of which
this Prospectus is a part (the "Registration Statement"), may be subject to
certain restrictions under the Securities Act and could be sold, if at all, only
pursuant to Rule 144 or other exemption from the registration requirements of
the Securities Act. In general, under Rule 144, a person (or persons whose
Shares are aggregated) who has satisfied a two-year holding period may, under
certain circumstances, sell within any three-month period a number of Shares
which does not exceed the greater of one percent of the Company's outstanding
Common Shares or the average weekly reported trading volume of the Company's
Common Shares during the four calendar weeks prior to such sale. Rule 144 also
permits, under certain circumstances, the sale of Shares by a person who is not
an affiliate of the Company and who has satisfied a three-year holding period
without any volume limitation. Therefore, both during and after the
effectiveness of the Registration Statement, sales of the Shares may be made by
the Selling Shareholders pursuant to Rule 144. On February 20, 1997, the
Securities and Exchange Commission (the "Commission") issued final rules, which
will become effective 60 days after official publication, amending the holding
period requirements contained in Rule 144. The amended rules shorten the
two-year and three-year holding periods under Rule 144 to one-year and two-year
holding periods, respectively, and the revised holding periods are applicable to
all securities, whether acquired before or after the effective date of the
amended rules.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. Such
reports, proxy statements and other information can be inspected at the Public
Reference Section maintained by the Commission at Judiciary Plaza, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and the following regional
offices of the Commission: Citicorp Center, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661-2511 and Seven World Trade Center, Suite 1300, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains a Web
site (http://www.sec.gov) that contains reports, proxy statements and other
information regarding registrants that file electronically with the Commission.
In addition, the Company's Common Shares are listed on the NYSE and such
reports, proxy statements and other information concerning the Company can be
inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission the Registration Statement, of
which this Prospectus is a part, under the Securities Act, with respect to the
Shares. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other documents are not
necessarily complete, and in each instance, reference is made to the copy of
such contract or documents filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference and the
exhibits and schedules thereto. For further information regarding the Company
and the Shares, reference is hereby made to the Registration Statement and such
exhibits and schedules which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
4
<PAGE> 6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed under the Exchange Act by the
Company or the Predecessor Corporation (Exchange Act file number 1-13038) with
the Commission and are incorporated herein by reference:
(1) The Predecessor Corporation's Registration Statement on Form 8-A filed
on April 18, 1994 registering the common stock, par value $0.01 per
share, of the Predecessor Corporation under Section 12(b) of the
Exchange Act.
(2) The Proxy Statement in connection with the Predecessor Corporation's
1996 Annual Meeting of Stockholders.
(3) The Predecessor Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995, as amended on April 29, 1996.
(4) The Predecessor Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
(5) The Predecessor Corporation's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996.
(6) The Predecessor Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996, as amended on February 13, 1997.
(7) The Predecessor Corporation's Current Report on Form 8-K dated August
2, 1994 and filed January 9, 1996, as amended on February 2, 1996 and
February 15, 1996.
(8) The Predecessor Corporation's Current Report on Form 8-K dated October
3, 1994 and filed January 9, 1996, as amended on February 2, 1996 and
February 15, 1996.
(9) The Predecessor Corporation's Current Report on Form 8-K dated
December 19, 1995 and filed January 3, 1996, as amended on February 2,
1996 and February 15, 1996.
(10) The Predecessor Corporation's Current Report on Form 8-K dated April
18, 1996 and filed June 5, 1996.
(11) The Predecessor Corporation's Current Report on Form 8-K dated June
17, 1996 and filed September 11, 1996.
(12) The Predecessor Corporation's Current Report on Form 8-K dated August
15, 1996 and filed September 11, 1996, as amended on September 27,
1996 and November 12, 1996.
(13) The Predecessor Corporation's Current Report on Form 8-K dated
September 27, 1996 and filed September 27, 1996.
(14) The Predecessor Corporation's Current Report on Form 8-K dated October
4, 1996 and filed October 4, 1996.
All documents filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to termination
of the offering of Shares to which this Prospectus relates shall be deemed to be
incorporated by reference in this Prospectus and shall be part hereof from the
date of filing of such document.
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 Prospectus to the extent that a statement contained in this
Prospectus (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 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 Prospectus except as so
amended or superseded. Subject to the foregoing, all
5
<PAGE> 7
information appearing in this Prospectus is qualified in its entirety by the
information appearing in the documents incorporated by reference.
The Company undertakes to provide without charge to each person to whom a
copy of this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any or all of the documents incorporated by reference
in this Prospectus (other than exhibits and schedules thereto, unless such
exhibits or schedules are specifically incorporated by reference into the
information that this Prospectus incorporates). Written or telephonic requests
for copies should be directed to Crescent Real Estate Equities Company, 777 Main
Street, Suite 2100, Fort Worth, Texas, 76102, Attention: Company Secretary
(telephone number: (817) 877-0477).
EXPERTS
The financial statements and schedule incorporated in this Prospectus by
reference to the Predecessor Corporation's Annual Report on Form 10-K for the
year ended December 31, 1995, as amended, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports. The report of Arthur Andersen LLP with respect
to the combined financial statements and schedules of the Rainwater Property
Group (as defined in the financial statements and schedule incorporated by
reference herein) is based in part on the report of KPMG Peat Marwick LLP,
independent public accountants, on the combined statement of operations, owners'
deficit, and cash flows of The Crescent property and in reliance upon the
authority of KPMG Peat Marwick LLP as experts in accounting and auditing.
The financial statements incorporated in this Prospectus by reference to
the Predecessor Corporation's Current Reports on Form 8-K (i) dated August 2,
1994 and filed on January 9, 1996, as amended on February 2, 1996 and February
15, 1996, (ii) dated October 3, 1994 and filed on January 9, 1996, as amended on
February 2, 1996 and February 15, 1996, (iii) dated April 18, 1996 and filed on
June 5, 1996, and (iv) dated August 15, 1996 and filed on September 11, 1996, as
amended on September 27, 1996 and November 12, 1996, respectively, relating to
the Caltex House, Regency Plaza One, Two Renaissance Square, Waterside Commons,
Stanford Corporate Centre, MCI Tower, Denver Marriott City Center, Ptarmigan
Place, Albuquerque Facility, the Hyatt Regency Albuquerque, 301 Congress and
Greenway Plaza properties and for East West Properties, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports, except that certain
financial statements incorporated herein by reference to the Predecessor
Corporation's Current Report on Form 8-K, dated August 15, 1996 and filed on
September 11, 1996, as amended on September 27, 1996 and November 12, 1996,
relating to Greenway Plaza have been audited by Grant Thornton LLP, independent
certified public accountants, as indicated in their report with respect thereto,
and are included herein in reliance upon the authority of Grant Thornton LLP as
experts in accounting and auditing in giving said reports. The financial
statements incorporated in this Prospectus by reference to the Predecessor
Corporation's Current Report on Form 8-K dated October 3, 1994 and filed on
January 9, 1996, as amended on February 2, 1996 and February 15, 1996, relating
to Spectrum Center have been audited by Huselton & Morgan, P.C., independent
public accountants, as indicated in its report with respect thereto, and are
included herein in reliance upon their authority as experts in accounting and
auditing.
LEGAL MATTERS
The legality of the issuance of the Shares will be passed upon for the
Company by Shaw, Pittman, Potts & Trowbridge.
6
<PAGE> 8
================================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY
UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
================================================================================
================================================================================
46,802 SHARES
[LOGO]
CRESCENT
REAL ESTATE EQUITIES COMPANY
COMMON SHARES
PROSPECTUS
, 1997
================================================================================
<PAGE> 9
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses to be incurred in connection with the issuance and
distribution of the Common Shares covered by this Registration Statement, all of
which will be paid by the Registrant, are as follows:
<TABLE>
<S> <C>
Registration Fee............................................ $776
Printing, Engraving and Filing Expenses..................... $*
Accounting Fees and Expenses................................ $*
Legal Fees and Expenses..................................... $*
Miscellaneous............................................... $*
----
Total....................................................... $*
====
</TABLE>
- ---------------
* To be supplied by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Declaration of Trust (the "Declaration of Trust")
provides that the liability of each trust manager for monetary damages shall be
eliminated to the fullest extent permitted by applicable law. In general, under
current Texas law, a trust manager is liable to the trust only for liabilities
arising from such trust manager's own willful misfeasance or willful malfeasance
or gross negligence. The Declaration of Trust also provides that no amendment
thereto may limit or eliminate this limitation of liability with respect to
events occurring prior to the effective date of such amendment.
The Company's Declaration of Trust provides that the trust managers and
officers shall be indemnified to the maximum extent permitted by Texas law.
Under current Texas law, the trust will indemnify a person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding because
the person is or was a trust manager or officer if it is determined that the
person (i) conducted himself in good faith; (ii) reasonably believed: (a) in the
case of conduct in his official capacity as a trust manager or officer of the
real estate investment trust, that his conduct was in the real estate investment
trust's best interests; and (b) in all other cases, that his conduct was at
least not opposed to the real estate investment trust's best interests; and
(iii) in the case of any criminal proceeding, had no reasonable cause to believe
that his conduct was unlawful. Except to the extent provided in the following
sentence, a trust manager or officer may not be indemnified (i) in respect of a
proceeding in which the person is found liable on the basis that personal
benefit was improperly received by him, whether or not the benefit resulted from
an action taken in the person's official capacity; or (ii) in which the person
is found liable to the real estate investment trust. Notwithstanding the
foregoing, a person may be indemnified against judgments, penalties (including
excise and similar taxes), fines, settlements, and reasonable expenses actually
incurred by the person in connection with the proceeding; provided that if the
person is found liable to the real estate investment trust or is found liable on
the basis that personal benefit was improperly received by the person, the
indemnification (i) is limited to reasonable expenses actually incurred by the
person in connection with the proceeding, and (ii) shall not be made in respect
of any proceeding in which the person shall have been found liable for willful
or intentional misconduct in the performance of his duty to the real estate
investment trust. In addition, the Company's Declaration of Trust and Bylaws
require it to pay or reimburse, in advance of the final disposition of a
proceeding, reasonable expenses incurred by a present or former trust manager or
officer made a party to a proceeding by reason of his status as a trust manager
or officer, provided that the Company shall have received (i) a written
affirmation by the trust manager or officer of his good faith belief that he has
met the standard of conduct necessary for indemnification by the Company as
authorized by the Bylaws and (ii) a written undertaking by or on his behalf to
repay the amount paid or reimbursed by the Company if it shall ultimately be
determined that the standard of conduct was not met. The Company's Declaration
of Trust and Bylaws also permit the Company to provide indemnification, payment
or reimbursement of expenses to any employee or agent of the Company in such
capacity. Any indemnification, payment or reimbursement of the expenses
permitted by the
II-1
<PAGE> 10
Declaration of Trust and Bylaws shall be furnished in accordance with the
procedures provided for indemnification and payment or reimbursement of expenses
under Texas Real Estate Investment Trust Act for trust managers.
The Second Amended and Restated Agreement of Limited Partnership of the
Operating Partnership contains indemnification provisions comparable to those
contained in the Declaration of Trust.
The Company carries insurance that purports to insure officers and trust
managers of the Company against certain liabilities incurred by them in the
discharge of their official functions.
ITEM 16. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<C> <S>
*4.01 Restated Declaration of Trust of the Registrant (Filed as Exhibit No. 4.01 to the
Registrant's Registration Statement on Form S-3 (File No. 333-21905) (the "1997 Form
S-3") and incorporated herein by reference)
4.02 Amended and Restated Bylaws of the Registrant (filed herewith)
*4.03 Form of Common Share Certificate (filed as Exhibit No. 4.03 to the 1997 Form S-3 and
incorporated herein by reference)
*4.04 Second Amended and Restated Agreement of Limited Partnership of Crescent Real Estate
Equities Limited Partnership dated December 31, 1996
4.05 Registration Rights Agreement, dated February 16, 1996, by and among the Registrant,
Crescent Real Estate Equities Limited Partnership and the Selling Shareholders (filed
herewith)
*5.01 Opinion of Shaw, Pittman, Potts & Trowbridge as to the legality of the securities being
registered by Crescent Real Estate Equities Company
23.01 Consent of Shaw, Pittman, Potts & Trowbridge (included in its opinion to be filed as
Exhibit 5.01 to this Registration Statement)
23.02 Consent of Arthur Andersen LLP, Certified Public Accountants, dated March 6, 1997
(filed herewith)
23.03 Consent of KPMG Peat Marwick LLP, Certified Public Accountants, dated March 7, 1997
(filed herewith)
23.04 Consent of Huselton & Morgan, P.C., Certified Public Accountants, dated March 7, 1997
(filed herewith)
23.05 Consent of Grant Thornton LLP, Certified Public Accountants, dated March 7, 1997 (filed
herewith)
24.01 Powers of Attorney (incorporated by reference from the signature page)
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned 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;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
II-2
<PAGE> 11
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 (a)(1)(i) and (a)(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 Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant'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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 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 Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 12
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-3 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 the 7th day of March,
1997.
