THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE ASSIGNED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.
THE SECURITIES REPRESENTED BY THIS WARRANT ARE SUBJECT TO A REGISTRATION RIGHTS
AND LOCK-UP AGREEMENT DATED AS OF OCTOBER 1, 1997 (AS THE SAME MAY BE AMENDED,
MODIFIED OR SUPPLEMENTED, THE "REGISTRATION RIGHTS AGREEMENT"), A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND MAY BE OBTAINED UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
Warrant No.
Date of Issuance: October __, 1997
Right to Purchase ________ Shares of Common
Stock, $.01 par value per share, of Highwoods
Properties, Inc.
HIGHWOODS PROPERTIES, INC.
Common Stock Purchase Warrant
-----------------------------
Highwoods Properties, Inc., a corporation incorporated under the laws
of the State of Maryland (the "Company"), hereby certifies that, for value
received, __________ or assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time on or after
October 1, 2002, 10,000 fully paid and nonassessable shares of Common Stock,
$.01 par value per share, of the Company, at a purchase price per share of
$32.50 per share (such purchase price per share as adjusted from time to time as
herein provided is referred to herein as the "Purchase Price"). The number and
character of such shares of Common Stock and the Purchase Price are subject to
adjustment as provided herein.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company issued pursuant to that certain Master Agreement of Merger and
Acquisition (as the same may be amended, modified or supplemented, the "Merger
Agreement"), dated as of August 27, 1997, by and among the Company,
Highwoods/Forsyth Limited Partnership, Associated Capital Properties, Inc.
("ACP") and the shareholders of ACP, and subject to the Registration Rights
Agreement, copies of which agreements are on file at the principal office of the
Company, and the holder of this Warrant shall be entitled to all of the benefits
of the Registration Rights Agreement, as provided therein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include any corporation which
shall succeed to or assume the obligations of the Company under this Warrant.
(b) The term "Common Stock" includes the Company's Common
Stock, $.01 par value per share, as authorized on the date of the Merger
Agreement and any other securities into which or for which any of such Common
Stock may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The term "Fair Market Value" means, in any case in which
the Common Stock is publicly traded, the daily closing price per share of Common
Stock on the date of exercise of a Warrant. The closing price for any day shall
be the last sale price or, in case no sale takes place on such day, the average
of the closing bid and asked prices in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading; or, if not listed or admitted to trading on any national
securities exchange, the last quoted price (or, if not so quoted, the average of
the last quoted high bid and low asked prices) in the over-the-counter market,
as reported by the National Association of Securities Dealers Automated
Quotations System or such other system then in use; or, if on any such date no
bids are quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in such
security reasonably selected by the Board of Directors of the Company with
utmost good faith to the holder of this Warrant. If on any such date, no market
maker is making a market in the Common Stock, the Fair Market Value of such
security on such date shall be determined reasonably and with utmost good faith
to the holder of this Warrant by the Board of Directors of the Company. If the
Common Stock is not publicly held or not so listed or traded, "Fair Market
Value" shall mean the fair value per share determined reasonably and with utmost
good faith to the holder of this Warrant by the Board of Directors of the
Company.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised in full by
the holder hereof by surrender of this Warrant, with the form of subscription at
the end hereof duly executed by such holder, to the Company at its principal
office, accompanied by payment, in cash or by certified or official bank check
payable to the order of the Company, in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is then exercisable by
the Purchase Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised in part
by surrender of this Warrant in the manner and at the place provided in
Subsection 1.1 except that the amount payable by the holder on such partial
exercise shall be the amount obtained by multiplying (a) the number of shares of
Common Stock designated by the holder in the subscription at the end hereof by
(b) the Purchase Price then in effect. On any such partial exercise the Company
at its expense will immediately issue and deliver to or upon the order of the
holder hereof a new Warrant or Warrants
2
of like tenor, in the name of the holder hereof or as such holder may request,
calling in the aggregate on the face or faces thereof for the number of shares
of Common Stock for which such Warrant or Warrants may still be exercised.
1.3. Net Issue Election. The holder hereof may elect to
receive, without the payment by such holder of any additional consideration,
shares equal to the value of this Warrant or any portion hereof by the surrender
of this Warrant or such portion to the Company, with the form of subscription at
the end hereof duly executed by such holder, at the office of the Company.
Thereupon, the Company shall issue to such holder such number of fully paid and
nonassessable shares of Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to such holder pursuant to this
Subsection 1.3.
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Subsection 1.3.
A = the Fair Market Value of one share of Common Stock as of the date
on which the net exercise election is made pursuant to this Subsection 1.3.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Subsection 1.3.
1.4. Company Acknowledgment. The Company will, at the time of
the exercise of the Warrant, upon the request of the holder hereof, acknowledge
in writing its continuing obligation to afford to such holder any rights to
which such holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant and the Registration Rights
Agreement. If the holder shall fail to make any such request, such failure shall
not affect the continuing obligation of the Company to afford to such holder any
such rights.
