As filed with the Securities and Exchange Commission on
December 23, 1994
Registration No. 33- 54765
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KOGER EQUITY, INC.
(Exact name of issuer as specified in its charter)
FLORIDA 59-2898045
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3986 BOULEVARD CENTER DRIVE, JACKSONVILLE, FLORIDA 32207
(904) 398-3403
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
VICTOR A. HUGHES, JR. W. LAWRENCE JENKINS
Senior Vice President and Secretary
Chief Financial Officer 3986 Boulevard Center Drive
3986 Boulevard Center Drive Jacksonville, Florida 32207
Jacksonville, Florida 32207 904/398-3403
904/398-3403
Name, address and telephone number, including area code of
agents for service)
Copies to:
HAROLD F. McCART, Jr., ESQUIRE
Boling & McCart
(a professional association)
Suite 700, 76 South Laura Street
Jacksonville, Florida 32202
904/354-6543
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effective date of this
Registration Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
Continuation of Cover Page of Form S-3
CALCULATION OF REGISTRATION FEE
Title of Maximum Unit Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered Security Price Fee
Warrants to
Purchase
Shares of
Common
Stock, Par
Value $.01
per share 472,131 (1) (1) (1)
Shares of
Common
Stock, Par
Value $.01
per share
issuable
upon
exercise of
Warrants 472,131 (2) $8.00(3) $3,777,048 $1,303
Total . . . . . $1,303
(1) No fee is required with respect to the Warrants
pursuant to Rule 457(g).
(2) Shares of Common Stock issuable upon exercise of
the Warrants may be increased pursuant to anti-
dilution provisions. The Registration Statement
also covers any such increased number pursuant to
Rule 416 under the Securities Act of 1933, as
amended.
(3) The exercise price of the Warrants.
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to
delay its effective date until the Registrant shall
file a further amendment which specifically states that
this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 22, 1994
PROSPECTUS
472,131 Warrants
to Purchase
472,131 Shares
of
Common Stock
KOGER EQUITY, INC.
Koger Equity, Inc. (the "Company") is an equity real estate
investment trust ("REIT") which invests in suburban office centers
located in the Southeast and Southwest containing buildings for lease
as office space to others. See "The Company."
The Warrants to purchase the Company's Shares of Common Stock, par
value $.01 per Share (the "Warrants" and the "Shares", respectively),
which are the subject of this Registration Statement, evidence the
right to purchase Shares at a price of $8.00 per Share through June 30,
1999, unless earlier redeemed in accordance with their terms. The
Warrants will be listed as part of a class of warrants having the same
terms as warrants currently listed for trading on the American Stock
Exchange ("ASE") under the symbol "KE.WS" (the "Outstanding Warrants").
On December 21, 1994, the last reported sale price of the Outstanding
Warrants as reported by the ASE was $2 3/16 per warrant.
The Warrants are redeemable at prices ranging from $2.31 to $5.24.
The Shares are also listed on the ASE under the symbol "KE." On
December 21, 1994, the last reported sale price of the Shares as
reported by the ASE was $7 1/4 per share.
For information concerning the distribution of the Warrants, see
"The Settlement."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED
ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESEN-
TATION TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
Koger Equity, Inc. (the "Company") has filed with the
Securities and Exchange Commission (the "Commission"),
Washington, D.C. 20549, a Registration Statement on Form S-3
(herein together with all amendments and exhibits referred to as
the "Registration Statement") under the Securities Act of 1933,
as amended, with respect to the Warrants and the Shares to which
this Prospectus relates. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain
all of the information set forth in the Registration Statement.
For further information with respect to the Company and the
Warrants and the Shares to which this Prospectus relates,
reference is made to the Registration Statement, including the
exhibits thereto, which may be obtained from the Commission's
principal office in Washington, D.C., upon payment of the fees
prescribed by the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document
referred to herein are not necessarily complete and in each
instance reference is made to the copy of such contract or
document filed as an exhibit to the Registration Statement filed
with the Commission, each statement being qualified in all
respects by such reference.
The Company is subject to the information reporting
requirements of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act"), and in accordance therewith files reports
and other information with the Commission. Reports, proxy and
information statements and other information filed by the
Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices in New York at 75 Park Place, New
York, New York 10007 and Chicago at Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661,
and copies of such material can be obtained at prescribed rates
from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Warrants and the
Shares are listed on the American Stock Exchange, and in
connection therewith the Company files reports with the American
Stock Exchange, which reports, along with other information
concerning the Company, are available for inspection at 86
Trinity Place, New York, New York 10006-1881.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents listed below have been previously
filed by the Company with the Commission under the Exchange Act
(File No. 1-9997) and are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, filed pursuant to Section 13 of the
Exchange Act.
<PAGE>
(2) Quarterly Reports on Form 10-Q for periods ended March
31, 1994, June 30, 1994 and September 30, 1994, filed
pursuant to Section 13 of the Exchange Act.
(3) Current Report on Form 8-K, dated January 3, 1994, as
amended by Current Report on Form 8-K\A, dated March 4,
1994, filed pursuant to Section 13 of the Exchange Act.
(4) Current Report on Form 8-K, dated May 10, 1994, filed
pursuant to Section 13 of the Exchange Act.
(5) Current Report on Form 8-K, dated August 19, 1994,
filed pursuant to Section 13 of the Exchange Act.
(6) Definitive proxy statement, dated April 8, 1994, filed
pursuant to Section 14 of the Exchange Act relating to
its Annual Meeting held on May 10, 1994.
(7) Description of the Shares contained in the Company's
registration statement filed pursuant to Section 12(b)
of the Exchange Act and any amendment thereto or
reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the termination of the offering made hereby shall be deemed
incorporated by reference into this Prospectus and to be a part
hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
such a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement as modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to
whom a Prospectus is delivered, upon written or oral request of
such person, a copy of any or all of the documents incorporated
by reference in the Registration Statement (other than exhibits
to such documents unless such exhibits are specifically
incorporated by reference into the documents that the
Registration Statement incorporates). Requests for such copies
should be directed to W. Lawrence Jenkins, Corporate Secretary,
Koger Equity, Inc., 3986 Boulevard Center Drive, Jacksonville,
Florida 32207, telephone number (904) 398-3403.
<PAGE>
THE COMPANY
Koger Equity, Inc. (the "Company") is a self-administered
and self-managed equity real estate investment trust (a "REIT")
which owns and manages suburban office centers in the
southeastern and southwestern regions of the United States.
Koger Properties, Inc. ("KPI"), a pioneer in the development of
office centers, developed and constructed all of the office
centers owned by the Company and certain office buildings owned
by third parties, which are managed by the Company. KPI was
merged into and became a part of the Company on December 21,
1993 (the "Merger"). The Company provides leasing and
management services for its own office centers and for certain
office buildings owned by third parties. As of September 30,
1994, the Company owned 219 office buildings in 21 office
centers located in 16 metropolitan areas in the Southeast and
Southwest. In addition, the Company then owned 230 acres of
unimproved land for development and held 65 acres of unimproved
land for sale.
Koger Equity, Inc. was organized in 1988 for the purpose of
investing in office buildings located in suburban office centers
throughout the southeastern and southwestern United States. In
1988 and 1989, Koger Equity, Inc. offered and sold shares of its
Common Stock, $.01 par value per share (the "Shares"), in two
public offerings. Koger Equity, Inc. used the proceeds of such
public offerings to purchase its initial properties from KPI, a
real estate development company and the sponsor of Koger Equity,
Inc. Thereafter, Koger Equity, Inc. acquired other buildings
from KPI and its affiliates, with the last such acquisition of
buildings occurring on December 21, 1993 as the result of the
Merger. All of the buildings acquired by Koger Equity, Inc.
from KPI were developed by KPI.
The Merger was the culmination of extensive negotiations
among the managements of Koger Equity, Inc. and KPI and the
creditors of KPI and the resolution of a bankruptcy case filed
on behalf of KPI on September 25, 1991 under Chapter 11 of the
United States Bankruptcy Code. Upon consummation of the Merger,
Koger Equity, Inc. succeeded to substantially all of the assets
of KPI, which included primarily 93 office buildings, 295 acres
of land and 1,781,419 Shares held by KPI.
In connection with the Merger, the Company issued
(a) 6,158,977 Shares, or approximately 35% of the shares
outstanding after the Merger, to unsecured creditors of KPI and
(b) warrants to purchase 644,000 Shares at an exercise price of
$8.00 per share until June 30, 1999, unless earlier redeemed
(the "Outstanding Warrants"), to the shareholders of KPI and
the holders of certain securities law claims against KPI.
A subsidiary of the Company is the managing general partner
of The Koger Partnership, Ltd., a publicly-held limited
partnership ("TKP"), which as of September 30, 1994 owned 92
office buildings located in seven office centers. Through its
subsidiaries, the Company provides property management services
for TKP's buildings and for a limited number of buildings
located in office centers owned by third parties. The Company
owns 32% of the partnership interests in TKP. However, the
Company has determined that its investment in TKP has no value.
