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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 20, 1998
HIGHWOODS /FORSYTH LIMITED PARTNERSHIP
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(Exact name of registrant specified in its charter)
North Carolina 0-21731 56-1869557
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(State of Formation) (Commission File Number) (IRS Employer
Identification No.)
3100 Smoketree Court, Suite 600, Raleigh, North Carolina 27604
(Address of principal executive offices, zip code)
Registrant's telephone number, including area code: (919) 872-4924
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ITEM 5. OTHER EVENTS
The purpose of this filing is to set forth certain exhibits in
connection with (i) the issuance by the Registrant on April 20, 1998 of
$200,000,000 of 7 1/2% Notes due April 15, 2018 and (ii) the issuance by
Highwoods Properties, Inc. (the "Company") on April 23, 1998 of 4,000,000
Depositary Shares, each representing 1/10 of an 8% Series D Cumulative
Redeemable Preferred Share, par value $.01 per share (liquidation preference
equivalent to $25 per Depositary Share).
ITEM 7(C). EXHIBITS
Item Description
3.1 Articles Supplementary of the Company
4.1 Form of certificate representing 8% Series D Cumulative
Redeemable Preferred Shares
4.2 Amendment to Amended and Restated Agreement of Limited
Partnership of the Registrant
4.3 Deposit Agreement dated April 23, 1998 between the Company and
First Union National Bank, as preferred share depositary
4.4 Form of Depositary Receipt evidencing the Depositary Shares
4.5 Form of Notes due April 15, 2018
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its general partner
By: /s/ Carman J. Liuzzo
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Carman J. Liuzzo
Vice President and Chief Financial Officer
Date: April 23, 1998
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Exhibit 3.1
ARTICLES SUPPLEMENTARY
OF
HIGHWOODS PROPERTIES, INC.
I.
The name of the corporation is Highwoods Properties, Inc. (the
"Corporation").
II.
The purpose of these Articles Supplementary (the "Articles") is to
add the following as a new Section 5.11 of the Corporation's Articles of
Incorporation, to determine the terms of a series of the Preferred Stock:
"Section 5.11. 8% Series D Cumulative Redeemable Preferred
Shares.
(a) Title. The series of Preferred Stock is hereby designated as
the "8% Series D Cumulative Redeemable Preferred Shares" (the "Series D
Preferred Shares").
(b) Number. The maximum number of authorized shares of the Series
D Preferred Shares shall be 400,000.
(c) Relative Seniority. In respect of rights to receive dividends
and to participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Series D Preferred Shares
shall rank (i) senior to the Common Stock and any other class or series of
shares of the Corporation ranking, as to dividends and upon liquidation, junior
to the Series D Preferred Shares (collectively, "Junior Shares") and (ii) PARI
PASSU with the Corporation's 8 5/8% Series A Cumulative Redeemable Preferred
Shares, the Corporation's 8% Series B Cumulative Redeemable Preferred Shares and
any other class or series of shares of the Corporation ranking, as to dividends
and upon liquidation, PARI PASSU with the Series D Preferred Shares.
(d) Dividends.
(i) The holders of the then outstanding Series D Preferred
Shares shall be entitled to receive, when and as declared by the Board of
Directors out of any funds legally available therefor, cumulative dividends at
the rate of 8% of the $250.00 per share liquidation preference per
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annum of the Series D Preferred Shares (equivalent to $20.00 per share). Such
dividends shall accrue and be cumulative from the date of original issuance and
shall be payable quarterly in arrears in cash on or about the last day of
January, April, July and October of each year or, if not a Business Day (as
hereinafter defined), the next succeeding Business Day, commencing July 31, 1998
(each such day being hereafter called a "Dividend Payment Date" and each period
beginning on the day next following a Dividend Payment Date and ending on the
next following Dividend Payment Date being hereinafter called a "Dividend
Period"). Dividends shall be payable to holders of record as they appear in the
share records of the Corporation at the close of business on the applicable
record date (the "Record Date"), which shall be the first day of the calendar
month in which the applicable Dividend Payment Date falls on or such other date
designated by the Board of Directors of the Corporation for the payment of
dividends that is not more than 30 nor less than 10 days prior to such Dividend
Payment Date. The amount of any dividend payable for any Dividend Period shorter
than a full Dividend Period shall be prorated and computed on the basis of a
360-day year of twelve 30- day months.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
in New York City are authorized or required by law, regulation or executive
order to close.
(ii) The amount of any dividends accrued on any Series D
Preferred Shares at any Dividend Payment Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Dividend Payment Date,
whether or not earned or declared, and the amount of dividends accrued on any
Series D Preferred Shares at any date other than a Dividend Payment Date shall
be equal to the sum of the amount of any unpaid dividends accumulated thereon,
to and including the last preceding Dividend Payment Date, whether or not earned
or declared, plus an amount calculated on the basis of the annual dividend rate
for the period after such last preceding Dividend Payment Date to and including
the date as of which the calculation is made based on a 360-day year of twelve
30-day months. When dividends are not paid in full upon the Series D Preferred
Shares (or a sum sufficient for such full payment is not set apart therefor),
all dividends declared upon Series D Preferred Shares and any other series of
preferred stock ranking on a parity as to dividends with the Series D Preferred
Shares shall be declared pro rata so that the amount of dividends declared per
share on the Series D Preferred Shares and such other series of preferred stock
shall in all cases bear to each other the same ratio that accrued dividends per
share on the shares of Series D Preferred Shares and such other series of
preferred stock bear to each other.
Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Series D Preferred Shares have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment of the Series D Preferred Shares for all
past dividend periods and the then current dividend period, (A) no dividends
shall be declared or paid or set apart for payment on the preferred stock of the
Corporation ranking, as to dividends, on a parity with or junior to the Series D
Preferred Shares for any period, and (B) no dividends (other than in Junior
Shares) shall be declared or paid or set aside for payment or other distribution
or shall be declared or made upon the Junior Shares or any other capital stock
of the
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corporation ranking on a parity with the Series D Preferred Shares as to
dividends or upon liquidation ("Parity Shares"), nor shall any Junior Shares or
any Parity Shares be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any Junior Shares or Parity Shares) by the Corporation (except
by conversion into or exchange for Junior Shares).
(iii) Except as provided in this paragraph (d), the Series D
Preferred Shares will not be entitled to any dividends in excess of full
cumulative dividends as described above and shall not be entitled to participate
in the earnings or assets of the Corporation, and no interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series D Preferred Shares which may be in arrears.
(iv) Any dividend payment made on the Series D Preferred
Shares shall be first credited against the earliest accrued but unpaid dividend
due with respect to such shares which remains payable.
(v) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the Internal
Revenue Code of 1986, as amended (the "Code")), any portion (the "Capital Gains
Amount") of the dividends, within the meaning of Section 316 of the Code, paid
or made available for the year to holders of all classes of shares (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocated to the holders of the Series D Preferred Shares shall equal (A) the
Capital Gains Amount multiplied by (B) a fraction that is equal to (1) the total
dividends paid, within the meaning of Section 316 of the Code, or made available
to the holders of the Series D Preferred Shares for the year over (2) the Total
Dividends.
(vi) No dividends on the Series D Preferred Shares shall be
authorized by the Board of Directors or be paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. Notwithstanding the foregoing, dividends on the
Series D Preferred Shares will accrue and be cumulative from the date of
original issue thereof whether or not the Corporation has earnings, whether or
not there are funds legally available for the payment of such dividends and
whether or not such dividends are authorized.
(e) Liquidation Rights.
(i) Upon the voluntary or involuntary dissolution, liquidation
or winding up of the Corporation, the holders of the Series D Preferred Shares
then outstanding shall be entitled to receive and to be paid out of the assets
of the Corporation legally available for distribution to its stockholders,
before any payment or distribution shall be made to the holders of Common Stock
or any other capital stock of the Corporation ranking junior to the Series D
Preferred Shares as to
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liquidation rights, a liquidation preference of $250.00 per share, plus accrued
and unpaid dividends thereon to the date of such liquidation, dissolution or
winding up.
