As filed with the Securities and Exchange Commission on August 20, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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HIGHWOODS PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Maryland 56-1871668
(State of incorporation) (I.R.S. Employer
Identification No.)
3100 Smoketree Court, Suite 600
Raleigh, North Carolina 27604
(919) 872-4924
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
With Copies to:
Ronald P. Gibson, President Brad S. Markoff, Esq.
Highwoods Properties, Inc. Alston & Bird LLP
3100 Smoketree Court, Suite 600 3605 Glenwood Avenue, Suite 310
Raleigh, North Carolina 27604 Raleigh, North Carolina 27612
(919) 872-4924 (919) 420-2210
(Address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this 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, 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, 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,
please check the following box. [ ]
Calculation of Registration Fee
<TABLE>
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per unit (1) aggregate offering price registration fee
- --------------------------- ---------- --------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 1,290,932 $28.34 $36,585,013 $10,793
</TABLE>
(1) Computed pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee on the
basis of the average high and low prices of the registrant's Common Stock
reported on the New York Stock Exchange on August 19, 1998.
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>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 20, 1998
1,290,932 Shares
HIGHWOODS PROPERTIES, INC.
Common Stock
Certain selling stockholders are offering all of the shares of Highwoods
Properties, Inc.'s common stock under this prospectus. See "Selling
Stockholders" on page 24. We register the resale of common stock we may issue
upon the redemption of partnership units in Highwoods Realty Limited Partnership
and upon the exercise of warrants to permit holders to sell their common stock
without restriction. Such registration does not necessarily mean that the
selling stockholders named in this prospectus will offer or sell any of these
shares. We will not receive any proceeds from the sale of any of these shares.
However, we have agreed to pay certain expenses of registering the common stock
under the Federal and state securities laws.
See "Risk Factors" beginning on page 4 for a discussion of certain factors
that you should consider before you invest in the common stock being sold under
this prospectus.
Our common stock is listed on the New York Stock Exchange under the symbol
"HIW." On August 17, 1998, the last reported sale price of our common stock was
$28 9/16 per share. To ensure that we retain our status as a real estate
investment trust, no person may own more than 9.8% of our outstanding shares of
common stock, with certain exceptions.
The selling stockholders may offer and sell common stock that they hold
directly, or they may sell through agents or broker-dealers on terms to be
determined at the time of sale. If required, we will provide an accompanying
prospectus supplement with the names of any agent or broker-dealer, applicable
commissions or discounts, and any other required information with respect to any
particular offer. See "Plan of Distribution" on page 26. The selling
stockholders reserve the right to accept or reject, in whole or in part, any
proposed purchase of common stock to be made directly or through agents.
The selling stockholders and any agents or broker-dealers that participate
with the selling stockholders in the distribution of common stock may be deemed
to be "underwriters" under the Securities Act of 1933. Any commission they
receive and any profit on the resale of common stock may be deemed to be
underwriting commissions or discounts under the Securities Act. See "Selling
Stockholders" beginning on page 24 for a description of certain indemnification
arrangements between us and the selling stockholders.
The Securities and Exchange Commission has not approved or disapproved of
these securities, or determined if this Prospectus is truthful or complete. Nor
has any state securities commission approved or disapproved of these securities,
or determined if this Prospectus is truthful or complete. It is illegal for any
person to tell you otherwise.
The date of this Prospectus is August , 1998.
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
AVAILABLE INFORMATION
Highwoods Properties, Inc. (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, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
information may be inspected and copied, at prescribed rates, at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 25049, Room 1024, and at the Commission's New York regional office at Seven
World Trade Center, New York, New York 10048 and at the Commission's Chicago
regional office at Citicorp Center, 500 W. Madison Street, Chicago, Illinois
60661. Such information, when available, also may be accessed through the
Commission's electronic data gathering, analysis and retrieval system ("EDGAR")
via electronic means, including the Commission's home page on the Internet
(http://www.sec.gov). In addition, the Company's common stock, $.01 par value
per share ("Common Stock"), is listed on the New York Stock Exchange ("NYSE"),
and such material can also be inspected and copied at the offices of the NYSE,
20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Common Stock registered hereby. This
prospectus ("Prospectus"), which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement and in the exhibits and schedules thereto. For further information
with respect to the Company and such Common Stock, reference is hereby made to
such Registration Statement, exhibits and schedules. The Registration Statement
may be inspected without charge at, or copies obtained upon payment of
prescribed fees from, the Commission and its regional offices at the locations
listed above. Any statements contained herein concerning a provision of any
document are not necessarily complete, and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference and made a part hereof:
a. The Company's annual report on Form 10-K for the year ended December
31, 1997 (as amended on April 29, 1998 and May 19, 1998);
b. The Company's quarterly reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
c. The description of the Common Stock of the Company included in the
Company's registration statement on Form 8-A, dated May 16, 1994; and
d. The Company's current reports on Form 8-K, dated January 9, 1997 (as
amended on February 7, 1997, March 10, 1997 and April 28, 1998),
August 27, 1997 (as amended on September 23, 1997), October 1, 1997,
November 17, 1997, January 22, 1998, February 2, 1998, February 4,
1998, April 20, 1998, April 29, 1998, June 10, 1998, June 17, 1998,
July 1, 1998 and July 3, 1998.
All documents filed by the Company with the Commission pursuant to Sections
13(a) and 13(c) of the Exchange Act and any definitive proxy statements so filed
pursuant to Section 14 of the Exchange Act and any reports filed pursuant to
Section 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which is incorporated by
reference herein modifies or supersedes such earlier statement. Any such
statements modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
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The Company will furnish without charge upon written or oral request to
each person to whom a copy of this Prospectus is delivered, including any
beneficial owner, a copy of any or all of the documents specifically
incorporated herein by reference (not including the exhibits to such documents,
unless such exhibits are specifically incorporated by reference in such
documents). Requests should be made to: Highwoods Properties, Inc., Investor
Relations, 3100 Smoketree Court, Suite 600, Raleigh, North Carolina 27604.
THE COMPANY
Unless the context otherwise requires, the term "Company" shall mean
Highwoods Properties, Inc., predecessors of Highwoods Properties, Inc. and those
entities owned or controlled by Highwoods Properties, Inc., including Highwoods
Realty Limited Partnership.
The Company is a self-administered and self-managed real estate investment
trust ("REIT") that began operations through a predecessor in 1978. At July 31,
1998, the Company owned or had an ownership interest in 679 in-service office,
industrial, retail and service center properties encompassing approximately 46.8
million rentable square feet and 18 multifamily communities with 2,324 apartment
units (collectively, the "Properties"). At July 31, 1998, the Properties were
located in 22 markets in North Carolina, Florida, Tennessee, Virginia, Georgia,
Maryland, Missouri, Kansas, Iowa, South Carolina and Alabama.
In addition, as of July 31, 1998, the Company had 43 properties (the
"Development Projects") under development in its existing markets which will
encompass approximately 4.3 million rentable square feet. At July 31, 1998, the
Company also owned approximately 1,800 acres (and had agreed to purchase an
additional 500 acres) of land for future development (the "Development Land").
The Company conducts substantially all of its activities through, and
substantially all of its interests in the Properties are held directly or
indirectly by, Highwoods Realty Limited Partnership (the "Operating
Partnership"). The Company is the sole general partner of the Operating
Partnership and as of July 31, 1998, owned 84% of the common partnership
interests (the "Common Units") in the Operating Partnership. The remaining
Common Units are owned by limited partners (including certain officers and
directors of the Company). Each Common Unit may be redeemed by the holder
thereof for the cash value of one share of Common Stock or, at the Company's
option, one share (subject to certain adjustments) of Common Stock. With each
such exchange, the number of Common Units owned by the Company and, therefore,
the Company's percentage interest in the Operating Partnership, will increase.
In addition to owning the Properties, the Development Projects and the
Development Land, the Company provides leasing, property management, real estate
development, construction and miscellaneous tenant services for the Properties
as well as for third parties. The Company conducts its third-party fee-based
services through Highwoods Services, Inc., a subsidiary of the Operating
Partnership ("Highwoods Services"), and through Highwoods/Tennessee Properties,
Inc., a wholly owned subsidiary of the Company.
The Company is a Maryland corporation that was incorporated in 1994. The
Company's executive offices are located at 3100 Smoketree Court, Suite 600,
Raleigh, North Carolina 27604, and its telephone number is (919) 872-4924. The
Company maintains offices in each of its primary markets.
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RISK FACTORS
We may discuss certain matters in this Prospectus and the information
incorporated by reference, including strategic initiatives, that constitute
forward-looking statements under the Securities Act and the Securities Exchange
Act. Forward-looking statements may involve known and unknown risks,
uncertainties, and other factors that may cause our actual results, performance,
or achievements to be materially different from future results, performance, or
achievements that the forward-looking statements express or imply. We disclose
important factors that could cause our actual results, performance, or
achievements to differ materially from our expectations in this Prospectus and
in the information incorporated by reference. We, therefore, qualify all of our
forward-looking statements by such factors.
Before you invest in our common stock, you should be aware that there are
various risks, including those described below. You should consider carefully
these risk factors, together with all other information included in this
Prospectus and any attached prospectus supplement, before you decide to purchase
our common stock.
Operating Performance is Dependent on Southeastern Markets
Local economic and real estate conditions may affect our revenues and the
value of our properties. Business layoffs or downsizing, industry slowdowns,
changing demographics, and other similar factors may adversely affect the local
economic climate. The oversupply of or reduced demand for office, industrial,
and other competing commercial properties may adversely affect the real estate
market in particular geographic areas. On July 31, 1998, we owned properties in
21 markets in Alabama, Florida, Georgia, Iowa, Kansas, Maryland, Missouri, North
Carolina, South Carolina, Tennessee and Virginia. Our performance and ability to
make distributions to stockholders is dependent on the economic and real estate
conditions in the Southeast and in Florida and North Carolina in particular. We
can provide no assurances that the economies in our southeastern markets will
continue to grow.
Conflicts of Interest Could Result in Decisions Not in Your Best Interest
Potential Tax Consequences upon Sale or Refinancing of Properties. Holders
of Common Units may suffer adverse tax consequences upon certain of our
properties' sales or refinancings. Therefore, holders of Common Units, including
certain of our officers and directors, may have different objectives regarding
the appropriate pricing and timing of a property's sale or refinancing. Although
the Company, as the sole general partner of the Operating Partnership, has the
exclusive authority to sell or refinance an individual property, officers and
directors who hold Common Units may influence the Company not to sell or
refinance certain properties even if such sale or refinancing might be
financially advantageous to stockholders.
Potential Inability to Eliminate Conflicts of Interests. We have adopted
certain policies to eliminate conflicts of interest. These policies include a
bylaw provision requiring all transactions in which executive officers or
directors have a conflicting interest to be approved by a majority of the
Company's independent directors or by a majority of the shares of capital stock
that disinterested stockholders hold. We can provide no assurance that our
policies will be successful in eliminating the influence of such conflicts. If
our policies are not successful, we may make decisions that fail to reflect the
interests of all stockholders.
Limited Ability of Stockholders to Effect a Change in Control
Limitation on Ownership of the Company's Capital Stock. The Company's
Amended and Restated Articles of Incorporation prohibit any person from owning
more than 9.8% of the Company's outstanding capital stock. This restriction may
delay, defer, or prohibit a third party from acquiring control of the Company
without consent of the board of directors, even if a change in control would be
in your (the stockholders') best interest.
Required Consent of the Operating Partnership for Significant Corporate
Action. The Company may not engage in certain change of control transactions
without the approval of the holders of a majority of the Operating Partnership's
outstanding Common Units. If the Company ever owns less than a majority of the
outstanding Common Units, this voting
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requirement might limit the possibility of a change in control of the Company,
even if a change in control would be in your best interest. On July 31, 1998,
the Company owned approximately 84% of the Common Units.
Difficulty in Removing Current Directors. The Company's board of directors
has three classes of directors. Generally, shareholders elect each Director
class for a three-year term. The staggered directors' terms may affect the
stockholders' ability to change control of the Company even if such a change in
control would be in your best interest.
Anti-Takeover Protections of Operating Partnership Agreement. The Operating
Partnership Agreement contains certain provisions that may require a potential
acquiror to maintain the Operating Partnership structure and maintain the
limited partners' right to continue to hold Common Units with future redemption
rights. These provisions might limit the possibility of a change in control of
the Company, even if such change in control would be in your best interest.
Dilutive Effect of Shareholders' Rights Plan. On October 4, 1997, the
Company's board of directors adopted a Shareholders' Rights Plan and declared a
distribution of one preferred share purchase right for each outstanding share of
Common Stock. The rights were issued on October 16, 1997 to each stockholder of
record on such date. The rights have certain anti-takeover effects. The rights
would cause substantial dilution to a person or group that attempts to acquire
the Company on terms of which the Company's board of directors does not approve.
The rights should not interfere with any merger or other business combination
the board of directors approves since the Company may redeem the rights for $.01
per right, prior to the time that a person or group has acquired beneficial
ownership of 15% or more of the Common Stock.
Adverse Impact on Distributions of Failure to Qualify as a REIT
We believe that we operate in a manner that enables the Company to remain
qualified as a REIT for Federal income tax purposes. We have not requested, and
do not plan to request, a ruling from the Internal Revenue Service that we
qualify as a REIT. We have, however, received an opinion from the law firm of
Alston & Bird LLP that we met the requirements for qualification as a REIT for
the taxable years ended December 31, 1994 through 1997, and that we are in a
position to continue such qualification.
