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) August 22, 1996
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KOGER EQUITY, INC.
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(Exact name of registrant as specified in its charter)
Florida 1-9997 59-2898045
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(State of incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
3986 Boulevard Center Drive
Jacksonville, Florida 32207
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number: (904) 398-3403
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
Reference is made to a copy of the Koger Equity, Inc. ByLaws, as
Amended and Restated on August 22, 1996, which is filed as Exhibit 3(ii) to this
report, which exhibit is incorporated herein by reference.
Reference is also made to a copy of the Koger Equity, Inc. Quarterly
Report to Shareholders for the quarter ended June 30, 1996, which is filed as
Exhibit 99 to this report, which exhibit is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit Number Description of Exhibit
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3(ii) Koger Equity, Inc. By-Laws, as
Amended and Restated on August
21, 1996
99 Koger Equity, Inc. Quarterly
Report to Shareholders for the
quarter ended June 30, 1996
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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: August 22, 1996 By:
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W. Lawrence Jenkins
Title: Vice President and
Corporate Secretary
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EXHIBIT INDEX
The following designated exhibit is filed herewith:
Exhibit
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3(ii) Koger Equity, Inc. By-Laws, as
Amended and Restated on August
21, 1996
99 Koger Equity, Inc. Quarterly
Report for the quarter ended
June 30, 1996
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To the Shareholders:
I am pleased to report rental revenues for the Company totaled $48.1 million for
the six months ended June 30, 1996, compared to $47.7 million for the same
period last year. After excluding rental revenues of approximately $1.9 million
from three buildings which were sold on July 31, 1995, rental revenues for the
buildings owned by Koger Equity in both periods increased approximately 5.1
percent. This increase came primarily from higher rental rates on new and
renewed leases. At June 30, 1996, the Company's portfolio of suburban office
parks, containing 7,661,350 net rentable square feet, was 91% leased with an
average annual rental rate of $13.91 per square foot.
Continuing the increase of the first quarter, net income for the Company rose to
$2.2 million for the quarter ended June 30, 1996, as compared to $2 million for
the same period last year. This improvement was due to increases in total
revenues and reduction in interest expense due to significant debt reduction
during 1995. Funds from operations increased by $1.7 million or 27%, to $8
million ($0.43 per share), for the quarter ended June 30, 1996, as compared to
$6.3 million ($0.35 per share) for the same period last year. Net income totaled
$5.2 million for the six months ended June 30, 1996, as compared to $4.2 million
for the same period last year.
In July, we signed a loan application with The Northwestern Mutual Life
Insurance Company for a $190 million non-recourse loan which will be secured by
ten office parks. This loan will be divided into (i) a tranche in the amount of
$100.5 million with a ten year maturity and an interest rate of 8.25 percent and
(ii) a tranche in the amount of $89.5 million with a maturity of 12 years and an
interest rate of 8.33 percent. We are also seeking to refinance the $62 million
balance of our debt and to establish a new bank revolving credit facility of
approximately $50 million to finance growth opportunities. We look forward to
completing the refinancings (which will eliminate restrictive covenants in the
Company's existing debt) and arranging the new credit facility by the end of the
year or in the first quarter of 1997.
On August 15, 1996, the Company entered into an agreement with the Internal
Revenue Service settling matters with respect to the IRS's customary examination
of the Company's 1992 and 1993 Federal income tax returns and the Koger
Properties, Inc. ("KPI") final Federal income tax return through the effective
date of the merger of KPI and the Company. Under the terms of the settlement,
the amount of KPI's net operating tax loss carryforwards at the date of the
merger has been settled at $30 million, and is useable at the rate of $7.9
million per year. Koger Equity's net operating tax loss carryforward available
to offset REIT taxable income in 1996 is approximately $31.4 million. The
Company regards the foregoing settlement as a favorable resolution of issues
which were the subject of the IRS audit and in line with its tax strategy
developed in connection with the KPI merger.