(ii) After the payment to the holders of the Series D
Preferred Shares of the full liquidating distributions provided for in this
paragraph (e), no holder of the Series D Preferred Shares, as such, shall have
any right or claim to any of the remaining assets of the Corporation.
(iii) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable with respect
to the preference value of the Series D Preferred Shares and any other shares of
the Corporation ranking as to any such distribution on a parity with the Series
D Preferred Shares are not paid in full, the holders of the Series D Preferred
Shares and of such other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full respective liquidating
distributions to which they are entitled.
(iv) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Corporation, nor the merger
or consolidation of the Corporation into or with any other entity or the merger
or consolidation of any other entity into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up, voluntary or involuntary,
for the purposes of this paragraph (e).
(f) Redemption.
(i) The Series D Preferred Shares are not redeemable prior to
April 23, 2003. On and after April 23, 2003, the Corporation may, at its option,
redeem at any time all or, from time to time, part of the Series D Preferred
Shares at a price per share (the "Redemption Price"), payable in cash, of
$250.00, together with all accrued and unpaid dividends to and including the
date fixed for redemption (the "Redemption Date"), without interest, to the full
extent the Corporation has funds legally available therefor. The Series D
Preferred Shares have no stated maturity and will not be subject to any sinking
fund or mandatory redemption provisions.
(ii) Procedures of Redemption.
(A) Notice of any redemption will be mailed by the registrar,
postage prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the Series D Preferred Shares to be
redeemed at the address set forth in the share transfer records of the
registrar. No failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings for the redemption
of any Series D Preferred Shares except as to the holder to whom the Corporation
has failed to give notice or except as to the holder to whom notice was
defective. In addition to any information required by law or by the applicable
rules of any exchange upon which Series D Preferred Shares (or depositary shares
or receipts representing fractional interests in Series D Preferred Shares) may
be listed or admitted to trading, such notice shall state: (1) the Redemption
Date; (2) the Redemption Price; (3) the number of Series D Preferred Shares to
be redeemed; (4) the place or places where certificates for such shares are to
be surrendered
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for payment of the Redemption Price; and (5) that dividends on the Series D
Preferred Shares to be redeemed will cease to accrue on the Redemption Date. If
fewer than all of the Series D Preferred Shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
Series D Preferred Shares to be redeemed from such holder.
(B) If notice has been mailed in accordance with subparagraph
(f)(ii)(A) above and provided that on or before the Redemption Date specified in
such notice all funds necessary for such redemption shall have been irrevocably
set aside by the Corporation, separate and apart from its other funds in trust
for the benefit of the holders of the Series D Preferred Shares so called for
redemption, so as to be, and to continue to be available therefor, then, from
and after the Redemption Date, dividends on the Series D Preferred Shares so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding and shall not have the status of Series D Preferred
Shares and all rights of the holders thereof as holders of such shares (except
the right to receive the Redemption Price) shall cease. Upon surrender, in
accordance with such notice, of the certificates for any Series D Preferred
Shares so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), such Series D
Preferred Shares shall be redeemed by the Corporation at the Redemption Price.
In case fewer than all the Series D Preferred Shares represented by any such
certificate are redeemed, a new certificate or certificates shall be issued
representing the unredeemed Series D Preferred Shares without cost to the holder
thereof.
(C) Any funds deposited with a bank or trust company for the
purpose of redeeming Series D Preferred Shares shall be irrevocable except that:
(1) the Corporation shall be entitled to receive from such bank or trust company
the interest or other earnings, if any, earned on any money so deposited in
trust, and the holders of any shares redeemed shall have no claim to such
interest or other earnings; and (2) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series D Preferred Shares
entitled thereto at the expiration of two years from the applicable Redemption
Date shall be repaid, together with any interest or other earnings earned
thereon, to the Corporation, and after any such repayment, the holders of the
shares entitled to the funds so repaid to the Corporation shall look only to the
Corporation for payment without interest or other earnings.
(D) Except for any portion of the Redemption Price consisting
of accrued and unpaid dividends, no Series D Preferred Shares may be redeemed
except from proceeds from the sale of other capital stock of the Corporation,
including but not limited to Common Stock, preferred stock, depositary shares,
interests, participations or other ownership interests (however designated) and
any rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing.
(E) Unless full cumulative dividends on all Series D Preferred
Shares shall have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
Dividend Periods and the then current Dividend Period, no Series D Preferred
Shares shall be redeemed or purchased or otherwise acquired directly or
indirectly
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(except by conversion into or exchange for Junior Shares); provided, however,
that the foregoing shall not prevent the redemption of Series D Preferred Shares
to preserve the Corporation's REIT status or the purchase or acquisition of
Series D Preferred Shares pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Series D Preferred Shares.
(F) If the Redemption Date is after a Record Date and before
the related Dividend Payment Date, the dividend payable on such Dividend Payment
Date shall be paid to the holder in whose name the Series D Preferred Shares to
be redeemed are registered at the close of business on such Record Date
notwithstanding the redemption thereof between such Record Date and the related
Dividend Payment Date or the Corporation's default in the payment of the
dividend due. Except as provided above, the Corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series D Preferred
Shares to be redeemed.
(G) In case of redemption of less than all Series D Preferred
Shares at the time outstanding, the Series D Preferred Shares to be redeemed
shall be selected pro rata from the holders of record of such shares in
proportion to the number of Series D Preferred Shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by any other equitable
method determined by the Corporation.
(g) Voting Rights. Except as required by law, and as set forth
below, the holders of the Series D Preferred Shares shall not be entitled to
vote at any meeting of the stockholders for election of Directors or for any
other purpose or otherwise to participate in any action taken by the Corporation
or the stockholders thereof, or to receive notice of any meeting of
stockholders.
(i) Whenever dividends on any Series D Preferred Shares shall
be in arrears for six or more quarterly periods, whether or not such quarterly
periods are consecutive, the holders of such Series D Preferred Shares (voting
separately as a class with all other series of preferred stock upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of two additional Directors of the Corporation at a special
meeting called by the holders of record of at least ten percent (10%) of the
Series D Preferred Shares or the holders of any other series of preferred stock
so in arrears (unless such request is received less than 90 days before the date
fixed for the next annual or special meeting of the stockholders) or at the next
annual meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such Series D Preferred Shares for the past Dividend
Periods and the then current Dividend Period shall have been fully paid or
declared and a sum sufficient for the payment thereof set aside for payment. In
such case, the entire Board of Directors of the Corporation will be increased by
two Directors.
(ii) So long as any Series D Preferred Shares remain
outstanding, the Corporation shall not, without the affirmative vote or consent
of the holders of at least two-thirds of the Series D Preferred Shares
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (such series voting separately as a class), (A) authorize or create, or
increase the authorized or issued amount of, any class or series of shares of
capital stock ranking prior to the Series D Preferred Shares with respect to the
payment of dividends or the distribution of assets upon
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liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Corporation into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares; or (B) amend, alter or repeal the provisions of the Corporation's
Articles of Incorporation, including this Amendment, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series D
Preferred Shares or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (B) above, so long as the Series D
Preferred Shares remain outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of an Event, the Corporation may
not be the surviving entity, the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting power of holders of Series D Preferred Shares and provided further
that (x) any increase in the amount of the authorized preferred stock or the
creating or issuance of any other series of preferred stock, or (y) any increase
in the amount of authorized Series D Preferred Shares or any other series of
preferred stock, in each case ranking on a parity with or junior to the Series D
Preferred Shares with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
The foregoing voting provisions will not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Series D Preferred Shares shall have
been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
(iii) On each matter submitted to a vote of the holders of
Series D Preferred Shares in accordance with this paragraph (g), or as otherwise
required by law, each Series D Preferred Share shall be entitled to ten (10)
votes, each of which ten (10) votes may be directed separately by the holder
thereof. With respect to each Series D Preferred Share, the holder thereof may
designate up to ten (10) proxies, with each such proxy having the right to vote
a whole number of votes (totaling ten (10) votes per Series D Preferred Share).
(h) Conversion. The Series D Preferred Shares are not convertible
into or exchangeable for an other property or securities of the Corporation.