You should be aware that opinions of counsel are not binding on the
Internal Revenue Service or any court. Furthermore, the conclusions stated in
the opinion are conditioned on, and our continued qualification as a REIT will
depend on, our meeting various requirements. Such requirements are discussed in
more detail under the heading "Federal Income Tax Considerations -- Requirements
for Qualification" beginning on page 14.
If we fail to qualify as a REIT, we would not be allowed a deduction for
distributions to stockholders in computing our taxable income and would be
subject to Federal income tax at regular corporate rates. We also could be
subject to the Federal alternative minimum tax. Unless we are entitled to relief
under specific statutory provisions, we could not elect to be taxed as a REIT
for four taxable years following the year during which we were disqualified.
Therefore, if we lose our REIT status, the funds available for distribution to
you would be reduced substantially for each of the years involved. See "Federal
Income Tax Considerations -- Failure to Qualify," on page 17.
Factors that Could Cause Poor Operating Performance of the Properties
Reliance on Performance of Properties. Real property investments are
subject to varying degrees of risk. The yields available from equity investments
in real estate depend in large part on the amount of income generated and
expenses incurred. If our properties do not generate revenues sufficient to meet
operating expenses, including debt service, tenant improvements, leasing
commissions, and other capital expenditures, our ability to make distributions
to stockholders may be adversely affected.
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Several factors may adversely affect our revenues and the value of our
properties. These include, among others:
o the national economy;
o local economies;
o local real estate conditions;
o prospective tenants' perceptions of each property's attractiveness;
o our ability to provide adequate management, maintenance, and
insurance; and
o increased operating costs (including real estate taxes and utilities).
Such factors as applicable laws, including tax laws, interest rate levels, and
the availability of financing also affect real estate values and properties'
income. In addition, safety perceptions, the convenience and attractiveness of
our multifamily properties, the quality of local schools, and the availability
of alternatives, such as single family homes, may affect our multifamily
properties' performance.
Potential Adverse Effect of Competition on Operating Performance. Numerous
properties compete with our properties in attracting tenants to lease space.
Some of these competing properties are newer or better located than some of our
properties. Significant office or industrial property development in a
particular area could have a material effect on our ability to lease space in
our properties and on the rents we charge.
Bankruptcy or Weak Financial Condition of Tenants. At any time, one of our
tenants may seek the protection of the bankruptcy laws. This could result in the
rejection and termination of that tenant's lease and thereby reduce our cash
flows. Although we have not experienced material losses from tenant
bankruptcies, we cannot assure you that tenants will not file for bankruptcy
protection in the future or, if any tenants file, that they will affirm their
leases and continue to make rental payments in a timely manner. In addition, a
tenant from time to time may experience a downturn in its business, which may
weaken its financial condition and result in its failure to make timely rental
payments. If a bankrupt tenant does not affirm its lease, or if a tenant's
financial condition weakens, our income and stockholder distributions may be
adversely affected.
Uncertainty in Renewal of Leases and Reletting of Space. When our tenants
decide not to renew their leases, we may not be able to relet the space. Even if
the tenants do renew or we can relet the space to other tenants, the terms of
renewal or reletting (including the cost of required renovations) may be less
favorable than current lease terms. If we were unable to relet or renew promptly
the leases for all, or a substantial portion, of this space, or if the rental
rates upon such renewal or reletting were significantly lower than expected
rates, then our cash flow and ability to make expected distributions to you may
be adversely affected.
Illiquidity of Real Estate. Equity real estate investments are relatively
illiquid. Such illiquidity will tend to limit our ability to vary our portfolio
promptly in response to changes in economic or other conditions. In addition,
Federal tax laws limit our ability to sell properties we hold for less than four
years. This limitation may affect our ability to sell properties at a time that
would otherwise be in your best interests. It may also affect our ability to
sell properties without adversely affecting our financial performance.
Potential Adverse Effect on Results of Operations Due to Changes in Laws.
Because increases in income, service, or transfer taxes are generally not passed
through to tenants under leases, such increases may adversely affect our cash
flow and our ability to make distributions to you. Our properties are also
subject to various Federal, state, and local regulatory laws, such as the
Americans with Disabilities Act and state and local fire and safety
requirements. If we fail to comply with these requirements, governmental
agencies could impose fines, or private litigants could be awarded damages. We
believe our Properties comply in all material respects with such regulatory
requirements. However, if these
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requirements change or if authorities impose new requirements, we may incur
significant unanticipated expenditures that could adversely affect our cash flow
and expected distributions.
Potential Problems in Development, Construction and Acquisition Activities
We intend to continue developing and constructing office and industrial
properties, including developing the Development Land and completing the
Development Projects. Our development and construction activities, including
activities relating to the Development Land and the Development Projects, may be
subject to certain risks, including the following:
o abandoning development opportunities;
o a property's construction costs exceeding original estimates, possibly
making the property uneconomical;
o occupancy rates and rents at a newly completed property may be
insufficient to make the property profitable;
o financing may not be available on favorable terms to develop a
property; and
o construction and lease-up may not be completed on schedule, resulting
in increased debt service expense and construction costs.
In addition, new development activities, regardless of whether or not they
are ultimately successful, typically require a substantial portion of
management's time and attention. Our development activities may also be subject
to risks relating to the inability to obtain, or delays in obtaining, all
necessary zoning, land-use, building, occupancy, and other required governmental
permits and authorizations. These risks may adversely affect our results of
operations and ability to make distributions to you.
We also intend to continue to acquire office and industrial properties.
Such acquisitions entail risks that investments will fail to perform in
accordance with our expectations, which could adversely affect our operations
and stockholder distributions. Estimates of the costs to bring an acquired
property up to market standards may prove inaccurate. Furthermore, we are likely
to be involved in negotiations (at various stages) to acquire one or more
properties or portfolios. However, we cannot assure you that we will consummate
any of the proposed acquisitions.
Instead of purchasing properties directly, we may invest as a partner or a
co-venturer. Under certain circumstances, this type of investment may involve
risks not otherwise present, including the possibility that a partner or
co-venturer might become bankrupt or that a partner or co-venturer might have
business interests or goals inconsistent with ours. Also, such a partner or
co-venturer may be in a position to take action contrary to our instructions or
requests or contrary to our policies or objectives, including our qualification
as a REIT. We may also risk an impasse on decisions because neither the partner
nor the co-venturer would have full control over the partnership or joint
venture. We will, however, seek to maintain sufficient control of such
partnerships or joint ventures to permit us to achieve our objectives.
Potential Problems Associated with New Markets
We have generally limited our development, acquisition, management, and
leasing business to suburban office and industrial properties in southeastern
markets. However, we have recently moved into certain midwestern markets and
have acquired several retail properties and multifamily communities in those
markets. We may continue to expand our business to new geographic areas and
property types. We believe that much of our past success has been a result of
our local expertise in the Southeast and our experience in the ownership,
management, and development of suburban office and industrial properties. We may
not initially possess the same level of familiarity with new geographic areas
and property types to develop, acquire, manage, or lease newly acquired
properties as profitably as we do for our existing properties. We cannot
guarantee that we will succeed in integrating acquired properties into our
existing property portfolio. Failure to successfully integrate acquired
properties could adversely affect our operational results.
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Some of the risks related to entry into new markets include, among others:
o lack of market knowledge and understanding of local economies;
o inability to obtain land for development or identify acquisition
opportunities; and
o unfamiliarity with local governmental and permitting procedures.
Potential Adverse Effect of Incurrence of Debt
Potential Inflexibility of Debt Financing. Our business is subject to risks
normally associated with debt financing. Cash flow could be insufficient to pay
distributions at expected levels and meet required payments of principal and
interest. We may not be able to refinance existing indebtedness (which in
virtually all cases requires substantial principal payments at maturity). Even
if we can, the terms of such refinancing might not be as favorable as the terms
of existing indebtedness. We may attempt to raise proceeds from capital
transactions, such as new equity capital, to refinance, extend, or pay principal
payments due at maturity. If we cannot successfully complete capital
transactions, our cash flow may be insufficient in all years to repay all
maturing debt. Additionally, prevailing interest rates or other factors at the
time of refinancing (such as the possible reluctance of lenders to make
commercial real estate loans) may result in higher interest rates. This would
increase our interest expense, which would adversely affect cash flow and our
ability to service debt and make distributions to you.
Adverse Effect of Potential Increase in Market Interest Rates. We have
incurred and expect in the future to incur variable-rate indebtedness in
connection with acquiring and developing properties. Also, additional
indebtedness that we may incur under our existing revolving credit facility will
bear interest at variable rates. We may purchase interest rate protection
arrangements relating to variable-rate debt. But if we do not, increases in
interest rates would increase our interest costs, which would adversely affect
our results of operations.
Possible Environmental Liabilities
Under various laws, ordinances, and regulations, such as the Comprehensive
Environmental Response Compensation and Liability Act, and common law, an owner
or operator of real estate is liable for the costs to remove or remediate
certain hazardous or toxic chemicals or substances on or in the property. Owners
or operators are also liable for certain other costs, including governmental
fines and injuries to persons and property. Such laws often impose liability
without regard to whether the owner or operator knew of, or was responsible for,
the presence of the hazardous or toxic chemicals or substances. The presence of
such substances, or the failure to remediate such substances properly, may
adversely affect the owner's or operator's ability to sell or rent such property
or to borrow using such property as collateral. Persons who arrange for the
disposal, treatment, or transportation of hazardous or toxic chemicals or
substances may also be liable for the same types of costs at a disposal,
treatment, or storage facility, whether or not that person owns or operates that
facility. Certain environmental laws also impose liability for releasing
asbestos-containing materials. Third parties may seek recovery from owners or
operators of real property for personal injuries associated with
asbestos-containing materials. A number of our Properties contain
asbestos-containing materials or material that we presume to be
asbestos-containing materials. In connection with owning and operating our
properties, we may be liable for such costs. In addition, it is not unusual for
property owners to encounter on-site contamination caused by off-site sources.
The presence of hazardous or toxic chemicals or substances at a site close to a
property could require the property owner to participate in remediation
activities or could adversely affect the value of the property. Contamination
from adjacent properties has migrated onto at least three of our properties;
however, based on current information, we do not believe that any significant
remedial action is necessary at these affected sites.
As of the date of this Prospectus, we have obtained Phase I environmental
assessments on 99% of our Properties. These assessments have not revealed, nor
are we aware of, any environmental liability that we believe would materially
adversely affect our financial position, operations or liquidity taken as a
whole. This projection, however, could be incorrect depending on certain
factors. For example, our assessments may not reveal all environmental
liabilities or may
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underestimate the scope and severity of environmental conditions observed. If
so, we may not be aware of material environmental liabilities, or material
environmental liabilities may have arisen after the assessments were performed.
In addition, we base our assumptions regarding environmental conditions,
including groundwater flow and the existence and source of contamination, on
readily available sampling data. We cannot guarantee that such data is reliable
in all cases. Moreover, we cannot assure you (i) that future laws, ordinances,
or regulations will not impose a material environmental liability or (ii) that
tenants, the condition of land or operations in the vicinity of our Properties,
or unrelated third parties will not affect the current environmental condition
of our Properties.
Some tenants use or generate hazardous substances in the ordinary course of
their respective businesses. In their leases, we require these tenants to comply
with all applicable laws and to be responsible to us for any damages resulting
from their use of the property. We are not aware of any material environmental
problems resulting from tenants' use or generation of hazardous or toxic
chemicals or substances. We cannot assure you, however, that all tenants will
comply with the terms of their leases or remain solvent. If tenants do not
comply or do not remain solvent, we may at some point be responsible for
contamination caused by such tenants.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock (the "Resale Shares")
being offered and sold for the accounts of certain selling stockholders (the
"Selling Stockholders"). See "Selling Stockholders." The Company will not
receive any proceeds from the sale of the Resale Shares but will pay all
expenses related to the registration of the Resale Shares.
DESCRIPTION OF CAPITAL STOCK
General
The authorized capital stock of the Company consists of 250,000,000 shares
of capital stock, $.01 par value, of which 200,000,000 shares are classified as
Common Stock and 50,000,000 shares are classified as preferred stock ("Preferred
Stock"). The following description of the terms and provisions of the shares of
capital stock of the Company and certain other matters does not purport to be
complete and is subject to and qualified in its entirety by reference to the
applicable provisions of Maryland law and the Company's Articles of
Incorporation and Bylaws, as amended.
Common Stock
Each holder of Common Stock is entitled to one vote at stockholder meetings
for each share of Common Stock held. Neither the Articles of Incorporation nor
the Bylaws provide for cumulative voting for the election of directors. Subject
to the prior rights of any series of Preferred Stock that may be classified and
issued, holders of Common Stock are entitled to receive, pro rata, such
dividends as may be declared by the board of directors out of funds legally
available therefor, and also are entitled to share, pro rata, in any other
distributions to stockholders. The Company currently pays regular quarterly
dividends to holders of Common Stock. Holders of Common Stock do not have any
preemptive rights or other rights to subscribe for additional shares.
The Common Stock is listed for trading on the NYSE.
Classification of Board of Directors; Removal of Directors; Other Provisions
The Company's Articles of Incorporation provide for the board of directors
to be divided into three classes of directors, with each class to consist as
nearly as possible of an equal number of directors. At each annual meeting of
stockholders, the class of directors to be elected at such meeting will be
elected for a three-year term, and the directors in the other two classes will
continue in office. Because holders of Common Stock will have no right to
cumulative voting for the election of directors, at each annual meeting of
stockholders, the holders of a majority of the shares of Common Stock will be
able to elect all of the successors of the class of directors whose term expires
at that meeting.
