UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
CROCKER REALTY TRUST, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
226826 10 5
(CUSIP Number)
With A Copy To:
HIGHWOODS PROPERTIES, INC. SMITH HELMS MULLISS & MOORE, L.L.P.
3100 Smoketree Court, Suite 600 2800 Two Hannover Square
Raleigh, North Carolina 27604 Raleigh, North Carolina 27601
Attention: Ronald P. Gibson Attention: Brad S. Markoff
Tel: (919) 872-4924 Tel: (919) 755-8731
Fax: (919) 876-2448 Fax: (919) 755-8800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 20, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 14 Pages
Exhibit Index on Page _6_
<PAGE>
SCHEDULE 13D
CUSIP No. 431284 10 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Highwoods Properties, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
7 SOLE VOTING POWER
100
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
8 SHARED VOTING POWER
None
9 SOLE DISPOSITIVE POWER
100
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D/A
CUSIP NO. 431284 10 8
Item 3. Source and Amount of Funds or Other Consideration.
Highwoods and Cedar entered into a Stock Purchase Agreement,
dated as of April 29, 1996, with AP CRTI Holdings, L.P., AEW Partners, L.P.,
Thomas J. Crocker, Barbara F. Crocker, Richard S. Ackerman and Robert E. Onisko
(the "Sellers") to purchase all of the Seller's shares of Common Stock of
Crocker (the "Shares"). On September 6, 1996, the Company closed the acquisition
of the Shares. The purchase price was $249.1 million ($11.05243 per Share) and
included, as contemplated by the Stock Purchase Agreement, the $1.1 million
purchase of 1,056,000 options to purchase shares of Crocker owned by the
Sellers. Most of the purchase price ($189 million) was funded through a loan
from the OP. The OP funded the loan using a portion of the proceeds raised by
the Company in its recent 11.5 million share public offering, the net proceeds
of which were contributed by the Company to the OP in exchange for limited
partnership interests therein ("Units"). The remaining $60 million of the
purchase price was funded from a draw from the Company's $140 million credit
facility.
Highwoods and Cedar also entered into an Agreement and Plan of
Merger with Crocker, dated as of April 29, 1996 (the "Merger Agreement"). The
agreement provided that Cedar would be merged into Crocker, with Crocker as the
surviving entity (the "Merger"). On September 20, 1996, the effective time of
the Merger, each share of Crocker Common Stock held by Cedar or Highwoods
(including the Shares) was canceled, each share of common stock of Cedar became
a share of Common Stock of Crocker, and all other shares of Common Stock of
Crocker were converted into and represented a right to receive $11.05243 per
share.
The cost of acquiring the remaining shares of Crocker in the
Merger was $73.7 million. Highwoods funded the cost of the Merger through a draw
on its $140 million credit facility with NationsBank, First Union National Bank
of North Carolina and Wachovia Bank of North Carolina.
Item 4. Purpose of Transaction.
Highwoods and Cedar entered into the Stock Purchase Agreement
and purchased the Shares as part of their plan to effect the acquisition of
Crocker by Highwoods.
On September 20, 1996, a special meeting of the shareholders
of Crocker was held to vote on the proposed Merger. The Sellers, who were the
holders of record on the record date of the meeting, were contractually
obligated under the Stock Purchase Agreement to vote for the Merger. Upon
consummation of the Merger, which occurred at 11:59 p.m. on September 20, 1996,
Highwoods became the sole shareholder of Crocker. On September 26, 1996,
Highwoods caused the merger of Crocker into Highwoods and then distributed
substantially all of the assets and liabilities of Crocker to the OP in exchange
for Units.
Following the Merger, the Common Stock of Crocker and the
warrants to purchase shares of Common Stock of Crocker were delisted from the
American Stock Exchange and became eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.
Item 5. Interest in Securities of the Issuer.
As of the effective time of the Merger, the Reporting Person
owned 100 shares of common stock of Crocker, representing 100% of the
outstanding shares. On September 26, 1996, all of such shares were cancelled in
the merger of Crocker into the Reporting Person.
<PAGE>
Except as described herein, the Reporting Person has engaged
in any transaction involving any securities issued by Crocker within the 60-day
period immediately preceding the date of this Schedule 13D/A.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The Reporting Person entered into an Exchange Agent Agreement,
dated September 17, 1996, with Continental Stock Transfer & Trust Company ("Con-
tinental"). The agreement appoints Continental as exchange agent with respect
to the payment in cash of the $11.05243 per share to the record holders of the
shares of common stock of Crocker immediately before the Effective Time.