III.
These Articles were adopted on April 16, 1998 without stockholder
approval, as such approval was not required.
IV.
These Articles were duly adopted by the Board of Directors under
authority contained in the Corporation's charter.
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IN WITNESS WHEREOF, Highwoods Properties, Inc. has caused these
Articles Supplementary to be executed and sealed by its duly authorized officers
this 22nd day of April, 1998.
HIGHWOODS PROPERTIES, INC.
By: /s/ Mack D. Pridgen, III
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Mack D. Pridgen, III
Vice President and General Counsel
[CORPORATE SEAL]
Attest:
/s/ Edward J. Fritsch
Edward J. Fritsch
Secretary
THE UNDERSIGNED, Vice President and General Counsel of HIGHWOODS
PROPERTIES, INC., who executed on behalf of the Corporation the Articles
Supplementary of which this certificate is made a part, hereby acknowledges in
the name and on behalf of said Corporation the foregoing Articles Supplementary
to be the corporate act of said Corporation and hereby certifies that to the
best of his knowledge, information and belief the matters and facts set forth
therein with respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury.
/s/ Mack D. Pridgen, III
Mack D. Pridgen, III
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Exhibit 4.1
8% Series D Cumulative 400,000 Shares
Redeemable Preferred Shares
Number CUSIP 431284 40 5
1 See Reverse for Certain
Definitions and Restrictions
HIGHWOODS PROPERTIES, INC.
Incorporated under the Laws of the State of Maryland
This Certifies that
FIRST UNION NATIONAL BANK, as Preferred Share Depositary
is the owner of 400,000 fully paid and non-assessable 8% SERIES D CUMULATIVE
REDEEMABLE PREFERRED SHARES, $.01 par value ($250.00 liquidation
preference), of Highwoods Properties, Inc. transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this Certificate properly endorsed. This Certificate and the shares
represented hereby are issued and shall be subject to all of the provisions of
the Amended and Restated Articles of Incorporation and Bylaws of the
Corporation, each as from time to time amended (copies of which are on file with
the Transfer Agent), to all of which the holder by acceptance hereof assents.
This Certificate is not valid until countersigned and registered by the Transfer
Agent and Registrar.
Witness the seal of the Corporation and the signatures of its duly authorized
officers. Dated: April 23, 1998
[Seal]
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<S> <C> <C>
Authorized Signatures: _____________________________ ____________________________
Edward J. Fritsch Ronald P. Gibson
Executive Vice President, Chief President and Chief Executive Officer
Operating Officer and Secretary
</TABLE>
Countersigned and Registered:
First Union National Bank (Charlotte, North Carolina)
Transfer Agent and Registrar
By: ____________________________
Authorized Signatory
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HIGHWOODS PROPERTIES, INC.
The shares of capital stock represented by this certificate are subject
to restrictions on transfer for the purpose of the Corporation's maintenance of
its status as a Real Estate Investment Trust under the Internal Revenue Code of
1986, as amended. No Person may Beneficially Own shares of capital stock in
excess of 9.8% of the outstanding capital stock of the Corporation. Any Person
who attempts to Beneficially Own shares of capital stock in excess of the above
limitation must immediately notify the Corporation; any shares of capital stock
so held may be subject to mandatory redemption or sale in certain events, and
acquisitions of shares of capital stock in excess of such limitation shall be
void ab initio. A Person who attempts to Beneficially Own shares of the
Corporation's capital stock in violation of the ownership limitations set forth
in Section 6.2 of the Amended and Restated Articles of Incorporation shall have
no claim, cause of action, or any other recourse whatsoever against a transferor
of such shares. All capitalized terms in this legend have the meanings defined
in the Corporation's Amended and Restated Articles of Incorporation, a copy of
which, including the restrictions on transfer, will be sent without charge to
each stockholder who so requests. The Corporation is authorized to issue more
than one class of capital stock. The Corporation will furnish to any stockholder
upon request and without charge a full statement of the designations, and any
preferences, conversions and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the shares of each class authorized to be issued and, with respect
to the classes of capital stock which may be issued in series, the differences
in the relative rights and preferences between the shares of each such series,
so far as the same have been fixed and determined, and the authority of the
Board of Directors to fix and determine the relative rights and preferences of
subsequent series. Such requests may be made to the Secretary of the Corporation
at its principal office or to the Corporation's transfer agent.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
UNIF GIFT MIN ACT --
TEN COM -- as tenants in common _______ Custodian ______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ________________________
in common (State)
For value received, __________________ hereby sell, assign and transfer unto
__________ (Please insert social security or other identifying number of
assignee) ___________________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
____________________________ shares of the capital stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said stock on the books
of the within named Corporation with full power of substitution in the premises.
Dated_____________________________________
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NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the certificate in every particular,
without alteration or enlargement or any
change whatever.
Signature(s) Guaranteed: ____________________________________________
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations
and credit unions with membership in an
approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
Exhibit 4.2
AMENDMENT TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
As of this 23rd day of April, 1998, the First Amended and Restated
Agreement of Limited Partnership of Highwoods/Forsyth Limited Partnership dated
June 14, 1995, as amended (the "Agreement"), is hereby amended pursuant to
Sections 4.2.A and 14.1.B thereof as follows:
Section 1. Definitions.
Article 1 is hereby amended to add the following new definitions:
"Series D Preferred Partnership Unit" means a Partnership Unit
issued by the Partnership to the General Partner in consideration
of the contribution by the General Partner to the Partnership of
the entire net proceeds received by the General Partner from the
issuance of the Series D Preferred Shares. The Series D Preferred
Partnership Units shall constitute Preferred Partnership Units.
The Series D Preferred Partnership Units shall have the voting
powers, designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations
or restrictions as are set forth in Exhibit I, attached hereto. It
is the intention of the General Partner, in establishing the
Series D Preferred Partnership Units, that each Series D Preferred
Partnership Unit shall be substantially the economic equivalent of
a Series D Preferred Share.
"Series D Preferred Shares" means the 8% Series D Cumulative
Redeemable Preferred Shares, par value $0.01 per share, having a
liquidation preference equivalent to $250.00 per share, issued by
the General Partner.
Section 2. Exhibit to the Agreement.
The Agreement is hereby amended by attaching thereto as Exhibit I
the Exhibit I attached hereto.
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as
of the date first written above.
HIGHWOODS PROPERTIES, INC.,
as General Partner of
Highwoods/Forsyth Limited Partnership
By: /s/ Ronald P. Gibson
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Ronald P. Gibson, President
[CORPORATE SEAL]
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EXHIBIT I
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
DESIGNATION OF THE VOTING POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF THE
SERIES D PREFERRED PARTNERSHIP UNITS
The following are the terms of the Series D Preferred Partnership
Units established pursuant to this Amendment:
(a) Number. The maximum number of authorized Series D Preferred
Partnership Units shall be 400,000.
(b) Relative Seniority. In respect of rights to receive quarterly
distributions and to participate in distributions of payments in the event of
any liquidation, dissolution or winding up of the Partnership, the Series D
Preferred Partnership Units shall rank (i) senior to the Common Partnership
Units and any other class or series of Partnership Units of the Partnership
ranking, as to quarterly distributions and upon liquidation, junior to the
Series D Preferred Partnership Units (collectively, "Junior Partnership Units")
and (ii) PARI PASSU with the Series A Preferred Partnership Units, the Series B
Preferred Partnership Units and any other class or series of Partnership Units
of the Partnership ranking, as to quarterly distributions and upon liquidation,
PARI PASSU with the Series D Preferred Partnership Units.
(c) Quarterly Distributions.