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The Articles of Incorporation also provide that, except for any directors
who may be elected by holders of a class or series of capital stock other than
Common Stock, directors may be removed only for cause and only by the
affirmative vote of stockholders holding at least two-thirds of the votes
entitled to be cast for the election of directors. Vacancies on the board of
directors may be filled by the affirmative vote of the remaining directors.
These provisions may make it more difficult and time-consuming to change
majority control of the board of directors of the Company and, thus, may reduce
the vulnerability of the Company to an unsolicited proposal for the takeover of
the Company or the removal of incumbent management. The Company's officers and
directors are and will be indemnified under Maryland law, the Articles of
Incorporation of the Company and the agreement of limited partnership of the
Operating Partnership (the "Partnership Agreement") against certain liabilities,
including liabilities under the Securities Act. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Certain Provisions Affecting Change of Control
General. Pursuant to the Company's Articles of Incorporation and the
Maryland General Corporation Law (the "MGCL"), the Company cannot merge into or
consolidate with another corporation or enter into a statutory share exchange
transaction in which it is not the surviving entity or sell all or substantially
all of the assets of the Company unless the Board of Directors adopts a
resolution declaring the proposed transaction advisable and a majority of
stockholders entitled to vote thereon (voting together as a single class)
approve the transaction. In addition, the Operating Partnership Agreement
requires that any such merger or sale of all or substantially all of the assets
of the Operating Partnership be approved by a majority of the holders of Common
Units (including Common Units owned by the Company).
Maryland Business Combination and Control Share Statutes. The MGCL
establishes special requirements with respect to business combinations between
Maryland corporations and interested stockholders unless exemptions are
applicable. Among other things, the law prohibits for a period of five years a
merger and other specified or similar transactions between a company and an
interested stockholder and requires a supermajority vote for such transactions
after the end of the five-year period. The Company's Articles of Incorporation
contain a provision exempting the Company from the requirements and provisions
of the Maryland business combination statute. There can be no assurance that
such provision will not be amended or repealed at any point in the future.
The MGCL also provides that control shares of a Maryland corporation
acquired in a control share acquisition have no voting rights except to the
extent approved by a vote of two-thirds of the votes entitled to be cast on the
matter, excluding shares owned by the acquiror or by officers or directors who
are employees of the Company. The control share acquisition statute does not
apply to shares acquired in a merger, consolidation or share exchange if the
Company is a party to the transaction, or to acquisitions approved or exempted
by the Articles of Incorporation or bylaws of the Company. The Company's bylaws
contain a provision exempting from the control share acquisition statute any and
all acquisitions by any person of the Company's stock. There can be no assurance
that such provision will not be amended or repealed, in whole or in part, at any
point in the future.
The Company's Articles of Incorporation (including the provision exempting
the Company from the Maryland business combination statute) may not be amended
without the affirmative vote of at least a majority of the shares of capital
stock outstanding and entitled to vote thereon voting together as a single
class, provided that certain provisions of the Articles of Incorporation may not
be amended without the approval of the holders of two-thirds of the shares of
capital stock of the Company outstanding and entitled to vote thereon voting
together as a single class. The Company's bylaws may be amended by the Board of
Directors or a majority of the shares cast of capital stock entitled to vote
thereupon at a duly constituted meeting of stockholders.
If either of the foregoing exemptions in the Articles of Incorporation or
bylaws is amended, the Maryland business combination statute or the control
share acquisition statute could have the effect of discouraging offers to
acquire the Company and of increasing the difficulty of consummating any such
offer.
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Ownership Limitations and Restrictions on Transfers. For the Company to
remain qualified as a REIT under the Code, not more than 50% in value of its
outstanding shares of capital stock may be owned, directly or indirectly, by
five or fewer individuals (defined in the Code to include certain entities)
during the last half of a taxable year, and such shares must be beneficially
owned by 100 or more persons during at least 335 days of a taxable year of 12
months or during a proportionate part of a shorter taxable year. To ensure that
the Company remains a qualified REIT, the Articles of Incorporation provide that
no holder (other than persons approved by the directors at their option and in
their discretion) may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than 9.8% (the "Ownership Limit") of the issued and
outstanding capital stock of the Company. The Board of Directors may waive the
Ownership Limit if evidence satisfactory to the Board of Directors and the
Company's tax counsel is presented that the changes in ownership will not
jeopardize the Company's status as a REIT.
If any stockholder purports to transfer shares to a person and either the
transfer would result in the Company failing to qualify as a REIT, or the
stockholder knows that such transfer would cause the transferee to hold more
than the Ownership Limit, the purported transfer shall be null and void, and the
stockholder will be deemed not to have transferred the shares. In addition, if
any person holds shares of capital stock in excess of the Ownership Limit, such
person will be deemed to hold the excess shares in trust for the Company, will
not receive distributions with respect to such shares and will not be entitled
to vote such shares. The person will be required to sell such shares to the
Company for the lesser of the amount paid for the shares and the average closing
price for the 10 trading days immediately preceding the redemption or to sell
such shares at the direction of the Company, in which case the Company will be
reimbursed for its expenses in connection with the sale and will receive any
amount of such proceeds that exceeds the amount such person paid for the shares.
If the Company repurchases such shares, it may pay for the shares with Units.
The foregoing restrictions on transferability and ownership will not apply if
the Board of Directors and the stockholders (by the affirmative vote of the
holders of two-thirds of the outstanding shares of capital stock entitled to
vote on the matter) determine that it is no longer in the best interests of the
Company to continue to qualify as a REIT.
All certificates representing shares of capital stock bear a legend
referring to the restrictions described above.
Every beneficial owner of more than 5% (or such lower percentage as
required by the Code or regulations thereunder) of the issued and outstanding
shares of capital stock must file a written notice with the Company no later
than January 30 of each year, containing the name and address of such beneficial
owner, the number of shares of Common Stock and/or Preferred Stock owned and a
description of how the shares are held. In addition, each stockholder shall be
required upon demand to disclose to the Company in writing such information as
the Company may request in order to determine the effect of such stockholder's
direct, indirect and constructive ownership of such shares on the Company's
status as a REIT.
These ownership limitations could have the effect of precluding acquisition
of control of the Company by a third party unless the Board of Directors and the
stockholders determine that maintenance of REIT status is no longer in the best
interest of the Company.
Operating Partnership Agreement. The Operating Partnership Agreement
requires that any merger (unless the surviving entity contributes substantially
all of its assets to the Operating Partnership for Common Units) or sale of all
or substantially all of the assets of the Operating Partnership be approved by a
majority of the holders of Common Units (including Common Units owned by the
Company). The Operating Partnership Agreement also contains provisions relating
to a limited partner's redemption right in the event of certain changes of
control of the Company and under certain circumstances allows for limited
partners to continue to hold Common Units in the Operating Partnership following
such a change of control, thereby maintaining the tax basis in their Common
Units. The covered changes of control (each, a "Trigger Event") are: (i) a
merger involving the Company in which the Company is not the surviving entity;
(ii) a merger involving the Company in which the Company is the survivor but all
or part of the Company's shares are converted into securities of another entity
or the right to receive cash; and (iii) the transfer by the Company to another
entity of substantially all of the assets or earning power of the Company or the
Operating Partnership.
Upon occurrence of a Trigger Event, the rights of a limited partner to
receive a share of the Company's common stock (a "REIT Share") or cash equal to
the fair market value of a REIT Share upon redemption of a Common Unit is
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converted into the right to receive a share (a "Replacement Share") or cash
equal to the fair market value thereof of the acquiror or a parent of the
acquiror. If the acquiror does not have publicly traded securities and a parent
of the acquiror does, the publicly traded equity securities of the parent entity
with the highest market capitalization will be the Replacement Shares. If
neither the acquiror nor any parent has publicly traded equity securities, the
Replacement Shares will be the equity securities of the entity with the highest
market capitalization. The number of Replacement Shares to be received by a
limited partner (or to be used to calculate the cash payment due) upon a
redemption of Common Units shall be equal to the number of REIT Shares issuable
prior to the Trigger Event multiplied by (i) the number of Replacement Shares
the holder of a single REIT Share would have received as a result of the Trigger
Event or, if the Replacement Shares have not been publicly traded for one year,
(ii) a fraction, the numerator of which is the Average Trading Price (as defined
in the Operating Partnership Agreement) of a REIT Share as of the Trigger Event
and the denominator of which is the Average Trading Price of a Replacement Share
as of the Trigger Event.
If the acquiror in a Trigger Event is a REIT, it must make provision to
preserve an operating partnership structure with terms no less favorable to the
limited partners than currently in place. In addition, the Operating Partnership
Agreement provides that, if a distribution of cash or property is made in
respect of a Replacement Share, the Operating Partnership will distribute the
same amount in respect of a Common Unit as would have been received by a limited
partner had such partner's Common Units been redeemed for Replacement Shares
prior to such distribution.
Because the Operating Partnership Agreement requires an acquiror to make
provision under certain circumstances to maintain the Operating Partnership
structure and maintain a limited partner's right to continue to hold Common
Units with future redemption rights, the terms of the Operating Partnership
Agreement could also have the effect of discouraging a third party from making
an acquisition proposal for the Company.
These provisions of the Operating Partnership Agreement may only be waived
or amended upon the consent of limited partners holding at least 75% of the
Common Units (excluding those held by the Company).
Shareholders' Rights Plan. On October 4, 1997, the Company's board of
directors adopted a Shareholders' Rights Plan and declared a distribution of one
preferred share purchase right (a "Right") for each outstanding share of Common
Stock. The Rights were issued on October 16, 1997 to each shareholder of record
on such date. The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by the Company's board of directors. The Rights
should not interfere with any merger or other business combination approved by
the board of directors since the Rights may be redeemed by the Company for $.01
per Right prior to the time that a person or group has acquired beneficial
ownership of 15% or more of the Common Stock.
Registrar and Transfer Agent
The Registrar and Transfer Agent for the Common Stock is First Union
National Bank, Charlotte, North Carolina.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain Federal income tax considerations to the
Company is based on current law, is for general purposes only, and is not tax
advice. The summary addresses the material Federal income tax considerations
relating to the Company's REIT status, as well as material Federal income tax
considerations relating to the Operating Partnership and the Company's
stockholders. The Federal income tax treatment of any investor in the Resale
Shares will vary depending upon such investor's particular situation.
Each investor is advised to consult his or her own tax advisor regarding
the tax consequences to him or her of the purchase, ownership and sale of the
Resale Shares, including the federal, state, local, foreign and other tax
consequences of such purchase, ownership and sale and of potential changes in
applicable tax laws.
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Taxation of the Company as a REIT
Commencing with its taxable year ended December 31, 1994, the Company has
elected to be taxed as a real estate investment trust under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code"). The Company
believes that, commencing with its taxable year ended December 31, 1994, it has
been organized and has operated in such a manner as to qualify for taxation as a
REIT under the Code, and the Company intends to continue to operate in such a
manner, but no assurance can be given that it has operated or will operate in a
manner so as to qualify or remain qualified.
These sections of the Code are highly technical and complex. The following
sets forth the material aspects of the sections that govern the Federal income
tax treatment of a REIT and its stockholders. This summary is qualified in its
entirety by the applicable Code provisions, rules and regulations promulgated
thereunder, and administrative and judicial interpretation thereof.
Alston & Bird LLP has acted as tax counsel to the Company in connection
with the offering of the Securities and the Company's election to be taxed as a
REIT. Alston & Bird LLP is of the opinion that the Company has been organized
and has operated in conformity with the requirements for qualification and
taxation as a REIT under the Code for its taxable years ended December 31, 1994
through 1997, and that the Company is in a position to continue its
qualification and taxation as a REIT within the definition of Section 856(a) of
the Code for the taxable year that will end December 31, 1998. This opinion is
based on factual representations of the Company concerning its business
operations and its properties and Alston & Bird LLP has not independently
verified these facts. In addition, the Company's status as a REIT at any time
during 1998 is dependent, among other things, upon the Company meeting the
requirements of Section 856 through 860 of the Code throughout the year and for
the year as a whole. Accordingly, because the Company's satisfaction of such
requirements will depend upon future events, including the precise terms and
conditions of proposed transactions, the final determination of operational
results and the effect of certain provisions contained in the President's Budget
Proposal for the Fiscal Year 1999 on the Company's REIT status, no assurance can
be given that the Company will satisfy the requirements to be a REIT during the
taxable year that will end December 31, 1998.
Federal Income Taxation of the Company
If the Company qualifies for taxation as a REIT, it generally will not be
subject to Federal corporate income tax on that portion of its ordinary income
or capital gain that is currently distributed to stockholders. The REIT
provisions of the Code generally allow a REIT to deduct distributions paid to
its stockholders, substantially eliminating the Federal "double taxation" on
earnings (once at the corporate level when earned and once again at the
stockholder level when distributed) that usually results from investments in a
corporation. Nevertheless, the Company will be subject to Federal income tax as
follows. First, the Company will be taxed at regular corporate rates on its
undistributed REIT taxable income, including undistributed net capital gains.
Second, under certain circumstances, the Company may be subject to the
"alternative minimum tax" as a consequence of its items of tax preference.