Tax Status of the Company
The Company has elected to be taxed as a REIT under
Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (collectively with any predecessor statutes, the
"Code"), since the inception of Koger Equity, Inc. in 1988. As
a REIT, the Company generally will not be subject to federal
income tax on that portion of its ordinary income or capital
gains that is currently distributed to shareholders so long as
it distributes at least 95% of its REIT taxable income each
year. REITs are subject to a number of organizational and
operational requirements. The Company's tax returns have not
been examined by the Internal Revenue Service. If the Company
were to fail to qualify as a REIT in any taxable year, the
Company would be subject to federal income tax (including any
applicable alternative minimum tax) on its taxable income at
regular corporate rates. Even as a REIT, the Company may be
subject to certain state and excise taxes on its undistributed
income and certain other categories of income.
THE SETTLEMENT
The Warrants which are the subject of this prospectus have
the same terms as those which were issued to the former
shareholders of KPI in connection with the Merger and the
holders of certain securities law claims against KPI (the
"Outstanding Warrants") and are being issued, pursuant to the
terms of a court approved settlement agreement (the "Settlement
Agreement"), to the Plaintiffs in Best v. Koger Equity, Inc., et
al. (the "Best Case"), a case which was pending in the United
States District Court for the Middle District of Florida.
The Warrants will be issued, in escrow, to the attorneys
for the plaintiffs in the Best Case who will be the record
holder of the Warrants pending their sale or distribution to
claimants in the Best Case. Plaintiffs' counsel may retain a
corporate financial advisor who shall be authorized to analyze
the Warrants as to their terms and structure and to sell the
Warrants, or any portion of them, if such advisor determines
that the value of the assets available for distribution to
claimants will be best preserved or enhanced by such sale(s).
USE OF PROCEEDS
As the Warrants will be issued in connection with the
settlement of litigation, the Company will realize no proceeds
upon the issuance and distribution of the Warrants (see "The
Settlement"). Although the amount of proceeds which the Company
will realize from the exercise of the Warrants and when it will
receive such proceeds cannot be estimated at this time, assuming
that the Warrants are not redeemed by the Company and all of the
Warrants are exercised, of which there can be no assurance, the
Company would receive $3,777,048 from the exercise of the
Warrants. To the extent permitted under its debt agreements,
any proceeds received by the Company from the exercise of the
Warrants would be used for working capital and general corporate
purposes.
DESCRIPTION OF SECURITIES
Common Stock
The authorized capital stock of the Company consists of
100,000,000 Shares of Common Stock, par value $.01 per share,
(the "Shares"), of which 17,597,558 Shares were issued and
outstanding as of September 30, 1994, excluding 2,874,400 Shares
held by the Company as treasury stock and 643,619 Shares reserved
for issuance upon exercise of the Outstanding Warrants and
2,199,900 Shares reserved for issuance pursuant to employee stock
option and investment plans.
The Shares issued in connection with the exercise of the
Warrants, which are the subject of this Prospectus, will, when
issued, be fully paid and non-assessable and no personal
liability will attach to the holder of such Shares. The holders
of Shares will be entitled to one vote per Share on all matters
as to which votes of the shareholders of the Company are
solicited, including election of directors. No holder of the
Shares will have any preemptive right to subscribe for any
additional securities. All holders of the Shares shall also share
ratably in any dividends on the Shares of Common Stock legally
declared by the Board of Directors of the Company and paid by the
Company.
Two of the requirements for qualification as a REIT are
that (i) at any time during the last half of each taxable year
not more than 50% in value of the outstanding shares may be owned
by five or fewer individuals and (ii) there must be at least 100
Shareholders on 335 days of each taxable year of 12 months. In
order to meet these requirements the Articles of Incorporation of
the Company empower the Board of Directors to redeem, at its
option, a sufficient number of Shares or to restrict the transfer
thereof to bring or maintain the ownership of the Shares into
conformity with the requirements of the Code. The Articles of
Incorporation provide that the Directors may exercise this right
at any time the Directors believe the tax status of the Company
is jeopardized, including when a holder has in excess of 9.8% of
the Company's outstanding Shares. The redemption price to be paid
will be the fair market value as reflected in the latest
quotations, or, if no quotations are available, the price of the
Shares as determined by the Board of Directors in accordance with
the provisions of applicable law. The Board of Directors has
agreed to waive the transfer and redemption restrictions
contained in the Articles of Incorporation with respect to the
Shares held by TCW Special Credits, a California general
partnership, TCW Group, Inc. and their affiliates ("TCW"). The
Board of Directors of the Company has determined that the waiver
of these provisions for TCW will not jeopardize the Company's
status as a REIT. Thomas K. Smith, Jr., a director of the
Company, is an Assistant Vice President of Trust Company of the
West and TCW Asset Management Company, wholly owned subsidiaries
of TCW Group, Inc. TCW, in the aggregate, held approximately
18.8% of the outstanding Shares at September 30, 1994.
Each shareholder will be required upon demand to disclose
to the Board of Directors in writing such information with
respect to direct and indirect beneficial ownership of Shares as
the Board of Directors deems necessary to comply with provisions
of the Code applicable to the Company, or to comply with the
requirements of any other taxing authority or governmental entity
or agency.
The foregoing provisions may have the effect of
discouraging tender offers or other takeover proposals. Such
provisions do not apply to cash tender offers in which two-thirds
of the outstanding Shares are tendered and accepted for cash. In
view of the importance to the Company of the tax treatment of the
Company as a REIT, the Board of Directors believes that such
provisions are necessary.
Rights Plan. On September 30, 1990, the Company's Board of
Directors adopted a Shareholder Rights Plan (the "Rights Plan")
pursuant to which were issued Common Stock Purchase Rights (the
"Rights"). Under the Rights Plan one Right was issued for each
outstanding Share held as of October 1, 1990, and a Right
attached to each Share issued thereafter and will be attached to
each Share issued in the future. The Rights authorize the holders
to purchase Shares at a price below market upon the occurrence of
certain events, including, unless approved by the Company's Board
of Directors acquisition by a person or group of certain levels
of beneficial ownership of the Shares or a tender offer for the
Shares. The Rights are redeemable by the Company for $.01 and
expire September 30, 2000. One of the events which will trigger
the Rights is the acquisition by a person other than an Exempt
Person, as defined in the Rights Plan, the Company or any of its
subsidiaries or its employee benefit plans of 15% or more of the
outstanding Shares. As of September 30, 1994, TCW was the only
Exempt Person under the Rights Plan.
Certain Provisions of Florida Law. The Company is subject
to several anti-takeover provisions under Florida law. These
provisions permit a corporation to elect to opt out of such
provisions in its Articles of Incorporation or (depending on the
provision in question) its Bylaws. The Company has not elected to
opt out of these provisions. The Florida Business Corporation Act
(the "Florida Act") contains a provision that prohibits the
voting of shares in a publicly-held Florida corporation which are
acquired in a "control share acquisition" unless the holders of a
majority of the corporation's voting shares (exclusive of shares
held by officers of the corporation, inside directors or the
acquiring party) approve the granting of voting rights as to the
shares acquired in the control share acquisition. A control share
acquisition is defined as an acquisition that immediately
thereafter entitles the acquiring party to vote in the election
of directors within each of the following ranges of voting power:
(i) one-fifth or more but less than one-third of such voting
power, (ii) one-third or more but less than a majority of such
voting power and (iii) a majority or more of such voting power.
The Florida Act also contains an "affiliated transaction"
provision that prohibits a publicly-held Florida corporation from
engaging in a broad range of business combinations or other
extraordinary corporate transactions with an "interested
shareholder" unless (i) the transaction is approved by a
majority of disinterested directors before the person becomes an
interested shareholder, (ii) the interested shareholder has
owned at least 80% of the corporation's outstanding voting
shares for at least five years, or (iii) the transaction is
approved by the holders of two-thirds of the corporation's
voting shares other than those owned by the interested
shareholder. An interested shareholder is defined as a person
who together with affiliates and associates beneficially owns
more than 10% of the corporation's outstanding voting shares. A
transaction with TCW would be an "affiliated transaction" under
the Florida Act thereby requiring the approval of the holders of
two-thirds of the outstanding Shares other than those held by
TCW.
Warrants
The Warrants will be issued pursuant to an Amended and
Restated Warrant Agreement (the "Warrant Agreement") between the
Company and First Union National Bank of North Carolina, as
Warrant Agent. Each Warrant will entitle the holder thereof to
acquire, through June 30, 1999, one Share upon tender of the
exercise price of $8.00 per Share (the "Exercise Price").
Each Warrant will be redeemable by the Company, in its sole
option and discretion, upon tender of the redemption price,
which ranges from $2.31 to $5.24. Anti-dilution provisions in
the Warrant Agreement provide for adjustment of the Exercise
Price and the number of Shares which can be purchased upon
exercise thereof to prevent dilution of their value upon
occurrence of certain events. No fractional Shares will be
issued upon the exercise of Warrants; the Company will make a
cash adjustment for any fractional Shares otherwise issuable.
