SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 10, 1994
KOGER EQUITY. INC.
(Exact name of registrant as specified in its charter)
Florida 1-9997 59-2898045
(State or incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
3986 Boulevard Center Drive, Suite 101
Jacksonville, Florida 32207
(Address of principal executive offices) (Zip Code)
Reqistrant's telephone number: (904) 398-3403
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
Reference is made to a copy of the Articles of Amendment and Restatement of
the Articles of Incorporation of Koger Equity, Inc., dated May 10, 1994,
filed with the Secretary of State of the State of Florida, which is filed as
Exhibit 3 to this report, which exhibit is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit Number Description of Exhibit
3 Articles of Amendment and Restatement
of the Articles of Incorporation of
Koger Equity, Inc., dated May 10, 1994
<PAGE>
SIGNATURE
Pursuant to the Requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KOGER EQUITY, INC.
Date: May 10, 1994 By: W. Lawrence Jenkins
W. Lawrence Jenkins
Title: Secretary
<PAGE>
EXHIBIT INDEX
The following designed exhibit is filed herewith:
Exhibit
3 Articles of Amendment and Restatement of the
Articles of Incorporation of Koger Equity, Inc.,
dated May 10, 1994
<PAGE>
Exhibit 3
ARTICLES OF AMENDMENT AND RESTATEMENT
of the
ARTICLES OF INCORPORATION
of
KOGER EQUITY, INC.
1. These Articles of Amendment amend and restate the
Amended and Restated Articles of Incorporation of Koger Equity, Inc.
2. The preamble to Article V and Paragraph A. of Article V
of the Amended and Restated Articles of Incorporation of Koger
Equity, Inc. are hereby amended and restated to read:
ARTICLE V - CAPITAL STOCK
The total number of shares of stock that this corporation shall have
authority to issue is 100,000,000 shares of Common Stock, each of which shall
have a par value of $.01 per share (the "Common Stock") and 50,000,000 shares
of Preferred Stock, each of which shall have a par value of $.01 per share
(the "Preferred Stock"). The board of directors is authorized to issue the
Preferred Stock from time to time in one or more classes or series thereof,
each such class or series to have such voting powers (if any), conversion
rights (if any), designations, preferences and relative, participating,
optional or other special rights, and such qualifications, limitations or
restrictions thereof, as shall be determined by the board of directors and
stated and expressed in a resolution or resolutions thereof providing for the
issue of such Preferred Stock. Subject to the powers, preferences and rights
of any Preferred Stock, including any class or series thereof, having any
preference or priority over, or rights superior to, the Common Stock and
except as otherwise provided by law, the holders of the Common Stock shall
have and possess all powers and voting and other rights pertaining to the
stock of this corporation and each share of Common Stock shall be entitled to
one vote.
Except as otherwise provided in the Articles of Incorporation and subject
to the rights of the holders of Preferred Stock, the following is a
description of the voting rights, limitations as to dividends, preemptive
rights, restrictions, and terms and conditions of redemption of the Common
Stock of the Company:
(A) Voting Riqhts
At every annual or special meeting of stockholders of the Company, every
holder of Common Stock shall be entitled to one vote, in person or by proxy,
for each share of Common Stock standing in the stockholder's name on the
books of the Company in the election of directors and upon all other matters
submitted to a vote of the stockholders of the Company.
3. The foregoing amendment was adopted by a vote of the holders of a
majority of this Corporation's outstanding shares of Common Stock, par value
$.01 per share (the "Shares"), voted at this corporation's annual meeting of
shareholders held on May 10, 1994, at which a quorum was present. The Shares
were the only securities of this Corporation authorized to vote on this
matter.
4. The number of votes cast for this Amendment by the holders of the Shares
was sufficient for the approval of this Amendment.
5. Attached hereto as Exhibit A and by this reference made a part hereof,
are the Amended and Restated Articles of Incorporation of Koger Equity, Inc.
filed for the purpose of reflecting the amendment to Article V, set forth in
Paragraph 2. above, which amendment was approved by shareholders. This
restatement does not require the approval of shareholders, but was adopted
by the Board of Directors at their meeting held on May 10, 1994, at which a
quorum was present and acting.
6. The attached Restated Articles of Incorporation supersede the original
Articles of Incorporation and all amendments to them.
<PAGE>
IN WITNESS WHEREOF, the undersigned President and the Secretary of this
Corporation have executed these Articles of Amendment, this 10th day of
May, 1994.
KOGER EQUITY, INC.