Third, if the Company has net income from the sale or other disposition of
"foreclosure property" that is held primarily for sale to customers in the
ordinary course of business or other non-qualifying income from foreclosure
property, it will be subject to tax at the highest corporate rate on such
income. Fourth, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property other
than foreclosure property held primarily for sale to customers in the ordinary
course of business), such income will be subject to a 100% tax. Fifth, if the
Company should fail to satisfy either of the 75% or 95% gross income tests
(discussed below) but has nonetheless maintained its qualification as a REIT
because certain other requirements have been met, it will be subject to a 100%
tax on the net income attributable to the greater of the amount by which the
Company fails either the 75% or 95% test, multiplied by a fraction intended to
reflect the Company's profitability. Sixth, if the Company fails to distribute
during each year at least the sum of (i) 85% of its ordinary income for such
year, (ii) 95% of its capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Company will be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. Seventh, if the Company should acquire any asset from a C
corporation (i.e., a corporation generally subject to full corporate-level tax)
in a carryover-basis transaction and the Company subsequently recognizes gain on
the disposition of such asset during the 10-year period (the "Recognition
Period") beginning on the date on which the asset was acquired by the Company,
then, to the extent of the excess of (a) the fair market value of the asset as
of the beginning of the applicable Recognition Period over (b) the Company's
adjusted basis in such asset as of the beginning of such Recognition
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Period (the "Built-In Gain"), such gain will be subject to tax at the highest
regular corporate rate, pursuant to guidelines issued by the Internal Revenue
Service ("IRS") (the "Built-In Gain Rules").
Requirements for Qualification
To qualify as a REIT, the Company must elect to be so treated and must meet
the requirements, discussed below, relating to the Company's organization,
sources of income, and nature of assets.
Organizational Requirements. The Code defines a REIT as a corporation,
trust or association: (i) that is managed by one or more trustees or directors,
(ii) the beneficial ownership of which is evidenced by transferable shares or by
transferable certificates of beneficial interest, (iii) that would be taxable as
a domestic corporation but for the REIT requirements, (iv) that is neither a
financial institution nor an insurance company subject to certain provisions of
the Code, (v) the beneficial ownership of which is held by 100 or more persons,
(vi) during the last half of each taxable year, not more than 50% in value of
the outstanding stock of which is owned, directly or indirectly, through the
application of certain attribution rules, by five or fewer individuals (as
defined in the Code to include certain entities), (vii) files an election to be
taxed as a REIT on its return for each taxable year, and (viii) satisfies the
95% and 75% income tests and the 75%, 25%, 10%, and 5% asset tests, as described
below. The Code provides that conditions (i) through (iv), inclusive, must be
met during the entire taxable year and that condition (v) must be met during at
least 335 days of a taxable year of 12 months or during a proportionate part of
a taxable year of less than 12 months. For purposes of condition (v), certain
pension funds and other tax-exempt entities are treated as persons. For purposes
of condition (vi), the beneficiaries of a pension or profit-sharing trust under
section 401(a) of the Code are treated as REIT stockholders. In addition, the
Articles of Incorporation currently include certain restrictions regarding
transfer of its Common Stock, which restrictions are intended (among other
things) to assist the Company in continuing to satisfy conditions (v) and (vi)
above.
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to such share. In addition, the character of the
assets and gross income of the partnership retain the same character in the
hands of the REIT for purposes of Section 856 of the Code, including satisfying
the gross income tests and asset tests. Thus, the Company's proportionate share
of the assets, liabilities, and items of income of the Operating Partnership
(including the Operating Partnership's share of the assets, liabilities, and
items of income with respect to any partnership in which it holds an interest)
will be treated as assets, liabilities and items of income of the Company for
purposes of applying the requirements described herein.
Income Tests. In order to maintain qualification as a REIT, the Company
annually must satisfy two gross income requirements. First, at least 75% of the
Company's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived directly or indirectly from investments
relating to real property, including investments in other REITs or mortgages on
real property (including "rents from real property" and, in certain
circumstances, interest). Second, at least 95% of the Company's gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments, dividends, interest, and gain
from the sale or disposition of stock or securities (or from any combination of
the foregoing). In addition, for taxable years ended on or before December 31,
1997, short-term gain from the sale or other disposition of stock or securities,
gain from prohibited transactions and gain on the sale or other disposition of
real property held for less than four years (apart from involuntary conversions
and sales of foreclosure property) must represent less than 30% of the Company's
gross income (including gross income from prohibited transactions). The Taxpayer
Relief Act of 1997, enacted August 5, 1997 ("Taxpayer Relief Act"), repeals the
30% gross income test for taxable years beginning after August 5, 1997.
Accordingly, the 30% gross income test will not apply to the Company beginning
with its taxable year that will end December 31, 1998.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person but can be based on a fixed
percentage of gross receipts or gross sales. Second, "rents from real property"
excludes any amount received directly or indirectly from any tenant if the
Company, or an owner of 10% of more of the Company, directly or constructively,
owns 10% or more of such tenant taking into consideration the applicable
attribution rules (a "Related Party Tenant"). Third, rent attributable to
personal property is excluded from "rents from real property" except where such
personal property is leased in connection with a lease of real
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property and the rent attributable to such personal property is less than or
equal to 15% of the total rent received under the lease. Finally, amounts that
are attributable to services furnished or rendered in connection with the rental
of real property, whether or not separately stated, will not constitute "rents
from real property" unless such services are customarily provided in the
geographic area. Customary services that are not provided to a particular tenant
(e.g., furnishing heat and light, the cleaning of public entrances, and the
collection of trash) can be provided directly by the Company. Where, on the
other hand, such services are provided primarily for the convenience of the
tenants and are provided to such tenants, such services must be provided by an
independent contractor. In the event that an independent contractor provides
such services, the Company must adequately compensate the independent
contractor, the Company must not derive any income from the independent
contractor, and neither the independent contractor nor certain of its
shareholders may, directly or indirectly, own more than 35% of the Company,
taking into consideration the applicable ownership rules. Pursuant to the
Taxpayer Relief Act and beginning with the Company's taxable year that will end
December 31, 1998, the Company's rental income will not cease to qualify as
"rents from real property" merely because the Company performs a de minimis
amount of impermissible services to the tenants. For purposes of the preceding
sentence, (i) the amount of income received from such impermissible services
cannot exceed one percent of all amounts received or accrued during such taxable
year, directly or indirectly, by the Company with respect to such property and
(ii) the amount treated as received by the Company for such impermissible
services cannot be less than 150 percent of the direct cost of the Company in
furnishing or rendering such services.
The Company does not currently charge and does not anticipate charging rent
that is based in whole or in part on the income or profits of any person. The
Company also does not anticipate either deriving rent attributable to personal
property leased in connection with real property that exceeds 15% of the total
rents or receiving rent from Related Party Tenants.
The Operating Partnership does provide certain services with respect to the
Properties. The Company believes that the services with respect to the
Properties that are and will be provided directly are usually or customarily
rendered in connection with the rental of space for occupancy only and are not
otherwise rendered to particular tenants and, therefore, that the provision of
such services will not cause rents received with respect to the Properties to
fail to qualify as rents from real property. Services with respect to the
Properties that the Company believes may not be provided by the Company or the
Operating Partnership directly without jeopardizing the qualification of rent as
"rents from real property" are and will be performed by independent contractors.
The Operating Partnership and the Company receive fees in consideration of
the performance of property management and brokerage and leasing services with
respect to certain Properties not owned entirely by the Operating Partnership.
Such fees will not qualify under the 75% or the 95% gross income test. The
Operating Partnership also may receive certain other types of income with
respect to the properties it owns that will not qualify for either of these
tests. In addition, dividends on the Operating Partnership's stock in Highwoods
Services will not qualify under the 75% gross income test. The Company believes,
however, that the aggregate amount of such fees and other non-qualifying income
in any taxable year will not cause the Company to exceed the limits on
non-qualifying income under either the 75% or the 95% gross income test.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for that year
if it is eligible for relief under a certain provision of the Code. This relief
provision generally will be available if (i) the Company's failure to meet these
tests was due to reasonable cause and not due to willful neglect, (ii) the
Company attaches a schedule of the nature and amount of each item of income to
its Federal income tax return and (iii) the inclusion of any incorrect
information on such schedule is not due to fraud with intent to evade tax. It is
not possible, however, to state whether in all circumstances the Company would
be entitled to the benefit of this relief provision. For example, if the Company
fails to satisfy the gross income tests because non-qualifying income that the
Company intentionally incurs exceeds the limits on such income, the IRS could
conclude that the Company's failure to satisfy the tests was not due to
reasonable cause. As discussed above in " -- Federal Income Taxation of the
Company," even if this relief provision applies, a 100% tax would be imposed
with respect to the portion of the Company's taxable income that fails the 75%
or 95% gross income test.
Asset Tests. At the close of each quarter of its taxable year, the Company
also must satisfy four tests relating to the nature and diversification of its
assets. First, at least 75% of the value of the Company's total assets must be
represented
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by real estate assets, cash and cash items (including receivables), and
government securities. Second, no more than 25% of the value of the Company's
total assets may be represented by securities other than those in the 75% asset
class. Third, not more than 5% of the value of the Company's assets may consist
of securities of any one issuer (other than those securities includible in the
75% asset test). Fourth, not more than 10% of the outstanding voting securities
of any one issuer may be held by the Company (other than those securities
includible in the 75% asset test).
The 5% test generally must be met for any quarter in which the Company
acquires securities of an issuer. Thus, this requirement must be satisfied not
only on the date on which the Company through the Operating Partnership acquired
the securities of Highwoods Services, but also each time the Company increases
its ownership of its respective securities (including as a result of increasing
its interest in the Operating Partnership as limited partners exercise their
redemption rights). Although the Company plans to take steps to ensure that it
satisfies the 5% value test for any quarter with respect to which retesting is
to occur, there can be no assurance that such steps will always be successful or
will not require a reduction in the Company's overall interest in Highwoods
Services.
The Operating Partnership owns 100% of the nonvoting stock and 1% of the
voting stock of Highwoods Services, and by virtue of its ownership of Common
Units, the Company will be considered to own its pro rata share of such stock.
See "The Company." Neither the Company nor the Operating Partnership, however,
will own more than 1% of the voting securities of Highwoods Services. In
addition, the Company and its senior management do not believe that the
Company's pro rata share of the value of the securities of Highwoods Services
exceeds 5% of the total value of the Company's assets. The Company's belief is
based in part upon its analysis of the estimated value of the securities of
Highwoods Services owned by the Operating Partnership relative to the estimated
value of the other assets owned by the Operating Partnership. No independent
appraisals will be obtained to support this conclusion, and Alston & Bird LLP,
in rendering its opinion as to the qualification and taxation of the Company as
a REIT, is relying on the conclusions of the Company and its senior management
as to the value of the securities of Highwoods Services. There can be no
assurance, however, that the IRS might not contend that the value of such
securities held by the Company (through the Operating Partnership) exceeds the
5% value limitation.
After initially meeting the asset tests at the close of any quarter, the
Company will not lose its status as a REIT for failure to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset values.
If the failure to satisfy the asset tests results from an acquisition of
securities or other property during a quarter, the failure can be cured by
disposition of sufficient non-qualifying assets within 30 days after the close
of that quarter. The Company intends to maintain adequate records of the value
of its assets to ensure compliance with the asset tests and to take such other
actions within 30 days after the close of any quarter as may be required to cure
any noncompliance.
Annual Distribution Requirements
In order to be taxed as a REIT, the Company is required to make
distributions (other than capital gain distributions) to its stockholders in an
amount at least equal to (a) the sum of (i) 95% of the Company's "REIT taxable
income" (computed without regard to the dividends-paid deduction and the
Company's capital gain) and (ii) 95% of the net income, if any, from foreclosure
property in excess of the special tax on income from foreclosure property, minus
(b) the sum of certain items of non-cash income. Such distributions must be paid
in the taxable year to which they relate. Dividends paid in the subsequent year,
however, will be treated as if paid in the prior year for purposes of such prior
year's 95% distribution requirement if one of the following two sets of criteria
are satisfied: (i) the dividends were declared in October, November, or
December, the dividends were payable to stockholders of record on a specified
date in such a month, and the dividends were actually paid during January of the
subsequent year; or (ii) the dividends were declared before the Company timely
files its Federal income tax return for such year, the dividends were
distributed in the twelve month period following the close of the prior year and
not later than the first regular dividend payment after such declaration, and
the Company elected on its Federal income tax return for the prior year to have
a specified amount of the subsequent dividend treated as if paid in the prior
year. Even if the Company satisfies the foregoing distribution requirements, the
Company will be subject to tax thereon at regular capital gains or ordinary
corporate tax rates to the extent that it does not distribute all of its net
capital gain or "REIT taxable income" as adjusted. Furthermore, if the Company
should fail to distribute during each calendar year at least the sum of (a) 85%
of its ordinary income for that year, (b) 95% of its capital gain net income for
that year, and (c) any undistributed taxable income from prior periods, the
Company would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. In addition, during its
Recognition Period, if the Company
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disposes of any asset subject to the Built-In Gain Rules, the Company will be
required, pursuant to guidance issued by the IRS, to distribute at least 95% of
the Built-In Gain (after tax), if any, recognized on the disposition of the
asset.
The Company intends to make timely distributions sufficient to satisfy the
annual distribution requirements. In this regard, the Operating Partnership
Agreement authorizes the Company, as general partner, to take such steps as may
be necessary to cause the Operating Partnership to distribute to its partners an
amount sufficient to permit the Company to meet these distribution requirements.
It is expected that the Company's REIT taxable income will be less than its
cash flow due to the allowance of depreciation and other non-cash charges in
computing REIT taxable income. Accordingly, the Company anticipates that it
generally will have sufficient cash or liquid assets to enable it to satisfy the
95% distribution requirement. It is possible, however, that the Company, from
time to time, may not have sufficient cash or other liquid assets to meet the
95% distribution requirement or to distribute such greater amount as may be
necessary to avoid income and excise taxation. In such event, the Company may
find it necessary to arrange for borrowings or, if possible, pay taxable stock
dividends in order to meet the distribution requirement.