The holders of Warrants are not entitled to any of the rights of
holders of Shares.
As of September 30, 1994, there were then Outstanding
Warrants to purchase an aggregate of 642,931 Shares. The terms
of the Outstanding Warrants are identical in all respects with
those of the Warrants which are the subject of this prospectus
(see "The Company" and "The Settlement"). The Outstanding
Warrants are, and the Warrants to be issued will be, traded on
the basis of one Warrant as representing the right to purchase
one Share.
A complete statement of the terms and conditions pertaining
to the Warrants is contained in the Warrant Agreement between
the Company and the Warrant Agent, a copy of which may be
examined at the office of the Company and is filed as an exhibit
to the Registration Statement. Fees and reasonable expenses of
the Warrant Agent will be borne by the Company.
Preferred Stock
The Company is authorized to issue up to 50,000,000 shares
of preferred stock, par value $.01 per share, including
convertible preferred stock, in such series with such
preferences and rights as the Company's Board of Directors may
determine. The Company has no shares of preferred stock
outstanding.
General
The Warrant Agent for the Warrants and transfer agent and
registrar of the Shares is First Union National Bank of North
Carolina, 230 South Tryon Street, Charlotte, North Carolina
28288-1154, Attention: Shareholder Services Group.
The Company sends to its warrantholders and shareholders
annual reports including financial statements audited by
independent public accountants and quarterly unaudited interim
financial reports.
LEGAL OPINIONS
The validity of the securities offered hereby will be
passed upon for the Company by Boling & McCart, a professional
association, Seventy-Six South Laura Street, Suite Seven
Hundred, Jacksonville, Florida 32202.
EXPERTS
The consolidated financial statements and the related
financial statement schedules incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the
three year period ended December 31, 1993 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, which report
expresses an unqualified opinion and includes an explanatory
paragraph referring to an uncertainty pertaining to pending
litigation, which has been settled and the settlement approved
by the court, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in
accounting and auditing.
With respect to the unaudited interim financial information
for the periods ended March 31, 1994 and 1993, June 30, 1994 and
1993 and September 30, 1994 and 1993 which is incorporated
herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for a
review of such information. However, as stated in their report
included in the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1994, June 30, 1994 and September 30,
1994 and incorporated by reference herein, which includes an
explanatory paragraph referring to an uncertainty pertaining to
pending litigation, which has been settled and the settlement
approved by the court, they did not audit and they do not
express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such
information should be restricted in light of the limited nature
of the review procedures applied. Deloitte & Touche LLP are not
subject to the liability provisions of Section 11 of the
Securities Act of 1933 for their report on the unaudited interim
financial information because that report is not a "report" or a
"part" of the registration statement prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Act.
<PAGE>
472,131 WARRANTS
to Purchase
472,131 SHARES
KOGER EQUITY, INC.
KOGER EQUITY, INC.
Warrants
and
Shares
of
Common Stock
(par value $.01 per share)
TABLE OF CONTENTS
Page
Available Information. . . . . 2 PROSPECTUS
Incorporation of Certain
Documents by Reference . . . 2
The Company. . . . . . . . 4
The Settlement . . . . . . 5 , 1994
Use of Proceeds. . . . . . . . 5
Description of the
Securities . . . . . . . ....6
Legal Opinions . . . . . . . 9
Experts. . . . . . . . . . . 9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
(Estimated):
SEC registration filing fee* ........................ $ 1,303
Blue Sky fees and expenses** ........................ 10,000
Printing and engraving costs** ...................... 8,200
Legal fees and expenses** ........................... 25,000
Accounting fees and expenses** ...................... 5,100
Miscellaneous** ..................................... 397
Total ............................................... $50,000
* Actual fee
Item 15. Indemnification of Directors and Officers.
The Company's Articles of Incorporation provide that the
Company shall indemnify its officers and directors to the
fullest extent permitted by the General Corporation Law of the
State of Florida (predecessor statute to the Florida Business
Corporate Act) as now or hereafter in force, including the
advance of expenses and reasonable counsel fees.
Section 93 of the Florida Business Corporation Act (Florida
Statutes Section 607.0850) provides that a director, officer,
agent and employee of a corporation or its subsidiaries or other
affiliates may be indemnified under certain conditions by the
corporation against expenses, including attorney's fees,
actually and reasonably incurred in connection with the defense
or settlement of an action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which he becomes a
party because he was such director, officer, agent or employee,
including expenses reasonably incurred in settlement of any of
the aforesaid matters, if the board of directors by a majority
vote of a quorum consisting of directors who were not parties to
the proceeding determine that the person seeking indemnification
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation.
Section 607.0850 also provides that the indemnification
provided pursuant to the above provisions are not exclusive, and
a corporation may make any other further indemnification of any
of its directors, officers, employees, or agents, under any by-
law, agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
However, indemnification shall not be made to or on behalf of
any director, officer, employee, or agent if a judgment or other
final adjudication establishes that his actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to
believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer,
employee or agent derived an improper personal
benefit;
(c) In the case of a director, a circumstance under which
certain liability provisions relating to the payment
of dividends and asset distributions are applicable;
or
(d) Willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by
or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the
right of a shareholder.
In addition, the Company carries directors and officers
liability insurance.
Item 16. Exhibits
Exhibit Number Description
4(a) Amended and Restated Articles of Incorporation
of Koger Equity, Inc. Incorporated by reference
to Exhibit 3(a) to Form 8-K Report dated May 10,
1994 (File No.1-9997).
4(b) By-Laws of Koger Equity, Inc. Incorporated by
reference to Exhibit 3(b) to a Form 8-K Report,
dated April 21, 1993, (File No. 1-9997).
4(c) Form of Common Stock Certificate of Koger
Equity, Inc. Incorporated by reference to
Exhibit 4(a) to Form S-11 registration Statement
No. 33-22890.
4(d)(1) Koger Equity, Inc. Common Stock Rights
Agreement, dated as of September 30, 1990.
Incorporated by reference to Exhibit 1 to Form
8-A Registration Statement, dated October 3,
1990, (File No. 1-9997).
4(d)(2) First Amendment to Koger Equity, Inc. Common
Stock Rights Agreement, dated as of March 27,
1993. Incorporated by reference to Exhibit 4 to
Form 8-A/A Registration Statement, dated
December 21, 1993 (File No. 1-9997).
4(d)(3) Second Amendment to Koger Equity, Inc. Common
Stock Rights Agreement, dated as of December
21, 1993. Incorporated by reference to Exhibit 5 to Form 8-A/A
Registration Statement, dated December 21, 1993 (File No.
1-9997).
4(e)(1)* Amended and Restated Warrant Agreement dated as
of December 22, 1994
4(e)(2) Form of Warrant is filed as part of Exhibit
4(e)(1) and is incorporated by reference
herein.
4(e)(3) Warrant Agreement dated as of December 21, 1993
between the Company and First Union (the
"Warrant Agreement"). See Exhibit 2 to an
Amendment on Form 8-A/A to a Registration
Statement on Form 8-A dated December 21, 1993
(File No. 1-9997), which Exhibit is herein
incorporated by reference.
5 * Opinion of Counsel.
15 * Deloitte & Touche LLP letter regarding
unaudited interim financial information.
23(a) * Consent of Independent Certified Public
Accountants.
23(b) * Consent of Attorneys, counsel to Registrant.
24 Powers of Attorney (set forth on page II-5).
* Filed herewith.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 (the "Act") may be permitted to
directors and officers and controlling persons of the Company
pursuant to the provisions referred to in Item 15 of this
Registration statement or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim
against the Company for indemnification against such liability
(other than the payment by the Company of expenses incurred or
paid by a director or officer of the Company in the successful
defense of any action, suit or proceeding) is asserted by a
director or officer or controlling person in connection with the
securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether or not such indemnification by it is against
public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City
of Jacksonville, State of Florida, the 22 day of December, 1994.
KOGER EQUITY, INC.
By: S/W. Lawrence Jenkins
W. Lawrence Jenkins
Vice President and Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment to the Registration Statement has been signed
below pursuant to a power of attorney by the following person in the
capacities and on the date indicated. Each person whose conformed
signature appears below has heretofore authorized W. Lawrence Jenkins,
as Attorney-in-Fact, to sign on his behalf individually and in each
capacity stated below, and to file any amendments, including Post
Effective Amendments, to this Registration Statement.
Signature Title Date
S. D. Stoneburner* Chairman of the Board of
(S. D. Stoneburner) Directors and Director
Irvin H. Davis* President and Director
(Irvin H. Davis) (Principal Executive Officer)
Victor A. Hughes, Jr.* Senior Vice President and
(Victor A. Hughes, Jr.) Director (Principal Financial
Officer)
James L. Stephens* Treasurer (Principal Accounting
(James L. Stephens) Officer)
December 22, 1994
D. Pike Aloian* Director
(D. Pike Aloian)
Benjamin C. Bishop, Jr.* Director
(Benjamin C. Bishop, Jr.)