(1) The General Partner, in its capacity as the holder of the then
outstanding Series D Preferred Partnership Units, shall be entitled to receive,
when and as declared by the General Partner out of any funds legally available
therefor, cumulative quarterly distributions at the rate of $20.00 per Series D
Preferred Partnership Unit per year, payable quarterly in arrears in cash on or
about the last day of January, April, July and October of each year or, if not a
Business Day (as hereinafter defined), the next succeeding Business Day,
commencing July 31, 1998 (each such day being hereafter called a "Quarterly
Distribution Date" and each period beginning on the day next following a
Quarterly Distribution Date and ending on the next following Quarterly
Distribution Date being hereinafter called a "Distribution Period"). Quarterly
distributions on each Series D Preferred Partnership Unit shall accrue and be
cumulative from and including the date of original issue thereof, whether or not
(i) quarterly distributions on such Series D Preferred Partnership Units are
earned or declared or (ii) on any Quarterly Distribution Date there shall be
funds legally available for the payment of quarterly distributions. Quarterly
distributions paid on the Series D Preferred Partnership
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Units in an amount less than the total amount of such quarterly distributions at
the time accrued and payable on such Partnership Units shall be allocated pro
rata on a per unit basis among all such Series D Preferred Partnership Units at
the time outstanding.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
in New York City are authorized or required by law, regulation or executive
order to close.
(2) The amount of any quarterly distributions accrued on any
Series D Preferred Partnership Units at any Quarterly Distribution Date shall be
the amount of any unpaid quarterly distributions accumulated thereon, to and
including such Quarterly Distribution Date, whether or not earned or declared,
and the amount of quarterly distributions accrued on any Series D Preferred
Partnership Units at any date other than a Quarterly Distribution Date shall be
equal to the sum of the amount of any unpaid quarterly distributions accumulated
thereon, to and including the last preceding Quarterly Distribution Date,
whether or not earned or declared, plus an amount calculated on the basis of the
annual distribution rate for the period after such last preceding Quarterly
Distribution Date to and including the date as of which the calculation is made
based on a 360-day year of twelve 30-day months. When distributions are not paid
in full upon the Series D Preferred Partnership Units (or a sum sufficient for
such full payment is not set apart therefor), all distributions declared upon
Series D Preferred Partnership Units and any other series of Preferred
Partnership Units ranking on a parity as to distributions with the Series D
Preferred Partnership Units shall be declared pro rata so that the amount of
distributions declared per unit on the Series D Preferred Partnership Units and
such other series of Preferred Partnership Units shall in all cases bear to each
other the same ratio that accrued distributions per unit on the Series D
Preferred Partnership Units and such other series of Preferred Partnership Units
bear to each other.
(3) Except as provided in the immediately preceding paragraph,
unless full cumulative distributions on the Series D Preferred Partnership Units
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment of the Series D
Preferred Partnership Units for all past distribution periods and the then
current distribution period, (A) no distributions shall be declared or paid or
set apart for payment on the Preferred Partnership Units ranking, as to
distributions, on a parity with or junior to the Series D Preferred Partnership
Units for any period, and (B) no distributions (other than in Junior Partnership
Units) shall be declared or paid or set aside for payment or other distribution
or shall be declared or made upon the Junior Partnership Units or any other
Preferred Partnership Units ranking on a parity with the Series D Preferred
Partnership Units as to distributions or upon liquidation ("Parity Units"), nor
shall any Junior Partnership Units or any Parity Units be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any Junior Partnership Units
or Parity Units) by the Partnership (except by conversion into or exchange for
Junior Partnership Units).
(4) Except as provided herein, the Series D Preferred Partnership
Units shall not be entitled to participate in the earnings or assets of the
Partnership, and no interest, or sum of money
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in lieu of interest, shall be payable in respect of any distribution or
distributions on the Series D Preferred Partnership Units which may be in
arrears.
(5) Any distribution made on the Series D Preferred Partnership
Units shall be first credited against the earliest accrued but unpaid quarterly
distribution due with respect to such Partnership Units which remains payable.
(6) No quarterly distributions on the Series D Preferred
Partnership Units shall be authorized by the General Partner or be paid or set
apart for payment by the Partnership at such time as the terms and provisions of
any agreement of the General Partner or the Partnership, including any agreement
relating to its indebtedness, prohibit such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment would constitute a breach thereof or a default thereunder, or if
such authorization or payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, quarterly distributions on the Series D Preferred
Partnership Units will accrue whether or not the Partnership has earnings,
whether or not there are funds legally available for the payment of such
quarterly distributions and whether or not such quarterly distributions are
authorized.
(d) Liquidation Rights.
(1) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Partnership, the General Partner, in its capacity as the
holder of the Series D Preferred Partnership Units then outstanding, shall be
entitled to receive and to be paid out of the assets of the Partnership
available for distribution to its partners, before any payment or distribution
shall be made on any Junior Partnership Units, the amount of $250.00 per Series
D Preferred Partnership Unit, plus accrued and unpaid quarterly distributions
thereon.
(2) After the payment to the holders of the Series D Preferred
Partnership Units of the full preferential amounts provided for herein, the
General Partner, in its capacity as the holder of the Series D Preferred
Partnership Units as such, shall have no right or claim to any of the remaining
assets of the Partnership.
(3) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Partnership, the amounts payable with respect
to the preference value of the Series D Preferred Partnership Units and any
other Preferred Partnership Units of the Partnership ranking as to any such
distribution on a parity with the Series D Preferred Partnership Units are not
paid in full, the holders of the Series D Preferred Partnership Units and of
such other Preferred Partnership Units will share ratably in any such
distribution of assets of the Partnership in proportion to the full respective
preference amounts to which they are entitled.
(4) Neither the sale, lease or conveyance of all or substantially
all of the property or business of the Partnership, nor the merger or
consolidation of the Partnership into or with any other entity or the merger or
consolidation of any other entity into or with the Partnership, shall be deemed
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to be a dissolution, liquidation or winding up, voluntary or involuntary, for
the purposes hereof.
(e) Redemption.
(1) The Series D Preferred Partnership Units are not redeemable
prior to April 23, 2003. On and after April 23, 2003, the General Partner may,
at its option, cause the Partnership to redeem at any time all or, from time to
time, part of the Series D Preferred Partnership Units at a price per unit (the
" Redemption Price"), payable in cash, of $250.00, together with all accrued and
unpaid distributions to and including the date fixed for redemption (the
"Redemption Date"). The Series D Preferred Partnership Units have no stated
maturity and will not be subject to any sinking fund or mandatory redemption
provisions.
(2) Procedures of Redemption.
(i) At any time that the General Partner exercises its right
to redeem all or any of the Series D Preferred Shares, the General
Partner shall exercise its right to cause the Partnership to
redeem an equal number of Series D Preferred Partnership Units in
the manner set forth herein.
(ii) No Series D Preferred Partnership Units may be redeemed
except from proceeds from the sale of capital stock of the General
Partner, including but not limited to common stock, preferred
stock, depositary shares, interests, participations or other
ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing. The
proceeds of such sale of capital stock of the General Partner
shall be contributed by the General Partner to the Partnership
pursuant to the requirements of Section 4.2 of the Partnership
Agreement.
(f) Voting Rights. Except as required by law, the General Partner,
in its capacity as the holder of the Series D Preferred Partnership Units, shall
not be entitled to vote at any meeting of the Partners or for any other purpose
or otherwise to participate in any action taken by the Partnership or the
Partners, or to receive notice of any meeting of Partners.
(g) Conversion. The Series D Preferred Partnership Units are not
convertible into or exchangeable for any other property or securities of the
Partnership.
(h) Restrictions on Ownership. The Series D Preferred Partnership
Units shall be owned and held solely by the General Partner.
(i) General. The rights of the General Partner, in its capacity as
holder of the Series D Preferred Partnership Units, are in addition to and not
in limitation of any other rights or authority of the General Partner, in any
other capacity, under the Partnership Agreement. In addition, nothing contained
herein shall be deemed to limit or otherwise restrict any rights or authority of
the General
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Partner under the Partnership Agreement, other than in its capacity as the
holder of the Series D Preferred Partnership Units.
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Exhibit 4.3
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of April 23, 1998, among HIGHWOODS
PROPERTIES, INC., a Maryland corporation (the "Company"), and First Union
National Bank, a North Carolina banking corporation, as Depositary, and all
holders from time to time of Receipts (as hereinafter defined) issued hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of the Company's Series D Preferred
Shares (as hereinafter defined) with the Depositary for the purposes set forth
in this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing a fractional interest in the Series D
Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
Section 1.1 "Articles of Incorporation" shall mean the Amended and
Restated Articles of Incorporation, as amended from time to time, of the
Company.