In the event that the Company is subject to an adjustment to its REIT
taxable income (as defined in Section 860(d)(2) of the Code) resulting from an
adverse determination by either a final court decision, a closing agreement
between the Company and the IRS under Section 7121 of the Code, or an agreement
as to tax liability between the Company and an IRS district director, the
Company may be able to rectify any resulting failure to meet the 95% annual
distribution requirement by paying "deficiency dividends" to stockholders that
relate to the adjusted year but that are paid in a subsequent year. To qualify
as a deficiency dividend, the distribution must be made within 90 days of the
adverse determination and the Company also must satisfy certain other procedural
requirements. If the statutory requirements of Section 860 of the Code are
satisfied, a deduction is allowed for any deficiency dividend subsequently paid
by the Company to offset an increase in the Company's REIT taxable income
resulting from the adverse determination. The Company, however, will be required
to pay statutory interest on the amount of any deduction taken for deficiency
dividends to compensate for the deferral of the tax liability.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable year
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to stockholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of positive current and
accumulated earnings and profits, all distributions to stockholders will be
dividends, taxable as ordinary income, except that, subject to certain
limitations of the Code, corporate distributees may be eligible for the
dividends-received deduction. Unless the Company is entitled to relief under
specific statutory provisions, the Company also will be disqualified from
taxation as a REIT for the four taxable years following the year during which
qualification was lost. It is not possible to state whether in all circumstances
the Company would be entitled to such statutory relief. For example, if the
Company fails to satisfy the gross income tests because non-qualifying income
that the Company intentionally incurs exceeds the limit on such income, the IRS
could conclude that the Company's failure to satisfy the tests was not due to
reasonable cause.
Taxation of U.S. Stockholders
As used herein, the term "U.S. Stockholder" means a holder of Common Stock
that (for Federal income tax purposes) (a) is a citizen or resident of the
United States, (b) is a corporation or partnership (including an entity treated
as a corporation or partnership for United States Federal income tax purposes)
created or organized in or under the laws of the United States or of any
political subdivision thereof, (c) is an estate, the income of which is subject
to Federal income taxation regardless of its source or (d) is any trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust, and one or more United States persons have the
authority to control all substantial decisions of the trust. For any taxable
year for which the Company qualifies for taxation as a REIT, amounts distributed
to taxable U.S. Stockholders will be taxed as discussed below.
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Distributions Generally. Distributions to U.S. Stockholders, other than
capital gain dividends discussed below, will constitute dividends up to the
amount of the Company's positive current and accumulated earnings and profits
and, to that extent, will be taxable to the U.S. Stockholders as ordinary
income. These distributions are not eligible for the dividends-received
deduction for corporations. To the extent that the Company makes a distribution
in excess of its positive current and accumulated earnings and profits, the
distribution will be treated first as a tax-free return of capital, reducing the
tax basis in the U.S. Stockholder's Common Stock, and then the distribution in
excess of such basis will be taxable as gain realized from the sale of its
Common Stock. Dividends declared by the Company in October, November, or
December of any year payable to a U.S. Stockholder of record on a specified date
in any such month shall be treated as both paid by the Company and received by
the stockholders on December 31 of the year, provided that the dividends are
actually paid by the Company during January of the following calendar year. U.S.
Stockholders are not allowed to include on their own Federal income tax returns
any tax losses of the Company.
The Company will be treated as having sufficient earnings and profits to
treat as a dividend any distribution by the Company up to the amount required to
be distributed in order to avoid imposition of the 4% excise tax discussed in "
- -- Federal Income Taxation of the Company" above.
Capital Gain Distributions. Distributions to U.S. Stockholders that are
properly designated by the Company as capital gain distributions will be treated
as long-term capital gains (to the extent they do not exceed the Company's
actual net capital gain) for the taxable year without regard to the period for
which the U.S. Stockholder has held his or her stock. However, corporate
stockholders may be required to treat up to 20% of certain capital gain
dividends as ordinary income. Capital gain dividends are not eligible for the
dividends-received deduction for corporations.
Pursuant to the Taxpayer Relief Act and beginning with the Company's
taxable year that will end December 31, 1998, the Company may elect to retain
and pay income tax on net long-term capital gain that it received during the tax
year. If such election is made, (i) the U.S. Stockholders will include in their
income their proportionate share of the undistributed long-term capital gains as
designated by the Company; (ii) the U.S. Stockholders will be deemed to have
paid their proportionate share of the tax, which would be credited or refunded
to such stockholders, and (iii) the basis of the U.S. Stockholders' shares will
be increased by the amount of the undistributed long-term capital gains (less
the amount of capital gains tax paid by the Company) included in such
stockholders' long-term capital gains.
As a result of the changes made to the capital gain rates by the Taxpayer
Relief Act (See " -- Certain Dispositions of Shares"), the IRS issued Notice
97-64 outlining (i) when a REIT may designate its dividends as either a 20% rate
gain distribution, an unrecaptured section 1250 gain distribution (taxed at 25%
as noted in "Certain Disposition of Shares"), or a 28% rate gain distribution
and (ii) how to calculate the amount of such distributions, which may be subject
to certain deferral or bifurcation adjustments. When a REIT designates a
distribution as a capital gain dividend, which is attributable to a taxable year
ending after May 7, 1997, for purposes of the annual distribution requirement,
the REIT also may designate such dividend as a 20% rate gain distribution, as
unrecaptured section 1250 gain distribution, or a 28% rate gain distribution.
Where no such designation is provided, the dividend will be treated as a 28%
rate gain distribution. These additional designations by the REIT are effective
only to the extent that they do not exceed certain limitations. For example, the
maximum amount of each distribution that can be classified as either a 20% rate
gain distribution, an unrecaptured section 1250 gain distribution, or a 28% rate
gain distribution must be calculated in accordance with the Code and the IRS
Notice.
Passive Activity Loss and Investment Interest Limitations. Distributions
from the Company and gain from the disposition of Common Stock will not be
treated as passive activity income and, therefore, U.S. Stockholders will not be
able to apply any "passive losses" against such income. Dividends from the
Company (to the extent they do not constitute a return of capital) generally
will be treated as investment income for purposes of the investment interest
limitation. Net capital gain from the disposition of Common Stock or capital
gain dividends generally will be excluded from investment income unless the U.S.
Stockholder elects to have such gain taxed at ordinary income rates.
Certain Dispositions of Shares. In general, U.S. Stockholders will realize
capital gain or loss on the disposition of Common Stock equal to the difference
between (i) the amount of cash and the fair market value of any property
received on such disposition, and (ii) such stockholders' adjusted basis in such
Common Stock. Losses incurred on the sale or exchange of Common Stock held for
less than six months (after applying certain holding period rules) will be
deemed long-
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term capital loss to the extent of any capital gain dividends received by the
selling U.S. Stockholder from those shares. As a result of the Taxpayer Relief
Act, the maximum rate of tax on net capital gains on individuals, trusts, and
estates from the sale or exchange of assets held for more than 18 months has
been reduced to 20%, and such maximum rate is further reduced to 18% for assets
acquired after December 31, 2000, and held for more than five years. For 15%
percent bracket taxpayers, the maximum rate on net capital gains is reduced to
10%, and such maximum rate is further reduced to 8% for assets sold after
December 31, 2000, and held for more than five years. The maximum rate for net
capital gains attributable to the sale of depreciable real property held for
more than 18 months is 25% to the extent of the deductions for depreciation with
respect to such property. Long-term capital gain allocated to U.S. Stockholders
by the Company will be subject to the 25% rate to the extent that the gain does
not exceed depreciation on real property sold by the Company. The maximum rate
of capital gains tax for capital assets held more than one year but not more
than 18 months remains at 28%. The taxation of capital gains of corporations was
not changed by the Taxpayer Relief Act.
Treatment of Tax-Exempt Stockholders. Distributions from the Company to a
tax-exempt employee pension trust or other domestic tax-exempt stockholder
generally will not constitute "unrelated business taxable income" ("UBTI")
unless the stockholder has borrowed to acquire or carry its Common Stock.
Qualified trusts that hold more than 10% (by value) of the shares of
pension-held REITs may be required to treat a certain percentage of such a
REIT's distributions as UBTI. This requirement will apply only if (i) the REIT
would not qualify as such for Federal income tax purposes but for the
application of a "look-through" exception to the five or fewer requirement
applicable to shares held by qualified trusts and (ii) the REIT is
"predominantly held" by qualified trusts. A REIT is predominantly held if either
(i) at least one qualified trust holds more than 25% by value of the REIT
interests or (ii) one or more qualified trusts, each owning more than 10% by
value of the REIT interests, hold in the aggregate more than 50% of the REIT
interests. The percentage of any REIT dividend treated as UBTI is equal to the
ratio of (a) the UBTI earned by the REIT (treating the REIT as if it were a
qualified trust and therefore subject to tax on UBTI) to (b) the total gross
income (less certain associated expenses) of the REIT. In the event that this
ratio is less than 5% for any year, then the qualified trust will not be treated
as having received UBTI as a result of the REIT dividend. For these purposes, a
qualified trust is any trust described in Section 401(a) of the Code and exempt
from tax under Section 501(a) of the Code. The restrictions on ownership of
Common Stock in the Articles of Incorporation generally will prevent application
of the provisions treating a portion of REIT distributions as UBTI to tax-exempt
entities purchasing Common Stock, absent a waiver of the restrictions by the
board of directors.
Special Tax Considerations for Non-U.S. Stockholders
The rules governing United States income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships, and foreign trusts and
estates (collectively, "Non-U.S. Stockholders") are complex, and the following
discussion is intended only as a summary of these rules. This discussion is
based on current law, which is subject to change, and assumes that the Company
qualifies for taxation as a REIT. Prospective Non-U.S. Stockholders should
consult with their own tax advisors to determine the impact of Federal, state,
local, and foreign income tax laws on an investment in the Company, including
any reporting requirements.
In general, Non-U.S. Stockholders will be subject to regular United States
federal income tax with respect to their investment in the Company, if the
income from such investment is "effectively connected" with the Non-U.S.
Stockholder's conduct of a trade or business in the United States. A corporate
Non-U.S. Stockholder that receives income that is (or is treated as) effectively
connected with a U.S. trade or business also may be subject to the branch
profits tax under Section 884 of the Code, which is imposed in addition to
regular United States federal income tax generally at the rate of 30%, subject
to reduction under a tax treaty, if applicable. Certain certification
requirements must be met in order for effectively connected income to be exempt
from withholding. The following discussion will apply to Non-U.S. Stockholders
whose income from their investments in the Company is not so effectively
connected (except to the extent that the FIRPTA rules discussed below treat such
income as effectively connected income).
A distribution by the Company that is not attributable to gain from the
sale or exchange by the Company of a United States real property interest and
that is not designated by the Company as a capital gain distribution will be
treated as an ordinary income dividend to the extent that it is made out of
current or accumulated earnings and profits of the Company. Generally, any
ordinary income dividend will be subject to a Federal income tax equal to 30% of
the gross amount of the dividend, withheld by the Company, unless this tax is
reduced by an applicable tax treaty. Such a distribution in excess of the
Company's earnings and profits will be treated first as a return of capital that
will reduce a Non-U.S.
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Stockholder's basis in its Common Stock (but not below zero) and then as gain
from the disposition of such shares, the tax treatment of which is described
under the rules discussed below with respect to dispositions of Common Stock.
Distributions by the Company that are attributable to gain from the sale or
exchange of a United States real property interest will be taxed to a Non-U.S.
Stockholder under the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, such distributions are taxed to a Non-U.S. Stockholder
as if the distributions were gains "effectively connected" with a United States
trade or business. Accordingly, a Non-U.S. Stockholder will be taxed at the
normal capital gain rates applicable to a U.S. Stockholder (subject to any
applicable alternative minimum tax and a special alternative minimum tax in the
case of nonresident alien individuals). Such distributions also may be subject
to a 30% branch profits tax when made to a foreign corporation that is not
entitled to an exemption or reduced branch profits tax rate under an income tax
treaty.
Although tax treaties may reduce the Company's withholding obligations, the
Company generally will be required to withhold from distributions to Non-U.S.
Stockholders, and remit to the IRS, (i) 35% of designated capital gain dividends
(or, if greater, 35% of the amount of any distributions that could be designated
as capital gain dividends) and (ii) 30% of ordinary dividends paid out of
earnings and profits, unless reduced by an applicable tax treaty. In addition,
if the Company designates prior distributions as capital gain dividends,
subsequent distributions, up to the amount of such prior distributions that were
designated as capital gains dividends, will be treated as capital gain dividends
for purposes of withholding. In addition, the Company may be required to
withhold 10% of distributions in excess of the Company's current and accumulated
earnings and profits. If the amount of tax withheld by the Company with respect
to a distribution to a Non-U.S. Stockholder exceeds the stockholder's United
States tax liability with respect to such distribution, the Non-U.S. Stockholder
may file for a refund of such excess from the IRS.
Unless the Common Stock constitutes a "United States real property
interest" within the meaning of FIRPTA, a sale of Common Stock by a Non-U.S.