As previously announced, the board intends to reinstitute a dividend beginning
next year. The favorable IRS settlement with respect to net operating tax loss
carryforwards will not affect the
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tax loss carryforwards useable by the Company in 1996 or 1997 or its plan to
reinstitute a dividend in 1997. The board expects to set a dividend record date
in the fourth quarter for payment of an initial quarterly dividend early in the
first quarter of 1997.
Our Company has made good progress through the first six months of the year, a
fact which has been noticed by the securities markets. The closing price of
Koger Equity's common stock on the American Stock Exchange on June 30 was $13
3/8, reflecting a total return of 25.8% for the first six months of 1996,
compared to 6.82% for all equity REITs and 11.21% for our comparable group of
office REITs over the same period. From June 30, 1995, to June 30, 1996, the
total return for the Company's common stock was 52.9%.
The outlook for the balance of the year remains very favorable with funds from
operations projected to approximate $32 million for 1996. The 1995 funds from
operations was $24.2 million, which excludes $13.1 million for interest revenue
on mortgage notes retired. We will keep you informed as we continue our efforts
towards a successful completion of the year.
Cordially,
Victor A. Hughes, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
The foregoing message contains forward-looking statements, together with related
data and projections, about the Company's projected 1996 financial results and
its proposed debt refinancing. The actual results for 1996 and of such
refinancing activities could differ materially from those projected because of
factors affecting the financial markets, reactions of the Company's existing or
prospective lenders and investors, the ability of the Company to renew and enter
into new leases on favorable terms, and other risk factors. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
Cautionary Statement Relevant to Forward-Looking Information for Purpose of the
'Safe Harbor' Provisions of the Private Securities Litigation Reform Act of
1995" in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
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KOGER EQUITY, INC.
BY-LAWS
as
AMENDED AND RESTATED
on
August 21, 1996
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Company shall be
in the State of Florida and shall be at such place as the Board of Directors of
the Company (the "Board of Directors") may determine.
Section 2. Principal Executive Office. The principal executive office of
the Company shall be in the City of Jacksonville, State of Florida, or in such
other place as the Board of Directors may from time to time determine.
Section 3. Other Offices. The Company may also have offices at such other
places, both within and outside of the State of Florida as the Board of
Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders of the Company
shall be held at such place, either within or outside of the State of Florida as
shall be determined from time to time by the Board of Directors and stated in a
notice of meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. The annual meeting of the stockholders shall be
held on such day in the month of May, or in such other month, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Except as the Articles of Incorporation of the Company (the
"Articles of Incorporation") or the Florida Business Corporation Act (the "Act")
may provide otherwise, any business may be considered at an annual meeting.
Failure to hold an annual meeting does not invalidate the Company's existence or
affect any otherwise valid corporate acts.
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Section 3. Special Meeting. Except as the Articles of Incorporation or the
Act may otherwise provide, Special Meetings of the stockholders, for any purpose
or purposes, may be called by the Chairman of the Board of Directors, by the
Vice Chairman of the Board of Directors, by the President or by a majority of
the Board of Directors or upon the written request of stockholders holding in
the aggregate at least ten percent (10%) in amount of the entire outstanding
capital stock of the Company issued and outstanding and entitled to vote at such
meeting. If a special meeting is called at the written request of stockholders,
such request shall state with specificity the purpose or purposes of such
meeting and the matters proposed to be acted on. Any business of the Company
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice thereof.
Section 4. Notice of Meetings and Waiver of Notice. Not less than ten (10)
days nor more than sixty (60) days before the date of any meeting of
stockholders, written or printed notice of the meeting shall be given to each
stockholder entitled to vote at the meeting and to each other stockholder not
entitled to vote who is entitled by statute to receive notice of the meeting.
The notice shall state the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.