Section 1.2 "Company" shall mean Highwoods Properties, Inc., a
Maryland corporation, and its successors.
Section 1.3 "Corporate Office" shall mean the corporate office of
the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at 1525 West W. T.
Harris Blvd., 3C3, Charlotte, North Carolina 28262-1153.
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Section 1.4 "Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
Section 1.5 "Depositary" shall mean First Union National Bank, a
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000, and any successor as depositary
hereunder.
Section 1.6 "Depositary Share" shall mean a fractional interest of
1/10 of a Series D Preferred Share deposited with the Depositary hereunder and
the same proportionate interest in any and all other property received by the
Depositary in respect of such Series D Preferred Share and held under this
Deposit Agreement, all as evidenced by the Receipts issued hereunder. Subject to
the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Series D Preferred Share represented by such Depositary Share, including the
dividend, voting, redemption, conversion and liquidation rights contained in the
Designating Amendment.
Section 1.7 "Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.5.
Section 1.8 "Designating Amendment" shall mean the Articles
Supplementary to the Articles of Incorporation filed with the Secretary of State
of the State of Maryland establishing the Series D Preferred Shares as a series
of preferred stock of the Company.
Section 1.9 "Series D Preferred Shares" shall mean the Company's
8% Series D Cumulative Redeemable Preferred Shares, par value $0.01 per share,
heretofore validly issued, fully paid and nonassessable.
Section 1.10 "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
Section 1.11 "Record Date" shall mean the date fixed pursuant to
Section 4.4.
Section 1.12 "Record Holder" or "Holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
Section 1.13 "Registrar" shall mean First Union National Bank or
any bank or trust company appointed to register ownership and transfers of
Receipts or the deposited Series D Preferred Shares, as the case may be, as
herein provided.
Section 1.14 "Securities Act" shall mean the Securities Act of
1933, as amended.
Section 1.15 "Transfer Agent" shall mean First Union National Bank
or any bank or
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trust company appointed to transfer the Receipts or the deposited Series D
Preferred Shares, as the case may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES D PREFERRED SHARES, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.2, shall execute and deliver temporary
Receipts, which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Corporate Office or such other offices, if any,
as the Depositary may designate, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Series D Preferred Shares deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All Receipts shall
be dated the date of their issuance.
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Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Series D Preferred Shares, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Series D Preferred Shares; Execution and
Delivery of Receipts in Respect Thereof. Concurrently with the execution of this
Deposit Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 400,000
Series D Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement and (ii) a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Series D Preferred Shares. The Depositary
acknowledges receipt of the deposited Series D Preferred Shares and related
documentation and agrees to hold such deposited Series D Preferred Shares in an
account to be established by the Depositary at the Corporate Office or at such
other office as the Depositary shall determine. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for Series D Preferred Shares
deposited hereunder and the Depositary hereby accepts such appointment and, as
such, will reflect changes in the number of shares (including any fractional
shares) of deposited Series D Preferred Shares held by it by notation,
book-entry or other appropriate method.
If required by the Depositary, Series D Preferred Shares presented
for deposit by the Company at any time, whether or not the register of
shareholders of the Company is closed, shall also be accompanied by an agreement
or assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any dividend
or right to subscribe for additional Series D Preferred Shares or to receive
other property that any person in whose name the Series D Preferred Shares is or
has been registered may thereafter receive upon or in respect of such deposited
Series D Preferred Shares, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
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Upon receipt by the Depositary of a certificate or certificates
for Series D Preferred Shares deposited hereunder, together with the other
documents specified above, and upon registering such Series D Preferred Shares
in the name of the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to, or upon the
order of, the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section 2.2, a Receipt or
Receipts for the number of whole Depositary Shares representing the Series D
Preferred Shares so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at the Corporate Office, except that, at the request,
risk and expense of any person requesting such delivery, such delivery may be
made at such other place as may be designated by such person.
Other than in the case of splits, combinations or other
reclassifications affecting the Series D Preferred Shares, or in the case of
dividends or other distributions of Series D Preferred Shares, if any, there
shall be deposited hereunder not more than the number of shares constituting the
Series D Preferred Shares as set forth in the Designating Amendment, as such may
be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Section 2.3 Optional Redemption of Series D Preferred Shares for
Cash. Whenever the Company shall elect to redeem deposited Series D Preferred
Shares for cash in accordance with the provisions of the Designating Amendment,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days' prior written notice of the date of such
proposed redemption and of the number of such Series D Preferred Shares held by
the Depositary to be redeemed and the applicable redemption price, as set forth
in the Designating Amendment, including the amount, if any, of accrued and
unpaid dividends to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Series D Preferred
Shares and the proposed simultaneous redemption of the Depositary Shares
representing the Series D Preferred Shares to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption of such Series D
Preferred Shares and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption price; the number of deposited Series D
Preferred Shares and Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for payment of the cash redemption price; and that from and after the cash
redemption date dividends in respect of the Series D Preferred
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Shares represented by the Depositary Shares to be redeemed will cease to accrue.
If fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. The Company shall also cause notice
of redemption to be published in a newspaper of general circulation in The City
of New York at least once a week for two successive weeks commencing not less
than 30 nor more than 60 days prior to the cash redemption date.
In the event that notice of redemption has been made as described
in the immediately preceding paragraph and the Company shall then have paid in
full to the Depositary the cash redemption price (determined pursuant to the
Designating Amendment) of the Series D Preferred Shares deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to the
date of redemption), the Depositary shall redeem the number of Depositary Shares
representing such Series D Preferred Shares so called for redemption by the
Company and from and after the cash redemption date (unless the Company shall
have failed to redeem the Series D Preferred Shares to be redeemed by it as set
forth in the Company's notice provided for in the preceding paragraph), all
dividends in respect of the Series D Preferred Shares called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price of $25.00 per Depositary
Share plus any other money and other property payable in respect of the related
Series D Preferred Shares. The foregoing shall be further subject to the terms
and conditions of the Designating Amendment.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
Section 2.4 Registration of Transfers of Receipts. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement, together with evidence of the payment of any transfer taxes as may
be required by law. Upon such surrender, the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
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Section 2.5 Combinations and Split-ups of Receipts. Upon surrender
of a Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Section 2.6 Surrender of Receipts and Withdrawal of Series D
Preferred Shares. Any holder of a Receipt or Receipts may withdraw any or all of
the deposited Series D Preferred Shares represented by the Depositary Shares
evidenced by such Receipt or Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or Receipts
at the Corporate Office or at such office as the Depositary may designate for
such withdrawals, provided that a holder of a Receipt or Receipts may not
withdraw such Series D Preferred Shares (or money and other property, if any,
represented thereby) which has previously been called for redemption. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole or fractional shares of such Series D Preferred
Shares and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole or fractional Series D Preferred Shares
will not thereafter be entitled to deposit such Series D Preferred Shares
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Series D Preferred Shares to be withdrawn, the Depositary shall at the
same time, in addition to such number of whole or fractional Series D Preferred
Shares and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.4) upon his order, a new Receipt or
Receipts evidencing such excess number of Depositary Shares. Delivery of such
Series D Preferred Shares and such money and other property being withdrawn may
be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
If the deposited Series D Preferred Shares and the money and other
property being withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered for withdrawal of
Series D Preferred Shares, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such Series D Preferred Shares be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Series D Preferred
Shares and the money and other property, if any, represented by the Depositary
Shares evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder
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surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
Section 2.7 Limitations on Execution and Delivery, Transfer,
Split-Up, Combination, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to the Series D Preferred Shares being deposited or withdrawn);
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature (or the authority of any signature); and (iii)
compliance with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement as may be
required by any securities exchange upon which the deposited Series D Preferred
Shares, the Depositary Shares or the Receipts may be included for quotation or
listed.