Stockholder generally will not be subject to Federal income taxation. The Common
Stock will not constitute a United States real property interest if the Company
is a "domestically-controlled REIT." A domestically-controlled REIT is a REIT in
which at all times during a specified testing period less than 50% in value of
its shares is held directly or indirectly by Non-U.S. Stockholders. It currently
is anticipated that the Company will be a domestically-controlled REIT and,
therefore, that the sale of Common Stock will not be subject to taxation under
FIRPTA. However, because the Common Stock will be publicly traded, no assurance
can be given that the Company will be a domestically-controlled REIT. If the
Company were not a domestically controlled REIT, a Non-U.S. Stockholder's sale
of Common Stock would be subject to tax under FIRPTA as a sale of a United
States real property interest unless the Common Stock were "regularly traded" on
an established securities market (such as the NYSE) on which the Common Stock
will be listed and the selling stockholder owned no more than 5% of the Common
Stock throughout the applicable testing period. If the gain on the sale of
Common Stock were subject to taxation under FIRPTA, the Non-U.S. Stockholder
would be subject to the same treatment as a U.S. Stockholder with respect to the
gain (subject to applicable alternative minimum tax and a special alternative
minimum tax in the case of nonresident alien individuals). Notwithstanding the
foregoing, capital gains not subject to FIRPTA will be taxable to a Non-U.S.
Stockholder if the Non-U.S. Stockholder is a nonresident alien individual who is
present in the United States for 183 days or more during the taxable year and
certain other conditions apply, in which case the nonresident alien individual
will be subject to a 30% tax on his or her U.S. source capital gains.
A purchaser of Common Stock from a Non-U.S. Stockholder will not be
required to withhold under FIRPTA on the purchase price if the purchased Common
Stock is "regularly traded" on an established securities market or if the
Company is a domestically-controlled REIT. Otherwise, the purchaser of Common
Stock from a Non-U.S. Stockholder may be required to withhold 10% of the
purchase price and remit this amount to the IRS. The Company's Common Stock
currently is a regularly traded security on the NYSE. The Company believes that
it qualifies under both the regularly traded and the domestically-controlled
REIT exceptions to withholding but cannot provide any assurance to that effect.
Upon the death of a nonresident alien individual, such individual's Common
Stock will be treated as part of such individual's U.S. estate for purposes of
the U.S. estate tax, except as may be otherwise provided in an applicable estate
tax treaty.
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Information Reporting Requirements and Backup Withholding Tax
Under certain circumstances, U.S. Stockholders may be subject to backup
withholding at a rate of 31% on payments made with respect to, or cash proceeds
of a sale or exchange of, Common Stock. Backup withholding will apply only if
(i) the payee fails to furnish his or her taxpayer identification number ("TIN")
(which, for an individual, would be his or her Social Security Number) to the
payor as required, (ii) the IRS notifies the payor that the taxpayer
identification number furnished by the payee is incorrect, (iii) the IRS has
notified the payee that such payee has failed to properly include reportable
interest and dividends in the payee's return or has failed to file the
appropriate return and the IRS has assessed a deficiency with respect to such
underreporting, or (iv) the payee has failed to certify to the payor, under
penalties of perjury, that the payee is not subject to withholding. In addition,
backup withholding will not apply with respect to payments made to certain
exempt recipients, such as corporations and tax-exempt organizations.
U.S. Stockholders should consult their own tax advisors regarding their
qualifications for exemption from backup withholding and the procedure for
obtaining such an exemption. Backup withholding is not an additional tax.
Rather, the amount of any backup withholding with respect to a payment to a U.S.
Stockholder will be allowed as a credit against the U.S. Stockholder's United
States Federal income tax liability and may entitle the U.S. Stockholder to a
refund, provided that the required information is furnished to the IRS.
Additional issues may arise pertaining to information reporting and backup
withholding for Non-U.S. Stockholders. Non-U.S. Stockholders should consult
their tax advisors with regard to U.S. information reporting and backup
withholding.
Tax Aspects of the Operating Partnership
General. Substantially all of the Company's investments are held through
the Operating Partnership. In general, partnerships are "pass-through" entities
which are not subject to Federal income tax. Rather, partners are allocated
their proportionate shares of the items of income, gain, loss, deduction, and
credit of a partnership, and are potentially subject to tax thereon, without
regard to whether the partners receive a distribution from the partnership. The
Company includes in its income its proportionate share of the foregoing
Operating Partnership items for purposes of the various REIT income tests and in
the computation of its REIT taxable income. Moreover, for purposes of the REIT
asset tests, the Company includes its proportionate share of assets held by the
Operating Partnership.
Tax Allocations with Respect to the Properties. Pursuant to Section 704(c)
of the Code, income, gain, loss, and deduction attributable to appreciated or
depreciated property (such as the Properties) that is contributed to a
partnership in exchange for an interest in the partnership, must be allocated in
a manner such that the contributing partner is charged with, or benefits from
the unrealized gain or unrealized loss, respectively, associated with the
property at the time of the contribution. The amount of such unrealized gain or
unrealized loss is generally equal to the difference between the fair market
value of contributed property at the time of contribution and the adjusted tax
basis of such property at the time of contribution (a "Book-Tax Difference").
Such allocations are solely for Federal income tax purposes and do not affect
the book capital accounts or other economic or legal arrangements among the
partners. The Operating Partnership was formed by way of contributions of
appreciated property (including the Properties). Consequently, the Operating
Partnership Agreement requires such allocations to be made in a manner
consistent with Section 704(c) of the Code.
In general, the partners who have contributed partnership interests in the
Properties to the Operating Partnership (the "Contributing Partners") will be
allocated lower amounts of depreciation deductions for tax purposes than such
deductions would be if determined on a pro rata basis. In addition, in the event
of the disposition of any of the contributed assets (including the Properties)
that have a Book-Tax Difference, all taxable income attributable to such
Book-Tax Difference generally will be allocated to the Contributing Partners,
and the Company generally will be allocated only its share of capital gains
attributable to appreciation, if any, occurring after the closing of the
acquisition of such properties. This will tend to eliminate the Book-Tax
Difference over the life of the Operating Partnership. However, the special
allocation rules of Section 704(c) of the Code do not always entirely eliminate
the Book-Tax Difference on an annual basis or with respect to a specific taxable
transaction such as a sale. Thus, the carryover basis of the contributed assets
in the hands of the Operating Partnership will cause the Company to be allocated
lower depreciation and other deductions and possibly amounts of taxable income
in the event of a sale of such contributed assets in excess of the economic or
book
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income allocated to it as a result of such sale. This may cause the Company to
recognize taxable income in excess of cash proceeds, which might adversely
affect the Company's ability to comply with the REIT distribution requirements.
See " -- Annual Distribution Requirements."
Treasury Regulations under Section 704(c) of the Code provide partnerships
with a choice of several methods of accounting for Book-Tax Differences,
including the "traditional method" that may leave some of the Book-Tax
Differences unaccounted for, or the election of certain methods which would
permit any distortions caused by a Book-Tax Difference at this time to be
entirely rectified on an annual basis or with respect to a specific taxable
transaction such as a sale. The Operating Partnership and the Company have
determined to use the "traditional method" for accounting for Book-Tax
Differences with respect to the Properties contributed to the Partnership. As a
result of such determination, distributions to stockholders will be comprised of
a greater portion of taxable income rather than a return of capital. The
Operating Partnership and the Company have not determined which of the
alternative methods of accounting for Book-Tax Differences will be elected with
respect to Properties contributed to the Partnership in the future.
With respect to any property purchased by the Operating Partnership, such
property initially will have a tax basis equal to its fair market value and
Section 704(c) of the Code will not apply.
Basis in Operating Partnership Interest. The Company's adjusted tax basis
in its interest in the Operating Partnership generally (i) will be equal to the
amount of cash and the basis of any other property contributed to the Operating
Partnership by the Company, (ii) will be increased by (a) its allocable share of
the Operating Partnership's income and (b) its allocable share of indebtedness
of the Operating Partnership and (iii) will be reduced, but not below zero, by
the Company's allocable share of (a) losses suffered by the Operating
Partnership, (b) the amount of cash distributed to the Company, and (c)
constructive distributions resulting from a reduction in the Company's share of
indebtedness of the Operating Partnership.
If the allocation of the Company's distributive share of the Operating
Partnership's loss exceeds the adjusted tax basis of the Company's partnership
interest in the Operating Partnership, the recognition of such excess loss will
be deferred until such time and to the extent that the Company has an adjusted
tax basis in its partnership interest. To the extent that the Operating
Partnership's distributions, or any decrease in the Company's share of the
indebtedness of the Operating Partnership (such decreases being considered a
cash distribution to the partners) exceed the Company's adjusted tax basis, such
excess distributions (including such constructive distributions) constitute
taxable income to the Company. Such taxable income normally will be
characterized as a capital gain if the Company's interest in the Operating
Partnership has been held for longer than one year, subject to reduced tax rates
described above (See " -- Taxation of U.S. Stockholders -- Capital Gain
Distributions"). Under current law, capital gains and ordinary income of
corporations generally are taxed at the same marginal rates.
Sale of the Properties. The Company's share of gain realized by the
Operating Partnership on the sale of any property held by the Operating
Partnership as inventory or other property held primarily for sale to customers
in the ordinary course of the Operating Partnership's trade or business will be
treated as income from a prohibited transaction that is subject to a 100%
penalty tax. See " -- Requirements for Qualification -- Income Tests." Such
prohibited transaction income also may have an adverse effect upon the Company's
ability to satisfy the income tests for qualification as a REIT. Under existing
law, whether property is held as inventory or primarily for sale to customers in
the ordinary course of the Operating Partnership's trade or business is a
question of fact that depends on all the facts and circumstances with respect to
the particular transaction. The Operating Partnership intends to hold the
Properties for investment with a view to long-term appreciation, to engage in
the business of acquiring, developing, owning, and operating the Properties (and
other properties) and to make such occasional sales of the Properties, including
peripheral land, as are consistent with the Operating Partnership's investment
objectives.
Other Tax Considerations
A portion of the amounts to be used to fund distributions to stockholders
is expected to come from the Operating Partnership through distributions on
stock of Highwoods Services held by the Operating Partnership. Highwoods
Services will not qualify as a REIT and will pay Federal, state, and local
income taxes on its taxable income at normal corporate
22
<PAGE>
rates. Any Federal, state, or local income taxes that Highwoods Services is
required to pay will reduce the cash available for distribution by the Company
to its stockholders.
As described above, the value of the securities of Highwoods Services held
by the Company cannot exceed 5% of the value of the Company's assets at a time
when a Common Unit holder in the Operating Partnership exercises his or her
redemption right (or the Company otherwise is considered to acquire additional
securities of Highwoods Services). See " -- Federal Income Taxation of the
Company." This limitation may restrict the ability of Highwoods Services to
increase the size of its business unless the value of the assets of the Company
is increasing at a commensurate rate.
State and Local Tax
The Company and its stockholders may be subject to state and local tax in
various states and localities, including those in which it or they transact
business, own property, or reside. The tax treatment of the Company and the
stockholders in such jurisdictions may differ from the Federal income tax
treatment described above. Consequently, prospective stockholders should consult
their own tax advisors regarding the effect of state and local tax laws on an
investment in the Common Stock of the Company.
Proposed Legislation
Under current law, the Company cannot own more than 10% of the outstanding
voting securities (other than those securities includible in the 75% asset test)
of any one issuer and qualify for taxation as a REIT. See " -- Requirements for
Qualification -- Asset Tests". For example, the Operating Partnership owns 100%
of the nonvoting stock and 1% of the voting stock of Highwoods Services, and by
virtue of its ownership of Common Units, the Company is considered to own its
pro rata share of such stock. Neither the Company nor the Operating Partnership,
however, own more than 1% of the voting securities of Highwoods Services and the
10% test is satisfied.
The Company conducts its third-party fee-based services (i.e., leasing,
property management, real estate development, construction and other
miscellaneous services) through Highwoods Services. The President's Budget
Proposal for Fiscal Year 1999 ("Budget Proposal") includes a provision to
restrict these types of activities conducted by REITs under current law by
expanding the ownership limitation from no more than 10% of the voting
securities of an issuer to no more than 10% of the vote or value of all classes
of the issuer's stock. The Company, therefore, could not own stock (either
directly or indirectly through the Operating Partnership) possessing more than
10% of the vote or value of all classes of any issuer's stock.
The Budget Proposal would be effective only with respect to stock directly
or indirectly acquired by the Company on or after the date of first committee
action. To the extent that the Company's stock ownership in Highwoods Services
is grandfathered by virtue of this effective date, that grandfathered status
will terminate if Highwoods Services engages in a trade or business that it is
not engaged in on the date of first committee action or acquires substantial new
assets on or after that date. Such restriction, if enacted, would adversely
affect the ability to expand the business of Highwoods Services. The Budget
Proposal, however, will not become effective until legislation is duly passed by
Congress and signed by the President. Consequently, it is not possible to
determine at this time all the ramifications that would result from legislation
based on the Budget Proposal.
Congress recently passed the Internal Revenue Restructuring and Reform Act
of 1998 (the "Reform Act"), which alters the capital gains provisions. The
Reform Act provides that property held for more than one year (rather than more
than 18 months) will be eligible for the lower capital gains rates provided by
the Taxpayer Relief Act of 1997. See "-- Taxation of U.S. Stockholders --
Certain Dispositions of Shares." This provision applies to amounts properly
taken into account on or after January 1, 1998. The Reform Act, however, will
not become effective unless signed by the President. The President is expected
to sign the Reform Act.