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ GERALD W. HADDOCK
-------------------------------------
Gerald W. Haddock
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints each of John C. Goff, Gerald W. Haddock and David M.
Dean, and each of them, as his true and lawful attorney-in-fact and agent, each
with full powers of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, with full power to act alone, to
sign any or all documents (including both pre- and post-effective amendments to
this Registration Statement) and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, granting unto each
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as each said attorney-in-fact and
agent might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or any substitute or substitutes
for any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ RICHARD E. RAINWATER Trust Manager and Chairman of the March 7, 1997
- ----------------------------------------------------- Board
Richard E. Rainwater
/s/ JOHN C. GOFF Trust Manager and Vice Chairman of March 7, 1997
- ----------------------------------------------------- the Board
John C. Goff
/s/ GERALD W. HADDOCK Trust Manager, President and Chief March 7, 1997
- ----------------------------------------------------- Executive Officer (Principal
Gerald W. Haddock Executive Officer)
/s/ DALLAS E. LUCAS Senior Vice President and Chief March 7, 1997
- ----------------------------------------------------- Financial Officer (Principal
Dallas E. Lucas Financial and Accounting
Officer)
/s/ ANTHONY M. FRANK Trust Manager March 7, 1997
- -----------------------------------------------------
Anthony M. Frank
</TABLE>
II-4
<PAGE> 13
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ MORTON H. MEYERSON Trust Manager March 7, 1997
- -----------------------------------------------------
Morton H. Meyerson
/s/ WILLIAM F. QUINN Trust Manager March 7, 1997
- -----------------------------------------------------
William F. Quinn
/s/ PAUL E. ROWSEY, III Trust Manager March 7, 1997
- -----------------------------------------------------
Paul E. Rowsey, III
/s/ MELVIN ZUCKERMAN Trust Manager March 7, 1997
- -----------------------------------------------------
Melvin Zuckerman
</TABLE>
II-5
<PAGE> 14
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
------- ---------------------- --------
<C> <S> <C>
*4.01 -- Restated Declaration of Trust of the Registrant (Filed as
Exhibit No. 4.01 to the Registrant's Registration
Statement on Form S-3 (File No. 333-21905) (the "1997
Form S-3") and incorporated herein by reference)
4.02 -- Amended and Restated Bylaws of the Registrant (filed
herewith)
*4.03 -- Form of Common Share Certificate (Filed as Exhibit No.
4.03 to the 1997 Form S-3 and incorporated herein by
reference)
*4.04 -- Second Amended and Restated Agreement of Limited
Partnership of Crescent Real Estate Equities Limited
Partnership dated December 31, 1996
4.05 -- Registration Rights Agreement, dated February 16, 1996,
by and among the Registrant, Crescent Real Estate
Equities Limited Partnership and the Selling Shareholders
(filed herewith)
*5.01 -- Opinion of Shaw, Pittman, Potts & Trowbridge as to the
legality of the securities being registered by Crescent
Real Estate Equities Company
23.01 -- Consent of Shaw, Pittman, Potts & Trowbridge (included in
its opinion to be filed as Exhibit 5.01 to this
Registration Statement)
23.02 -- Consent of Arthur Andersen LLP, Certified Public
Accountants, dated March 6, 1997 (filed herewith)
23.03 -- Consent of KPMG Peat Marwick LLP, Certified Public
Accountants, dated March 7, 1997 (filed herewith)
23.04 -- Consent of Huselton & Morgan, P.C., Certified Public
Accountants, dated March 7, 1997 (filed herewith)
23.05 -- Consent of Grant Thornton LLP, Certified Public
Accountants, dated March 7, 1997 (filed herewith)
24.01 -- Powers of Attorney (incorporated by reference from the
signature page)
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference.
<PAGE> 1
EXHIBIT 4.02
AMENDED AND RESTATED BYLAWS
OF
CRESCENT REAL ESTATE EQUITIES COMPANY
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I - OFFICES AND RECORDS............................................ 1
Section 1.1 - Principal Office ....................................... 1
Section 1.2 - Additional Offices ..................................... 1
Section 1.3 - Books and Records ...................................... 1
ARTICLE II - SHAREHOLDERS ................................................. 1
Section 2.1 - Annual Meeting ......................................... 1
Section 2.2 - Special Meetings ....................................... 2
Section 2.3 - Place of Meeting ....................................... 2
Section 2.4 - Notice of Meeting ...................................... 2
Section 2.5 - Meeting Without Notice; Waiver of Notice ............... 3
Section 2.6 - Quorum ................................................. 3
Section 2.7 - Adjournment ............................................ 4
Section 2.8 - Proxies ................................................ 4
Section 2.9 - Notice of Shareholder Business and Nominations ......... 4
A. Annual Meeting of Shareholders ............................... 4
B. Special Meetings of Shareholders ............................. 7
C. General ...................................................... 7
Section 2.10 - Procedure for Election of Trust Managers .............. 8
Section 2.11 - Vote of Shareholders .................................. 9
Section 2.12 - Opening and Closing the Polls ......................... 10
Section 2.13 - Inspectors ............................................ 10
Section 2.14 - Informal Action ....................................... 10
ARTICLE III - BOARD OF TRUST MANAGERS ..................................... 11
Section 3.1 - General Powers ......................................... 11
Section 3.2 - Number, Tenure and Qualifications ...................... 11
Section 3.3 - Composition of the Board of Trust Managers ............. 12
Section 3.4 - Regular Meetings ....................................... 12
Section 3.5 - Special Meetings ....................................... 13
Section 3.6 - Notice ................................................. 13
Section 3.7 - Quorum ................................................. 14
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
Section 3.8 - Participation By Conference Telephone .................. 14
Section 3.9 - Presumption of Assent .................................. 15
Section 3.10 - Adjournments .......................................... 15
Section 3.11 - Informal Action ....................................... 15
Section 3.12 - Vacancies ............................................. 15
Section 3.13 - Removal ............................................... 16
Section 3.14 - Committees ............................................ 16
ARTICLE IV - OFFICERS ..................................................... 19
Section 4.1 - Categories of Officers ................................. 19
Section 4.2 - Election and Term of Office ............................ 19
Section 4.3 - Chairman of the Board .................................. 20
Section 4.4 - Vice Chairman of the Board ............................. 20
Section 4.4 - Chief Executive Officer ................................ 20
Section 4.5 - President .............................................. 21
Section 4.6 - Vice Presidents ........................................ 21
Section 4.7 - Secretary .............................................. 22
Section 4.8 - Treasurer .............................................. 22
Section 4.9 - Removal ................................................ 23
Section 4.10 - Salaries .............................................. 23
Section 4.11 - Vacancies ............................................. 24
Section 4.12 - Resignations .......................................... 24
ARTICLE V - SHARE CERTIFICATES AND TRANSFERS .............................. 24
Section 5.1 - Share Certificates ..................................... 24
Section 5.2 - Record Date and Closing of Transfer Books .............. 25
Section 5.3 - Registered Shareholders ................................ 26
Section 5.4 - Lost Certificates ...................................... 26
ARTICLE VI - MISCELLANEOUS PROVISIONS ..................................... 27
Section 6.1 - Fiscal Year ............................................ 27
Section 6.2 - Dividends .............................................. 27
Section 6.3 - Seal ................................................... 27
Section 6.4 - Execution of Written Instruments ....................... 27
Section 6.5 - Signing of Checks and Notes ............................ 27
Section 6.6 - Voting of Securities Held in Other Entities ............ 27
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
Section 6.7 - Indemnification and Insurance .......................... 28
A. Definitions .................................................. 28
B. Indemnification .............................................. 29
C. Successful Defense ........................................... 30
D. Determinations ............................................... 31
E. Advancement of Expenses ...................................... 32
F. Enforcement .................................................. 32
G. Procedure Upon a Change in Control ........................... 33
H. Employee Benefit Plans ....................................... 34
I. Authorization to Purchase Insurance .......................... 34
J. Other Indemnification and Insurance .......................... 34
K. Notice ....................................................... 35
L. Construction ................................................. 35
M. Continuing Offer, Reliance, Etc .............................. 35
N. Indemnification of Shareholders .............................. 36
O. Authority to Further Indemnify ............................... 36
P. Effect of Amendment .......................................... 36
ARTICLE VII - AMENDMENTS .................................................. 37
</TABLE>
-iii-
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
CRESCENT REAL ESTATE EQUITIES COMPANY
ORGANIZED UNDER THE LAWS OF THE STATE OF TEXAS
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1 PRINCIPAL OFFICE. The initial address of the principal office
of the Company in the State of Texas is 777 Main Street, Suite 2100, Fort Worth,
Texas 76102.
SECTION 1.2 ADDITIONAL OFFICES. The Company may have such other offices,
either within or without the State of Texas, as the Board of Trust Managers from
time to time may designate or as the business of the Company from time to time
may require.
SECTION 1.3 BOOKS AND RECORDS. The books and records of the Company may be
kept, either within or without the State of Texas, at such place or places as
the Board of Trust Managers from time to time may designate.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the
Company shall be held each year, commencing with 1997, on such date and at such
time as may be fixed by resolution of the Board of Trust Managers.
<PAGE> 6
SECTION 2.2 SPECIAL MEETINGS. Subject to the rights of the holders of any
class or series of preferred shares of the Company ("Preferred Shares") to elect
additional trust managers under specified circumstances, special meetings of the
shareholders may be called only by the Chairman of the Board, the Vice Chairman
of the Board, the Chief Executive Officer, the President, the Board of Trust
Managers pursuant to a resolution adopted by a majority of the total number of
trust managers constituting the whole Board of Trust Managers (the "Whole
Board"), or by written request to the Secretary by the holders of not less than
25 percent of all of the shares then outstanding and entitled to vote at such
meeting (the "Voting Shares"); provided that (i) the Secretary shall inform the
shareholders requesting such meeting of the reasonably estimated cost of
preparing and disseminating notice thereof and shall not be required to give
such notice until the Company has received payment in such amount from such
shareholders and (ii) unless requested by holders of a majority of the Voting
Shares, the Secretary shall not be required to call a special meeting to
consider any matter which is substantially the same as a matter voted on at any
special meeting of the shareholders held during the twelve (12) months preceding
the request to call such new special meeting.
SECTION 2.3 PLACE OF MEETING. Meetings shall be held at the principal
office of the Company or at such other place, within or without the State of
Texas, as the Board of Trust Managers from time to time by resolution may
designate.
SECTION 2.4 NOTICE OF MEETING. Written or printed notice, stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be prepared and
delivered by the Company, not less than ten (10) days nor more than sixty (60)
days before the date of the meeting, personally or by mail, to each shareholder
of record entitled to vote at such meeting and to each
-2-
<PAGE> 7
shareholder or other person, if any, entitled to notice of the meeting. If
delivered by mail, such notice shall be deemed to be delivered when deposited in
the United States mail with postage thereon prepaid, addressed to the
shareholder at his or her address as it appears on the share transfer books of
the Company. If delivered personally, such notice shall be deemed given when so
delivered to the shareholder as provided above and if by facsimile, such notice
shall be deemed given upon completion of the facsimile transmission to the
shareholder as provided above. Meetings may be held without notice if all
shareholders entitled to vote are present, or if notice is waived by those not
present in accordance with Section 2.5 of these Bylaws. Any previously scheduled
meeting of the shareholders may be postponed by resolution of the Board of Trust
Managers upon public notice given prior to the date scheduled for such meeting.