Charles E. Commander* Director
(Charles E. Commander)
David B. Hiley* Director
(David B. Hiley)
G. Christian Lantzsch* Director
(G. Christian Lantzsch)
Thomas K. Smith, Jr.* Director
(Thomas K. Smith, Jr.)
George F. Staudter* Director *By:S/W. Lawrence Jenkins
(George F. Staudter) W. Lawrence Jenkins
Attorney-in-Fact
<PAGE>
Exhibit No. 5
BOLING & McCART
A PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
HAROLD F. McCART, JR.* SUITE SEVEN HUNDRED TELEPHONE
CORPORATION & BUSINESS LAW SEVENTY-SIX SOUTH LAURA STREET (904) 354-6543
SECURITIES LAW JACKSONVILLE, FLORIDA 32202
JOHN L. BOLING
WILLS, ESTATES &
ESTATE PLANNING
*ALSO MEMBER OF GEORGIA BAR December 22 , 1994
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, Florida 32207
Re: Koger Equity, Inc.
Registration Statement on Form S-3
File No. 33-54763
Dear Sirs:
We have acted as counsel for Koger Equity, Inc., a Florida corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement (File No. 33-54763) on the Commission's
Form S-3 (the "Registration Statement"), for the purpose of registering the
offering and sale of up to 472,131 warrants (the "Warrants") to purchase
until June 30, 1999, unless sooner redeemed, at a per share exercise price of
$8.00, 472,131 shares of the Company's Common Stock, par value $.01 per
share, (the "Shares").
In acting as such counsel, we have examined and relied upon the originals
or copies, certified or otherwise identified to our satisfaction, of such
Company records, documents, certificates, and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinions
expressed below. Based upon the foregoing, and such examination of law as
we have deemed necessary, we are of the opinion that:
1. The Company is a corporation organized under the laws of the State
of Florida and its status in that state is active.
2. The Warrants issuable by the Company have been authorized and when
issued will be validly issued securities of the Company entitled to
the benefits of the Warrant Agreement pursuant to which they will
be issued.
3. The Shares issuable by the Company upon exercise of the Warrants
have been authorized and, when sold, will be validly issued, fully
paid and non-assessable.
We consent to the use of this letter as an Exhibit to the Registration
Statement and to the use of our name under the heading "Legal Opinions"
included in the Prospectus forming a Part I of the Registration Statement.
Very truly yours,
Boling & McCart
<PAGE>
Exhibit No. 15
December 22, 1994
Koger Equity, Inc.
Jacksonville, Florida
We have made a review, in accordance with standards established
by the American Institute of Certified Public Accountants, of the
unaudited interim financial information of Koger Equity, Inc. and
subsidiaries for the periods ended March 31, 1994 and 1993, June
30, 1994 and 1993 and September 30, 1994 and 1993, as indicated
in our reports dated May 6, 1994, August 3, 1994 and November 4,
1994, respectively, which include an explanatory paragraph
relating to an uncertainty pertaining to pending litigation,
which has been settled and the settlement approved by the court;
because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which were
included in your Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994, are
being used in this Amendment No. 1 to Registration Statement No.
33-54765.
We also are aware that the aforementioned reports, pursuant to
Rule 436(c) under the Securities Act of 1933, are not considered
a part of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
<PAGE>
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
Koger Equity, Inc.
We consent to the incorporation by reference in this
Amendment No. 1 to Registration Statement No. 33-54765 of Koger
Equity, Inc. on Form S-3 of our report dated March 4, 1994, which
expresses an unqualified opinion and includes an explanatory
paragraph relating to an uncertainty pertaining to pending
litigation, which has been settled and the settlement approved by
the court, appearing in the Annual Report on Form 10-K of Koger
Equity, Inc. for the year ended December 31, 1993 and to the
reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
December 22, 1994
<PAGE>
Exhibit 23(b)
CONSENT OF COUNSEL
The Board of Directors
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, Florida 32207
Dear Sirs:
The undersigned consents to the use of its name under the
heading "Legal Opinions" contained in a Prospectus, which is
Part I of a Registration Statement (File No. 33-54765) on Form
S-3 filed by Koger Equity, Inc. (the "Company") for the purpose
of registering 472,131 Warrants to purchase 472,131 Shares of
the Company's Common Stock, par value $.01 per share.
Sincerely,
Boling & McCart
December 22, 1994
KOGER EQUITY, INC.
AMENDED AND RESTATED
WARRANT AGREEMENT
THIS AMENDED AND RESTATED WARRANT AGREEMENT (this
"Agreement"), dated as of December 22, 1994, between
KOGER EQUITY, INC., a Florida corporation (the
"Company"), and FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association incorporated and
existing under the laws of the United States of America
(the "Warrant Agent"), does hereby amend and restate in
its entirety the Warrant Agreement, dated as of December
21, 1993, between the Company and the Warrant Agent (the
"1993 Warrant Agreement"),
WITNESSETH THAT:
WHEREAS, Pursuant to the Merger Agreement dated as of
December 21, 1993 between the Company and Koger
Properties, Inc. ("KPI") whereby KPI was merged with and
into the Company, the holders of the shares of KPI Common
Stock, par value $.10 per share and certain securities
law claims were issued, in the aggregate, 644,000
warrants to purchase 644,000 shares of the Company's
Common Stock, par value $.01 per share, at an exercise
price of $8.00 per share after December 21, 1993, and
until and including June 30, 1999, unless earlier
redeemed, pursuant to the 1993 Warrant Agreement (the
"1993 Warrants") and evidenced by warrant certificates,
the form of which was an attachment to the 1993 Warrant
Agreement (the "1993 Warrant Certificates"). First Union
National Bank of North Carolina (the "Warrant Agent"),
has acted as the agent of the Company in connection with
the issuance, registration, registration of transfer,
exchange and exercise of the 1993 Warrants, and
WHEREAS, Pursuant to Stipulation and Agreement of
Compromise and Settlement (the "Settlement Agreement")
dated July 21, 1994 between the Company and the
plaintiffs (the "Plaintiffs") in Best v. Koger Equity,
Inc., et al., C. A. No. 90-917-Civ-J-16 in the United
States District Court for the Middle District of Florida
(the "Best Case" and the "Court", respectively) whereby
the Company, shall issue to the Plaintiffs and/or their
attorneys 472,131 warrants entitling the holders to
purchase in the aggregate 472,131 shares of the Company's
Common Stock, par value $.01 per share, at an exercise
price of $8.00 per share until and including June 30,
1999, unless earlier redeemed, pursuant to this Agreement
(the "1994 Warrants"), and are to be evidenced by Warrant
Certificates, the form of which is Exhibit A to this
Agreement (the "Warrant Certificates"). First Union
National Bank of North Carolina (the "Warrant Agent"), at
the request of the Company, has agreed to act as the
agent of the Company in connection with the issuance,
registration, registration of transfer, exchange and
exercise of the 1994 Warrants, and
WHEREAS, Order and Judgment approving the settlement
and dismissing the Best Case was entered by the Court on
November 29, 1994, which Order and Judgment has become
final, and
WHEREAS, the Company intends that the 1994 Warrants
will contain terms identical in all respects with the
1993 Warrants and desires to enter into this Agreement to
restate the terms and conditions of the 1993 Warrants and
to set forth the terms and conditions of both the 1993
Warrants and the 1994 Warrants and the rights of the
holders thereof (both the 1993 Warrants and the 1994
Warrants are hereafter referred to as the "Warrants"),
and
WHEREAS, all Warrants issued or reissued after the
date hereof are to be evidenced by the Warrant
Certificates, and
WHEREAS, this Agreement is entered to pursuant to
Section 21 of the 1993 Warrant Agreement pursuant to
which the 1993 Warrants were issued, the Company and the
Warrant Agent having deemed it desirable in order to
effect the issuance of the 1994 Warrants, which have the
same terms as the 1993 Warrants, and the Company having
determined in its sole judgment (without the advice or
consent of the Warrant Agent) that this amendment does
not adversely effect the interest of the holders of the
1993 Warrants.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties
hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions hereinafter
in this Agreement set forth, and the Warrant Agent hereby
accepts such appointment.
2. Form of Warrant Certificate. Each Warrant
Certificate shall be in substantially the form of
Exhibit A hereto, shall be signed by, or bear the
facsimile signatures of, the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors,
the President or any Senior Vice President and the
Secretary or an Assistant Secretary of the Company and
shall bear a facsimile of the Company's seal. In case
any officer whose signature or facsimile signature has
been placed upon any Warrant Certificate shall have
ceased to be such before such Warrant Certificate is
issued, it may be issued with the same effect as if such
officer had not ceased to be such at the date of issue.
The Warrant Certificates shall be dated as of the date of
their issue, which shall be the date of countersignature
by the Warrant Agent.