23
<PAGE>
SELLING STOCKHOLDERS
This Prospectus relates to the offer and sale by the holders thereof from
time to time of up to (i) 1,180,932 shares (the "Redemption Shares") of Common
Stock which may be issued by the Company to the extent that holders of up to
1,180,932 Common Units exercise their right to redeem such Common Units and the
Company elects to satisfy such redemption right through the issuance of Common
Stock; and (ii) 110,000 shares (the "Warrant Shares") of Common Stock issuable
upon the exercise of up to 110,000 warrants (the "Warrants"). The Redemption
Shares and Warrant Shares are collectively referred to herein as the "Resale
Shares." Such Common Units and Warrants were issued to the Selling Stockholders
as partial consideration for their sale of property the Operating Partnership.
The Company has agreed to indemnify the Selling Stockholders against
certain civil liabilities, including liabilities under the Securities Act, or to
contribute to payments the Selling Stockholders may be required to make in
respect thereof. Insofar as indemnification of the Selling Stockholders for
liabilities arising under the Securities Act may be permitted pursuant to such
agreements, the Company has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Because the Selling Stockholders may offer all or some of the Resale
Shares, and because there are currently no agreements, arrangements or
understandings with respect to the sale of any of the Resale Shares that will be
held by the Selling Stockholders after completion of the offering, no estimate
can be given as to the principal amount of the Resale Shares that will be held
by the Selling Stockholders after completion of the offering.
The Selling Stockholders and any broker or dealer to or through whom any of
the Resale Shares are sold may be deemed to be underwriters within the meaning
of the Securities Act with respect to the Resale Shares offered hereby, and any
profits realized by the Selling Stockholders or such brokers or dealers may be
deemed to be underwriting commissions. Brokers' commissions and dealers'
discounts, taxes and other selling expenses to be borne by the Selling
Stockholders are not expected to exceed normal selling expenses for sales. The
registration of the offering of the Resale Shares by the Selling Stockholders
under the Securities Act shall not be deemed an admission by the Selling
Stockholders or the Company that the Selling Stockholders are underwriters for
purposes of the Securities Act of any of the Resale Shares offered by this
Prospectus.
The Resale Shares offered by this Prospectus may be offered from time to
time by the Selling Stockholders named below. The following table provides the
name of each Selling Stockholder and the number of shares of Common Stock
beneficially owned and offered hereby by each Selling Stockholders. The number
of shares of Common Stock provided in the following table includes the number of
shares that may be acquired by each Selling Stockholder upon redemption of
Common Units or upon exercise of Warrants.
The Resale Shares offered by this Prospectus may be offered from time to
time by the Selling Stockholders named below:
<TABLE>
<CAPTION>
Number of Shares Percent of Number of Shares
Name of Selling Stockholder (1) Beneficially Owned Shares (2) Offered Hereby (3)
- ------------------------------- ------------------ ---------- ------------------
<S> <C> <C> <C>
4501 Alexander Associates 144,392 * 8,155
8-H Partnership 20,833 * 20,833
Ariel Associates, LLC 32,424 * 7,583
James W. Ayers 280,044 * 38,866
Gary T. Baker 95,877 * 95,877
Linda Barry 31,971 * 31,971
P. Michael Caruso 11,507 * 11,507
Charpat Properties 82,936 * 82,936
Charter Properties, Inc. 24,556 * 24,556
Cypress Westshore, Inc. 83,947 * 83,947
Arthur S. DeMoss Foundation 53,259 * 53,259
24
<PAGE>
Steuart A. Evans 14,902 * 14,902
Mike Fann 29,851 * 29,851
James K. Flannery, Jr 30,000 * 30,000(5)
Gene Anderson Family Partnership, L.P. (4) 359,779 * 56,664
GT Investment Corporation 10,658 * 10,658
Thomas A. Hunter, III 4,965 * 4,965
The Innsbrook Corporation 62,949 * 62,949
Innsbrook North Associates 6,172 * 6,172
Neal S. Johnston 5,385 * 5,385
Kollman Properties Corp. 119,716 * 119,716
LPK Investments, LLC 32,424 * 7,583
Mary Sue McCarthy 10,000 * 10,000(5)
Michael J. McCarthy 40,000 * 40,000(5)
Stephen D. McCarthy 10,000 * 10,000(5)
William J. McCarthy 10,000 * 10,000(5)
Newman Enterprises 12,366 * 12,366
Dennis L. Olive 4,122 * 4,122
Alan Petroff 5,358 * 5,358
William E. Salter 10,724 * 10,724
Chris B. Schoen 31,971 * 31,971
Gerry E. Shannon 2,061 * 2,061
Mark C. Smith 39,522 * 39,522
Stony Point Limited Partnership II 104,228 * 104,228
Stephen F. Thornton 10,677 * 10,677
Triad Properties Holdings -- Georgia, L.L.C 145,258 * 145,258
Glenn Weathers 5,344 * 5,344
Wendy's of North Alabama, Inc. 21,161 * 21,161
William A. White, Jr 9,805 * 9,805
Robert A. Wilkins 10,000 * 10,000(5)
-------- ---------
TOTAL 1,290,932
=========
</TABLE>
- ----------
(*) Less than 1%.
(1) A "Selling Shareholder" shall also include any person or entity that
receives Resale Shares (or Common Units or Warrants redeemable or
exercisable for Resale Shares) as a result of (i) their pro rata
distribution by an entity to its equity holders, (ii) a gift, or (iii) a
pledge. Any Selling Shareholder who is not specifically named in the
foregoing table will be named in a supplement to the Prospectus if such a
supplement is required by the rules and regulations of the Securities and
Exchange Commission at the time such Selling Shareholder offers any Resale
Shares.
(2) Assumes that all Common Units or Warrants held by the Selling Stockholder
are redeemed or exercised for shares of Common Stock even if not currently
redeemable. The total number of shares outstanding used in calculating the
percentage assumes that none of the Common Units or Warrants held by other
persons are redeemed for Common Stock.
(3) Unless otherwise indicated, number of shares shown represents Redemption
Shares that may be issued upon redemption of outstanding Common Units.
(4) Gene Anderson, the general partner of the Selling Stockholder, is a
director and executive officer of the Company.
(5) Number of shares shown represents Warrant Shares that may be issued upon
exercise of outstanding Warrants.
25
<PAGE>
PLAN OF DISTRIBUTION
The sale or distribution of all or any portion of the Resale Shares may be
effected from time to time by the Selling Stockholders directly, indirectly
through brokers or dealers or in a distribution by one or more underwriters on a
firm commitment or best efforts basis, in the over-the-counter market, on any
national securities exchange on which such Resale Shares are listed or traded,
in privately negotiated transactions or otherwise, at 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 Resale Shares.
The methods by which the Resale Shares may be sold or distributed include,
without limitation, (i) block trades (which may involve crosses) in which the
broker or dealer so engaged will attempt to sell the Resale 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 national securities exchange on which the Resale Shares are listed,
if any, (iv) ordinary brokerage transactions and transactions in which the
broker solicits purchasers, (v) privately negotiated transactions, (v)
distributions to the equity holders of Selling Stockholders that are entities,
(vii) gifts, and (viii) pledges.
The Company will pay all expenses in connection with the registration of
the offering of the Resale Shares by the Selling Stockholders. The Selling
Stockholders 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 Resale Shares.
Resale Shares not sold pursuant to this 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 another exemption from the registration
requirements of the Securities Act. In general, under Rule 144, a person (or
persons whose Resale Shares are aggregated) who has satisfied a one-year holding
period may, under certain circumstances, sell within any three-month period a
number of Resale Shares which does not exceed the greater of one percent of the
Company's outstanding Common Stock or the average weekly reported trading volume
of the Company's Common Stock during the four calendar weeks prior to such sale.
Rule 144 also permits, under certain circumstances, the sale of Resale Shares by
a person who is not an affiliate of the Company and who has satisfied a two-year
holding period without any volume limitation.
Therefore, both during and after the effectiveness of the Registration
Statement, sales of Resale Shares may be made by the Selling Stockholders
pursuant to Rule 144.
EXPERTS
The consolidated financial statements and schedule of Highwoods Properties,
Inc., incorporated herein by reference from the Company's annual report (Form
10-K) for the year ended December 31, 1997 (as amended on Form 10- K/A filed on
April 29, 1998 and May 19, 1998), the statement of revenues and certain expenses
of Garcia Properties for the year ended December 31, 1997 incorporated herein by
reference from the Company's current report on Form 8-K dated February 4, 1998,
the statements of revenues and certain expenses of Shelton Properties, Riparius
Properties and Winners Circle for the year ended December 31, 1996 incorporated
herein by reference from the Company's current report on Form 8-K dated November
17, 1997, and the financial statements with respect to Anderson Properties, Inc.
and the financial statements with respect to Century Center Group incorporated
herein by reference from the Company's current report on Form 8-K dated January
9, 1997 (as amended on Forms 8-K/A filed on February 7, 1997, March 10, 1997 and
April 28, 1998), have been audited by Ernst & Young LLP, independent auditors,
as set forth in their reports thereon included therein
26
<PAGE>
and incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
The combined statement of revenue and certain operating expenses of the
Associated Capital Properties Portfolio for the year ended December 31, 1996,
and the combined statement of revenue and certain operating expenses of the 1997
Pending Acquisitions for the year ended December 31, 1996, incorporated by
reference herein from the Company's current reports on Form 8-K dated August 27,
1997 (as amended on Form 8-K/A filed September 23, 1997) and dated October 1,
1997, have been so incorporated in reliance upon the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters have been passed upon for the Company by Alston &
Bird LLP, Raleigh, North Carolina. In addition, Alston & Bird LLP has rendered
its opinion with respect to certain Federal income tax matters relating to the
Company.
27
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimates of the various expenses to be paid
by Highwoods Properties, Inc. (the "Company") in connection with the
registration of the offering of the Resale Shares by the Selling Stockholders.
Securities and Exchange Commission Registration Fee................... 10,793
Fees and Expenses of Counsel.......................................... 15,000
Miscellaneous ........................................................ 4,207
TOTAL..................................................... $30,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's officers and directors are and will be indemnified against
certain liabilities in accordance with the MGCL, the Articles of Incorporation
and bylaws of the Company and the Operating Partnership Agreement. The Articles
of Incorporation require the Company to indemnify its directors and officers to
the fullest extent permitted from time to time by the MGCL. The MGCL permits a
corporation to indemnify its directors and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities unless it is
established that the act or omission of the director or officer was material to
the matter giving rise to the proceeding and was committed in bad faith or was
the result of active and deliberate dishonesty, or the director or officer
actually received an improper personal benefit in money, property or services,
or in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful.
The Operating Partnership Agreement also provides for indemnification of
the Company and its officers and directors to the same extent indemnification is
provided to officers and directors of the Company in its Articles of
Incorporation and limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners to the same extent
liability of officers and directors of the Company to the Company and its
stockholders is limited under the Company's Articles of Incorporation.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 16. EXHIBITS
Exhibit No. Description
- ----------- -----------
2.1 (1) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Eakin & Smith, Inc. and
the partnerships and limited liability companies listed
therein dated April 1, 1996
2.2 (2) Stock Purchase Agreement among AP CRTI Holdings, L.P., AEW
Partners, L.P., Thomas J. Crocker, Barbara F. Crocker,
Richard S. Ackerman and Robert E. Onisko and the Company and
Cedar Acquisition Corporation, dated April 29, 1996
2.3 (2) Agreement and Plan of Merger by and among the Company,
Crocker Realty Trust, Inc. and Cedar Acquisition
Corporation, dated as of April 29, 1996
2.4 (3) Contribution and Exchange Agreement by and among Century
Center group, the Operating Partnership and the Company,
dated December 31, 1996
II-1
<PAGE>
2.5 (3) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Anderson Properties,
Inc., Gene Anderson, and the partnerships and limited
liability companies listed therein, dated January 31, 1997
2.6 (4) Amended and Master Agreement of Merger and Acquisition dated
January 9, 1995 by and among Highwoods Realty Limited
Partnership, Forsyth Partners Holdings, Inc., Forsyth
Partners Brokerage, Inc., John L. Turner, William T. Wilson
III, John E. Reece II, H. Jack Leister and the partnerships
and corporations listed therein
2.7 (5) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Associated Capital
Properties, Inc. and its shareholders dated August 27, 1997
2.8 (6) Agreement and Plan of Merger by and among the Company,
Jackson Acquisition Corp. and J.C. Nichols Company dated
December 22, 1997
2.9 (7) Amendment No. 1 to Agreement and Plan of Merger by and among
the Company, Jackson Acquisition Corp. and J.C. Nichols
Company dated April 23, 1998
4.1 (8) Amended and Restated Articles of Incorporation of the
Company
4.2 (9) Rights Agreement, dated as of October 6, 1997, between the
Company and First Union National Bank
4.3 (6) Purchase Agreement between the Company, UBS Limited and
Union Bank of Switzerland, London Branch, dated as of August
28, 1997
4.4 (6) Forward Stock Purchase Agreement between the Company and
Union Bank of Switzerland, London Branch, dated as of August
28, 1997
4.5 (10) Form of certificate representing shares of Common Stock
5 Form of Opinion of Alston & Bird LLP re legality
8 Form of Opinion of Alston & Bird LLP re tax matters
23.1 Consent of Alston & Bird LLP (included as part of Exhibits 5
and 8)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page hereof)
- ----------
(1) Filed as part of the Company's Current Report on Form 8-K dated April 1,
1996 and incorporated herein by reference.
(2) Filed as part of the Company's Current Report on Form 8-K dated April 29,
1996 and incorporated herein by reference.
(3) Filed as part of the Company's Current Report on Form 8-K dated January 9,
1997 and incorporated herein by reference.
(4) Filed as part of Registration Statement No. 33-88364 with the Securities
and Exchange Commission and incorporated herein by reference.