Notice is given to a stockholder when it is personally delivered to the
stockholder, left at the stockholder's residence or usual place of business, or
mailed to the stockholder at the stockholder's address as it appears on the
records of the Company. If such notice is mailed with postage thereon prepaid,
such notice shall be deemed to be given when deposited in the United States mail
addressed to the stockholder at the stockholder's post office address as it
appears on the records of the Company.
In the case of a special meeting of stockholders convened at the written
request of the stockholders, as provided for in Section 3 of this Article II,
the notice herein provided for shall be given in the manner herein provided, not
less than ten (10) days nor more than sixty (60) days before the date of the
meeting.
Notwithstanding the foregoing provisions, each person who is entitled to
notice of any meeting of stockholders waives notice if the stockholder attends
such meeting in person or by proxy, or if the stockholder, before or after the
meeting, submits a signed waiver of the notice which is filed with the records
of stockholders' meetings. When a meeting of stockholders is adjourned to
another time and place, unless the Board of Directors after the adjournment
shall fix a new record date for an adjourned meeting, notice of such adjourned
meeting need not be given if the time and place to which the meeting shall be
adjourned were announced at the meeting at which the adjournment was taken.
Section 5. Quorum and Voting. The holders of a majority of the stock issued
and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
the Act or the Articles of Incorporation. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question, unless such
question is one upon which by express provision of the Act or the Articles of
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Incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or by
proxy, by majority vote and without notice other than announcement at the
meeting, except as required by Section 4 of this Article II, shall have power to
adjourn the meeting from time to time until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. In the event that at any meeting a quorum
exists for the transaction of some business but does not exist for the
transaction of other business, the business as to which a quorum is present may
be transacted by the holders of stock present in person or by proxy who are
entitled to vote thereon.
Section 6. General Right to Vote and Proxies. Each outstanding share of
stock is entitled to one (1) vote on each matter submitted to a vote at a
meeting of stockholders. A stockholder may vote the stock the stockholder owns
as shown on the record of stockholders of the Company as of the record date,
determined pursuant to Section 7 of this Article II, either in person or by
written proxy signed by the stockholder or by the stockholder's duly authorized
attorney-in-fact, but no proxy shall be voted or acted upon after eleven (11)
months from its date, unless the proxy provides for a longer period.
Section 7. Fixing of Record Date and List of Stockholders. In order that
the Company may determine the stockholders (a) entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or (b) entitled to receive
payment of any dividend or other distribution or allotment of any rights, or (c)
entitled to exercise any rights with respect to any change, conversion, or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which, in the case of a consent to
corporate action without a meeting, shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which shall not be less than ten (10) days nor more than
seventy (70) days before the date then fixed for the holding of any meeting of
the stockholders, nor more than seventy (70) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting which it must do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting. At any
meeting of stockholders, a full, true and complete list of all stockholders
entitled to vote at such meeting, showing the number and class of shares held by
each and certified by the transfer agent for such class or by the Secretary,
shall be furnished by the Secretary. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the Board of
Directors within ten (10) days of the date on which such a request is received,
the record date for determining stockholders entitled to consent to corporate
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action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the date of the earliest dated
written consent delivered to the Company in the manner provided in Section
607.0704 of the Florida 1989 Business Corporation Act (the "Act"). Delivery
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 8. Organization and Order of Business. At each meeting of the
stockholders, the Chairman of the Board of Directors, or in the Chairman's
absence or inability to act, the Vice Chairman of the Board or in the Chairman's
or Vice Chairman's absence or inability to act, the President, or in the absence
or inability to act of the Chairman of the Board, Vice Chairman of the Board or
the President, a Vice President designated by the Board of Directors shall act
as Chairman of the meeting. The Secretary, or in the Secretary's absence or
inability to act, any person appointed by the Chairman of the Board or the
presiding Chairman of the meeting, shall act as Secretary of the meeting and
keep the minutes thereof. The order of business of all meetings of the
stockholders shall be determined by the Chairman of the meeting, who shall have
the authority in his discretion to regulate the conduct of such meeting,
including, without limitation, to impose restrictions on the persons (other than