3. Issuance, Countersignature and Registration. In
connection with the original issuance of the Warrants,
the Warrant Agent has or shall, upon the written
instructions of the Company, countersign and deliver to
or on the written order of the Company Warrant
Certificates entitling the holders thereof to purchase an
aggregate of not exceeding the sum of 644,000 upon the
exercise of the 1993 Warrants and 472,131 upon exercise
of the 1994 Warrants of Common Shares (as hereinafter
defined) of the Company. The Warrant Agent has been and
shall be required to deliver Warrant Certificates to such
persons and in such number as the Company shall instruct
in writing. The Warrant Agent shall maintain books for
the registration of transfer and registration of Warrant
Certificates. No Warrant Certificate shall be valid for
any purpose unless countersigned by the Warrant Agent.
The Warrant Agent shall countersign and issue a Warrant
Certificate only (a) upon initial issuance of the
Warrants in accordance with such instructions or (b) upon
exchange, registration of transfer or substitution for
one or more previously countersigned Warrant
Certificates, as hereinafter provided.
4. Transfers and Exchanges. The Warrant Agent shall
register the transfer, from time to time, of any
outstanding Warrants upon the books to be maintained by
the Warrant Agent for that purpose, upon surrender of the
certificates therefor for registration of transfer,
properly endorsed or accompanied by instruments of
transfer in a form customarily used or accepted by the
Warrant Agent from time to time unless the Warrant Agent
is notified otherwise in writing by the Company. Such
instruments of transfer shall be duly executed by the
registered holder of such Warrants or by a duly
authorized attorney, and accompanied by appropriate
instructions for transfer, and payment in cash or by
check or bank draft, payable to the order of the Warrant
Agent, in United States currency, of an amount equal to
any documentary stamps or similar tax or governmental
charge required to be paid in connection with the
transfer thereof. Upon any such registration of
transfer, a new Warrant Certificate representing a like
number of Warrants shall be issued to the transferee and
the surrendered Warrant Certificate shall be cancelled by
the Warrant Agent. After inspection and recording of
cancellation of cancelled Warrant Certificates by the
Warrant Agent, they shall be disposed of upon direction
by the Company. Warrant Certificates may be exchanged at
the option of the holder thereof upon surrender at a
corporate trust office maintained by or for the Warrant
Agent in Charlotte, North Carolina, or the Borough of
Manhattan, the City of New York, for another Warrant
Certificate or other Warrant Certificates representing in
the aggregate the equivalent number of Warrants. Warrant
Certificates surrendered for exchange shall be cancelled
and disposed of in the manner provided in this Section 4.
5. Common Shares. As used in this Agreement, Common
Shares shall mean shares of Common Stock, par value
$.01 per share, of the Company as authorized at the date
hereof or at any time hereafter and shares of any other
class into which such shares of Common Stock may
hereafter be changed. In case by reason of the operation
of Section 9(c) hereof the Warrants shall entitle the
registered holders thereof to purchase any other shares
or other securities or property of the Company or of any
other corporation, any reference in this Agreement to
Common Shares issuable upon the exercise of Warrants
shall be deemed to refer to and include such other shares
or other securities or property issuable upon such
exercise.
6. Warrant Price. Subject to the adjustments
provided in Section 9 hereof, the price to be paid per
Common Share upon exercise of a Warrant shall be $8.00.
Such price per Common Share as adjusted from time to time
as provided in Section 9 hereof is called the "Warrant
Price", and the Warrant Price multiplied by the number of
Common Shares purchased simultaneously is hereinafter
called the "Purchase Price".
7. Exercise of Warrants. Each Warrant shall entitle
the registered holder thereof to purchase from the
Company one Common Share at the Warrant Price defined in
Section 6 hereof. The Warrants may be exercised from
time to time at any time on or before the earlier to
occur of 4:00 P.M., New York City time, on June 30, 1999,
or 4:00 P.M., New York City time, on the Redemption Date
(as defined in Section 10 hereof), in accordance with the
provisions of this Section 7. All Warrants which shall
not be exercised as herein provided on or before
4:00 P.M., New York City time, on the earlier to occur of
June 30, 1999, or the Redemption Date (as defined in
Section 10 hereof) shall thereafter be void and of no
effect.
Subject to the provisions of this Agreement, each
registered holder of a Warrant Certificate or
Certificates shall have the right to purchase from the
Company (and the Company shall issue and sell to such
registered holder) all or part of the number of fully
paid and non-assessable whole Common Shares purchasable
through the exercise of the Warrants represented by such
certificate or certificates (subject to adjustments as
herein provided), but not any fraction of a share, upon
surrender to the Company, at a corporate trust office
maintained by or for the Warrant Agent in Charlotte,
North Carolina, or the Borough of Manhattan, the City and
State of New York, of such Warrant Certificate or
Certificates with the form of election to purchase on the
reverse thereof duly filled in and signed, and upon
payment to the Warrant Agent for the account of the
Company of the Purchase Price for the number of Common
Shares in respect of which such Warrants are then
exercised. The date of exercise of any Warrant shall be
deemed to be the date of the receipt by the Warrant Agent
of the Warrant Certificate duly filled in and signed
and accompanied by proper payment as hereinafter
provided.
Payment of the Purchase Price shall be made in cash
(including certified check or official bank check).
Subject to the provisions of Section 11 hereof, upon the
exercise of one or more Warrants and payment of the
Purchase Price in accordance with the provisions of this
Section 7, the Warrant Agent shall requisition from the
Transfer Agent for the Common Shares, and shall deliver
to or upon the written order of the registered holder of
such Warrants, one or more certificates for the Common
Share or Shares issuable upon the exercise of such
Warrants. Such certificates shall be deemed to have been
issued and each person exercising such Warrants shall be
deemed to have become a holder of record of such Common
Share or Shares as of the date of the exercise of such
Warrants and payment of the Purchase Price.
The Warrants represented by a Warrant Certificate
shall be exercisable, at the election of the registered
holder thereof, either as an entirety or as portions
thereof from time to time, and, in the event that less
than all the Warrants represented by a Warrant
Certificate are exercised, a new Warrant Certificate or
Certificates will be issued for the remaining number of
Warrants specified in the Warrant Certificate so
surrendered, and the Warrant Agent is hereby irrevocably
authorized to countersign and to deliver the required new
Warrant Certificate or Certificates pursuant to the
provisions of this Section 7 and of Section 3 hereof of
this Agreement. All Warrant Certificates surrendered
upon exercise of Warrants shall be cancelled by the
Warrant Agent. After inspection and recording of
cancellation of such cancelled Warrant Certificates, they
shall be disposed of upon direction by the Company.
In order to meet the requirements necessary for the
Company to qualify as a real estate investment trust
under the Internal Revenue Code of 1986 (the "Code"), the
Amended and Restated Articles of Incorporation of the
Company (the "Articles") empower the Board of Directors
to redeem, at its option, a sufficient number of Common
Shares or to restrict the transfer thereof to bring or
maintain the ownership of the Common Shares into
conformity with the requirements of the Code. The
Articles of Incorporation provide that the Directors may
exercise this right at any time the Directors believe the
tax status of the Company is jeopardized, including when
a holder has in excess of 9.8% of the Company's
outstanding Common Shares as determined in accordance
with the Code. The redemption price to be paid for
Common Shares will be the fair market value as reflected
in the latest quotations, or, if no quotations are
available, the price of the Common Shares as determined
by the Board of Directors in accordance with the
provisions of applicable law.
8. Fractional Shares. The Company shall not be
required to issue fractional Common Shares upon any
exercise of Warrants. In any transaction in which
Warrants are exercised, the registered holder shall be
entitled to purchase as many full shares as are included
in the product of the number of Warrants being exercised
times the number of shares (including fractions of a
share) purchasable upon the exercise of one Warrant.
With respect to the remaining fraction of a share, if
any, such holder shall be entitled to receive from the
Company a cash payment equal to the difference between
the market price of the fraction of a Common Share
otherwise purchasable (based upon the closing price of
the Common Shares on the day preceding the date of such
exercise, determined in the same manner as "Current
Market Price" is determined pursuant to Section 9 hereof)
and the same fraction of the Warrant Price.
9. Adjustments of Warrant Price and Number of Shares
Purchasable. The Warrant Price and the number of shares
purchasable upon exercise of a Warrant shall be subject
to adjustments as follows:
(a) Stock Dividends, Split-ups and Combinations
of Shares. If after the date hereof the number of
outstanding Common Shares is increased by a dividend
or share distribution in each case payable in Common
Shares or by a split-up or other reclassification of
Common Shares, or decreased by a combination or other
reclassification of Common Shares, then, in the case
of such dividends or share distributions, on the day
following the date fixed for the determination of
holders of Common Shares entitled to receive such
dividend or share distribution, and in the cases of
split-ups, combinations and other reclassifications,
on the day following the effective date thereof, the
Warrant Price in effect immediately prior to such
action shall be adjusted to an amount that bears the
same relationship to the Warrant Price in effect
immediately prior to such action as the total amount
of Common Shares outstanding immediately prior to
such action bears to the total number of Common
Shares outstanding immediately after such action, and
the number of Common Shares purchasable upon the
exercise of any Warrant shall be the number of Common
Shares obtained by multiplying the number of Common
Shares purchasable immediately prior to such
adjustment upon the exercise of such Warrant by the
Warrant Price in effect immediately prior to such
adjustment and dividing the product so obtained by
the Warrant Price in effect after such adjustment.