1.5. Trustee for Warrant Holders. In the event that a bank or
trust company shall have been appointed as trustee for the holders of the
Warrants pursuant to Subsection 4.2, such bank or trust company shall have all
the powers and duties of a warrant agent appointed pursuant to Section 12 and
shall accept, in its own name for the account of the Company or such successor
person as may be entitled thereto, all amounts otherwise payable to the Company
or such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder may direct, a
certificate
3
or certificates for the number of fully paid and nonassessable shares of Common
Stock to which such holder shall be entitled on such exercise, plus, in lieu of
any fractional share to which such holder would otherwise be entitled, cash
equal to such fraction multiplied by the then current Fair Market Value of one
full share, together with any other stock or other securities and property
(including cash, where applicable) to which such holder is entitled upon such
exercise, pursuant to Section 1 or otherwise.
3. Adjustments.
(a) If the outstanding shares of Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be declared or distributed in respect of the Common Stock or the outstanding
shares of Common Stock shall be combined or reclassified into a smaller number
of shares, the Purchase Price in effect immediately after the record date for
such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the Purchase Price in effect immediately prior
thereto by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding immediately before such dividend, distribution,
subdivision, combination or reclassification, and of which the denominator shall
be the number of shares of Common Stock outstanding immediately after such
dividend, distribution, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event specified above shall
occur.
(b) If the Company shall fix a record date for the issuance of
rights, options, warrants or convertible or exchangeable securities to all
holders of Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share of Common Stock less than the Fair Market
Value per share of Common Stock on such record date, the Purchase Price shall be
adjusted immediately thereafter so that it shall equal the price determined by
multiplying the Purchase Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on such record date (plus the number of shares of Common Stock which
the aggregate offering price of the total number of shares of Common Stock so
offered would purchase at the Fair Market Value per share of Common Stock on
such record date), and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever such a record date is fixed. Notwithstanding
the foregoing, if the securities referred to in this Subsection 3(b) entitle the
holder on some future date or upon the happening of some future event to
subscribe for or purchase shares of Common Stock at a price per share less than
the Fair Market Value per share on such record date, then the Purchase Price
adjustment referred to above shall be made on such future date or upon the
happening of such future event. If this Warrant is exercised after such record
date but prior to such future time or the happening of such future event, the
holder of this Warrant shall receive upon the exercise hereof (in addition to
the number of shares of Common Stock set forth above, as adjusted, if necessary,
in accordance with the provisions hereof) such rights, options, warrants or
convertible or exchangeable securities that such holder would have been entitled
to receive if, immediately prior
4
to such record date, such holder had held the number of shares of Common Stock
which were then purchasable upon the exercise of this Warrant. To the extent
that any rights, options, warrants or convertible or exchangeable securities
referred to in this Subsection 3(b) are not so issued or expire unexercised, the
Purchase Price then in effect shall be readjusted to the Purchase Price that
would then be in effect if such unissued or unexercised rights, options,
warrants or convertible or exchangeable securities had not been issuable.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of shares of Common Stock (i) of shares of any
class other than Common Stock or (ii) of evidences of its indebtedness or (iii)
of assets (excluding cash dividends or distributions (other than extraordinary
cash dividends or distributions), and dividends or distributions referred to in
Subsection 3(a) hereof) or (iv) of rights, options, warrants or convertible or
exchangeable securities (excluding those rights, options, warrants or
convertible or exchangeable securities referred to in Subsection 3(b) hereof),
then in each such case the Purchase Price in effect immediately thereafter shall
be determined by multiplying the Purchase Price in effect immediately prior
thereto by a fraction, of which the numerator shall be the total number of
shares of Common Stock outstanding on such record date multiplied by the Fair
Market Value per share of Common Stock on such record date, less the aggregate
fair market value as determined in good faith by the Board of Directors of the
Company of said shares or evidences of indebtedness or assets or rights,
options, warrants or convertible or exchangeable securities so distributed, and
of which the denominator shall be the total number of shares of Common Stock
outstanding on such record date multiplied by the Fair Market Value per share of
Common Stock on such record date. Such adjustment shall be made successively
whenever such a record date is fixed. In the event that such distribution is not
so made, the Purchase Price then in effect shall be readjusted to the Purchase
Price which would then be in effect if such record date had not been fixed.
(d) In case the Company shall sell and issue Common Stock or
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock, for a
consideration consisting, in whole or in part, of property (other than cash) or
services or its equivalent, then in determining the "price per share of Common
Stock" referred to in Subsection 3(b) above, the Board of Directors of the
Company shall determine, in good faith and on a reasonable basis, the fair value
of said property.