Item 7. Exhibits.
A.
Exchange Act Agreement between Highwoods Properties, Inc. and
Continental Stock Transfer & Trust Company, dated September 17, 1996.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
DATE: October 1, 1996
HIGHWOODS PROPERTIES, INC.
By: /s/ RONALD P. GIBSON
Ronald P. Gibson, President
<PAGE>
Exhibit Index
Exhibit Item
A. Exchange Act Agreement between Highwoods Properties, Inc.
and Continental Stock Transfer & Trust Company, dated
September 17, 1996.
<PAGE>
September 17, 1996
Continental Stock Transfer & Trust Company
2 Broadway
New York, New York 10004
Attention: Steven G. Nelson
Re: Exchange Agent Agreement
Ladies and Gentlemen:
Pursuant to an Agreement and Plan of Merger dated as of April
29, 1996 (the "Merger Agreement") by and among Highwoods Properties, Inc., a
Maryland corporation ("Highwoods" or "us"), Cedar Acquisition Corporation, a
Maryland corporation and a wholly-owned subsidiary of Highwoods ("Sub"), and
Crocker Realty Trust, Inc., a Maryland corporation ("Crocker"), Sub shall be
merged with and into Crocker (the "Merger"), and the separate existence of Sub
shall thereupon cease. Crocker shall continue as the surviving corporation of
the Merger under the laws of the State of Maryland. Unless otherwise defined
herein, capitalized terms used herein shall have the meanings given to such
terms in the Merger Agreement.
Upon the effectiveness of the Merger (the "Effective Time") as
determined in accordance with Section 1.3 of the Merger Agreement: (i) all
shares of common stock, $0.01 par value, of Crocker (the "Common Stock") which
are held by Highwoods, Crocker or any wholly-owned subsidiary of Highwoods
(including Sub) or Crocker shall be cancelled and retired and shall cease to
exist, and no consideration shall be delivered in exchange therefor; (ii) each
other issued and outstanding share of Common Stock which is not owned by the
aforementioned entities (each, a "Share") shall be converted into and represent
the right to receive $11.05243 in cash payable by Highwoods as provided in
paragraph 3 hereof (the "Merger Consideration"); and (iii) each share of common
stock of Sub shall be converted into and become one share of common stock of the
Surviving Corporation. As of the date of this Exchange Agent Agreement, there
are approximately 29,108,007 issued and outstanding Shares which shall be
converted as described in clause (ii) above.
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 2
Subject to the provisions of this Exchange Agent Agreement
and in accordance with Section 2.5 of the Merger Agreement, Highwoods hereby
appoints you and you hereby agree to act as, exchange agent (the "Exchange
Agent" or "you") with respect to the payment in cash of the Merger Consideration
to Record Holders (as defined below). In such capacity, Highwoods hereby
authorizes you, following notification from Highwoods that the Merger has
occurred and in accordance with the instructions set forth herein, to act as
agent for Highwoods for the purposes of: (i) receiving from Highwoods the cash
to be paid in exchange for the Shares; and (ii) paying to the Record Holders
amounts due upon delivery of certificates representing the Shares (each, a
"Share Certificate") and transmittal letters in accordance with the instructions
set forth herein and the Letter of Transmittal, a copy of which is attached
hereto as Exhibit A. Your duties as Exchange Agent are as set forth in this
Exchange Agent Agreement, and will be governed by this Exchange Agent Agreement,
and to the extent applicable, the Merger Agreement, a copy of which is attached
hereto as Exhibit B.
Also included herewith are a sufficient supply of copies of:
(i) a letter from Crocker, to all Record Holders; and (ii) the letter of
transmittal ((the "Letter of Transmittal"); together known as the "Transmittal
Documents") to be mailed to each Record Holder advising such Record Holder of
the effectiveness of the Merger and the procedure for surrendering to you Share
Certificates for exchange and conversion into the Merger Consideration and
addressing such other matters as are required by the Merger Agreement. These two
items are to be mailed by you, together with a return envelope, in accordance
with the instructions contained herein.
1. At the Effective Time, Highwoods shall make available to
you in immediately available funds the aggregate amount of cash to which all
Record Holders shall be entitled pursuant to Section 2.4(b) of the Merger
Agreement (the "Merger Fund"). You are hereby instructed that the Merger Fund is
to be applied by you in the manner described in this Exchange Agent Agreement.