(b) Distributions. If after the date hereof the
Company shall distribute to all holders of its Common
Shares evidences of its indebtedness or assets
(excluding cash distributions made as a dividend
payable out of earnings or out of surplus legally
available for dividends under the laws of the
jurisdiction of incorporation of the Company) or
rights to subscribe to Common Shares expiring more
than 45 days after the issuance thereof, then in each
such case the Warrant Price in effect immediately
prior to such distribution shall be decreased to an
amount determined by multiplying such Warrant Price
by a fraction, the numerator of which is the Current
Market Price (hereinafter defined) at the date of
such distribution less the fair market value per
Common Share outstanding at such date (as determined
by the Board of Directors of the Company, whose
determination shall be conclusive, and described in
a statement filed with the Warrant Agent) of the
assets or evidences of indebtedness so distributed or
of such subscription rights and the denominator of
which is the Current Market Price at such date. Such
adjustment shall be made whenever any such
distribution is made, and shall become effective
retroactively on the date immediately after the
record date for the determination of stockholders
entitled to receive such distribution.
For the purpose of this subsection, the "Current
Market Price" per Common Share at any date shall be
deemed to be the average of the daily closing prices
for each of the consecutive business days commencing
30 business days before, and terminating on the day
before, the day in question. The closing price for
each day shall be the last reported sale price
regular way or, in case no such reported sale takes
place on such day, the average of the reported
closing bid and asked prices regular way, in either
case on the principal national securities exchange on
which the Common Shares are listed or admitted to
trading, or if not listed or admitted to trading on
any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter
market as reported on National Association of
Securities Dealers Automated Quotation System or as
furnished by any American Stock Exchange or New York
Stock Exchange firm selected from time to time by the
Company for the purpose.
(c) Reorganization, Reclassification, etc. In
case of any capital reorganization, or of any
reclassification of the capital shares of the Company
(other than a change in par value or from par value
to no par value or from no par value to par value or
as a result of a split-up or combination) or in case
of the consolidation or merger of the Company with or
into any other corporation (other than a
consolidation or merger in which the Company is the
continuing corporation and which does not result in
any change in the Common Shares), or of the sale of
the properties and assets of the Company as, or
substantially as, an entirety to any other
corporation, each Warrant shall after such capital
reorganization, reclassification of capital shares,
consolidation, merger or sale entitle the holder to
purchase the kind and number of shares or other
securities or property of the Company, or of the
corporation resulting from such consolidation or
surviving such merger or to which such sale shall be
made, as the case may be, to which such holder would
have been entitled if he had held the Common Shares
issuable upon the exercise of such Warrant
immediately prior to such capital reorganization,
reclassification of capital shares, consolidation,
merger or sale; and in any case, if necessary, the
provisions set forth in this Section 9 with respect
to the rights and interests thereafter of the holders
of the Warrants shall be appropriately adjusted so as
to be applicable, as nearly as may reasonably be, to
any shares of stock or other securities or property
thereafter deliverable on the exercise of the
Warrants. No such consolidation, merger or sale
shall be permitted unless the successor corporation
shall execute and deliver to the Warrant Agent an
Agreement supplemental hereto recognizing the rights
of the Warrant holders herein set forth.
(d) Calculation to Nearest Cent and
One-hundredth of Share. All calculations under this
Section 9 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(e) Notice of Adjustment in Warrant
Price. Whenever the Warrant Price shall be adjusted
as in this Section 9 provided, the Company shall
forthwith file with the Warrant Agent a statement,
signed by the Chairman of the Board of Directors, the
Vice Chairman of the Board of Directors, the
President or any Vice President of the Company and by
its Treasurer or an Assistant Treasurer or its
Secretary or an Assistant Secretary, stating in
detail the facts requiring such adjustment and the
Warrant Price that will be effective after such
adjustment. The Company shall also cause a notice
setting forth any such adjustments to be sent by
mail, first class, postage prepaid, to each
registered holder of Warrants at his address
appearing on the Warrant register. The Warrant Agent
shall have no duty with respect to any statement
filed with it except to keep the same on file and
available for inspection by registered holders of
Warrants during reasonable business hours. The
Warrant Agent shall not at any time be under any duty
or responsibility to any holder of a Warrant to
determine whether any facts exist which may require
any adjustment to the Warrant Price, or with respect
to the nature or extent of any adjustment of the
Warrant Price when made or with respect to the method
employed in making such adjustment.
(f) Other Notices. In case the Company after
the date hereof shall propose to take any action of
the type described in subsections (b) and (c) of this
Section 9, the Company shall give notice to the
Warrant Agent and to each registered holder of a
Warrant in the manner set forth in subsection (e) of
this Section 9, which notice shall specify, in the
case of action of the type specified in subsection
(b), the date on which a record shall be taken with
respect to any such action or, in the case of action
of the type specified in subsection (c), the date on
which such action shall take place and shall also set
forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such
action (to the extent such effect may be known at the
date of such notice) on the Warrant Price and the
number, or kind, or class of shares or other
securities or property which shall be purchasable
upon exercise of a Warrant. Such notice shall be
given, in the case of any action of the type
specified in subsection (b), at least ten days prior
to the record date with respect thereto and, in the
case of any action of the type specified in
subsection (c), at least ten days prior to the taking
of such proposed action. Failure to give such
notice, or any defect therein, shall not affect the
legality or validity of any such action. Where
appropriate, such notice may be given in advance and
may be included as part of a notice required to be
mailed under the provisions of subsection (e) of this
Section 9.
(g) No Change in Warrant Terms on
Adjustment. Irrespective of any adjustments in the
Warrant Price or the number of Common Shares,
Warrants theretofore or thereafter issued may
continue to express the same prices and number of
shares as are stated in the similar Warrants issuable
initially, or at some subsequent time, pursuant to
this Agreement and the Warrant Price and such number
of shares specified thereon shall be deemed to have
been so adjusted.
(h) Treasury Shares. Common Shares at any time
owned by the Company shall not be deemed to be
outstanding for the purposes of any computation under
this Section 9.
10. Redemption.
(a) The Company shall have the right, at its
sole option and election made in accordance with this
Section 10, to redeem the Warrants, in whole or in
part, at any time and from time to time at the prices
(referred to herein as the "Redemption Price") set
forth in the following table, payable in cash:
If redeemed on or prior to Redemption Price per Warrant
December 31, 1994 2.31
March 31, 1995 2.41
June 30, 1995 2.53
September 30, 1995 2.65
December 31, 1995 2.77
March 31, 1996 2.90
June 30, 1996 3.03
September 30, 1996 3.18
December 31, 1996 3.32
March 31, 1997 3.48
June 30, 1997 3.64
September 30, 1997 3.81
December 31, 1997 3.99
March 31, 1998 4.18
June 30, 1998 4.37
September 30, 1998 4.57
December 31, 1998 4.79
March 31, 1999 5.01
June 30, 1999 5.24
(b) If less than all Warrants at the time outstanding are to be
redeemed, the Warrants to be redeemed shall be selected pro rata.
(c) Notice of any redemption of the Warrants pursuant to this
Section 10 shall be given by publication in a newspaper of general
circulation in the Borough of Manhattan, the City and State of New York,
not less than 10, nor more than 30 days prior to the date fixed for
redemption, if the Warrants are listed on any national securities exchange
or traded in the over-the-counter market. In any case, a similar notice
shall be mailed at least 10, but not more than 30, days prior to the date
fixed for redemption to each holder of Warrants to be redeemed, at such
holder's address as it appears on the transfer books of the Company
maintained by the Warrant Agent. In order to facilitate the redemption of
Warrants, the Board of Directors may fix a record date for the
determination of Warrants to be redeemed, not more than 20 days prior to
the date fixed for such redemption.
(d) On the date of any redemption being made pursuant to this
Section 10 which is specified in a notice given pursuant to paragraph
(c) of this Section 10 (the "Redemption Date"), the Company shall, and at
any time after such notice shall have been mailed and before the date of
redemption the Company may, deposit for the benefit of the holders of
Warrants to be redeemed the funds necessary for such redemption with a
bank or trust company in the Borough of Manhattan, the City and State of
New York, or in the City of Jacksonville, Florida, in either case having
a capital and surplus of at least $25,000,000. Any moneys so deposited by
the Company and unclaimed at the end of two years from the date designated
for such redemption shall revert to the general funds of the Company.