The deposit of Series D Preferred Shares may be refused, the
delivery of Receipts against Series D Preferred Shares may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender, exchange or redemption of outstanding Receipts may be suspended (i)
during any period when the register of shareholders of the Company is closed or
(ii) if any such action is deemed reasonably necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under Article VI of the Articles of
Incorporation or under any provision of this Deposit Agreement.
Section 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary, in its discretion, may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
Section 2.9 Cancellation And Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information. Any
person presenting
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Series D Preferred Shares for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Series D Preferred Shares represented by the Depositary Shares evidenced by any
Receipt, the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof, until such proof or other information is
filed, such certificates are executed or such representations and warranties are
made.
Section 3.2 Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.7, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid. Until
such payment is made, transfer of any Receipt or any withdrawal of the Series D
Preferred Shares or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Series D
Preferred Shares or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.3 Representations and Warranties as to Series D
Preferred Shares. In the case of the initial deposit of the Series D Preferred
Shares hereunder, the Company and, in the case of subsequent deposits thereof,
each person so depositing Series D Preferred Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Series D Preferred
Shares and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. The Company hereby further represents and
warrants that such Series D Preferred Shares, when issued, will be validly
issued, fully paid and nonassessable. Such representations and warranties shall
survive the deposit of the Series D Preferred Shares and the issuance of
Receipts.
Section 3.4 Representation and Warranty as to Receipts and
Depositary Shares. The Company hereby represents and warrants that the Receipts,
when issued, will evidence legal and valid interests in the Depositary Shares
and each Depositary Share will represent a legal and valid 1/10 fractional
interest in a deposited Series D Preferred Share. Such representation and
warranty shall survive the deposit of the Series D Preferred Shares and the
issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE SERIES D PREFERRED SHARES; NOTICES
Section 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash
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dividend or other cash distribution on the deposited Series D Preferred Shares,
including any cash received upon redemption of any Series D Preferred Shares
pursuant to Section 2.3, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to and shall withhold from any cash dividend or
other cash distribution in respect of the Series D Preferred Shares represented
by the Receipts held by any holder an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
represented by such Receipts subject to such withholding shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Receipts a fraction of one cent, and any balance
not so distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of the next sum
received by the Depositary for distribution to record holders of Receipts then
outstanding.
Section 4.2 Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited Series D
Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes), the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Series D Preferred Shares are registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct (including by the issue to
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such record holders of warrants representing such rights, preferences or
privileges); provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Company determines upon advice of its
legal counsel that it is not lawful or feasible to make such rights, preferences
or privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed by the Company, and if applicable laws or the terms
of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Section 3.1 and Section 3.2, be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash. The Company shall
not make any distribution of such rights, preferences or privileges, unless the
Company shall have provided to the Depositary an opinion of counsel stating that
such rights, preferences or privileges have been registered under the Securities
Act or do not need to be registered.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4 Notice of Dividends; Fixing of Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Series D Preferred Shares, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of such Series D Preferred Shares are
entitled to vote or of which holders of such Series D Preferred Shares are
entitled to notice or (ii) any election on the part of the Company to redeem any
such Series D Preferred Shares, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect
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to the Series D Preferred Shares) for the determination of the holders of
Receipts who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting or whose Depositary Shares are to be so redeemed.
Section 4.5 Voting Rights. Upon receipt of notice of any meeting
at which the holders of deposited Series D Preferred Shares are entitled to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company and
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.4 will be entitled,
subject to any applicable provision of law, to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Series D Preferred
Shares represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall vote or cause to be voted the amount of Series D Preferred Shares
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. To the extent such instructions
request the voting of a fractional interest of a share of deposited Series D
Preferred Shares, the Depositary shall aggregate such interest with all other
fractional interests resulting from requests with the same voting instructions
and shall vote the number of whole votes resulting from such aggregation in
accordance with the instructions received in such requests. Each Series D
Preferred Share is entitled to 10 votes and, accordingly, each Depositary Share
is entitled to one vote. The Company hereby agrees to take all reasonable action
that may be deemed necessary by the Depositary in order to enable the Depositary
to vote such Series D Preferred Shares or cause such Series D Preferred Shares
to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of the Series D
Preferred Shares represented by the Depositary Shares evidenced by such Receipt.
The Depositary shall not be required to exercise discretion in voting any Series
D Preferred Shares represented by the Depositary Shares evidenced by such
Receipt.
Section 4.6 Changes Affecting Series D Preferred Shares and
Reclassifications, Recapitalization, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of Series D Preferred
Shares, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company: (i) make such adjustments in (a) the fraction of an
interest represented by one Depositary Share in one Series D Preferred Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a Preferred Share, in each case as may be required by or as is
consistent with the provisions of the Designating Amendment to reflect fully the
effects of such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Series D Preferred Shares as new
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate
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interests of holders thereof or the new deposited property so received in
exchange for or upon conversion or in respect of such Series D Preferred Shares.
In any such case the Depositary may, in its discretion, with approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited property. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par or stated value, split-up, combination
or other reclassification of the Series D Preferred Shares or any such
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of substantially all the assets of the Company to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Series D
Preferred Shares represented thereby only into or for, as the case may be, the
kind and amount of shares and other securities and property and cash into which
the deposited Series D Preferred Shares evidenced by such Receipts might have
been converted or for which such Series D Preferred Shares might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Series D Preferred Shares for securities or property or cash of the
surviving corporation in connection with the transactions set forth above. The
Company shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
Section 4.7 Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of deposited Series D Preferred
Shares and made generally available to the holders of the Series D Preferred
Shares. In addition, the Depositary shall transmit certain notices and reports
to the holders of Receipts as provided in Section 5.5.
Section 4.8 Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
Section 4.9 Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts if directed to do so by the Company or required to
do so by applicable law, (iv) mailing W-9 forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified W-9
forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
Section 4.10 Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject
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to any tax that the Depositary is obligated by law to withhold, the Depositary
may dispose of all or a portion of such property in such amounts and in such
manner as the Depositary deems necessary and practicable to pay such taxes, by
public or private sale, and the Depositary shall distribute the net proceeds of
any such sale or the balance of any such property after deduction of such taxes
to the holders of Receipts entitled thereto in proportion to the number of
Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books by
the Depositary and the Registrar. The Depositary shall maintain at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Series D Preferred Shares and at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Series D Preferred Shares, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Series D Preferred Shares represented by such Depositary Shares shall be listed
on the New York Stock Exchange, Inc. or any other stock exchange, the Depositary
may, with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with the requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Series D Preferred Shares are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange such
facilities for the delivery, transfer, surrender, redemption and exchange of
such Receipts, such Depositary Shares or such Series D Preferred Shares as may
be required by law or applicable stock exchange regulations.
Section 5.2 Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company. Neither the Depositary,
any Depositary's Agent, any Registrar nor the Company shall incur any liability
to any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the Depositary's
Agent or the Registrar, by
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reason of any provision, present or future, of the Articles of Incorporation or
the Designating Amendment or, in the case of the Company, the Depositary, the
Depositary's Agent or the Registrar, by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this Deposit
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement.
Section 5.3 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary, any Depositary's
Agent, any Registrar nor the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to holders of
Receipts other than from acts or omissions arising out of conduct constituting
bad faith, negligence (in the case of any action or inaction with respect to the
voting of the deposited Series D Preferred Shares), gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Series D
Preferred Shares, Depositary Shares or Receipts that in its reasonable opinion
may involve it in expense or liability unless indemnity reasonably satisfactory
to it against all expense and liability be furnished as often as may be
required.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
provided by any person presenting Series D Preferred Shares for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it in
good faith to be genuine and to have been signed or presented by the proper
party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.6 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the deposited Series D Preferred Shares or
for the manner or effect of any such vote made, as long as any such action or
non-action is in good faith and does not result from negligence or
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willful misconduct of the Depositary. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of
securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the deposited Series D
Preferred Shares; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to it under
law or this Deposit Agreement in its capacity as Depositary.
The Company agrees that it will register the deposited Series D
Preferred Shares and the Depositary Shares if required by the applicable
securities laws.