SECTION 2.5 MEETING WITHOUT NOTICE; WAIVER OF NOTICE. Either before or
after a shareholders' meeting, a shareholder may waive notice thereof by
executing a waiver of notice to be filed with the Company's records of
shareholder meetings. Any such written notice shall be deemed to be the
equivalent of notice pursuant to Section 2.4 hereof. Attendance at a
shareholders' meeting, either in person or by proxy, by a person entitled to
notice thereof shall constitute a waiver of notice of the meeting unless such
person attends for the sole and express purpose of objecting to the transaction
of business on the ground that the meeting was not lawfully called or convened.
SECTION 2.6 QUORUM. Except as otherwise provided by law or by the
Declaration of Trust of the Company, as the same may be amended or restated from
time to time (the "Declaration of Trust"), the holders of a majority of the
Voting Shares, represented in person or
-3-
<PAGE> 8
by proxy, shall constitute a quorum at a meeting of shareholders, except that
when specified business is to be voted on by a class or series voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such business.
SECTION 2.7 ADJOURNMENT. A meeting of shareholders convened on the date
for which it was called may be adjourned prior to the completion of business
thereat to a date not more than one hundred twenty (120) days after the record
date of the original meeting. Notice of a subsequent meeting held as a result of
an adjournment, other than by announcement at the meeting at which the
adjournment was taken, shall not be necessary. If a quorum is present or
represented at such subsequent meeting, any business may be transacted thereat
which could have been transacted at the meeting which was adjourned.
SECTION 2.8 PROXIES. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy executed in writing thereby or
by his duly authorized attorney-in-fact. A proxy shall not be valid after eleven
(11) months from the date of its execution unless a longer period is expressly
stated therein. A proxy shall be revocable unless the proxy form states
conspicuously that the proxy is irrevocable and the proxy is coupled with an
interest. Each proxy must be filed with the Secretary of the Company or his
representative at or before the time of the meeting to which it relates.
SECTION 2.9 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
A. ANNUAL MEETING OF SHAREHOLDERS.
(1) Nominations of persons for election to the Board of Trust
Managers of the Company and the proposal of business to be considered by the
shareholders may be made at
-4-
<PAGE> 9
an annual meeting of shareholders (i) pursuant to the Company's notice of
meeting delivered pursuant to Section 2.4 of these Bylaws; (ii) by or at the
direction of the Chairman of the Board of Trust Managers; or (iii) by any
shareholder of the Company who is entitled to vote at the meeting, who has
complied with the notice procedures set forth in clauses (2) and (3) of this
Paragraph A and who was a shareholder of record at the time such notice is
delivered to the Secretary of the Company.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (iii) of Paragraph
A(1) of this Section 2.9, the shareholder must have given timely notice thereof
in writing to the Secretary of the Company. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal office of the Company not
less than seventy (70) days nor more than ninety (90) days prior to the
anniversary of the preceding year's annual meeting; provided, however, that,
with respect to the 1997 annual meeting, the date of the 1996 annual meeting
shall be deemed to be June 17, 1996, and further provided that in the event that
the date of an annual meeting is advanced by more than thirty (30) days or
delayed by more than sixty (60) days from such anniversary date, to be timely
notice by the shareholder must be so delivered not earlier than the ninetieth
(90th) day prior to such annual meeting and not later than the close of business
on the later of the seventieth (70th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting is first made. Such shareholder's notice shall set forth (i) as to
each person whom the shareholder proposes to nominate for election or reelection
as a trust manager, all information relating to such person that is required to
be disclosed in solicitations of proxies for election of trust managers, or is
otherwise required, pursuant to
-5-
<PAGE> 10
Regulation 14A under the Securities Exchange Act of 1934, as amended, or any
successor statute thereto (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
trust manager if elected; (ii) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (a) the name
and address of such shareholder, as they appear on the Company's share transfer
books, and the name and address of such beneficial owner; (b) the class or
series and number of shares of beneficial interest of the Company which are
owned beneficially and of record by such shareholder and such beneficial owner;
and (c) the date or dates upon which the shareholder acquired ownership of such
shares.
(3) Notwithstanding anything in the second sentence of
Paragraph A(2) of this Section 2.9 to the contrary, in the event that the number
of trust managers to be elected to the Board of Trust Managers of the Company is
increased and there is no public announcement naming all of the nominees for
trust manager or specifying the size of the increased Board of Trust Managers
made by the Company at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting, a shareholder's notice required by
Paragraph A of this Section 2.9 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal
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<PAGE> 11
executive offices of the Company not later than the close of business on the
tenth (10th) day following the day on which such public announcement is first
made by the Company.
B. SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be conducted
at a special meeting of shareholders as shall have been brought before the
meeting pursuant to the Company's notice of meeting pursuant to Section 2.4 of
these Bylaws. Nominations of persons for election to the Board of Trust Managers
may be made at a special meeting of shareholders at which trust managers are to
be elected pursuant to the Company's notice of meeting (i) by or at the
direction of the Board of Trust Managers or (ii) by any shareholder of the
Company who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Section 2.9 and who is a shareholder of record at
the time such notice is delivered to the Secretary of the Company. Nominations
by shareholders of persons for election to the Board of Trust Managers may be
made at such a special meeting of shareholders if the shareholder's notice as
required by Paragraph A(2) of this Section 2.9 shall be delivered to the
Secretary at the principal office of the Company not earlier than the ninetieth
(90th) day prior to such special meeting and not later than the close of
business on the later of the seventieth (70th) day prior to such special meeting
or the tenth (10th) day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Trust Managers to be elected at such meeting.
C. GENERAL.
(1) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.9 shall be eligible to serve as trust
managers, and only such business shall
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<PAGE> 12
be conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section. Except as
otherwise provided by law, the Declaration of Trust or these Bylaws, the
chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or
brought in accordance with the procedures set forth in this Section 2.9 and, if
any proposed nomination or business is determined not to be in compliance
herewith, to declare that such defective nomination or proposal shall be
disregarded.
(2) For purposes of this Section 2.9, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.9, a shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Bylaw shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule l4a-8 under the Exchange Act or to create any
additional rights with respect to any such inclusion.
SECTION 2.10 PROCEDURE FOR ELECTION OF TRUST MANAGERS. Subject to the
rights of the holders of any class or series of Preferred Shares to elect trust
managers under specified circumstances, and to the laws of the State of Texas,
each shareholder having the right to vote for the election of trust managers
shall, unless otherwise provided in the Declaration of Trust or by
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<PAGE> 13
applicable law, have the right to vote, in person or by proxy, the number of
shares owned by such shareholder for as many persons as there are to be elected
and for whose election such shareholder has the right to vote. Unless otherwise
provided by the Declaration of Trust, no shareholder shall have the right or be
permitted to cumulate his or her votes on any basis. Election of trust managers
at all meetings of the shareholders at which trust managers are to be elected
may be viva voce, unless the chairman of the meeting shall order, or any
shareholder shall demand, that voting be by written ballot, and, except as
otherwise expressly provided with respect to the right of the holders of any
series of Preferred Shares to elect additional trust managers under specified
circumstances, a majority of the votes cast thereat shall elect. Voting on any
other question or election may be viva voce, unless the chairman of the meeting
shall order, or any shareholder shall demand, that voting be by written ballot.
SECTION 2.11 VOTE OF SHAREHOLDERS. Subject to the rights of the holders of
any class or series of Preferred Shares to elect trust managers under specified
circumstances, and to the laws of the State of Texas, each shareholder having
the right to vote shall be entitled at every meeting of shareholders to one (1)
vote for every share standing in his or her name on the record date fixed by the
Board of Trust Managers pursuant to Section 5.2 of these Bylaws. Except as
otherwise provided by law, the Declaration of Trust, these Bylaws, any
resolution adopted by the Board of Trust Managers authorizing a series of
Preferred Shares, or any resolution adopted by a majority of the Whole Board,
all matters submitted to the shareholders at any meeting (other than the
election of trust managers) shall be decided by a majority of the votes cast
with respect thereto.
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SECTION 2.12 OPENING AND CLOSING THE POLLS. The chairman of the meeting
shall fix, and announce at the meeting, the date and time of the opening and the
closing of the polls for each matter upon which the shareholders are to vote at
the meeting.
SECTION 2.13 INSPECTORS. At any meeting of shareholders, the chairman of
such meeting may, and upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meeting. Such inspector or inspectors shall
ascertain and report the number of shares represented at such meeting in person
or by proxy, based upon the determination of such inspector or inspectors of the
validity and effect of proxies, count all votes, report the results and perform
such other acts as are proper to conduct voting with impartiality and fairness
to all shareholders. Each report of inspectors shall be in writing and signed by
the inspector or, if there is more than one, by a majority of inspectors acting
at such meeting, in which event the report of the majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at a meeting and the results of voting thereat shall be prima
facie evidence thereof.
SECTION 2.14 INFORMAL ACTION. Any action required or permitted to be taken
at a meeting of shareholders may be taken without a meeting if the following are
filed with the Company's records of shareholder meetings:
(1) a unanimous written consent which sets forth the action
and is signed by each shareholder entitled to vote thereon; and
(2) a written waiver of any right to dissent signed by each
shareholder, if any, entitled to notice of the meeting but not entitled to vote
thereat.
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ARTICLE III
BOARD OF TRUST MANAGERS
SECTION 3.1 GENERAL POWERS. The business and affairs of the Company shall
be managed by, or under the direction of, its Board of Trust Managers. In
addition to the powers and authorities expressly conferred by these Bylaws, the
Board of Trust Managers may exercise all such powers of the Company and do all
such lawful acts and things as are not by law or by the Declaration of Trust or
these Bylaws required to be exercised or done by the shareholders.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS. Subject to the rights of
the holders of any class or series of Preferred Shares to elect trust managers
under specified circumstances, the number of trust managers shall be fixed from
time to time pursuant to a resolution adopted by a majority of the Whole Board,
but shall consist of not more than twenty-five (25) nor less than three (3)
trust managers who need not be residents of the State of Texas and need not hold
shares in the Company; provided that if, at any time, the Company has fewer than
three (3) shareholders, the number of trust managers may be less than three (3),
but not less than the number of shareholders. At all times as the Board of Trust
Managers shall consist of three (3) or more trust managers, the trust managers,
other than those who may be elected by the holders of any class or series of
Preferred Shares, shall be divided, with respect to the time for which they
severally hold office, into three (3) classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the first
annual meeting of shareholders held after such division into classes, the term
of office of the second class to expire at the second annual meeting of
shareholders held after such division into classes and the term of office of the
third class to expire at the third annual meeting of shareholders held after
such division into classes. Each
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trust manager shall hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of shareholders commencing with
the first annual meeting held after such division into classes, trust managers
elected to succeed those trust managers whose terms then expire shall be elected
for a term of office to expire at the third (3rd) succeeding annual meeting of
shareholders after their election, with each trust manager to hold office until
his or her successor shall have been duly elected and qualified.
SECTION 3.3 COMPOSITION OF THE BOARD OF TRUST MANAGERS. Except during a
period of vacancy or vacancies on the Board of Trust Managers, a majority of the
trust managers at all times shall be persons who are not affiliates (as that
term is defined in the next succeeding sentence) of (i) the Company other than
affiliation solely by reason of service as a trust manager of the Company or
(ii) Rainwater, Inc. or any successor entity thereto (the "Independent Trust
Managers"). For purposes of this Section 3.3, "affiliate" shall mean, with
respect to the Company or Rainwater, Inc., any individual who (i) directly or
indirectly controls, is controlled by or is under common control with, such
entity or (ii) any officer, director, trust manager, general partner or trustee
of such entity (other than a trust manager of the Company who otherwise would be
deemed to be an affiliate of the Company solely by reason of service as a trust
manager).
SECTION 3.4 REGULAR MEETINGS. A regular meeting of the Board of Trust
Managers to elect officers and consider other business shall be held without
notice other than this Section 3.4 immediately after, and at the same place as,
each annual meeting of shareholders. The Board of Trust Managers may, by
resolution, designate the time and place for additional regular meetings without
notice other than such resolution.
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SECTION 3.5 SPECIAL MEETINGS. Special meetings of the Board of Trust
Managers shall be called at the request of the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President or a majority
of the Board of Trust Managers. The person or persons authorized to call special
meetings of the Board of Trust Managers may fix the place and time of the
meeting.