Attest:
W. Lawrence Jenkins Irvin H. Davis
W. Lawrence Jenkins Irvin H. Davis
Secretary President and Chief Executive
Officer
STATE OF FLORIDA
COUNTY OF DUVAL
BEFORE ME, a notary public authorized to take acknowledgements in the
state and county set forth above, personally appeared IRVIN H. DAVIS and W.
LAWRENCE JENKINS, known to me and known by me to be the persons who executed
the foregoing Articles of Amendment, and they acknowledged before me that
they executed these Articles of Amendment.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, in the state and county aforesaid, this 10th day of May, 1994.
Pamela K. Walker
Notary Public, State of
Florida at Large
My Commission Expires:
10/3/94
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
KOGER EQUITY, INC.
These Amended and Restated Articles of Incorporation of Koger Equity,
Inc. amend and restate the Amended and Restated Articles of Incorporation
as filed with the Secretary of State of the State of Florida on December
21, 1993. These Amended and Restated Articles of Incorporation were
adopted by the Board of Directors on May 10, 1994, in accordance with
Section 607.1007 of the Florida Business Corporation Act and include
amendments which were approved by the stockholders of Koger Equity, Inc.
on May 10, 1994, in accordance with Section 607.1003 of the Florida
Business Corporation Act. The substantive amendments to the Articles of
Incorporation made in the Amended and Restated Articles of Incorporation
are contained in Article V hereof.
ARTICLE I - NAME
The name of the Company is KOGER EQUITY, INC. (the "Company").
ARTICLE II - DURATION
The period of duration of the Company is perpetual.
ARTICLE III - PURPOSE
The purpose for which the Company is formed is to engage in any lawful act
or activity for which corporations may be organized under the General Laws
of the State of Florida as now or hereafter in force.
ARTICLE IV - PRINCIPAL OFFICE AND MAILING ADDRESS
The principal office and the mailing address of the Company in the State
of Florida are Suite 101, 3986 Boulevard Center Drive, Jacksonville,
Florida 32207.
ARTICLE V - CAPITAL STOCK
The total number of shares of stock that this corporation shall have
authority to issue is 100,000,000 shares of Common Stock, each of which
shall have a par value of $.01 per share (the "Common Stock") and 50,000,000
shares of Preferred Stock, each of which shall have a par value of $.01 per
share (the "Preferred Stock"). The board of directors is authorized to issue
the Preferred Stock from time to time in one or more classes or series
thereof, each such class or series to have such voting powers (if any),
conversion rights (if any), designations, preferences and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions thereof, as shall be determined by the board
of directors and stated and expressed in a resolution or resolutions thereof
providing for the issue of such Preferred Stock. Subject to the powers,
preferences and rights of any Preferred Stock, including any class or series
thereof, having any preference or priority over, or rights superior to, the
Common Stock and except as otherwise provided by law, the holders of the
Common Stock shall have and possess all powers and voting and other rights
pertaining to the stock of this corporation and each share of Common Stock
shall be entitled to one vote.
Except as otherwise provided in the Articles of Incorporation and subject
to the rights of the holders of Preferred Stock, the following is a
description of the voting rights, limitations as to dividends, preemptive
rights, restrictions, and terms and conditions of redemption of the Common
Stock of the Company:
(A) Voting Rights
At every annual or special meeting of stockholders of the Company,
every holder of Common Stock shall be entitled to one vote, in person
or by proxy, for each share of Common Stock standing in the stockholders
name on the books of the Company in the election of directors and upon
all other matters submitted to a vote of the stockholders of the Company.
(B) Dividends and Liquidation Rights.
1. Dividends. The holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the
assets of the Company which are legally available therefor, dividends
payable either in cash, in property or in shares of Common Stock.
2. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation, or winding up of the affairs of the Company
after payment or provision for payment of the debts and other liabilities
of the Company, the holders of all outstanding shares of Common Stock shall
be entitled to share ratably in the remaining net assets of the Company.
(C) Preemptive Rights.
No stockholder of the Company shall have any preemptive or other right
to purchase or subscribe for any shares of the Common Stock of the Company
which it may issue or sell, whether now or hereafter authorized, other
than such right, if any, as the Board of Directors in its discretion from
time to time may determine.
(D) Restrictions on Transfer; Redemption.
1. The stockholders shall upon demand disclose to the Board of
Directors in writing such information with respect to direct and indirect
ownership of the Common Stock of the Company as the Board of Directors
deems necessary to comply with the provisions of the Internal Revenue Code
of 1986, as amended or as hereafter amended if such amendments are
applicable to the Company (the "Code"), pertaining to the qualification of
the Company as a real estate investment trust (a "REIT") or to comply with
the requirements of any taxing authority or governmental entity or agency.