stockholders of the corporation or their duly appointed proxies) who may attend
such meeting, to regulate and restrict the making of statements or asking of
questions at such meeting and to cause the removal from such meeting of any
person who has disrupted or appears likely to disrupt the proceedings at such
meeting. At a meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before a meeting of stockholders, business must be (a) specified in the notice
of meeting (or any supplement thereto) given as provided in these by-laws, (b)
otherwise properly brought before the meeting by or at the direction of a
majority of the Board of Directors then in office, or (c) otherwise properly
brought before the meeting by a stockholder. For business to be properly brought
before a meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the secretary of the corporation and the stockholder must
be a stockholder of record at the time such notice is given. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation, not less than seventy (70) days
nor more than ninety (90) days prior to the meeting; provided, however, that in
the event that the date of the meeting is not publicly announced by the
Corporation by mail, press release or otherwise more than seventy (70) days
prior to the meeting, notice by the stockholder to be timely must be delivered
to the Secretary of the Corporation not later than the close of business on the
tenth (10th) day following the day on which such announcement of the date of the
meeting was made. A stockholder's notice to the secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (b) the name and
address, as it appears on the corporation's books, of the stockholder proposing
such business, (c) the number of shares of the corporation's common
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stock which are beneficially owned by the stockholder, and (d) any material
financial interest of the stockholder in such business. Notwithstanding anything
in these by-laws to the contrary, no business shall be conducted at any meeting
except in accordance with the procedures set forth in this Section 8, and if the
Chairman of the meeting should so determine, he shall so declare to the meeting
any such business not properly brought before the meeting shall not be
transacted Notwithstanding the foregoing provisions of this Section 8, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
Section 9. Conduct of Voting. At all meetings of stockholders, the proxies
and ballots shall be received, and all questions concerning the qualifications
of voters and the validity of proxies and the acceptance or rejection of votes
shall be decided by the Chairman of the meeting.
Section 10. Informal Action by Stockholders. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if there is filed with the records of stockholders' meetings a unanimous
written consent which sets forth the action and is signed by each stockholder
entitled to vote on the matter and a written waiver of any right to dissent
signed by each stockholder entitled to notice of the meeting but not entitled to
vote at it.
Section 11. Procedures for Counting Consents. Within three (3) business
days after receipt of the earliest dated consent delivered to the Company in the
manner provided in Section 607.0704 of the Act or the determination by the Board
of Directors of the Company that the Company should seek corporate action by
written consent, as the case may be, the Secretary shall engage nationally
recognized independent inspectors of elections for the purpose of performing a
ministerial review of the validity of the consents and revocations. The cost of
retaining such inspectors shall be borne by the Company.
Consents and revocations shall be delivered to the inspectors upon receipt
by the Company, the stockholders soliciting consents or soliciting revocations
in opposition to action by consents proposed by the Company (the "Soliciting
Stockholders"), or their proxy solicitors or other designated agents. As soon as
consents and revocations are received, the inspectors shall review the consents
and revocations and shall maintain a count of the number of valid and unrevoked
consents. The inspectors shall keep such count confidential and shall not reveal
the count to the Company, the Soliciting Stockholders, or their representatives
or any other entity. As soon as practicable after the earlier of (i) sixty (60)
days after the date of the earliest dated consent delivered to the Company in
the manner provided in Section 607.0704 of the Act, or (ii) the delivery to the
inspector and the party opposing the solicitation, if any, of a written request
by the Company or the Soliciting Stockholders (whichever is soliciting consents)
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stating that the Company or Soliciting Stockholders, as the case may be, have a
good faith belief that the requisite number of valid and unrevoked consents to
authorize or take the action specified in the consents has been received in
accordance with these By-Laws, the inspectors shall issue a preliminary report
to the Company and the Soliciting Stockholders stating: (i) the number of valid
and unrevoked consents; (ii) the number of valid revocations; (iii) the number
of invalid consents; (iv) the number of invalid revocations; and (v) whether,
based on their preliminary count, the requisite number of valid and unrevoked
consents has been obtained to authorize or take the action specified in the
consents. In making such determinations, the inspectors shall determine whether
consents executed by parties other than the beneficial owners of the shares
represented by such consents have been executed pursuant to the authorization of
the beneficial owner of such shares.