SECTION 3.6 NOTICE. Notice of any special meeting shall be given to each
trust manager at his business or residence as recorded in the books and records
of the Company or at such other address as such trust manager may designate in
writing to the Secretary of the Company by mail, by telegram or express courier,
charges prepaid, by facsimile or telephonic communication. If mailed, such
notice shall be deemed adequately delivered if deposited in the United States
mails so addressed, with postage thereon prepaid, at least five (5) days before
the day of such meeting. If by telegram, such notice shall be deemed adequately
delivered if the telegram is delivered to the telegraph company at least
twenty-four (24) hours before the time set for such meeting. If by express
courier, the notice shall be deemed adequately given if delivered to the courier
company at least two (2) days before the day of such meeting. If by telephone or
facsimile, the notice shall be deemed adequately delivered if given at least
twelve (12) hours prior to the time set for such meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
Board of Trust Managers need be specified in the notice of such meeting, except
for amendments to these Bylaws as provided under Article VII hereof. A meeting
may be held at any time without notice if all the trust managers are present or
if those not present waive notice of the meeting in writing, either before or
after such meeting. Attendance of a trust manager at a meeting shall constitute
waiver of notice of that meeting unless he or she attends for the sole and
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express purpose of objecting to the transaction of business on the ground that
the meeting was not lawfully called or convened.
SECTION 3.7 QUORUM. A number of trust managers equal to at least a
majority of the trust managers then in office shall constitute a quorum for the
transaction of business; provided, however, that if the Whole Board consists of
two or three trust managers, two trust managers shall constitute a quorum, if
the Whole Board consists of one trust manager, one trust manager shall
constitute a quorum and that in no event may less than one third (1/3) of the
Whole Board constitute a quorum. Anything else herein to the contrary
notwithstanding, if at any meeting of the Board of Trust Managers there shall be
less than a quorum present, a majority of the trust managers present may adjourn
the meeting from time to time without further notice. Except as may otherwise be
provided by the Declaration of Trust, these Bylaws or applicable law, the act of
the majority of the trust managers present at a meeting at which a quorum is
present shall be the act of the Board of Trust Managers. The trust managers
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal or departure of enough trust
managers to leave less than a quorum.
SECTION 3.8 PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Trust Managers, or any committee thereof, may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 3.8 shall
constitute presence in person at such meeting.
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SECTION 3.9 PRESUMPTION OF ASSENT. A trust manager of the Company who is
present at a meeting of the trust managers at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent shall be entered in the minutes of the meeting or unless he
or she shall file a written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof.
SECTION 3.10 ADJOURNMENTS. Any meeting of the Board of Trust Managers may
be adjourned prior to the completion of business thereat. Notice of the
subsequent meeting held as a result of an adjournment, other than by
announcement at the meeting at which the adjournment is taken, shall not be
necessary. If a quorum is present at such subsequent meeting, any business may
be transacted thereat which could have been transacted at the meeting which was
adjourned.
SECTION 3.11 INFORMAL ACTION. If all of the trust managers consent in
writing to any action required or permitted to be taken at a meeting of the
Board of Trust Managers or a committee thereof and the writing or writings
evidencing such consent is or are filed by the Secretary of the Company with the
minutes of proceedings of the Board of Trust Managers or such committee, the
action shall be as valid as though it had been taken at a meeting of the Board
or committee.
SECTION 3.12 VACANCIES. Except as otherwise provided in this Section 3.12,
subject to the rights of the holders of any class or series of Preferred Shares
to elect additional trust managers under specified circumstances, unless the
Board of Trust Managers otherwise determines, vacancies resulting from death,
resignation, retirement, disqualification, or other cause relating to a
then-existing Board position shall be filled by the affirmative vote of a
majority of the remaining trust managers, though less than a quorum of the Board
of Trust Managers, and newly
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created trust managerships resulting from an increase in the authorized number
of trust managers shall be filled by the affirmative vote of a majority of the
Whole Board and, in either event, trust managers so chosen shall hold office for
a term expiring at the annual meeting of shareholders at which the term of
office of the class to which they have been elected expires and until such trust
manager's successor shall have been duly elected and qualified. No decrease in
the number of authorized trust managers constituting the Whole Board shall
shorten the term of any incumbent trust manager. Vacancies on the Board of Trust
Managers due to the removal of a trust manager may be filled by the shareholders
at an annual or special meeting called for that purpose, and trust managers so
chosen shall hold office for a term expiring at the annual meeting of
shareholders at which the term of office of the class to which they have been
elected expires and until each such trust manager's successor shall have been
duly elected and qualified. The appointment or election of a successor trust
manager shall be considered an amendment to the Declaration of Trust.
SECTION 3.13 REMOVAL. Subject to the rights of the holders of any class or
series of Preferred Shares to elect additional trust managers under specified
circumstances, any trust manager, or the entire Board of Trust Managers, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80 percent of the then outstanding Voting
Shares, voting together as a single class.
SECTION 3.14 COMMITTEES. The Board of Trust Managers, by resolution or
resolutions passed by a majority of the Whole Board, may designate from among
the members of the trust managers one or more committees which, to the extent
provided in such resolution or resolutions, shall have and may exercise all of
the authority of the Board of Trust Managers in
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the business and affairs of the Company to the extent consistent with the Texas
Real Estate Investment Trust Act, as amended from time to time, or any successor
statute thereto (the "Texas REIT Act"), except the power to amend the
Declaration of Trust, to approve a plan of merger or share exchange, to declare
dividends or distributions on shares, to amend these Bylaws, to issue shares
except in the manner and to the extent prescribed by the Declaration of Trust,
these Bylaws or any resolution designating the committee, to fill vacancies in
the trust managers or in the committee, to elect or remove officers of the
Company or members of the committee, to fix the compensation of any member of
the committee, to recommend to the shareholders any action requiring shareholder
approval, or to approve any merger, consolidation or share exchange which does
not require shareholder approval, each committee to consist of two (2) or more
trust managers of the Company, including, without limitation the following
committees:
(1) An Executive Committee, which shall have such authority as
shall be delegated by the Board of Trust Managers, including,
without limitation, authority to acquire and dispose of real
property and to execute contracts and agreements on behalf of
the full Board of Trust Managers including, without
limitation, those relating to the incurrence of debt by the
Company or subsidiaries thereof, and shall advise the Board of
Trust Managers from time to time with respect to such matters
as the Board of Trust Managers shall direct.
(2) An Audit Committee, which shall consist of Outside Trust
Managers (as defined below). The Audit Committee shall make
recommendations concerning the engagement of independent
public accountants, review with the independent public
accountants the plans and results of each audit engagement,
approve
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professional services provided by the independent public
accountants, review the independence of the independent public
accountants, consider the range of audit and non-audit fees
and review the adequacy of the Company's internal accounting
controls.
(3) An Executive Compensation Committee, which shall determine
compensation for the Company's executive officers and shall
administer any share incentive or other compensation plans
adopted by the Company.
For purposes of this Section 3.14, "Outside Trust Managers" shall mean trust
managers who are not (i) officers or former officers of the Company or any
subsidiary thereof; (ii) employees of the Company or any subsidiary or division
thereof; (iii) relatives of an executive officer; (iv) holders of more than five
(5) percent of the Voting Shares of the Company or any subsidiary thereof; (v)
members of any organization acting as an adviser, consultant, legal counsel or
in a similar capacity with respect to the Company and receiving compensation
therefor on an ongoing basis from the Company, in addition to trust managers
fees; or (vi) with reference to any particular transaction, interested trust
managers within the meaning of Section 4.20 of the Texas REIT Act or any
successor provision thereto. The Board of Trust Managers may designate one or
more trust managers as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of such committee. Unless the Board
of Trust Managers shall provide otherwise, the presence of one-half (1/2) of the
total membership of any committee of the Board of Trust Managers shall
constitute a quorum for the transaction of business at any meeting of such
committee and the act of a majority of those present shall be the act of such
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committee. Each committee shall keep regular minutes of its proceedings and
report the same to the full Board of Trust Managers when so requested.
ARTICLE IV
OFFICERS
SECTION 4.1 CATEGORIES OF OFFICERS. The elected officers of the Company
shall consist of a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a President, one or more Executive Vice Presidents or Vice
Presidents, a Secretary and a Treasurer. Such other officers, assistant
officers, agents and employees as the Board of Trust Managers may from time to
time deem necessary may be elected by the Board of Trust Managers or appointed
by the Chairman of the Board. The Chairman of the Board and the Vice Chairman of
the Board shall be chosen from among the trust managers. Two or more offices may
be held by the same person, except that a person may not concurrently serve as
the President and a Vice President or Executive Vice President. Each officer
chosen or appointed in the manner prescribed by the Board of Trust Managers
shall have such powers and duties as generally pertain to his or her office or
offices, subject to the specific provisions of this Article IV. Such officers
also shall have such powers and duties as from time to time may be conferred by
the Board of Trust Managers or by any committee thereof authorized to do so.
SECTION 4.2 ELECTION AND TERM OF OFFICE. The elected officers of the
Company shall be elected annually by the Board of Trust Managers at the regular
meeting of the Board of Trust Managers held after each annual meeting of the
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as is convenient. Each
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officer shall hold office until his or her successor shall have been duly
elected and shall have qualified, or until his or her death or until he or she
shall resign or be removed from office.
SECTION 4.3 CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the shareholders and of the Board of Trust Managers. The
Chairman of the Board shall be responsible for general management of the affairs
of the Company and shall perform all duties incidental to the office which may
be required by law, and all such other duties as may properly be required by the
Board of Trust Managers. Except where by law the signature of the Chief
Executive Officer or the President is required, the Chairman of the Board shall
possess the same power as the Chief Executive Officer and the President to sign
all certificates, contracts, and other instruments of the Company which may be
authorized by the Board of Trust Managers. The Chairman of the Board shall make
such reports to the Board of Trust Managers and the shareholders as are properly
required by the Board of Trust Managers. The Chairman of the Board shall see
that all orders and resolutions of the Board of Trust Managers and of any
committee thereof are carried into effect.
SECTION 4.4 VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board
shall, in the absence of the Chairman, preside at all meetings of the
shareholders and of the Board of Trust Managers. The Vice Chairman of the Board
shall, together with the Chairman of the Board and the Chief Executive Officer,
act in a general executive capacity and shall have such powers and duties as
set forth in these Bylaws or as from time to time may be established by the
Board of Trust Managers. The Vice Chairman of the Board may, in the absence of
or because of the inability to act of the Chairman of the Board, and if so
authorized by the Board of Trust Managers, perform all duties of the Chairman
of the Board. Except where by law the signature of the Chief Executive Officer
or the President is required, the Vice Chairman of the Board shall possess the
same power as the Chief Executive Officer and the President to sign all
certificates, contracts, and other instruments of the Company which may be
authorized by the Board of Trust Managers.
SECTION 4.5 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall act
in a general executive capacity and shall assist the Chairman of the Board in
the administration and operation
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of the Company's business and general supervision of its policies and affairs.
The Chief Executive Officer may, in the absence of or because of the inability
to act of the Chairman of the Board, perform all duties of the Chairman of the
Board and, in the absence of or because of the inability to act of the Chairman
of the Board and the Vice Chairman of the Board, preside at all meetings of
shareholders and of the Board of Trust Managers. The Chief Executive Officer may
sign, alone or with the Secretary or any assistant secretary or any other
officer of the Company properly authorized by the Board of Trust Managers,
certificates, contracts and other instruments of the Company as authorized by
the Board of Trust Managers.
SECTION 4.6 PRESIDENT. The President shall be the chief operating officer
of the Company, shall act in a general executive capacity and shall assist the
Chairman of the Board and the Chief Executive Officer in the administration and
operation of the Company's business and general supervision of its policies and
affairs. The President may, in the absence of or because of the inability to act
of the Chairman of the Board and the Chief Executive Officer, perform all duties
of the Chairman of the Board and, in the absence of or because of the inability
to act of the Chairman of the Board, the Vice Chairman of the Board and the
Chief Executive Officer, preside at all meetings of shareholders and of the
Board of Trust Managers. The President may sign, alone or with the Secretary or
any assistant secretary or any other officer of the Company properly authorized
by the Board of Trust Managers, certificates, contracts and other instruments of
the Company as authorized by the Board of Trust Managers.