(e) When any adjustment is required to be made in the Purchase
Price as a result of the operation of Subsections 3(a), 3(b) or 3(c) hereof, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(f) If there shall occur any capital reorganization or
reclassification of or other change in the Common Stock (other than a change in
par value or a subdivision or combination as provided for in Subsection 3(a)
above), or any consolidation or merger of the Company with or into
5
another entity (other than a merger or consolidation in which the Company is the
surviving corporation and which does not result in any reclassification of the
outstanding shares of Common Stock or the conversion of such outstanding shares
of Common Stock into shares of other stock or other securities or property), or
a transfer of all or substantially all of the assets of the Company then, as
part of any such reorganization, reclassification, consolidation, merger or
transfer, as the case may be, lawful provision shall be made so that the holder
of this Warrant shall receive upon the exercise hereof the kind and amount of
shares of stock or other securities or property which such holder would have
been entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger or transfer as the case may be, such
holder had held the number of shares of Common Stock which were then purchasable
upon the exercise of this Warrant, provided that, in all cases, appropriate
adjustment (as reasonably determined in good faith by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the holder of this
Warrant, such that the provisions set forth in this Section 3 (including
provisions with respect to adjustment of the Purchase Price) shall thereafter be
applicable, as nearly as is reasonably practicable, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant, and in the case of any consolidation or merger, the successor
or acquiring entity (if other than the Company) shall expressly assume the due
and punctual observance and performance of each and every provision of this
Warrant.
4. No Dilution or Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
5. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause
independent certified public accountants of recognized standing selected by the
Company to compute such adjustment or readjustment in accordance with the terms
of the Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock
6
issued or sold or deemed to have been issued or sold, (b) the number of shares
of Common Stock outstanding or deemed to be outstanding, and (c) the Purchase
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder a
like certificate setting forth the Purchase Price at the time in effect and
showing how it was calculated.
6. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of
any class or securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution
(excluding cash dividends or distributions (other than extraordinary
cash dividends or distributions)), or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company to or consolidation or merger of the Company with or into any
other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable on such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or other securities,
or rights or options with respect thereto, proposed to be issued or granted, the
date of such proposed issue or grant and the persons or class of persons to whom
such proposed issue or grant is to be offered or made. Such notice shall be
mailed at least ten (10) days prior to the date specified in such notice on
which any such action is to be taken. Failure to mail such notice or any defect
therein shall not affect the validity of any such action.
7. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
7
8. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face or faces of the Warrant or Warrants so surrendered.
9. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
10. Warrant Agent. The Company may, by written notice to each holder of
a Warrant, appoint an agent for the purpose of issuing Common Stock on the
exercise of the Warrants pursuant to Section 1, exchanging Warrants pursuant to
Section 8, and replacing Warrants pursuant to Section 9, or any of the
foregoing, and thereafter any such issuance, exchange or replacement, as the
case may be, shall be made at such office by such agent.
11. Negotiability, etc. This Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof consents
and agrees:
(a) title to this Warrant may be transferred by: (i)
endorsement (by the holder hereof executing the form of assignment at
the end hereof) and (ii) delivery in the same manner as in the case of
a negotiable instrument transferable by endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed
is authorized to represent himself as absolute owner hereof and is
empowered to transfer absolute title hereto by endorsement and delivery
hereof to a bona fide purchaser hereof for value; each prior taker or
owner waives and renounces all of his equities or rights in this
Warrant in favor of each such bona fide purchaser, and each such bona
fide purchaser shall acquire absolute title hereto and to all rights
represented hereby; and
(c) until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to
the contrary.
12. Notices, etc. All notices and other communications from the Company
to the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, or by Federal Express or other recognized
overnight courier, to such address as may have been furnished to the Company in
writing by such holder or, until any such holder furnishes to the Company an
8
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
13. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of North Carolina. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an instrument
under seal. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
Dated: October __, 1997 HIGHWOODS PROPERTIES, INC.
By: _______________________________________
Name: Mack D. Pridgen, III
Title: Vice President and General Counsel
9
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO HIGHWOODS PROPERTIES, INC.:
The undersigned, the holder of the within Warrant, hereby elects
to exercise all or a portion of this Warrant for, and to purchase thereunder,
.......... shares of Common Stock of Highwoods Properties, Inc. and herewith
either (a) makes payment of $......... therefor, or (b) elects to exercise this
Warrant in the amount indicated on a net basis, and in any event, requests that
the certificates for such shares be issued in the name of, and delivered to
................, whose address is
.................................
Dated: ........................
(Signature must conform to name of holder as
specified on the face of the Warrant)
............................................
(Address)
10
------------------------
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto .............. the right represented by the within Warrant to
purchase ................. shares of Common Stock of Highwoods Properties, Inc.
to which the within Warrant relates, and appoints ........................,
Attorney to transfer such right on the books of Highwoods Properties, Inc. with
full power of substitution in the premises.
Dated: ........................
(Signature must conform to name of holder as
specified on the face of the Warrant)
............................................
(Address)
Signed in the presence of:
....................................
11