2. Following notification from Highwoods that the Merger has
occurred and as soon as practicable after receipt by you of a list (the "Stop
Transfer List"), as of the Effective Time, of lost,
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 3
stolen, destroyed or otherwise invalid Share Certificates, you will mail by
first class mail a set of the Transmittal Documents, together with a return
envelope addressed to you, to each of the record holders of the Shares (the
"Record Holders").
3. Following notification from Highwoods that the Merger has
occurred and until the close of business on the date which is the second
anniversary of the Effective Time (or if such date is not a business day, on the
next succeeding business day), you are authorized and directed to accept Share
Certificates surrendered to you for exchange for the Merger Consideration, and
upon receipt of any Share Certificate, together with: (i) the duly executed
Letter of Transmittal properly completed as required by the instructions
contained therein; and (ii) any and all other items required by the Letter of
Transmittal, to issue and promptly deliver to the Record Holder or such Record
Holder's transferee, or in accordance with the instructions of such Record
Holder or transferee, a check issued by you in an amount equal to the product of
the Merger Consideration multiplied by the applicable number of Shares so
surrendered, less any amount required to be withheld under applicable law;
provided, however, that prior to issuing any such check you must verify, by
examining the Stop Transfer List, that no stop transfer order has been issued
against the Shares represented by the Share Certificates so surrendered and, in
the event such Share Certificates are listed on the Stop Transfer List, to
contact Highwoods for further instructions prior to issuing such check. The
amount of such check shall be rounded up to the nearest cent. Any Share
Certificates so surrendered and for which payment has been made shall be
promptly cancelled in accordance with your normal procedures.
4. If the Merger Consideration is to be paid to a person other
than the person in whose name the Share Certificate to be exchanged therefor are
registered, the Share Certificates so surrendered must be properly endorsed or
accompanied by appropriate stock powers and otherwise in proper form for
transfer and such transfer must otherwise be proper. The person requesting such
transfer must first pay to you any transfer or other taxes payable by reason of
such transfer or establish to your satisfaction that such taxes have been paid
or are not required to be paid.
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 4
5. If any Record Holder shall report that his, her or its
failure to surrender any Share Certificate or Certificates registered in his,
her or its name is due to the loss, misplacement or destruction of such Share
Certificate or Certificates, you shall require such Record Holder to furnish an
affidavit of loss or a Bond of Indemnity Agreement in a form satisfactory to you
and us before delivering the Merger Consideration to such Record Holder or his,
her or its transferee.
6. From time to time, you shall invest all cash available in
the Merger Fund in such investments as Highwoods shall direct. Such investments
may include, but are not limited to: (i) direct obligations of the United States
of America or obligations for which the full faith and credit of the United
States is pledged to provide for the payment of principal and interest; (ii)
commercial paper obligations having received the rating of P-1 or higher from
Moody's Investors Service, Inc. or the rating of A-1 or higher from Standard &
Poor's Corporation; (iii) certificates of deposit or like instruments of
commercial banks with a combined capital and surplus in excess of $500 million;
or (iv) repurchase agreements with any bank or financial institution having a
combined capital and surplus in excess of $500 million, fully collateralized by
any of the foregoing obligations or securities referred to in clause (i) or (ii)
above (collectively, "Permitted Investments"). Any net profit resulting from, or
interest or income produced by, Permitted Investments shall be paid to Highwoods
promptly upon receipt by the Exchange Agent. Highwoods covenants that it will
replace any monies lost through any investments made as contemplated hereunder
if required to fund payment of the Merger Consideration, and will reimburse you
for all reasonable expenses incurred in connection with the acquisition or
liquidation of any Permitted Investment. If at any time or times due to
unmatured Permitted Investments there is insufficient cash in the Merger Fund to
permit prompt and timely payment to one or more Record Holders, then Highwoods
will forthwith cause sufficient additional funds to be deposited into the Merger
Fund so as to avoid any delay in such payment(s). Promptly upon the maturity of
any Permitted Investment you will reimburse Highwoods any and all such
additional amounts previously deposited in the Merger Fund by Highwoods.
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 5
7. Any portion of the Merger Fund, plus any net profit,
interest, or other income due and owing to Highwoods, which remains
undistributed to the Record Holders as of the close of business on the day which
is the second anniversary of the Effective Time (or if such date is not a
business day, on the next succeeding business day) shall be promptly delivered
to Highwoods without any further notice or demand. Any Record Holder shall
thereafter be instructed to look only to Highwoods for the payment of any Merger
Consideration.