2. Whenever it is deemed by the Board of Directors to be reasonably
necessary to protect the tax status of the Company as a REIT, the Board of
Directors may require a statement or affidavit from any stockholder or
proposed transferee of shares of Common Stock setting forth the number of
shares of Common Stock already owned by the stockholder and any related
Person (as hereinafter defined) specified in the form prescribed by the
Board of Directors for that purpose. If, in the opinion of the Board of
Directors, which opinion shall be conclusive on the proposed transferor
and transferee, the proposed transfer may jeopardize the qualification of
the Company as a REIT, the Board of Directors has the right, but not a
duty, to refuse to transfer the shares of Common Stock to the proposed
transferee. All contracts for the sale or other transfer of shares of
Common Stock shall be subject to this provision.
3. Notwithstanding any other provision of these Articles of
Incorporation to the contrary and subject to the provisions of Section 6
of Paragraph (D) of this Article V, no person shall at any time directly
or indirectly acquire ownership in the aggregate of more than 9.8 of the
outstanding shares of Common Stock of the Company (the "Limit"). Shares of
Common Stock owned by a Person in excess of the Limit at any time shall be
deemed excess shares ("Excess Shares"). For purposes of this Article V a
person shall be deemed to own shares of Common Stock actually owned by such
Person after applying the rules of Section 544 of the Code as modified in
the case of a REIT by Section 856(a)(6), Section 856(d)(3), and Section
856(h) of the Code. All shares of Common Stock which any Person has the
right to acquire upon exercise of outstanding rights, options, and warrants,
and upon conversion of any securities convertible into shares of Common
Stock, if any, shall be considered outstanding for purposes of the Limit
if such inclusion will cause such Person to own more than the Limit.
4. If at any time the Board of Directors shall in good faith determine
that direct or indirect ownership of shares of Common Stock of the Company
by any Person or Persons has or may become concentrated to the extent which
would cause the Company to fail to qualify or to be disqualified as a REIT
or that any Person has acquired Excess Shares (including shares of Common
Stock that remain or become Excess Shares because of the decrease in the
outstanding shares of Common Stock resulting from such redemption), the
Board of Directors shall have the power to call for the purchase from any
stockholder of the Company, by notice to such stockholder, of a number of
shares of Common Stock sufficient in the opinion of the Board of Directors
to maintain or to bring the direct or indirect owneship of shares of Common
Stock into conformity with the provisions of the Code pertaining to the
qualification of the Company as a REIT and/or to redeem all shares of
Common Stock that are Excess Shares owned by such Person. From and after
the date fixed for redemption by the 80ard of Directors, the holder of any
shares of Common Stock so called for redemption shall cease to be
entitled to distributions, voting rights, and other benefits with respect
to such shares of Common Stock, excepting only the right to payment by the
Company of the redemption price pursuant to this Article V as set
forth in the following paragraph.
The redemption price of each share of Common Stock called for redemption
shall be:
(a) the average daily per share composite closing sales price if the
shares of the Company are listed on a national securities exchange, and
if the shares are not so listed shall be the mean between the average per
share closing bid prices and the average per share closing asked prices,
in each case during the twenty (20) trading day period ending on the
business day prior to the redemption date, or
(b) if there have been no sales on a national securities exchange and
no published bid quotations and no published asked quotations with respect
to shares of the Company during such twenty (20) trading day period,
the redemption price shall be the price determined in good faith by the
Board of Directors.
In order to assure further that ownership of the shares of Common Stock
of the Company does not become concentrated so as to cause the Company to
fail to qualify or to be disqualified as a REIT, any transfer of shares
that would prevent the Company from continuing to be qualified as a REIT
under the Code, including any attempt to effect a transfer that was
prohibited by the Board of Directors under Section 6 of Paragraph (D) of
this Article V, shall be void ab initio and the intended transferee of such
shares shall be deemed never to have had any legal or equitable interest
therein. If the foregoing provision is determined to be void and invalid
by virtue of any legal decision, statute, rule, or regulation, then the
transferee of such shares of Common Stock shall be deemed, at the option of
the Company, to have acted as agent on behalf of the Company in acquiring
such shares of Common Stock and to hold such shares of Common Stock on
behalf of the Company. A conspicuous legend noting the restrictions on
transfer set forth in these Articles of Incorporation shall be placed on
each certificate evidencing ownership of shares of Common Stock of the
Company.