SECTION 4.7 VICE PRESIDENTS. The Vice President or Vice Presidents, if
any, including any Executive Vice Presidents, shall perform the duties of the
Chief Executive Officer and the President in the absence or disability of both
the Chief Executive Officer and the President, and
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shall have such powers and perform such other duties as the Board of Trust
Managers or the Chairman of the Board from time to time may prescribe.
SECTION 4.8 SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of shareholders and trust managers and all other notices
required by law, by the Declaration of Trust or by these Bylaws, and in case of
his or her absence or refusal or neglect so to do, any such notice may be given
by any person thereunto directed by the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President or the Board
of Trust Managers, upon whose request the meeting is called, as provided in
these Bylaws. The Secretary shall record all the proceedings of the meetings of
the Board of Trust Managers, any committees thereof and the shareholders of the
Company in a book or books to be kept for that purpose, and shall perform such
other duties as from time to time may be prescribed by the Board of Trust
Managers, the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer or the President. The Secretary shall have custody of the
seal, if any, of the Company and shall affix the same to all instruments
requiring it, when authorized by the Board of Trust Managers, the Chairman of
the Board, the Vice Chairman of the Board, the Chief Executive Officer or the
President, and shall attest to the same.
SECTION 4.9 TREASURER. The Treasurer shall have custody of all Company
funds and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the Company. The Treasurer shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Trust
Managers. The Treasurer shall disburse the funds of the Company in such manner
as may be ordered by the Board of Trust Managers, the Chairman of the Board,
the Vice Chairman of the Board, the Chief Executive Officer or the President,
taking proper vouchers for such disbursements. The
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Treasurer shall render to the Chairman of the Board, the Chief Executive
Officer, the President and the Board of Trust Managers, whenever requested, an
account of all his or her transactions as Treasurer and of the financial
condition of the Company. If required by the Board of Trust Managers, the
Treasurer shall give the Company a bond for the faithful discharge of his or her
other duties in such amount and with such surety as the Board of Trust Managers
shall prescribe. The Treasurer also shall perform such duties and have such
powers as the Board of Trust Managers from time to time may prescribe.
SECTION 4.10 REMOVAL. Any officer elected by the Board of Trust Managers
or appointed in the manner prescribed hereby may be removed by a majority of the
members of the Whole Board whenever, in their judgment, the best interests of
the Company would be served thereby. No elected or appointed officer shall have
any contractual rights against the Company for compensation by virtue of such
election or appointment beyond the date of the election or appointment of his or
her successor, his or her death, resignation or removal, whichever event shall
first occur, except as otherwise provided in an employment or similar contract
or under an employee deferred compensation plan.
SECTION 4.11 SALARIES. The Board of Trust Managers shall fix the salaries
of the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer and the President of the Company, or may delegate the
authority to do so to a duly constituted Executive Compensation Committee. The
salaries of other officers, agents and employees of the Company may be fixed by
the Board of Trust Managers, by a committee of the Board, by the Chairman of the
Board or by another officer or committee to whom that function has been
delegated by the Board of Trust Managers or the Chairman of the Board.
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SECTION 4.12 VACANCIES. Any newly created office or vacancy in any office
because of death, resignation or removal shall be filled by the Board of Trust
Managers or, in the case of an office not specifically provided for in Section
4.1 hereof, by or in the manner prescribed by the Board of Trust Managers. The
officer so selected shall hold office until his or her successor is duly
selected and shall have qualified, unless he or she sooner resigns or is removed
from office in the manner provided in these Bylaws.
SECTION 4.13 RESIGNATIONS. Any trust manager or officer, whether elected
or appointed, may resign at any time by serving written notice of such
resignation on the Chairman of the Board, the Vice Chairman of the Board, the
Chief Executive Officer, the President or the Secretary, and such resignation
shall be deemed to be effective as of the close of business on the date said
notice is received by the Chairman of the Board, the Vice Chairman of the
Board, the Chief Executive Officer, the President or the Secretary. No action
shall be required of the Board of Trust Managers or the shareholders to make
any such resignation effective.
ARTICLE V
SHARE CERTIFICATES AND TRANSFERS
SECTION 5.1 SHARE CERTIFICATES. Each shareholder shall be entitled to a
certificate or certificates, in a form approved by the Board of Trust Managers
and consistent with the Texas REIT Act, which shall represent and certify the
number, kind and class of shares owned by him or her in the Company. Each
certificate shall be signed by the Chairman of the Board, the President or a
Vice President, and by the Secretary or the Treasurer (or an assistant secretary
or assistant treasurer, if any) and, pursuant to resolutions of the Board of
Trust Managers, any such signature may be in facsimile. In case any officer,
transfer agent or registrar who has signed, or
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whose facsimile signature has been placed on, a certificate has ceased to hold
such office before the certificate is issued, it nevertheless may be issued by
the Company with the same effect as if he or she held such office at the date of
issue.
SECTION 5.2 RECORD DATE AND CLOSING OF TRANSFER BOOKS. The Board of Trust
Managers may fix, in advance, a date as the record date for the purpose of
determining shareholders entitled to notice of, or to vote at, any meeting of
shareholders, or shareholders entitled to receive payment of any dividend or
distribution or the allotment of any rights, or the shareholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or in order to make a determination of shareholders for any other proper
purpose. The record date may not be prior to the close of business on the day
the record date is fixed. Such record date shall not be prior to the close of
business on the day such date is fixed and not more than sixty (60) days, and in
case of a meeting of shareholders, not less than ten (10) days, prior to the
date on which the particular action requiring such determination of shareholders
is to be taken. The stock transfer books of the Company may not be closed for a
period longer than twenty (20) days.
If no record date is fixed and the Company's stock transfer books are not
closed, the determination of shareholders entitled to notice of, or to vote at,
a meeting of shareholders shall be at the close of the business on the day on
which notice of the meeting is mailed. If no record date is fixed, the record
date for determining shareholders for any purpose other than that specified in
the preceding sentence shall be at the close of business on the day on which the
resolution of the Board of Trust Managers relating thereto is adopted.
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When a determination of shareholders of record entitled to notice of, or
to vote at, any meeting of shareholders has been made as provided in this
Section 5.2, such determination shall apply to any future meeting in respect of
an adjournment thereof, unless the trust managers fix a new record date under
this section for such future meeting.
SECTION 5.3 REGISTERED SHAREHOLDERS. The Company shall be entitled to
treat the holder of record of shares as the holder in fact and, except as
otherwise provided by the laws of the State of Texas, shall not be bound to
recognize any equitable or other claim to or interest in the shares.
Shares of the Company shall be transferred on its books only upon the
surrender to the Company of the share certificates duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, and upon
presentation of adequate evidence of the validity of the transfer under this
Section 5.3 and the laws of the State of Texas. In that event, the surrendered
certificates shall be canceled, new certificates issued to the person entitled
to them and the transaction recorded on the books of the Company.
SECTION 5.4 LOST CERTIFICATES. The Board of Trust Managers may direct a
new certificate to be issued in place of a certificate alleged to have been
destroyed or lost if the owner makes an affidavit that it is destroyed or lost.
The Board, in its discretion, may, as a condition precedent to issuing the new
certificate, require the owner to give the Company a bond as indemnity against
any claim that may be made against the Company on the certificate allegedly
destroyed or lost.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 FISCAL YEAR. The fiscal year of the Company shall begin on the
first (1st) day of January and end on the thirty-first (31st) day of December of
each year.
SECTION 6.2 DIVIDENDS. The Board of Trust Managers may from time to time
declare, and the Company may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Declaration of
Trust.
SECTION 6.3 SEAL. The seal of the Company, if any, shall have inscribed
thereon the name of the Company and shall be in such form as may be approved by
the Board of Trust Managers. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
SECTION 6.4 EXECUTION OF WRITTEN INSTRUMENTS. Contracts, deeds, documents,
and other instruments shall be executed by the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President and attested by the Secretary or an assistant secretary, unless the
Board of Trust Managers shall designate other authorized signatories or other
procedures for their execution.
SECTION 6.5 SIGNING OF CHECKS AND NOTES. Checks, notes, drafts, and
demands for money shall be signed by such person or persons as may be
designated by the Board of Trust Managers, the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer or the President.
SECTION 6.6 VOTING OF SECURITIES HELD IN OTHER ENTITIES. In the absence of
other arrangements by the Board of Trust Managers, securities issued by any
other trust, corporation,
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partnership or other entity and owned or controlled by this Company may be
voted at any securityholders' meeting of such other entity by the Chairman of
the Board of this Company or, if he or she is not present at the meeting, by
the Chief Executive Officer, the President, the Vice Chairman of the Board or
any Vice President of this Company, and in the event none of the Chairman of
the Board, the Chief Executive Officer, the President, the Vice Chairman of the
Board or any Vice President is to be present at a meeting, the securities may
be voted by such person as the Chairman of the Board and the Secretary of the
Company shall, by duly executed proxy, designate to represent the Company at
the meeting.
SECTION 6.7 INDEMNIFICATION AND INSURANCE.
A. DEFINITIONS. In this Section 6.7:
(1) "COMPANY" includes any domestic or foreign predecessor of
the Company in a merger, consolidation, or other transaction in which the
liabilities of the predecessor are transferred to the Company by operation of
law and in any other transaction in which the Company assumes the liabilities of
the predecessor but does not specifically exclude liabilities that are the
subject of this Section 6.7.
(2) "INDEMNITEE" means (i) any present or former Trust
Manager, officer, employee or agent of the Company, (ii) any person who while
serving in any of the capacities referred to in clause (i) hereof served at the
Company's request as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another real estate
investment trust or foreign or domestic corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise, and (iii)
any person nominated or
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designed by (or pursuant to authority granted by) the Trust Managers or any
committee thereof to serve in any of the capacities referred to in clause (i) or
(ii) hereof.
(3) "OFFICIAL CAPACITY" means (i) when used with respect to a
Trust Manager, the office of Trust Manager of the Company and (ii) when used
with respect to a person other than a Trust Manager, the elective or appointive
office of the Company held by such person or the employment or agency
relationship undertaken by such person on behalf of the Company, but in each
case does not include service for any other real estate investment trust or
foreign or domestic corporation or any partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise.
(4) "PROCEEDING" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative, any appeal in such an action, suit or proceeding, and any
inquiry or investigation that could lead to such an action, suit or proceeding.
B. INDEMNIFICATION. The Company shall indemnify every Indemnitee against
all judgments, penalties (including excise and similar taxes), fines, amounts
paid in settlement and reasonable expenses actually incurred by the Indemnitee
in connection with any Proceeding in which he was, is or is threatened to be
named defendant or respondent, or in which he was or is a witness without being
named a defendant or respondent, by reason, in whole or in part, of his serving
or having served, or having been nominated or designated to serve, in any of the
capacities referred to in Section 6.7.A(1), if it is determined in accordance
with Section 6.7.D that the Indemnitee (a) conducted himself in good faith, (b)
reasonably believed, in the case of
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conduct in his Official Capacity, that his conduct was in the Company's best
interests and, in all other cases, that his conduct was at least not opposed to
the Company's best interests, and (c) in the case of any criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful; provided,
however, that in the event that an Indemnitee is found liable to the Company or
is found liable on the basis that personal benefit was improperly received by
the Indemnitee the indemnification (i) is limited to reasonable expenses
actually incurred by the Indemnitee in connection with the Proceeding and (ii)
shall not be made in respect of any Proceeding in which the Indemnitee shall
have been found liable for willful or intentional misconduct in the performance
of his duty to the Company. Except as provided in the immediately preceding
proviso to the first sentence of this Section 6.7.B, no indemnification shall be
made under this Section 6.7.B in respect of any Proceeding in which such
Indemnitee shall have been (x) found liable on the basis that personal benefit
was improperly received by him, whether or not the benefit resulted from an
action taken in the Indemnitee's Official Capacity, or (y) found liable to the
Company. The termination of any Proceeding by judgment, order, settlement or
conviction, or on a plea of nolo contendere or its equivalent, is not of itself
determinative that the Indemnitee did not meet the requirements set forth in
clauses (a), (b) or (c) in the first sentence of this Section 6.7.B. An
Indemnitee shall be deemed to have been found liable in respect of any claim,
issue or matter only after the Indemnitee shall have been so adjudged by a court
of competent jurisdiction after exhaustion of all appeals therefrom. Reasonable
expenses shall include, without limitation, all court costs and all fees and
disbursements of attorneys for the Indemnitee.