8. With respect to any of the foregoing, you are to follow
the further instructions, directions or advice of Carman Liuzzo, Vice President
and Chief Financial Officer of Highwoods, William Wilson, Executive Vice
President of Highwoods, and such other officers of Highwoods as notified to you
in writing by Highwoods. You may refer to any of the foregoing for specific
instructions as to the acceptance or rejection of any Letters of Transmittal
which, in your opinion, are not in such form as to permit you to accept them, or
any other matters related hereto.
9. Highwoods agrees to pay to you fees hereunder, in
accordance with the payment schedule attached hereto as Exhibit C within ten
business days following receipt of an invoice setting forth all such expenses
incurred by you. Highwoods also shall reimburse you for reasonable, properly
documented incremental direct out-of-pocket expenses incurred by you in the
performance of your duties hereunder, including costs incurred in connection
with the acquisition or liquidation of Permitted Investments pursuant to
paragraph 6 hereof.
10. Highwoods will indemnify, protect and hold you harmless
from any and all liability, costs, expenses (including reasonable attorneys'
fees), losses or damages resulting from any act, omission, delay or refusal made
by you in reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document believed by
you in good faith to be valid, genuine and sufficient, or in accepting any
Letters of Transmittal or in effecting any exchange of Shares for Merger
Consideration believed by you in good faith to be duly authorized, or in
delaying or refusing in good faith to accept any Shares for exchange or
transfer; provided, however, that such indemnity does not extend to, and you
shall not be indemnified or
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 6
held harmless with respect to, such liabilities, costs, expenses, losses or
damages incurred or suffered by you resulting from or arising out of your
negligence, bad faith or willful misconduct.
11. Highwoods shall have the right in its discretion to remove
you as Exchange Agent at any time within the two-year period from the Effective
Time upon five business days' prior written notice to you; provided, however,
that any such removal shall become effective only upon the appointment of, and
acceptance of said appointment by, a successor exchange agent, which successor
exchange agent shall be a commercial bank or financial institution that has
demonstrable experience as an agent for such proposes as are required hereunder.
Any successor exchange agent shall be subject in all material respects to the
terms and conditions contained in this Exchange Agent Agreement.
12. Miscellaneous.
(i) Notices. All notices or other communications under this
Exchange Agent Agreement shall be in writing and shall be given (and shall be
deemed to have been fully given upon receipt) by delivery in person, by telecopy
(with confirmation of receipt), or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to Highwoods:
Highwoods Properties, Inc.
3100 Smoketree Court, Suite 700
Raleigh, North Carolina 27604-5001
Attention: Carmen Liuzzo,
Chief Financial Officer
Telecopy No.: (919) 876-2448
With a copy to:
Smith, Helms, Mulliss and
Moore L.L.P.
2800 Two Hannover Square
Raleigh, North Carolina 27601
Attention: Brad Markoff, Esq.
Telecopy No.: (919) 755-8800
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 7
If to Exchange Agent:
Continental Stock Transfer & Trust Company
2 Broadway
New York, New York 10004
Attention: Steven G. Nelson
Telecopy No.: (212) 509-5150
or to such other address as either you or Highwoods may have furnished to the
other in writing and in accordance with this clause (i).
(ii) Entire Agreement. This Exchange Agent Agreement
constitutes the entire agreement between you and Highwoods as to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, among us with respect hereto.
(iii) Amendment. This Exchange Agent Agreement may not be
amended except in a writing duly executed by each of us.
(iv) Governing Law. This Exchange Agent Agreement shall be
governed by, and construed and enforced in accordance with the laws of the State
of Maryland, without giving effect to the provisions thereof relating to
conflicts of law.
(v) Counterparts. This Exchange Agent Agreement may be
executed in counterparts, each of which when executed and delivered shall be an
original, but all of which shall together constitute one and the same Exchange
Agent Agreement.
<PAGE>
Continental Stock Transfer & Trust Company
Attention: Steven G. Nelson
September 17, 1996
Page 8
If the terms of this Exchange Agent Agreement are acceptable,
please sign the acknowledgment below and return the enclosed copy by telecopier
to Carmen Liuzzo at (919) 876-2448 with hard copies to follow by mail in
accordance with the instructions set forth in clause (i) of paragraph 12 hereof.
Very truly yours,
HIGHWOODS PROPERTIES, INC.
By:/s/ Carman J. Liuzzo
Name: Carman J. Liuzzo
Title: Vice President and
Chief Executive Officer
Accepted and agreed to as of date first above written:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /s/ Steven G. Nelson
Name: Steven G. Nelson
Title: Chairman of the Board