After such reversion, any such bank or trust company shall, upon demand,
pay over to the Company such unclaimed amounts and thereupon such bank or
trust company shall be relieved of all responsibility in respect thereof
and any holder of Warrants to be redeemed shall look only to the Company
for the payment of the Redemption Price. In the event that moneys are
deposited pursuant to this paragraph (d) in respect of Warrants that are
exercised in accordance with the provisions of Section 7, such moneys
shall, upon such conversion, revert to the general funds of the Company
and, upon demand, such bank or trust company shall pay over to the Company
such moneys and shall be relieved of all responsibility to the holders of
such converted shares in respect thereof. Any interest accrued on funds
deposited pursuant to this paragraph (d) shall be paid from time to time
to the Company for its own account.
(e) Notice of Redemption having been given as aforesaid, upon the
deposit of funds pursuant to paragraph (d) in respect of Warrants to be
redeemed pursuant to this Section 10, notwithstanding that any
certificates for such Warrants shall not have been surrendered for
cancellation, from and after the date of redemption designated in the
notice of redemption (i) the Warrants represented thereby shall no longer
be deemed outstanding, and (ii) all rights of the holders of Warrants to
be redeemed shall cease and terminate, excepting only the right to receive
the Redemption Price therefor and the right to exercise such Warrants
until the close of business on the Redemption Date, in accordance with
Section 7.
11. Issue Taxes. The Company will pay all documentary stamp taxes, if
any, attributable to the initial issuance of Common Shares upon the exercise of
the Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in
the transfer or exchange of Warrants or the issue or delivery of any
certificates for Common Shares in a name other than that of the registered
holder of Warrants in respect of which such shares are issued.
12. Reservation of Shares. The Company shall at all times reserve and
keep available out of its authorized but unissued or treasury shares, for the
purpose of effecting the issuance of shares upon exercise of Warrants, such
number of shares of its duly authorized Common Shares as shall from time to
time be sufficient to effect the issuance of Common Shares upon exercise of
all Warrants at the time outstanding. The transfer agents for the Common
Shares are hereby irrevocably authorized and directed at all times to reserve
such number of authorized and unissued shares as shall be requisite for such
purpose. The Company will keep a copy of this Agreement on file with such
transfer agents. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from any such transfer agent stock certificates
for Common Shares issuable upon exercise of outstanding Warrants. The
Company will supply such transfer agents with duly executed stock
certificates for such purpose.
13. Mutilated or Missing Warrant Certificates, etc. If any Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Warrant Agent
shall deliver a new Warrant Certificate of like tenor and denomination in
exchange and substitution therefor upon surrender and cancellation of the
mutilated Warrant Certificate or, in the case of a lost, stolen or destroyed
Warrant Certificate, upon receipt of evidence satisfactory to the Warrant Agent
of the loss, theft or destruction of such Warrant Certificate and, in either
case, upon receipt of such indemnity as the Company and the Warrant Agent may
reasonably require. Applicants for substitute Warrant Certificates shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
14. Duties of the Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company, and the Warrant Agent assumes
no responsibility for the correctness of any of the same except such as
describe the Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company.
(c) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorney, agents or employees, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney, agents or employees or for any loss to
the Company resulting from such neglect or misconduct, provided reasonable
care had been exercised in the selection and continued employment
thereof.
(d) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or the
advice of such counsel, provided the Warrant Agent shall have exercised
reasonable care in the selection by it of such counsel.
(e) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of a Warrant for any action taken in reliance
on any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(f) The Company agrees to pay to the Warrant Agent compensation for
all services rendered by the Warrant Agent in the execution of this
Agreement, to reimburse the Warrant Agent for all expenses, counsel fees,
taxes and governmental charges and other charges of any kind and nature
incurred by the Warrant Agent in the execution of this Agreement and from
and at all times after the date of this Agreement, the Company shall, to
the fullest extent permitted by law, indemnify and hold harmless the
Warrant Agent and each director, officer, employee, attorney, agent and
affiliate of the Warrant Agent (collectively, the "Indemnified Parties")
against any and all actions, claims (whether or not valid), losses,
damages, liabilities, costs and expenses of any kind or nature whatsoever
(including without limitation reasonable attorneys' fees, costs and
expenses) incurred by or asserted against any of the Indemnified Parties
from and after the date hereof, whether direct, indirect or consequential,
as a result of or arising from or in any way relating to any claim,
demand, suit, action or proceeding (including any inquiry or
investigation) by any person, whether threatened or initiated, asserting
a claim for any legal or equitable remedy against any person under any
statute or regulation, including, but not limited to, any federal or state
securities laws, or under any common law or equitable cause or otherwise,
arising from or in connection with the negotiation, preparation,
execution, performance or failure of performance of this Agreement or
any transactions contemplated herein, whether or not any such Indemnified
Party is a party to any such action, proceeding, suit or the target of any
such inquiry or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for any liability
finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. If any such action or claim
shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify the Company in writing, and the
Company shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in
its sole discretion, have the right to employ separate counsel in any such
action and to participate in the defense thereof, and the fees and
expenses of such counsel shall be paid by such Indemnified Party unless
(a) the Company agrees to pay such fees and expenses, or (b) the Company
shall fail to assume the defense of such action or proceeding or shall
fail, in the reasonable discretion of such Indemnified Party, to employ
counsel satisfactory to the Indemnified Party in any such action or
proceeding, or (c) the named parties to any such action or proceeding
(including any impleaded parties) include both Indemnified Party and the
Company, and Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Company. All such
fees and expenses payable by the Company pursuant to the foregoing
sentence shall be paid from time to time as incurred, both in advance of
and after the final disposition of such action or claim. The obligations
of the Company under this Section 14 shall survive any termination of this
Agreement and the resignation or removal of the Warrant Agent.
(g) The Warrant Agent shall not be obligated to take any legal
action or commence any proceeding on behalf of, or at the request of, any
party in connection with this Agreement, or to appear in, prosecute or
defend any such legal action or proceeding. The Warrant Agent shall incur
no liability for delaying performance of its obligations under this
Warrant Agreement (a) if there is any dispute between the Company and any
warrant holder, stockholder or other person regarding the Warrant Agent's
obligations hereunder or if the Warrant Agent is otherwise uncertain of
its obligations hereunder, and (b) the Company fails to provide reasonable
indemnity and security to the Warrant Agent for any action taken in
accordance with the written direction of the Company and its officers as
permitted under Section 14(1).
(h) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
it were not Warrant Agent under this Agreement. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Warrant Agent shall act hereunder solely as agent and in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own gross negligence or willful misconduct. In no event
shall the Warrant Agent or any other Indemnified Party be liable to any
person for any incidental, indirect, special or consequential damages.
(j) The Warrant Agent may resign, or the Company may discharge the
Warrant Agent at any time upon not less than 30 days' prior written notice
to the other party. The Company may appoint as successor Warrant Agent
any bank or trust company having or maintaining an office in the Borough
of Manhattan, City and State of New York.
(k) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or in respect of the validity of
any Warrant Certificate; nor shall the Warrant Agent by any act hereunder
be deemed to make any representation or warranty as to the authorization
or reservation of any Common Shares to be issued pursuant to this
Agreement or any Warrant Certificate or as to whether any Common Shares
will when issued be validly issued, fully paid and non-assessable or as to
the Warrant Price or the number or kind or amount of Common Shares or
other securities or property issuable upon the exercise of Warrants.
(l) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board of Directors or the Vice Chairman of the Board
of Directors or the President or a Vice President or the Secretary or the
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer.
(m) From time to time, upon request of the Warrant Agent, the
Company will furnish to the Warrant Agent such number of duly executed
Warrant Certificates as the Warrant Agent shall require for the purpose of
this Agreement.
15. Merger or Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor of the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In the case of Warrant Certificates
which have been countersigned by the Warrant Agent, but not delivered at the
time any such successor to the Warrant Agent succeeds to the agency created by
this Agreement, any such successor may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrants shall have
the full force and effect provided in the Warrant Certificates and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and in case at that
time any of the Warrant Certificates shall not have been countersigned, the
Warrant Agent may countersign such Warrant Certificates either in its prior
name or in its changed name; and in all such cases such Warrants shall have
the full force and effect provided in the Warrant Certificates and in this
Agreement.
16. Obtaining of Governmental Approvals and Stock Exchange Listings. The
Company will from time to time exercise its best efforts to take all action
which may be necessary to obtain and keep effective any and all registrations,
permits, consents and approvals of governmental agencies and authorities which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrants and the exercise of the Warrants, and the issuance,
sale, transfer and delivery of the Common Shares issuable upon exercise of
the Warrants, and all action which may be necessary so that such Common Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed
or entitled to unlisted trading privileges on each securities exchange on
which all other Common Shares are then listed or entitled to unlisted trading
privileges and on an identical basis.
17. Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
18. Registered Holder Deemed Owner. Prior to due presentation of any
Warrant Certificate for registration of transfer the Company and the
Warrant Agent may deem and treat the person in whose name such Warrant
Certificate is registered as the absolute owner for all purposes whatever
and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
19. Cancellation of Warrant Certificates. The Warrant Agent shall cancel
any Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for registration of transfer or exchange or substitution and
shall deliver the same to the Company from time to time or otherwise dispose of
the same in accordance with the instructions of the Company.