C. SUCCESSFUL DEFENSE. Without limitation of Section 6.7.B and in addition
to the indemnification provided for in Section 6.7.B, the Company shall
indemnify every
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Indemnitee against reasonable expenses incurred by such person in connection
with any Proceeding in which he is a witness or a named defendant or respondent
because he served in any of the capacities referred to in Section 6.7.A(1), if
such person has been wholly successful, on the merits or otherwise, in defense
of the Proceeding.
D. DETERMINATIONS. Any indemnification under Section 6.7.B (unless
ordered by a court of competent jurisdiction) shall be made by the Company only
upon a determination that indemnification of the Indemnitee is proper in the
circumstances because he has met the applicable standard of conduct. Such
determination shall be made (a) by the Trust Managers by a majority vote of a
quorum consisting of Trust Managers who, at the time of such vote, are not
named defendants or respondents in the Proceeding; (b) if such a quorum cannot
be obtained, then by a majority vote of a committee of the Trust Managers, duly
designated to act in the matter by a majority vote of all Trust Managers (in
which designation Trust Managers who are named defendants or respondents in the
Proceeding may participate), such committee to consist solely of two (2) or
more Trust Managers who, at the time of the committee vote, are not named
defendants or respondents in the Proceeding; (c) by special legal counsel
selected by the Trust Managers or a committee thereof by vote as set forth in
clauses (a) or (b) of this Section 6.7.D or, if the requisite quorum of all of
the Trust Managers cannot be obtained and such committee cannot be established,
by a majority vote of all of the Trust managers (in which Trust Managers who
are named defendants or respondents in the Proceeding may participate); or (d)
by the shareholders in a vote that excludes the shares held by Trust Managers
that are named defendants or respondents in the Proceeding. Determination as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
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determination that indemnification is permissible is made by special legal
counsel, determination as to reasonableness of expenses must be made in the
manner specified in clause (c) of the preceding sentence for the selection of
special legal counsel. In the event a determination is made under this Section
6.7.D that the Indemnitee has met the applicable standard of conduct as to some
matters but not as to others, amounts to be indemnified may be reasonably
prorated.
E. ADVANCEMENT OF EXPENSES. Reasonable expenses (including court costs and
attorneys' fees) incurred by an Indemnitee who was or is a witness or was, is or
is threatened to be made a named defendant or respondent in a Proceeding shall
be paid or reimbursed by the Company at reasonable intervals in advance of the
final disposition of such Proceeding, and without making any of the
determinations specified in Section 6.7.D, after receipt by the Company of (a) a
written affirmation by such Indemnitee of his good faith belief that he has met
the standard of conduct necessary for indemnification by the Company under this
Section 6.7 and (b) a written undertaking by or on behalf of such Indemnitee to
repay the amount paid or reimbursed by the Company if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in this Section 6.7. Such written undertaking shall be an unlimited
general obligation of the Indemnitee but need not be secured and it may be
accepted without reference to financial ability to make repayment.
Notwithstanding any other provision of this Section 6.7, the Company may pay or
reimburse expenses incurred by an Indemnitee in connection with his appearance
as a witness or other participation in a Proceeding at a time when he is not
named a defendant or respondent in the Proceeding.
F. ENFORCEMENT. If a claim under paragraph B of this Section 6.7 is not
paid in full by the Company within thirty (30) calendar days after a written
claim has been received by
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the Company, the claimant may at any time thereafter (but prior to payment of
the claim) bring suit against the Company to recover the unpaid amount of the
claim and, if successful, in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any, has been tendered to the Company) that the
claimant has not met the standards of conduct which make it permissible under
the Texas REIT Act for the Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Company. Neither
the failure of the Company (including its Board of Trust Managers, independent
legal counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Texas REIT Act, nor an actual determination by the Company
(including its Board of Trust Managers, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
G. PROCEDURE UPON A CHANGE IN CONTROL. Following any "change in control"
of the Company of the type required to be reported under Item 1 of Form 8-K
promulgated under the Exchange Act, any determination as to entitlement to
indemnification shall be made by independent legal counsel selected by the
claimant, which such independent legal counsel shall be retained by the Board of
Trust Managers on behalf of the Company.
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H. EMPLOYEE BENEFIT PLANS. For purposes of this Section 6.7, the Company
shall be deemed to have requested an Indemnitee to serve an employee benefit
plan whenever the performance by him of his duties to the Company also imposed
or imposes duties on or otherwise involved or involves services by him to the
plan or participants or beneficiaries of the plan. Excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall be deemed fines. Action taken or omitted by an Indemnitee with respect to
an employee benefit plan in the performance of his duties for a purpose
reasonably believed by him to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Company.
I. AUTHORIZATION TO PURCHASE INSURANCE. The Company may purchase and
maintain insurance, at its expense, on its own behalf and on behalf of any
person who is or was a trust manager, officer, employee or agent of the Company
or who while a trust manager, officer, employee or agent of the Company is or
was serving at the request of the Company as a trust manager, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or employee benefit plan,
against any liability asserted against and incurred by such person in any such
capacity or arising out of such person's position, whether or not the Company
would have the power to indemnify such person against such expense or liability
under the Texas REIT Act.
J. OTHER INDEMNIFICATION AND INSURANCE. The indemnification provided by
this Section 6.7 shall (a) not be deemed exclusive of, or to preclude, any other
rights to which those seeking indemnification may at any time be entitled under
the Company's Declaration of Trust, any law, agreement or vote of shareholders
or disinterested Trust Managers, or otherwise,
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or under any policy or policies of insurance purchased and maintained by the
Company on behalf of any Indemnitee, both as to action in his Official Capacity
and as to action in any other capacity, (b) continue as to a person who has
ceased to be in the capacity by reason of which he was an Indemnitee with
respect to matters arising during the period he was in such capacity, and (c)
inure to the benefit of the heirs, executors and administrators of such a
person.
K. NOTICE. Any indemnification of or advance of expenses to an Indemnitee
in accordance with this Section 6.7 shall be reported in writing to the
shareholders of the Company with or before the notice or waiver of notice of the
next shareholders' meeting or with or before the next submission to shareholders
of a consent to action without a meeting and, in any case, within the
twelve-month period immediately following the date of the indemnification or
advance.
L. CONSTRUCTION. The indemnification provided by this Section 6.7 shall be
subject to all valid and applicable laws, including, without limitation, the
Texas REIT Act, and, in the event this Section 6.7 or any of the provisions
hereof or the indemnification contemplated hereby are found to be inconsistent
with or contrary to any such valid laws, the latter shall be deemed to control
and this Section 6.7 shall be regarded as modified accordingly, and, as so
modified, shall continue in full force and effect.
M. CONTINUING OFFER, RELIANCE, ETC. The provisions of this Section 6.7 (a)
are for the benefit of, and may be enforced by, each Indemnitee of the Company,
the same as if set forth in their entirety in a written instrument duly executed
and delivered by the Company and such Indemnitee and (b) constitute a continuing
offer to all present and future Indemnitees. The
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Company, by its adoption of these Bylaws, (x) acknowledges and agrees that each
Indemnitee of the Company has relied upon and will continue to rely upon the
provisions of this Section 6.7 in becoming, and serving in any of the capacities
referred to in Section 6.7.A(1) hereof, (y) waives reliance upon, and all
notices of acceptance of, such provisions by such Indemnitees and (z)
acknowledges and agrees that no present or future Indemnitee shall be prejudiced
in his right to enforce the provisions of this Section 6.7 in accordance with
their terms by any act or failure to act on the part of the Company.
N. INDEMNIFICATION OF SHAREHOLDERS. The Company shall indemnify each
shareholder against any claim or liability to which the shareholder may become
subject by reason of being or having been a shareholder. The Company shall
reimburse each shareholder for all legal and other expenses reasonably incurred
by such shareholder in connection with any such claim or liability.
O. AUTHORITY TO FURTHER INDEMNIFY. The Company may, to the extent
authorized from time to time by the Trust Managers, grant rights of
indemnification and rights to be paid by the Company the expenses incurred in
defending any proceeding in advance of its final disposition to any employee or
agent of the Company to the fullest extent of the provisions of this Section 6.7
with respect to the indemnification and advancement of expenses of Trust
Managers and officers of the Company.
P. EFFECT OF AMENDMENT. No amendment, modification or repeal of this
Section 6.7 or any provision of this Section 6.7 shall in any manner terminate,
reduce or impair the right of any past, present or future Indemnitees to be
indemnified by the Company, nor the
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obligation of the Company to indemnify any such Indemnitees, under and in
accordance with the provisions of this Section 6.7 as in effect immediately
prior to such amendment, modification or repeal with respect to claims arising
from or relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may be
asserted.
ARTICLE VII
AMENDMENTS
These Bylaws may be amended, added to, rescinded or repealed at any
meeting of the Board of Trust Managers or of the shareholders, provided that
notice of the proposed change was given (i) in the case of a meeting of the
shareholders, in the notice of the meeting given pursuant to Section 2.4 of
these Bylaws and (ii) in the case of a meeting of the Board of Trust Managers,
in a notice given pursuant to Section 3.4 or 3.6 hereof, as the case may be;
provided, however, that, in the case of amendments by shareholders, except as
otherwise specifically required by law, notwithstanding any other provisions of
these Bylaws or the Declaration of Trust or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the Voting Shares
required by law, the Declaration of Trust or these Bylaws with respect to any
class or series of Preferred Shares, the affirmative vote of the holders of that
proportion of the Voting Shares necessary to approve an amendment to the
Company's Declaration of Trust pursuant to such Declaration of Trust and the
Texas REIT Act, voting together as a single class, shall be required to alter,
amend or repeal any provision of these Bylaws.
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EXHIBIT 4.05
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
effective as of this 20th day of January, 1997, by and among Crescent Real
Estate Equities Trust, a Texas real estate investment trust (the "Company")
(successor in interest by merger to Crescent Real Estate Equities, Inc., a
Maryland corporation), Crescent Real Estate Equities Limited Partnership (the
"Operating Partnership"), John H. Anderson ("Anderson"), Peter H. Roberts
("Roberts"), Peter G. Henry ("Henry") and Robert J. Stirk ("Stirk").
WHEREAS, Rahn Sonoma, Ltd. ("Rahn") acquired limited partnership
interests (the "Partnership Interest") and Partnership Units ("Units") in the
Operating Partnership, all of which were offered and sold to Rahn pursuant to
one or more exemptions from registration under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to an offering by the Operating
Partnership of such Partnership Interest and Units to Rahn;
WHEREAS, pursuant to the Operating Partnership Agreement (as defined
below) and the Contribution Agreement executed by and among Crescent Real
Estate Equities, Inc., Operating Partnership, Rahn, Roberts, and Anderson, on
or before the date hereof, Rahn had certain rights (the "Exchange Rights") to
exchange its Partnership Interest and Units, in whole or in part, for an
aggregate number of common shares of beneficial interest of the Company, $0.01
par value per share (the "Common Shares"), equal to the aggregate number of
Units owned by Rahn, on the terms and conditions specified in the Operating
Partnership Agreement and the Contribution Agreement, and pursuant to which the
Company has the option to deliver cash in lieu of Common Shares;
WHEREAS, the Partnership Interest and Units were transferred and
assigned by Rahn to the following persons: 276,111 Units to Anderson, 276,110
Units to Roberts, 52,149 Units to Henry and 2,000 Units to Stirk;
WHEREAS, each of Anderson, Roberts, Henry and Stirk desires the same
Exchange Rights and registration rights enjoyed by Rahn;
WHEREAS, the Company has agreed to provide Anderson, Roberts, Henry
and Stirk and certain of their assignees, as described herein, with the
registration rights set forth in Section 2 hereof;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as set forth herein.
1. Certain Definitions.
--------------------
As used in this Agreement, the following capitalized defined terms
shall have the following meanings.
<PAGE> 2
"Common Shares" shall have the meaning set forth above in the recitals
hereto and, in addition, shall include any equity securities of the Company or
any corporate successor of the Company into or for which Common Shares are
converted or exchanged.
"Company" shall have the meaning set forth above in the recitals
hereto.
"Exchange Rights" shall have the meaning set forth above in the
recitals hereto.