(5) Filed as part of the Company's Current Report on Form 8-K dated August 27,
1997 and incorporated herein by reference.
(6) Filed as part of the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 and incorporated herein by reference.
(7) Filed as part of Registration Statement No. 333-51671 with the Securities
and Exchange Commission and incorporated herein by reference.
(8) Filed as part of the Company's Current Report on Form 8-K dated September
25, 1997 and amended by articles supplementary filed as part of the
Company's Current Report on Form 8-K dated October 4, 1997 and articles
supplementary filed as part of the Company's Current Report on Form 8-K
dated April 20, 1998, each of which is incorporated herein by reference.
(9) Filed as part of the Company's Current Report on Form 8-K dated October 4,
1997 and incorporated herein by reference.
(10) Filed as part of Registration Statement No. 33-76952 with the Securities
and Exchange Commission and incorporated herein by reference.
II-2
<PAGE>
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 (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that the undertakings set forth in 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 with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
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 liability arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15 above,
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>
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 Raleigh, State of North Carolina, on August 19, 1998
HIGHWOODS PROPERTIES, INC.
By: /s/ Ronald P. Gibson
-----------------------------
Ronald P. Gibson
President
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Highwoods Properties, Inc., hereby severally constitute Ronald P.
Gibson and Carman J. Liuzzo and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration statement filed
herewith and any and all amendments to said registration statement, including
any registration statement registering additional securities pursuant to Rule
462(b) of the Securities Act of 1933, as amended, and generally to do all such
things in our names and our capacities as officers and directors to enable
Highwoods Properties, Inc. to comply with the provisions of the Securities Act
of 1933, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signature as they may be signed by our said
attorneys, or any of them, to said registration statement and any and all
amendments thereto.
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>
Name Title Date
<S> <C> <C>
/s/ O. Temple Sloan, Jr. Chairman of the Board of Directors August 19, 1998
- --------------------------
O. Temple Sloan, Jr.
President, Chief Executive Officer and
/s/ Ronald P. Gibson Director August 19, 1998
- --------------------------
Ronald P. Gibson
Chief Investment Officer and Vice Chairman
/s/ John L. Turner of the Board of Directors August 19, 1998
- --------------------------
John L. Turner
/s/ Gene H. Anderson Senior Vice President and Director August 19, 1998
- --------------------------
Gene H. Anderson
/s/ John W. Eakin Senior Vice President and Director August 19, 1998
- --------------------------
John W. Eakin
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
/s/ James R. Heistand Senior Vice President and Director August 19, 1998
- --------------------------
James R. Heistand
/s/ Thomas W. Adler Director August 19, 1998
- --------------------------
Thomas W. Adler
/s/ Kay Nichols Callison Director August 19, 1998
- --------------------------
Kay Nichols Callison
/s/ William E. Graham, Jr. Director August 19, 1998
- --------------------------
William E. Graham, Jr.
/s/ Glenn Orr, Jr. Director August 19, 1998
- --------------------------
L. Glenn Orr, Jr.
/s/ Willard H. Smith Jr. Director August 19, 1998
- --------------------------
Willard H. Smith Jr.
/s/ Stephen Timko Director August 19, 1998
- --------------------------
Stephen Timko
/s/ William T. Wilson III Director August 19, 1998
- --------------------------
William T. Wilson III
Vice President and Chief Financial Officer
(Principal Financial Officer and Principal
/s/ Carman J. Liuzzo Accounting Officer) and Treasurer August 19, 1998
- --------------------------
Carman J. Liuzzo
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2.1 (1) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Eakin & Smith, Inc. and the
partnerships and limited liability companies listed therein dated
April 1, 1996
2.2 (2) Stock Purchase Agreement among AP CRTI Holdings, L.P., AEW
Partners, L.P., Thomas J. Crocker, Barbara F. Crocker, Richard S.
Ackerman and Robert E. Onisko and the Company and Cedar
Acquisition Corporation, dated April 29, 1996
2.3 (2) Agreement and Plan of Merger by and among the Company, Crocker
Realty Trust, Inc. and Cedar Acquisition Corporation, dated as of
April 29, 1996
2.4 (3) Contribution and Exchange Agreement by and among Century Center
group, the Operating Partnership and the Company, dated December
31, 1996
2.5 (3) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Anderson Properties, Inc.,
Gene Anderson, and the partnerships and limited liability
companies listed therein, dated January 31, 1997
2.6 (4) Amended and Master Agreement of Merger and Acquisition dated
January 9, 1995 by and among Highwoods Realty Limited
Partnership, Forsyth Partners Holdings, Inc., Forsyth Partners
Brokerage, Inc., John L. Turner, William T. Wilson III, John E.
Reece II, H. Jack Leister and the partnerships and corporations
listed therein
2.7 (5) Master Agreement of Merger and Acquisition by and among the
Company, the Operating Partnership, Associated Capital
Properties, Inc. and its shareholders dated August 27, 1997
2.8 (6) Agreement and Plan of Merger by and among the Company, Jackson
Acquisition Corp. and J.C. Nichols Company dated December 22,
1997
2.9 (7) Amendment No. 1 to Agreement and Plan of Merger by and among the
Company, Jackson Acquisition Corp. and J.C. Nichols Company dated
April 23, 1998
4.1 (8) Amended and Restated Articles of Incorporation of the Company
4.2 (9) Rights Agreement, dated as of October 6, 1997, between the
Company and First Union National Bank
4.3 (6) Purchase Agreement between the Company, UBS Limited and Union
Bank of Switzerland, London Branch, dated as of August 28, 1997
4.4 (6) Forward Stock Purchase Agreement between the Company and Union
Bank of Switzerland, London Branch, dated as of August 28, 1997
4.5 (10) Form of certificate representing shares of Common Stock
5 Form of Opinion of Alston & Bird LLP re legality
8 Form of Opinion of Alston & Bird LLP re tax matters
23.1 Consent of Alston & Bird LLP (included as part of Exhibits 5 and
8)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page hereof)
- ----------
(1) Filed as part of the Company's Current Report on Form 8-K dated April 1,
1996 and incorporated herein by reference.
(2) Filed as part of the Company's Current Report on Form 8-K dated April 29,
1996 and incorporated herein by reference.
(3) Filed as part of the Company's Current Report on Form 8-K dated January 9,
1997 and incorporated herein by reference.
(4) Filed as part of Registration Statement No. 33-88364 with the Securities
and Exchange Commission and incorporated herein by reference.
(5) Filed as part of the Company's Current Report on Form 8-K dated August 27,
1997 and incorporated herein by reference.
(6) Filed as part of the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 and incorporated herein by reference.
<PAGE>
(7) Filed as part of Registration Statement No. 333-51671 with the Securities
and Exchange Commission and incorporated herein by reference.
(8) Filed as part of the Company's Current Report on Form 8-K dated September
25, 1997 and amended by articles supplementary filed as part of the
Company's Current Report on Form 8-K dated October 4, 1997 and articles
supplementary filed as part of the Company's Current Report on Form 8-K
dated April 20, 1998, each of which is incorporated herein by reference.
(9) Filed as part of the Company's Current Report on Form 8-K dated October 4,
1997 and incorporated herein by reference.
(10) Filed as part of Registration Statement No. 33-76952 with the Securities
and Exchange Commission and incorporated herein by reference.
Exhibit 5
ALSTON & BIRD LLP
3605 Glenwood Avenue, Suite 310
Raleigh, North Carolina 27612
_________, 1998
Highwoods Properties, Inc.
3100 Smoketree Court, Suite 600
Raleigh, North Carolina 27604
Ladies & Gentlemen:
This opinion is furnished in connection with the registration pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), of 1,290,932 shares
(the "Shares") of common stock, par value $.01 per share, of Highwoods
Properties, Inc., a Maryland corporation (the "Company").
We have reviewed such documents and considered such matters of law and fact as
we, in our professional judgment, have deemed appropriate to render the opinions
contained herein. Where we have considered it appropriate, as to certain facts
we have relied, without investigation or analysis of any underlying data
contained therein, upon certificates of officers or other appropriate
representatives of the Company.
Based upon and subject to the foregoing and the further limitations and
qualifications hereinafter expressed, we are of the opinion that when the Shares
have been sold in accordance with the terms of the Prospectus, the Shares will
be legally issued, fully paid and non-assessable shares.
The foregoing assumes that all requisite steps will be taken to comply with the
requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
Our opinions expressed herein are as of the date hereof, and we undertake no
obligation to advise you of any changes in applicable law or any other matters
that may come to our attention after the date hereof that may affect our
opinions expressed herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
ALSTON & BIRD LLP
By:
---------------------------------
Exhibit 8
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia, 30309-3424
Direct Dial: 404-881-7485
_________, 1998
Highwoods Properties, Inc.
3100 Smoketree Court, Suite 600
Raleigh, North Carolina 27604
Re: Registration Statement on Form S-3 Relating to 1,290,932 Shares of
Common Stock of Highwoods Properties, Inc.
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 being filed by
you on _________, 1998, with the Securities and Exchange Commission regarding
the registration of 1,290,932 shares of common stock of Highwoods Properties,
Inc. (the "Company") (the "Registration Statement") under the Securities Act of
1933, as amended, you have requested our opinion concerning certain of the
federal income tax consequences to the Company of its election to be taxed as a
real estate investment trust ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code").
This opinion is based solely on various facts and factual assumptions as
set forth in the Registration Statement and is conditioned upon certain
representations made by the Company as to factual matters through certificates
of officers of the Company (the "Officers' Certificates") attached hereto and
made a part hereof. We have made no independent inquiry as to the factual
matters set forth herein. In addition, we have examined no documents other than
the Registration Statement for purposes of this opinion and, therefore, our
opinion is limited to matters determined through an examination of such document
and the factual matters set forth in the Officers' Certificates.
In rendering the opinions set forth herein, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures thereon, the legal capacity of natural persons executing such
documents and the conformity to authentic original documents of all documents
submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the federal income tax laws of the United States and we express no opinion with
respect to the applicability thereto, or the effect thereon, of other federal
laws, the laws of any other jurisdiction, the laws of any state or as to any
matters of municipal law or the laws of any other local agencies within any
state.
Based solely on the facts in the Registration Statement and the facts set
forth in the Officers' Certificates, we are of the opinion that the Company has
been organized and has operated in conformity with the requirements for
qualification and taxation as a REIT under the Code for its taxable years ended
December 31, 1994 through 1997, and that the Company is in a position to
continue its qualification and taxation as a REIT within the definition of
Section 856(a) of the Code for the taxable year that will end December 31, 1998.
With respect to 1998, we note that the Company's status as a REIT at any time
during such year is dependent, among other things, upon the Company meeting the
requirements of Sections 856 through 860 of the Code throughout the year and for
the year as a whole. Accordingly, because the Company's satisfaction of such
requirements will depend upon future events, including the precise terms and
conditions of proposed transactions, the final determination of operational
results, and the effect of certain provisions contained in the President's
Budget Proposal for the Fiscal Year 1999 on the Company's REIT status, it is not
possible to assure that the Company will satisfy the requirements to be a REIT
during the taxable year that will end December 31, 1998.
<PAGE>
In addition, we have participated in the preparation of the material under
the heading "Federal Income Tax Considerations" of the Registration Statement
and we are of the opinion that the federal income tax treatment described
therein is accurate in all material respects.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the Registration Statement or
the Officers' Certificates may affect the opinions stated herein.
This opinion is limited to the specific matters covered hereby and should
not be interpreted to imply that the undersigned has offered its opinion on any
other matter. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement.
Very truly yours,
ALSTON & BIRD LLP
By:
-------------------
2
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333-___________) and related Prospectus of
Highwoods Properties, Inc. for the registration of 1,290,932 shares of common
stock. We also consent to the incorporation by reference therein of our reports
(a) dated February 20, 1998, with respect to the consolidated financial
statements and schedule of Highwoods Properties, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1997 (as amended on Form
10-K/A dated April 29, 1998 and May 19, 1998), (b) dated January 24, 1997 and
January 25, 1997 with respect to the Combined Statements of Revenues and Certain
Expenses of Century Center and Anderson Properties, respectively, included in
the Current Report on Form 8-K of Highwoods Properties, Inc. dated January 9,
1997 (as amended on Form 8-K/A on February 7, 1997, March 10, 1997 and April 28,
1998), (c) dated January 16, 1998 with respect to the Combined Statements of
Revenues and Certain Expenses of Shelton Properties and Riparius Properties and
the Statement of Revenues and Certain Expenses of Winners Circle for the year
ended December 31, 1996 included in the Current Report on Form 8-K of Highwoods
Properties, Inc. dated November 17, 1997, and (d) dated January 30, 1998 with
respect to the Combined Statement of Revenues and Certain Expenses of Garcia
Properties for the year ended December 31, 1997 included in the Current Report
on Form 8-K of Highwoods Properties, Inc. dated February 4, 1998, all filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Raleigh, North Carolina
August 10, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 (File No. 333-_______) of our reports dated September 12, 1997, on
our audits of the combined statement of revenues and certain operating expenses
of the Associated Capital Properties Portfolio for the year ended December 31,
1996, and the combined statement of revenues and certain operating expenses of
the 1997 Pending Acquisitions for the year ended December 31, 1996, which
reports are included in the Form 8-K of Highwoods Properties, Inc. dated August
27, 1997 (as amended on September 23, 1997) and October 1, 1997. We also consent
to the reference to our firm under the caption "Experts."
/s/ PRICEWATERHOUSECOOPERS LLP
Memphis, Tennessee
August 10, 1998