5. Notwithstanding any other provision of these Articles of
Incorporation or the By-Laws to the contrary, any purported acquisition of
shares of Common Stock of the Company which results in the disqualification
of the Company as a REIT under the Code shall be null and void. All
contracts for the sale or other transfer of shares of Common Stock shall be
subject to this provision.
6. The Limit set forth in Section 3 of this Article V shall not apply to
acquisitions of shares of Common Stock pursuant to a cash tender offer made
for all outstanding shares of Common Stock of the Company (including
securities convertible into shares of Common Stock) in conformity with
applicable federal and state securities laws where two-thirds (2/3) of the
outstanding shares of Common Stock (not including shares of Common Stock or
securities convertible into shares of Common Stock held by the tender
offerer and/or any "affiliates" or "associates" thereof within the meaning
of the Securities Exchange Act of 1934, as amended) are duly tendered and
accepted pursuant to the cash tender offer; nor shall the limit apply to
the acquisition of shares of Common Stock by an underwriter in a public
offering of shares of Common Stock, or in any transaction involving the
issuance of shares of Common Stock by the Comany in which the Board of
Directors determines that the underwriter or other person or party
initially acquiring such shares of Common Stock will make a timely
distribution of such shares of Common Stock to or among other holders such
that, following such distribution, none of such shares of Common Stock
will be Excess Shares. The Board of Directors in its discretion may exempt
from the Limit ownership of certain designated shares of Common Stock while
owned by a Person who has provided the Company with evidence and assurances
acceptable to the Board of Directors that the qualification of the Company
as a REIT would not be jeopardized thereby.
7. As used in this Article V the word "Person" shall mean and include
individuals, corporations, limited partnerships, general partnerships,
joint stock companies or associations, joint venturers, companies, trusts,
banks, trust companies, land trusts, business trusts, estates, or other
entities and governments and agencies and political subdivisions thereof
and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
8. Nothing contained in this Article V or in any other provision of
these Articles of Incorporation shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable to
protect the Company and the interests of the stockholders by preserving
the Company's qualification as a REIT under the Code.
9. If any provision of this Article V or any application of any such
provision is determined to be invalid by any court having jurisdiction over
the issues, the validity of the remaining provisions shall not be affected
and other applications of such provision shall be affected only to the
extent necessary to comply with the determination of such court. To the
extent this Article V may be inconsistent with any other provision of
these Articles of Incorporation or the By-Laws, this Article V shall be
controlling.
ARTICLE VI - MANAGEMENT
The following provisions shall apply to the management of the business
and to the conduct of the affairs of the Company and its directors, officers,
and stockholders:
(A) Further Powers of the Board of Directors.
1. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to do the following:
(a) To make, adopt, alter, amend, and repeal any of the By-Laws
to the extent provided in the By-Laws; provided that the stockholders
may make, adopt, alter, amend, and repeal any of the By-Laws;
(b) To cause the redemption by the Company of shares of the Company's
Common Stock, and to restrict the transfer of shares of Common Stock in
the manner provided for in these Articles of Incorporation and the
By-Laws;
(c) To authorize, subject as may be required by any applicable
governmental statute, rule, or regulation, or as provided in the
By-Laws for stockholder approval and other conditions, if any, the
execution and performance by the Company of one or more agreements
with any person, corporation, association, company, trust,
partnership (limited or general), or other organization whereby,
subject to the supervision and control of the Board of Directors,
any such other person, corporation, association, company, trust,
partnership (limited or general), or other organization shall render
or make available to the Company, managerial, investment advisory,
and/or related services and facilities (including, if deemed
advisable by the Board of Directors, the management or supervision
of the investments of the Company) upon such terms and conditions as
may be provided in such agreement or agreements (including, if
deemed fair and reasonable by the Board of Directors, the compensation
payable thereunder by the Company);
(d) To authorize any agreement of the character described in
Section l(c) of this Paragraph (A) of this Article VI or other
transaction with any person, corporation, association, company, trust,
partnership (limited or general), or other organization, even though
one or more of the members of the Board of Directors or officers of
the Company may be the other party to any such agreement or an officer,
director, stockholder, or member of such other party, and no such
agreement or transaction shall be invalidated or rendered voidable
solely by reason of the existence of any such relationship if (i) the
existence is disclosed or known to: (x) the Board of Directors, and
the Board of Directors authorizes, approves, or ratifies the agreement
or transaction by the affirmative vote of a majority of the
disinterested directors, even if the disinterested directors
constitute less than a quorum; or (y) the stockholders of the Company
entitled to vote, and the agreement or transaction is authorized,
approved, or ratified by a majority of votes cast by such stockholders
without regard to the votes of shares owned of record or beneficially
by the interested director or such other party; or (ii) the contract
is fair and reasonable to the Company. Provided the disclosure,
ratification, or fairness provisions of this subparagraph are
satisfied, any member of the Board of Directors who is also a director
or officer of such other party or who is so interested or associated
with such other party may be counted in determining the existence of
a quorum at any meeting of the Board of Directors which shall
authorize any such agreement or transaction, and may vote thereat to
authorize any such agreement or transaction, as if the director were
not such director or officer of such other party or not so interested
or so associated;
(e) To allot and authorize the issuance of the authorized but
unissued shares of Common Stock of the Company for such consideration
as the Board of Directors may deem advisable, subject to such
limitations as may be set forth in these Articles of Incorporation or
the By-Laws of the Company; and
(f) To authorize the issuance and fix the terms, conditions, and
provisions of options to purchase and subscribe for shares of Common
Stock of the Company, including the option price or prices for which
shares of Common Stock of the Company may be purchased or subscribed.