"Holders" shall mean (i) Anderson and any family members of Anderson
(which, for purposes hereof, shall mean any spouse, child, or grandchild or, in
the case of a trust, the grantor or beneficial owner(s) thereof) to whom
Anderson assigns all or a portion of his rights hereunder and who execute this
Agreement in connection with such assignment, (ii) Roberts and any family
members of Roberts (which, for purposes hereof, shall mean any spouse, child,
or grandchild or, in the case of a trust, the grantor or beneficial owner(s)
thereof) to whom Roberts assigns all or a portion of his rights hereunder and
who execute this Agreement in connection with such assignment, (iii) Henry and
any family members of Henry (which, for purposes hereof, shall mean any spouse,
child, or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) to whom Henry assigns all or a portion of his rights
hereunder and who execute this Agreement in connection with such assignment,
(iv) Stirk and any family members of Stirk (which, for purposes hereof, shall
mean any spouse, child, or grandchild or, in the case of a trust, the grantor
or beneficial owner(s) thereof) to whom Stirk assigns all or a portion of his
rights hereunder and who execute this Agreement in connection with such
assignment, (v) any Person who succeeds to all or a portion of the rights
hereunder of any Holder by will or intestate succession and who executes this
Agreement in connection therewith, and (vi) any Person to whom any Holder
assigns all or a portion of its rights hereunder as part of a charitable
donation and who executes this Agreement in connection therewith. No Person
shall be considered a Holder for purposes hereof unless and until such Person
shall have executed this Agreement, as the same may be amended in accordance
with the provisions hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Offering" shall mean the issuance of the Partnership Interest and
Units to Rahn on or about November 18, 1996.
"Operating Partnership" shall have the meaning set forth above in the
recitals hereto and also shall include the Operating Partnership's successors
and subsidiaries.
"Operating Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, as
amended through and following the date hereof.
"Partnership Interests" shall have the meaning set forth above in the
recitals hereto.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government agency or political subdivision
thereof.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and
by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Shares" shall mean any Common Shares issued to the
Holders pursuant to the exercise of Exchange Rights by any of such Holders in
exchange for the Units received by the Holders on the date hereof but shall not
include any Common Shares issued to the Holders in exchange for the Units and
subsequently transferred to any Person other than (i) another Holder or (ii) a
Person who becomes a Holder pursuant hereto within ten days following any such
transfer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all SEC, stock exchange or NASD registration and filing fees;
(ii) all fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualification of any of the Registrable
Shares and the preparation of a Blue Sky Memorandum) and compliance with the
rules of the NASD; (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Shares on any securities exchange or exchanges pursuant to Section 2(c) hereof,
and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
"cold comfort" letters required by or incident to such performance and
compliance. Registration Expenses shall specifically exclude those items
specified in Section 4 as expenses to be paid by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers any of the Registrable Shares, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Units" shall have the meaning set forth above in the recitals hereto.
2. Registration of Shares. The provisions relating to a Holder's and the
Company's rights and obligations with regard to registration of Registrable
Shares are set forth in this Section 2.
(a) Prior to the last day of the thirteenth full month following
the month in which the closing of the Offering occurred, the Company shall
file, and shall use its best efforts to cause to become effective on, or as
soon as practicable following, the last day of such thirteenth
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<PAGE> 4
month, a Registration Statement for all Registrable Shares. The Company shall
use its best efforts to maintain the effectiveness of such Registration
Statement until there are no longer any Registrable Shares held by any Holder.
Notwithstanding the foregoing, the Company shall not be
obligated, but shall have the right, to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2(a):
(i) in any particular jurisdiction in which either the
Company or the Operating Partnership would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company or Operating
Partnership is already subject to service of process in such
jurisdiction, and except as may be required by the Securities Act; or
(ii) if such Registration Statement cannot be filed on Form
S-3 or any successor form substantially similar to such Form.
b) Notice of Effectiveness. The Company shall notify each Holder
of the effectiveness of the Registration Statement and shall furnish to each
Holder such number of copies of the Registration Statement (including any
amendments, supplements and exhibits), the Prospectus contained therein
(including each preliminary prospectus and all related amendments and
supplements), and any documents incorporated by reference in the Registration
Statement or such other documents as the Holder may reasonably request in order
to facilitate its sale of the Registrable Shares in the manner described in the
Registration Statement.
(c) Amendments and Supplements to Registration Statement: Listing.
The Company shall prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all the Registrable Shares until such time as all of the
Registrable Shares have been disposed of in accordance with the intended
methods of disposition by the Holders as set forth in the Registration
Statement. Upon five business days' notice, the Company shall file any
supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution of such Holder's ownership interests in
Registrable Shares that is necessary to permit the sale of the Holder's
Registrable Shares pursuant to the Registration Statements, including
supplements or post-effective amendments required to give effect to the
designation of any underwriter or underwriting syndicate specified by such
Holder. The Company shall file any necessary listing applications or amendments
to the existing applications to cause the Registrable Shares registered under
any Registration Statement to be then listed or quoted on the primary exchange
or quotation system on which the Common Shares are then listed or quoted.
(d) SEC Requests. The Company shall notify each Holder of any
request by the SEC for amendments or supplements to the Registration Statement
or the Prospectus related thereto or for additional information. In addition,
the Company shall notify each Holder of the filing of the Registration
Statement or any Prospectus, amendment or supplement related thereto or any
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post-effective amendment to the Registration Statement and the effectiveness of
any post-effective amendment.
(e) Prospectus Delivery. At any time when a Prospectus relating to
the Registration Statement is required to be delivered under the Securities
Act, the Company shall immediately notify each Holder of the happening of any
event as a result of which (i) the Prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (ii) an amendment to the Registration Statement
is a requirement (an "Event Notice"). In such event, the Company shall promptly
prepare and furnish to each Holder a reasonable number of copies of a
supplement to such Prospectus (or, after declaration of effectiveness by the
SEC, of any amendment to the Prospectus required to be filed as an amendment to
the Registration Statement) as may be necessary so that, as thereafter
delivered to the purchasers of Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Company will, if necessary, amend the Registration Statement of which such
Prospectus is a part to reflect such amendment or supplement and use its best
efforts promptly to obtain an effectiveness order for such amendment from the
SEC. From and after the date of any Event Notice, no Holder shall offer or sell
any Registrable Shares until such time as the Company delivers any such
Prospectus supplement or amendment to the Holder.
3. State Securities Laws.
Subject to the conditions set forth in this Agreement, the Company
shall, in connection with the filing of any Registration Statement hereunder,
file such documents as may be necessary to register or qualify the Registrable
Shares under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use its best efforts to cause such
filings to become effective; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state, provided that the Company shall file a
Uniform Consent to Service of Process on Form U-2 or its successor in any state
that requires such a filing in connection with the offering of the Registrable
Shares and in which the Holder proposes to offer Registrable Shares. Once
effective, the Company shall use its best efforts to keep such filings
effective until the earliest of (i) such time as the Registrable Shares have
been sold, or (ii) in the case of a particular state, a Holder has notified the
Company that it no longer requires an effective filing in such state in
accordance with its original request for filing. The Company shall promptly
notify each Holder of, and confirm in writing, the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Shares for sale under the securities or "Blue Sky" laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses.
The Company shall bear all Registration Expenses incurred in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder shall be
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<PAGE> 6
responsible for any brokerage or underwriting commissions and taxes of any kind
(including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Shares sold by such Holder.
5. Cooperation.
Each Holder hereby agrees (i) to cooperate with the Company and to
furnish to the Company in a timely manner all information that the Company may
reasonably request in connection with the preparation of the Registration
Statement and any filings with any state securities commissions, including
information concerning such Holder's plan of distribution and ownership
interests with respect to its Registrable Shares or any other securities of the
Company or any of its affiliates and (ii) to deliver or cause delivery of the
Prospectus contained in the Registration Statement to any purchaser of the
shares covered by the Registration Statement from the Holder except to the
extent provided to the contrary in Section 2(e) above.
6. Suspension of Registration Requirement.
(a) The Company shall promptly notify each Holder of the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. Each Holder
agrees not to effect any sales from the date of such notice until the Company
obtains the withdrawal of any such order suspending the effectiveness of the
Registration Statement. The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement and shall promptly notify each Holder of any such withdrawal.
(b) Each holder of Registrable Shares whose Registrable Shares are
covered by a Registration Statement filed pursuant to Section 2 hereof agrees,
if requested by the Company in the case of a Company-initiated non-underwritten
offering or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company of any class included in
such Registration Statement (or any security the value of which is determined
with reference to the value of such securities), including a sale pursuant to
Rule 144A or Rule 144 under the Securities Act (except as part of such
Company-initiated registration), during the 15 day period prior to, and during
the 90-day period beginning on the date of effectiveness of each such
Registration Statement; provided, however, that such 90-day period shall be
extended by the number of days from (and including) the date of any notice
pursuant to Section 2(d) or (e) hereof to (and including) the date when each
seller of Registrable Shares covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 2(e) hereof.
7. Additional Shares.
The Company, at its option, may register, under any registration
statement and any filings with any state securities commissions filed pursuant
to this Agreement, any number of shares of unissued Common Shares or other
securities of the Company or any Common Shares or other securities of the
Company owned by any other shareholder or shareholders of the Company.
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<PAGE> 7
8. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder within the meaning of Section 15 of the Securities Act of 1933 as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto) pursuant to
which the Registrable Shares were registered or offered under the
Securities Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto), including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, in each case whether or not a party,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that the indemnity provided pursuant to this Section 8 shall
not apply to any Holder with respect to any loss, liability, claim, damage or
expense, which arises in whole or in part, out of (x) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) or (y) such Holder's
failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(b) Indemnification by Holders. Each Holder severally agrees to
indemnify and hold harmless the Company and the other selling Holders, and each
of their respective directors and officers (including each director and officer
of the Company who signed the Registration Statement), and each person, if any,
who controls the Company or the other selling Holders
-7-
<PAGE> 8
within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section (a) hereof (except that any settlement
described in Section 8(a)(ii) shall be effected with the written consent of
such Holder), for any such loss, claim, damage or expense that arises out of or
is based upon, in whole or in part, (x) any untrue statements or omissions made
in the Registration Statement (or any amendment thereto) or any Prospectus (or
any Registration Statement (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by
such Holder and used in such Registration Statement (or any amendment thereto)
or such Prospectus (or any amendment or supplement thereto) or (y) such
Holder's failure to deliver an amended or supplemental Prospectus if such loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
(c) Conduct of Indemnification Proceedings. The indemnified party
shall give reasonably prompt notice to the indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in paragraphs (a) or (b) of this Section 8, unless and to the extent
it did not otherwise learn of such action and the lack of notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to the indemnified party other than the
indemnification obligation provided under paragraphs (a) or (b) of this Section
8. If the indemnifying party so elects within a reasonable time after receipt
of such notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by the
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the indemnified party
reasonably determines that a conflict of interest exists and that it is
necessary that the indemnified party be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to it which
are different from or in addition to those available to the indemnifying party,
then the indemnifying party shall not be entitled to assume such defense, and
the indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the
defense of such action or proceeding as a result of the provisions of the
preceding sentence, the indemnifying party's counsel shall be entitled to
conduct the indemnifying party's defense and counsel for the indemnified party
shall be entitled to conduct the defense of the indemnified party, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If the
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party. In such
event, however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party, with such
consent not to be unreasonably withheld. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding in accordance
with this paragraph, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified party incurred thereafter in
connection with such action or proceeding, subject to the proviso set forth in
the second sentence of this paragraph (c).
9. Contribution.
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<PAGE> 9
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unenforceable although applicable in accordance with its
terms, the Company and each Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and each such Holder, in such
proportion as is appropriate to reflect the relative fault of and benefits to
the Company on the one hand and such Holder on the other, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits to the indemnifying party and indemnified
party shall be determined by reference to, among other things, the total
proceeds received by the indemnifying party and the indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to, information supplied by, the
indemnifying party or the indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9, each Holder shall be required
to contribute the amount of any damages which such Holder is required to pay by
reason of such untrue statement or omission.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each
director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
10. No Obligation to Issue Common Shares to Holders: No Other Obligation
to Register.
(a) No Obligation to Issue Common Shares. The Holders hereby
acknowledge that, upon any exercise of their Exchange Rights, the Company has
the option pursuant to the Operating Partnership Agreement, in its sole
discretion, to deliver either cash or Common Shares in exchange for the Units
as to which a Holder submitted for exchange.