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall
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promptly execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the deposited Series D Preferred
Shares and any moneys or property held hereunder to such successor and shall
deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
Section 5.5 Notices, Reports and Documents. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Series D Preferred Shares, the Depositary
Shares or the Receipts are included for quotation or listed or by the Articles
of Incorporation and the Designating Amendment to be furnished by the Company to
holders of the deposited Series D Preferred Shares and, if requested by the
holder of any Receipt, a copy of this Deposit Agreement, the form of Receipt,
the Designating Amendment and the form of Series D Preferred Shares. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
Section 5.6 Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence, negligence (in the case of any action or
inaction with respect to the voting of the deposited Series D Preferred Shares)
or bad faith on the part of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement.
Section 5.7 Fees, Charges and Expenses. No charges and expenses of
the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.7. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the Series
D Preferred Shares and the initial issuance of the Depositary Shares evidenced
by the Receipts, any redemption of the Series D Preferred Shares at the option
of the Company and all withdrawals of the Series D Preferred Shares by holders
of Depositary Shares. If a holder of Receipts requests the Depositary to perform
-17-
<PAGE>
duties not required under this Deposit Agreement, the Depositary shall notify
the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as previously agreed between the
Depositary and the Company. The Depositary shall present its statement for fees
and expenses to the Company every month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. The form of the Receipts and any provision
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Series D Preferred Shares pursuant to the
Designating Amendment shall be effective unless such amendment shall have been
approved by the holders of at least two-thirds of the Depositary Shares then
outstanding. In no event shall any amendment impair the right, subject to the
provisions of Section 2.6 and Section 2.7 and Article III, of any holder of any
Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the deposited
Series D Preferred Shares and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable law.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby.
Section 6.2 Termination. This Deposit Agreement may be terminated
by the Company upon not less than 30 days' prior written notice to the
Depositary if (i) such termination is necessary to preserve the Company's status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (or any successor provisions) or (ii) the holders of a majority of the
Series D Preferred Shares consent to such termination, whereupon the Depositary
shall deliver or make available to each holder of a Receipt, upon surrender of
the Receipt held by such holder, such number of whole or fractional shares of
deposited Series D Preferred Shares that are represented by the Depositary
Shares evidenced by such Receipt, together with any other property held by the
Depositary in respect of such Receipt. In the event that this Deposit Agreement
is terminated pursuant to clause (i) of the immediately preceding sentence, the
Company hereby agrees to use its best efforts to list the Series D Preferred
Shares issued upon surrender of the Receipt evidencing the Depositary Shares
represented thereby on a national securities exchange. This Deposit Agreement
will automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed
-18-
<PAGE>
pursuant to Section 2.3 or (ii) there shall have been made a final distribution
in respect of the deposited Series D Preferred Shares in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.2 Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
Section 7.3 Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
Highwoods Properties, Inc.
3100 Smoketree Court
Suite 600
Raleigh, North Carolina 27604
Attention: Mack D. Pridgen, III
Telephone No.: (919) 872-4924
-19-
<PAGE>
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary in a timely manner a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
Section 7.5 Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
Section 7.6 Holders of Receipts are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
Section 7.7 Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the law of the State of North
Carolina applicable to agreements made and to be performed in said State.
Section 7.8 Inspection of Deposit Agreement and Designating
Amendment. Copies of this Deposit Agreement and the Designating Amendment shall
be filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of any Receipt.
Section 7.9 Headings. The headings of articles and sections in
this Deposit Agreement
-20-
<PAGE>
and in the form of the Receipt set forth in Exhibit A hereto have been inserted
for convenience only and are not to be regarded as part of this Deposit
Agreement or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
-21-
<PAGE>
IN WITNESS WHEREOF, Highwoods Properties, Inc. and First Union
National Bank have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of Receipts shall become parties hereto by
and upon acceptance by them of delivery of Receipts issued in accordance with
the terms hereof.
HIGHWOODS PROPERTIES, INC.
By: _____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By: _____________________________
Name:
Title:
-22-
<PAGE>
EXHIBIT A
[FORM OF FACE OF RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A 1/10 INTEREST IN ONE
8% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARE
OF
DR-____ DEPOSITARY SHARES
-----------------------------------
THIS CERTIFICATES IS TRANSFERABLE
IN CHARLOTTE, NORTH CAROLINA
OR IN NEW YORK CITY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 431284 50 4
[LOGO] HIGHWOODS PROPERTIES, INC.
(a Maryland corporation)
First Union National Bank, as Depositary (the "Depositary"), hereby
certifies that ____________________ is the registered owner of _________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/10
of one 8% Series D Cumulative Redeemable Preferred Share, $0.01 par value per
share, of Highwoods Properties, Inc., a Maryland corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement, dated as of April 23, 1998
(the "Deposit Agreement"), among the Corporation, the Depositary and the holders
from time to time of Receipts for Depositary Shares. By accepting this Receipt,
the holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.
Dated: FIRST UNION NATIONAL BANK,
Depositary, Registrar & Transfer Agent
By: ________________________
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS DEPOSITARY RECEIPT APPEAR
ON THE REVERSE SIDE.
-23-
<PAGE>
[FORM OF REVERSE RECEIPT]
HIGHWOODS PROPERTIES, INC.
THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF
ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF
1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN
EXCESS OF 9.8%OF THE OUTSTANDING CAPITAL STOCK OF THE CORPORATION. ANY PERSON
WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN EXCESS OF THE ABOVE
LIMITATION MUST IMMEDIATELY NOTIFY THE CORPORATION; ANY SHARES OF CAPITAL STOCK
SO HELD MAY BE SUBJECT TO MANDATORY REDEMPTION OR SALE IN CERTAIN EVENTS, AND
ACQUISITIONS OF SHARES OF CAPITAL STOCK IN EXCESS OF SUCH LIMITATION SHALL BE
VOID AB INITIO. A PERSON WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF THE
CORPORATION'S CAPITAL STOCK IN VIOLATION OF THE OWNERSHIP LIMITATIONS SET FORTH
IN SECTION 6.2 OF THE AMENDED AND RESTATED ARTICLES OF INCORPORATION SHALL HAVE
NO CLAIM, CAUSE OF ACTION, OR ANY OTHER RECOURSE WHATSOEVER AGAINST A TRANSFEROR
OF SUCH SHARES. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED
IN THE CORPORATION'S AMENDED AND RESTATED ARTICLES OF INCORPORATION, A COPY OF
WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS.
THE CORPORATION WILL FURNISH TO THE REGISTERED HOLDER OF THIS
DEPOSITARY RECEIPT, UPON REQUEST AND WITHOUT CHARGE, A STATEMENT OF ALL THE
POWERS, DESIGNATIONS, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH
CLASS OF STOCK ISSUED BY THE CORPORATION AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR OTHER SPECIAL RIGHTS, AND A COPY OF THE
DEPOSIT AGREEMENT AND THE DESIGNATING AMENDMENT WITH RESPECT TO THE 8% SERIES D
REDEEMABLE PREFERRED SHARES. REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO THE
SECRETARY OF THE CORPORATION OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
-------------------------
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ________ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
Act______________
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ____________ HEREBY SELL(S), ASSIGN(S) AND TRANSFER(S) UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
____________ DEPOSITARY SHARES REPRESENTED BY THE WITHIN RECEIPT, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT ____________ ATTORNEY TO TRANSFER THE SAID
DEPOSITARY SHARES ON THE BOOKS OF THE WITHIN NAMED DEPOSITARY WITH FULL POWER OF
SUBSTITUTION IN THE PREMISES.
-24-
<PAGE>
DATED__________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: _______________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
-25-
Exhibit 4.4
[FORM OF FACE OF RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A 1/10 INTEREST IN ONE
8% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARE
OF
DR-____ DEPOSITARY SHARES
-----------------------------------
THIS CERTIFICATES IS TRANSFERABLE
IN CHARLOTTE, NORTH CAROLINA
OR IN NEW YORK CITY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 431284 50 4
[LOGO] HIGHWOODS PROPERTIES, INC.