2. The determination as to any of the following matters made by or
pursuant to the direction of the Board of Directors consistent with these
Articles of Incorporation and in the absence of willful misfeasance, bad
faith, gross negligence, or reckless disregard of duties, shall be final
and conclusive and shall be binding upon the Company and every holder of
the shares of its Common Stock: (a) the amount of net income of the
Company for any period and the amount of assets at any time legally
available for the payment of dividends; (b) the amount of paid-in surplus,
other surplus, annual or other net profit, or net assets in excess of
capital, undivided profits, or excess of profits over losses on sales of
assets; (c) the amount, purpose, time of creation, increase or decrease,
alteration, or cancellation of any reserves or charges and the propriety
thereof (whether or not any obligation or liability for which such
reserves or charges shall have been created shall have been paid or
discharged); (d) the fair values, or any sale, bid or asked price to be
applied in determining the fair value, of any asset owned or held by the
Company; and (e) any matter relating to the acquisition, holding, and
disposition of any assets by the Company.
3. The enumeration and definition of particular powers of the Board
of Directors included in this Article VI shall in no way be limited or
restricted by reference to or inference from the terms of any other clause
of this or any other Article of these Articles of Incorporation, or
construed as or deemed by inference or otherwise in any manner to exclude
or limit the powers conferred upon the Board of Directors under the
Florida Business Corporation Act of the State of Florida as now or
hereafter in force.
ARTICLE VII - AMENDMENTS
The Company reserves the right to make any amendments to its Articles of
Incorporation which may be now or hereafter authorized by law, including any
amendments changing the terms or contract rights of any of its outstanding
stock by classification, reclassification, or otherwise, provided such
amendment shall have been authorized by the affirmative vote of a majority of
the aggregate number of shares entitled to vote thereon at a meeting of the
stockholders of the Company or in writing by the stockholders of the Company
with or without a meeting. A11 rights and powers conferred by these Articles
of Incorporation on stockholders, directors, and officers are granted subject
to this reservation.
ARTICLE VIII - INDEMNIFICATION
The Company shall indemnify each of its officers and directors to the
fullest extent permitted by the Florida Business Corporation Act as now or
hereafter in force, including the advance of expenses and reasonable
counsel fees.
ARTICLE IX - CONFLICT
The officers and directors of the Company may without restriction make
real estate investments for their own account or for the account of others,
and the directors are not required to bring to the Company's attention
investment opportunities meeting the Company's investment criteria. The
directors of the Company are not prohibited from engaging in the same
activities or lines of business as the Company.
ARTICLE X - LIABILITY
The liability of the directors and officers of the Company to the Company
or its stockholders for money damages shall be limited to the maximum extent
that the liability of directors and officers of corporations organized and
existing under the laws of the State of Florida is permitted to be limited
by Florida law, including the Florida Business Corporation Act, as now or
hereafter in effect. Neither the amendment nor repeal of this Article, nor
the adoption of any provision of the Articles of Incorporation or By-Laws
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure
to act which occurred prior to such amendment, repeal or adoption.
IN WITNESS WHEREOF, the undersigned President of Koger Equity, Inc. has
executed these Amended and Restated Articles of Incorporation this 10th day
of May, 1994.
KOGER EQUITY, INC.
By: Irvin H. Davis
Irvin H. Davis