(b) No Other Obligation to Register Shares. Except as otherwise
expressly provided in this Agreement, the Company shall have no obligation to a
Holder to register the Registrable Shares under the Securities Act.
-9-
<PAGE> 10
11. Holder Representations, Warranties and Agreements.
Each Holder, jointly and not severally, and solely on behalf of
itself, represents and warrants to, and agrees with, the Company, that:
(a) Such Holder, if not a natural person, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization. Such Holder has all requisite power and authority to execute,
deliver and perform this Agreement. All necessary proceedings of such Holder,
if not a natural person, have been duly taken to authorize the execution,
delivery, and performance of this Agreement by such Holder. This Agreement has
been duly executed and delivered by such Holder, and is the legal, valid and
binding obligation of such Holder, and is enforceable as to such Holder in
accordance with its terms. No consent, authorization, approval, order, license,
certificate or permit of or from, or declaration or filing with, any federal,
state, local or other governmental authority or any court or other tribunal is
required by such Holder for the execution, delivery or performance of this
Agreement (except filings under the Securities Act which will be made and such
consents consisting only of consents under Blue Sky or state securities laws
which will be obtained) by such Holder. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement or understanding
to which such Holder is a party, or to which any of such Holder's properties or
assets are subject, is required for the execution, delivery and performance of
this Agreement which has not been obtained, and the execution, delivery and
performance of this Agreement will not violate, result in a breach of, conflict
with or (with or without giving of notice or the passage of time or both)
entitle any party to terminate or call a default under any such contract,
agreement, instrument, lease, license, arrangement or understanding, or, if
such Holder is not a natural person, violate or result in a breach of, or
conflict with, any law, rule, regulation, order, judgment or decree binding on
such Holder or to which any of such Holder's operations, business, properties
or assets are subject, which, in any of such events, would prohibit, impair or
restrict the ability of such Holder to execute and deliver this Agreement,
perform in accordance with the terms hereof or consummate the transactions
contemplated hereby, or would adversely affect the rights or benefits, or both,
hereunder of any other party hereto.
(b) Neither such Holder nor any of such Holder's affiliates (as
defined in the regulations under the Securities Act), will take, directly or
indirectly, during the term of this Agreement, any action designed to stabilize
(except as may be permitted by applicable law) or manipulate the price of any
security of the Company.
(c) Such Holder shall promptly furnish to the Company any and all
information as may be required by, or as may be necessary or advisable to
comply with the provisions of, the Securities Act, the Exchange Act, and the
rules and regulation of the SEC thereunder in connection with the preparation
and filing of any Registration Statement pursuant hereto, or any amendment or
supplement thereto, or any Preliminary Prospectus or Prospectus included
therein. All information to be furnished to the Company by or on behalf of such
Holder expressly for use in connection with the preparation of any Preliminary
Prospectus, the Prospectus, the Registration Statement, or any amendment or
supplement thereto, will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
-10-
<PAGE> 11
12. Underwritten Registration.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (i) executes and
delivers the underwriting agreement or similar documents relating thereto
pursuant to which such Holder shall agree to sell, upon the terms and subject
to the conditions therein set forth, such Holder's Registrable Securities on
the basis provided therein, and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, custodial or escrow agreements and such other
documents as may be necessary, advisable or required pursuant to the terms
thereof or as may be from time to time reasonably requested by the underwriter
or underwriters named therein, the Company, or their respective legal counsel,
in connection therewith.
In the event of any conflict between the indemnification and
contribution terms as herein set forth and as set forth in any underwriting
agreement entered pursuant hereto, the underwriting agreement shall control.
13. Survival of Representations and Agreements.
All representations, warranties, covenants and agreements contained in
this Agreement shall be deemed to be representations, warranties, covenants and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants and agreements,
including the indemnity and contribution agreements contained in Sections 8 and
9 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder or any Person
which is entitled to be indemnified under Section 8 hereof, and shall survive
termination of this Agreement.
14. Amendments and Waivers.
The provisions of this Agreement may not be amended, modified,
supplemented or waived without the prior written consent of the Company and the
Holders of Registrable Shares.
15. Notices.
Except as set forth below, all notices and other communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid, or
courier or overnight delivery service to the respective parties at the
following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(c), a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
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<PAGE> 12
If to the Company: Crescent Real Estate Equities, Inc.
c/o Crescent Real Estate Equities Limited Partnership
777 Main Street
Suite 2100
Fort Worth, Texas 76102
Attn: Gerald W. Haddock, President
Telephone: (817) 878-0444
Telecopier: (817) 878-0429
with a copy to: Crescent Real Estate Equities, Inc.
c/o Crescent Real Estate Equities Limited Partnership
777 Main Street
Suite 2100
Fort Worth, Texas 76102
Attn: David M. Dean, Senior Vice President-Law
Telephone: (817) 878-0442
Telecopier: (817) 878-0429
with a copy to: Meadows, Owens, Collier, Reed, Cousins & Blau,
L.L.P.
3700 NationsBank Plaza
901 Main Street
Dallas, Texas 75202
Attn: George R. Bedell, Esq.
Telephone: (214) 749-2448
Telecopier: (214) 747-3732
If to Anderson: Mr. John H. Anderson
1512 East Broward Boulevard, Suite 301
Fort Lauderdale, Florida 33301
Telephone: (305) 524-5336
Telecopier: (305) 524-5341
If to Roberts: Mr. Peter H. Roberts
1512 East Broward Boulevard, Suite 301
Fort Lauderdale, Florida 33301
Telephone: (305) 524-5336
Telecopier: (305) 524-5341
If to Henry: Mr. Peter H. Henry
5319 Atlantic View
St. Augustine, Florida 32084
Telephone: (904) 471-8875
Telecopier:
If to Stirk: Mr. Robert J. Stirk
1512 East Broward Boulevard, Suite 301
Fort Lauderdale, Florida 33301
Telephone: (305) 524-5336
Telecopier: (305) 524-5341
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<PAGE> 13
In addition to the manner of notice permitted above, notices given pursuant to
Sections 2 and 6 hereof may be effected telephonically and confirmed in writing
thereafter in the manner described above.
16. Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto. This Agreement may not be assigned by any Holder, except for an
assignment (i) by Anderson of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (ii) by Roberts of all or any portion of his rights hereunder to
one or more family members (which, for purposes hereof, shall mean any spouse,
child, grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (iii) by Henry of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (iv) by Stirk of all or any portion of his rights hereunder to one
or more family members (which, for purposes hereof, shall mean any spouse,
child or grandchild or, in the case of a trust, the grantor or beneficial
owner(s) thereof) who execute this Agreement in connection with such
assignment, (v) by any Holder of all or any portion of its rights hereunder to
any Person by will or intestate succession and who executes this Agreement in
connection therewith, (vi) by any Holder of all or any portion of its rights
hereunder to any other person who is a Holder as of the date immediately
preceding the effective date of any such assignment, and (vii) by any Holder of
all or any portion of its rights hereunder to any person as part of a
charitable donation and who executes this Agreement in connection therewith.
Any attempted assignment hereof by any Holder to any Person other than pursuant
to this Section 16 will be void and of no effect and shall terminate all
obligations of the Company hereunder with respect to such Holder. No Person
shall be considered a Holder for purposes hereof unless and until such Person
shall have executed this Agreement, as the same may be amended in accordance
with the provisions hereof.
17. Counterparts.
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed wholly within said State.
19. Severability.
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<PAGE> 14
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired thereby,
it being intended that all of the rights and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
20. Entire Agreement.
This Agreement is intended by the parties as a final expression of
their agreement and intended to be the complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
such subject matter. This Agreement supersedes all prior agreements and
understandings (except the Operating Partnership Agreement, which is
incorporated by reference herein and hereby made a part of this Agreement)
between the parties with respect to such subject matter.
21. No Shareholder Liability.
No shareholder or other equity owner of the Company assumes any
personal liability for the obligations listed herein or for the Company's
performance of such obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CRESCENT REAL ESTATE EQUITIES TRUST,
successor in interest by merger to
Crescent Real Estate Equities, Inc.
By: /s/ GERALD W. HADDOCK
-------------------------------------------
Name: Gerald W. Haddock
-----------------------------------------
Title: President & Chief Executive Officer
----------------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
BY: CRESCENT REAL ESTATE EQUITIES, LTD.,
its general partner
By: /s/ GERALD W. HADDOCK
-------------------------------------------
Name: Gerald W. Haddock
-----------------------------------------
Title: President & Chief Executive Officer
----------------------------------------
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<PAGE> 15
"ANDERSON" OR "HOLDER"
/s/ JOHN H. ANDERSON
--------------------------------------------
John H. Anderson
"ROBERTS" OR "HOLDER"
/s/ PETER H. ROBERTS
--------------------------------------------
Peter H. Roberts
"HENRY" OR "HOLDER"
/s/ PETER G. HENRY
--------------------------------------------
Peter G. Henry
"STIRK" OR "HOLDER"
/s/ ROBERT J. STIRK
--------------------------------------------
Robert J. Stirk
-15-
<PAGE> 16
The undersigned hereby acknowledges the
termination of the Registration Rights Agreement
dated November 18, 1996, among Crescent Real
Estate Equities, Inc., the Operating Partnership
and Rahn
RAHN SONOMA, LTD.
BY: RAHN HOTELS, LTD., a Florida limited
partnership, its General Partner
By: RAHN HOTELS, INC., a Florida corporation,
its General Partner
By: /s/ PETER H. ROBERTS
-------------------------------------
Name: Peter H. Roberts
-----------------------------------
Title: President
----------------------------------
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<PAGE> 1
EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of our report dated
February 2, 1996 included in Crescent Real Estate Equities Company's Form 10-K
for the year ended December 31, 1995, and of our reports dated March 11, 1994 on
Caltex House, June 30, 1994 on Regency Plaza One, August 16, 1994 on Waterside
Commons, September 9, 1994 on Two Renaissance Square, February 17, 1995 on East
West Properties, May 10, 1995 on MCI Tower and Denver Marriott City Center, July
14, 1995 on Ptarmigan Place, November 17, 1995 on Albuquerque Facility and The
Hyatt Regency of Albuquerque, January 5, 1996 on Stanford Corporate Centre,
February 15, 1996 on 301 Congress and July 19, 1996 on Greenway Plaza included
in Crescent Real Estate Equities Company's Form 8-K and to all references to our
Firm included in this Registration Statement.
ARTHUR ANDERSEN, LLP
Dallas, Texas
March 6, 1997
<PAGE> 1
EXHIBIT 23.03
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Owners of The Crescent:
We consent to the incorporation by reference herein in this Registration
Statement on Form S-3 of Crescent Real Estate Equities Company (formerly known
as Crescent Real Estate Equities, Inc.) of our report dated February 28, 1994
relating to the combined financial statements of The Crescent as of and for the
year ended December 31, 1993, which financial statements are included in the
Annual Report on Form 10-K of Crescent Real Estate Equities, Inc. for the year
ended December 31, 1995, and the reference to our firm under the heading
"Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Dallas, Texas
March 7, 1997
<PAGE> 1
EXHIBIT 23.04
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of our audit opinion
dated February 13, 1995 and our review report dated December 28, 1995 as they
relate to the statement of excess of revenues over specific operating expenses
for Spectrum Center, Ltd. for the year ended December 31, 1994 and the
nine-month period ending September 30, 1995, respectively, as included in
Crescent Real Estate Equities, Inc.'s Form 8-K dated October 3, 1994, and to the
reference to our firm under the heading "Experts" in the prospectus.
HUSELTON & MORGAN, P.C.
March 7, 1997
<PAGE> 1
EXHIBIT 23.05
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We have issued our report dated February 9, 1996 accompanying the Combined
Statement of Excess of Revenues Over Specific Operating Expenses of Greenway
Plaza, Ltd. and Nine Greenway, Ltd. appearing in the Crescent Real Estate
Equities, Inc. Form 8-K dated August 15, 1996 which is incorporated by reference
in this Registration Statement on Form S-3. We consent to the incorporation by
reference in this Registration Statement of the aforementioned report and to the
use of our name as it appears under the caption "Experts."
GRANT THORNTON LLP
Houston, Texas
March 7, 1997