20. Notices. Any notice pursuant to this Agreement to be given by the
Warrant Agent or by the registered holder of any Warrant to the Company shall
be sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Company with the Warrant
Agent) as follows:
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, Florida 32207
Attention: Office of the Secretary
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if given or made in writing at the corporate trust office of the Warrant
Agent (until another address is filed in writing by the Warrant Agent with the
Company) as follows:
First Union National Bank of North Carolina
230 South Tryon Street
Charlotte, North Carolina 28288-1154
Attention: Shareholder Services Group
Any notice pursuant to this Agreement to be given by the Company or the
Warrant Agent to the registered holder of any Warrant shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed to the
registered holder of any Warrant at such Warrant holder's address as it
appears on the Warrant transfer books of the Company maintained by the
Warrant Agent.
21. Supplements and Amendments. The Company and the Warrant Agent may
from time to time supplement or amend this Agreement without the approval of
any holders of Warrants in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which
shall not, in the sole judgment of the Company (without the advice or
consent of the Warrant Agent), adversely affect the interests of the holders
of the Warrants.
22. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
KOGER EQUITY, INC.
By S/W. Lawrence Jenkins
W. Lawrence Jenkins
Vice President and Secretary
[CORPORATE SEAL]
ATTEST:
S/Mary H. McNeal
Mary H. McNeal
Assistant Secretary
<PAGE>
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By S/Eleanor G. Autry
Eleanor G. Autry
Vice President and Trust Officer
[CORPORATE SEAL]
ATTEST:
S/D. Ann Harris
D. Ann Harris
Associate Trust Officer
<PAGE>
EXHIBIT A
VOID AFTER 4:00 P.M., NEW YORK CITY TIME, ON THE EARLIER TO OCCUR OF
JUNE 30, 1999 OR THE REDEMPTION DATE AS DEFINED BELOW.
KOGER EQUITY, INC.
COMMON SHARE PURCHASE WARRANT CERTIFICATE
WARRANTS
THIS CERTIFIES that , or registered assigns, is the
owner of Common Share Purchase Warrants (the "Warrants"),
each of which entitles the registered holder thereof (the "Warrant Holder") to
purchase one (1) fully paid and non-assessable Common Share, par value $.01 per
share, ("Common Share") of Koger Equity, Inc. (the "Company"), a Florida
corporation, at any time before the earlier to occur of (i) 4:00 P.M., New York
City time on June 30, 1999, or (ii) the Redemption Date as defined in Section
10 of the Warrant Agreement defined below, at a price of $8.00 (subject to the
adjustments hereinafter referred to), by surrendering this Warrant Certificate,
with the form of election to purchase on the back hereof duly executed, at the
corporate trust office of First Union National Bank (herein called the "Warrant
Agent") or at the office of its successor as Warrant Agent, maintained in
Charlotte, North Carolina or the Borough of Manhattan, City and State of New
York, and by paying in full for each share as to which Warrants represented
hereby are exercised, and upon compliance with and subject to the conditions
set forth in an Amended and Restated Warrant Agreement dated as of ,
1994, between the Company and the Warrant Agent (the "Warrant Agreement").
Upon any exercise of Warrants evidenced hereby, the form of election to
purchase set forth on the reverse hereof must be properly completed and
executed. In the event that upon any exercise of Warrants evidenced hereby the
number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof a new Warrant
Certificate, in all respects similar to this Warrant Certificate, evidencing
the number of Warrants not exercised. The purchase price per Common Share, as
adjusted from time to time, is herein called the "Warrant Price" and the
Warrant Price multiplied by the number of Common Shares purchased
simultaneously is herein called the "Purchase Price". The Purchase Price
payable upon exercise of Warrants shall be paid in cash (including certified
check or official bank check).
The Warrant Agreement provides that upon the occurrence of certain events,
the Warrant Price and the number of shares purchasable upon the exercise of
each Warrant may, subject to certain conditions, be adjusted. No fraction of a
Common Share will be issued upon the exercise of any Warrant. In any
transaction in which Warrants are exercised, the registered holder shall be
entitled to purchase as many full shares as are included in the product of
the number of Warrants being exercised in the transaction times the number of
shares (including fractions of a share) purchasable upon exercise of one
Warrant. The Company will pay a cash adjustment with respect to the
remaining fraction of a share, if any, which such holder would otherwise
be entitled to purchase in the transaction.
This Warrant Certificate is issued under and the Warrants evidenced hereby
are subject to, the terms and provisions contained in the Warrant Agreement, to
all the terms and provisions of which the holder of this Warrant Certificate,
by acceptance hereof, assents. Reference is hereby made to the Warrant
Agreement for a more complete statement of the rights and limitations of rights
of the registered holder hereof, the rights and duties of the Warrant Agent
and the rights and obligations of the Company thereunder. Copies of the
Warrant Agreement are on file at the office of the Warrant Agent.
The rights of Warrant holders are also subject to provisions in the
Company's Amended and Restated Articles of Incorporation (the "Articles"),
which provide that, if necessary to effect compliance by the Company with
certain requirements of the Internal Revenue Code as to real estate investment
trusts, the Common Shares are subject to redemption by the Board of Directors
of the Company and the transfer thereof may be prohibited upon the terms and
conditions set forth in the Articles. The Company will furnish a copy of such
terms and conditions to the registered holder of this Warrant upon request and
without charge.
This Warrant Certificate and similar Warrant Certificates when surrendered
at the corporate trust office of the Warrant Agent maintained in Charlotte,
North Carolina or the Borough of Manhattan, the City and State of New York (or
at the principal office of its successor as Warrant Agent) by the registered
holder hereof in person or by attorney duly authorized in writing may be
exchanged, in the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge, for another Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate the number of Warrants evidenced by the Warrant Certificates so
surrendered.
Upon due presentation for registration of transfer of this Warrant
Certificate at the corporate trust office of the Warrant Agent maintained in
Charlotte, North Carolina or the Borough of Manhattan, the City and State of
New York (or at the principal office of its successor as Warrant Agent), a new
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate the number of Warrants evidenced by this Warrant Certificate shall be
issued to a transferee in exchange for this Warrant Certificate, subject to the
limitations provided in the Warrant Agreement, without charge except for any
tax or other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Warrant
Certificate, the Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Warrant Agent) for the purpose of any
exercise hereof and for notices and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
If this Warrant Certificate shall be surrendered upon exercise of the
Warrants evidenced hereby within any period during which the transfer books for
the Company's Common Shares are closed for any purpose, the Company shall not
be required to make delivery of certificates for Common Shares until the date
of the reopening of said transfer books.
No Warrant may be exercised after 4:00 P.M., New York City time, on the
earlier to occur of June 30, 1999 or the Redemption Date, as defined in
Section 10 of the Warrant Agreement, and to the extent not exercised by such
time, all Warrants evidenced hereby shall become void.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
WITNESS the facsimile of the corporate seal of the Company and the
facsimile signatures of its duly authorized officers.
KOGER EQUITY, INC.
(Seal)
By
President
Secretary
Dated: ____________________________________
Countersigned:
First Union National Bank of North Carolina
as Warrant Agent
By ____________________________________
Authorized Signature
<PAGE>
ASSIGNMENT
[Form to be Executed only if Warrant Holder Desires to Transfer Warrant
Certificate]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
Please insert Social Security or Other
Identifying Number of Assignee:
the Warrants represented by the within Warrant Certificate and all rights
represented thereby and hereby irrevocably constitutes and appoints
___________________________________________________ Attorney to transfer said
Warrant Certificate on the books of the within named Company, with full power
of substitution in the premises.
Dated: ____________________________________
[Signature]
SIGNATURE GUARANTEED: Notice: The signature on the
foregoing Assignment must correspond
to the name as written upon the face
of the within Warrant Certificate in
every particular, without alteration
or enlargement or any change
whatsoever and should be guaranteed
by a (i) bank, (ii) broker or dealer,
(iii) credit union, (iv) national
securities exchange or association or
clearing agency, or (v) savings
association, as those terms are
defined in Rule 17Ad-15, as
promulgated under the Securities
Exchange Act of 1934.
<PAGE>
PURCHASE FORM TO BE EXECUTED UPON
EXERCISE OF WARRANT
To: Koger Equity, Inc.
c/o First Union National Bank of North Carolina, Warrant Agent:
The undersigned holder of the Warrants represented by this Warrant
Certificate (1) exercises his right to purchase Common Shares,
par value $.01 per share, of Koger Equity, Inc., which the undersigned is
entitled to purchase under the terms of this Warrant Certificate, and (2)
makes payment in full for the number of Common Shares so purchased by payment
of $ cash (including certified check or official bank check).
Please issue the certificate for the Common Shares in the name of the
undersigned. If the number of Common Shares shall not be all the Common
Shares purchasable hereunder, please issue to the undersigned a new Warrant
Certificate for the unexercised portion of this Warrant Certificate.
Please insert Social Security
or other identifying number
Dated:
Signature
(Signature must conform in all respects to name of holder as specified on
the face of the Warrant Certificate.)