(a Maryland corporation)
First Union National Bank, as Depositary (the "Depositary"), hereby
certifies that ____________________ is the registered owner of _________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/10
of one 8% Series D Cumulative Redeemable Preferred Share, $0.01 par value per
share, of Highwoods Properties, Inc., a Maryland corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement, dated as of April 23, 1998
(the "Deposit Agreement"), among the Corporation, the Depositary and the holders
from time to time of Receipts for Depositary Shares. By accepting this Receipt,
the holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.
Dated: FIRST UNION NATIONAL BANK,
Depositary, Registrar & Transfer Agent
By: ________________________
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS DEPOSITARY RECEIPT APPEAR
ON THE REVERSE SIDE.
-1-
<PAGE>
[FORM OF REVERSE RECEIPT]
HIGHWOODS PROPERTIES, INC.
THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF
ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF
1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN
EXCESS OF 9.8%OF THE OUTSTANDING CAPITAL STOCK OF THE CORPORATION. ANY PERSON
WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN EXCESS OF THE ABOVE
LIMITATION MUST IMMEDIATELY NOTIFY THE CORPORATION; ANY SHARES OF CAPITAL STOCK
SO HELD MAY BE SUBJECT TO MANDATORY REDEMPTION OR SALE IN CERTAIN EVENTS, AND
ACQUISITIONS OF SHARES OF CAPITAL STOCK IN EXCESS OF SUCH LIMITATION SHALL BE
VOID AB INITIO. A PERSON WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF THE
CORPORATION'S CAPITAL STOCK IN VIOLATION OF THE OWNERSHIP LIMITATIONS SET FORTH
IN SECTION 6.2 OF THE AMENDED AND RESTATED ARTICLES OF INCORPORATION SHALL HAVE
NO CLAIM, CAUSE OF ACTION, OR ANY OTHER RECOURSE WHATSOEVER AGAINST A TRANSFEROR
OF SUCH SHARES. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED
IN THE CORPORATION'S AMENDED AND RESTATED ARTICLES OF INCORPORATION, A COPY OF
WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS.
THE CORPORATION WILL FURNISH TO THE REGISTERED HOLDER OF THIS
DEPOSITARY RECEIPT, UPON REQUEST AND WITHOUT CHARGE, A STATEMENT OF ALL THE
POWERS, DESIGNATIONS, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH
CLASS OF STOCK ISSUED BY THE CORPORATION AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR OTHER SPECIAL RIGHTS, AND A COPY OF THE
DEPOSIT AGREEMENT AND THE DESIGNATING AMENDMENT WITH RESPECT TO THE 8% SERIES D
REDEEMABLE PREFERRED SHARES. REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO THE
SECRETARY OF THE CORPORATION OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
-------------------------
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ________ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
Act__________________
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ____________ HEREBY SELL(S), ASSIGN(S) AND TRANSFER(S) UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
____________ DEPOSITARY SHARES REPRESENTED BY THE WITHIN RECEIPT, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT ____________ ATTORNEY TO TRANSFER THE SAID
DEPOSITARY SHARES ON THE BOOKS OF THE WITHIN NAMED DEPOSITARY WITH FULL POWER OF
SUBSTITUTION IN THE PREMISES.
-2-
<PAGE>
DATED__________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: _______________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
-3-
Exhibit 4.5
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (the "Depositary"), to the
Issuer (as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of the
Depositary (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of the Depositary), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $200,000,000
CUSIP No: 431282 AF9
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
7 1/2% NOTE DUE APRIL 15, 2018
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP, a North Carolina limited
partnership (hereinafter called the "Issuer," which term shall include any
successor partnership or entity under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
upon presentation, the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000) on April 15, 2018, and to pay interest on the outstanding
principal amount thereon from April 15, 1998, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on April 15 and October 15, in each year, commencing October 15,
1998, at the rate of 7 1/2% per annum, until the entire principal amount hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be 15 calendar days (whether or not a
Business Day) preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, which shall not be more than 15 days and
not less than 10 days prior to the date of the proposed payment, notice whereof
shall be given to Holders not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon exchange, all as more fully provided in the Indenture. Payment
of the principal of and interest on this Note or the Redemption Price (as
defined below), if any, will be made at the Office or Agency of the Issuer
maintained for that purpose in the City of New York, State of New York,
currently located c/o First Union National Bank of New York, 40 Broad Street,
5th Floor, Suite 550,
-1-
<PAGE>
New York, New York 10004, or elsewhere as provided in the Indenture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Issuer payment of interest may be made by (i) check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register kept for the Notes pursuant to Section 305 of the Indenture
(the "Note Register") or (ii) transfer to an account of the Person entitled
thereto located inside the United States.
This Note is one of a duly authorized issue of securities of the Issuer (herein
called the "Notes"), issued and to be issued in one or more series under an
Indenture, dated as of December 1, 1996 (herein called the "Indenture"), among
the Issuer, Highwoods Properties, Inc. and First Union National Bank (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the Notes), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee, Highwoods Properties, Inc. and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated as the "7 1/2% Notes due April 15, 2018,"
limited in aggregate principal amount to $200,000,000.
The Notes will be redeemable, in whole or from time to time in part,
at the option of the Issuer on any date (a "Redemption Date"), at a redemption
price (the "Redemption Price") equal to the greater of (i) 100% of the principal
amount of the Notes to be redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of
interest accrued to such Redemption Date) discounted to such Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 25 basis points, plus, in either case, accrued and
unpaid interest on the principal amount being redeemed to such Redemption Date;
provided that installments of interest on Notes which are due and payable on an
Interest Payment Date falling on or prior to the relevant Redemption Date shall
be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Regular Record Date
according to their terms and the provisions of the Indenture.
The following definitions apply with respect to any redemption of
the Notes:
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, (i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or
(ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
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per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Independent Investment Banker" means Morgan Stanley & Co.
Incorporated or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee after consultation with the Issuer.
"Comparable Treasury Price" means with respect to any Redemption
Date for the Notes (i) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities Inc. and NationsBanc Montgomery Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Issuer will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
If notice has been given as provided in the Indenture and funds for
the redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of any Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the security
register for such Notes, not more than 60 nor less than 30 days prior to the
date fixed for redemption. The notice of redemption will specify, among other
items, the Redemption Price and the principal amount of the Notes held by such
Holder to be redeemed.
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The Issuer will notify the Trustee at least 60 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of such Notes to be redeemed and their
redemption date. If less than all of the Notes are to be redeemed at the option
of the Issuer, the Trustee shall select, in such manner as it shall deem fair
and appropriate, such Notes to be redeemed in whole or in part.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Issuer on this Note and (b) certain restrictive covenants
and the related defaults and Events of Default applicable to the Issuer, in each
case, upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall not
have received from the Holders of a majority in principal amount of the Notes of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement of
any payment of principal hereof or any interest on or after the respective due
dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note or the
Redemption Price of this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the Office
or Agency of the Issuer in any Place of Payment where the principal of and
interest on this Note or the Redemption Price of this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar for the Notes (the "Note
Registrar") duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Trustee or the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE OR INSTRUMENTS ENTERED INTO AND, IN EACH CASE, PERFORMED IN
SAID STATE.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed this 20th day of April, 1998.
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
By: Highwoods Properties, Inc., its General
Partner
By: ___________________________________________
Ronald P. Gibson
President and Chief Executive Officer
Attest:
By:__________________________
Edward J. Fritsch
Secretary
[SEAL]
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TRUSTEE' S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated "7 1/2% Notes due April
15, 2018" referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By: ____________________________
Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
................................................................................
(Please Print or Typewrite Name and Address, including
Zip Code, of Assignee)
................................................................................
the within Note of Highwoods/Forsyth Limited Partnership and ___________________
hereby does irrevocably constitute and appoint
................................................................................
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .........................................................................
Signature: .....................................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature
Guaranteed: ....................................................................
NOTICE Signature(s) must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
that is a member or participant in a "SIGNATURE GUARANTEE PROGRAM" (E.G., the
Securities Transfer Agents Medallion Program, the Stock Exchange Medallion
Program or the New York Stock Exchange, Inc. Medallion Signature Program).
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