Unless the Company and the Soliciting Stockholders shall agree to a shorter
or longer period, the Company and the Soliciting Stockholders shall have
forty-eight (48) hours to review the inspectors' report and the consents and
revocations and to advise the inspectors and the opposing party in writing as to
whether they intend to challenge the preliminary report of the inspectors. If no
written notice of an intention to challenge the preliminary report (a "Challenge
Notice") is received by the inspectors within forty-eight (48) hours after the
issuance of the preliminary report, the inspectors shall issue to the Company
and the Soliciting Stockholders their final report containing the information
from the inspectors' determination with respect to whether the requisite number
of valid and unrevoked consents was obtained to authorize and take the action
specified in the consents. If the Company or the Soliciting Stockholders issue a
Challenge Notice within forty-eight (48) hours after the issuance of the
preliminary report, a challenge session shall be scheduled by the inspectors as
promptly as practicable, but in no event later than forty-eight (48) hours from
the receipt of the Challenge Notice. Following completion of the challenge
session, the inspectors shall as promptly as practicable issue their final
report to the Soliciting Stockholders and the Company, which report shall
contain the information included in the preliminary report, plus all changes in
the vote totals as a result of the challenge and a certification of whether the
requisite number of valid and unrevoked consents was obtained to authorize or
take the action specified in the consents. A copy of the final report of the
inspectors shall be included in the book in which the proceedings of meetings of
stockholders are recorded.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Company shall be
managed under the direction of its Board of Directors. All powers of the Company
may be exercised by or under authority of the Board of Directors, except as
conferred on or reserved to the stockholders by the Act, the Articles of
Incorporation or these By-Laws.
Section 2. Number of Directors. The number of Directors which shall
constitute the whole Board of Directors shall not be less than one (1), with the
exact number of Directors as may be fixed from time to time by resolution of the
Board of Directors. The initial Board of Directors shall consist of three (3)
Directors until changed as herein provided, a majority of which Directors shall
be persons who are not Affiliates (as defined in Section 4 of Article IX of
these By-Laws) or employees of any independent contractor of the Company or an
Affiliate (as defined in Section 4 of Article IX of these By-Laws) of such
independent contractor. Directors need not be stockholders of the Company.
Section 3. Nomination, Election and Tenure of Directors. Nominations for
the election of Directors may be made by the Board of Directors or by any
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stockholder entitled to vote for the election of Directors. Any stockholder
entitled to vote for the election of Directors at a meeting may nominate persons
for election as Directors by giving timely notice thereof in proper written form
to the secretary accompanied by a petition signed by at least one hundred (100)
record holders of the common stock of the corporation which shows the number of
shares held by each person and which represent in the aggregate one percent (1%)
of the outstanding shares entitled to vote in the election of Directors. To be
timely, notice shall be delivered to or mailed and received at the principal
executive offices not less than seventy (70) days nor more than ninety (90) days
prior to the meeting; provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the meeting
is given or made to the stockholders, to be timely, notice by the stockholder
must be received at the principal executive offices not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper
written form, a stockholder's notice shall set forth in writing (i) as to each
person whom the stockholder proposes to nominate for election or re-election as
a Director, all informa tion relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected and (ii) as to the stockholder giving the notice (x) the
name and address, as they appear on the corporation's books, of such stockholder
and (y) the number of shares of the corporation which are beneficially owned by
such stockholder. At the request of the Board of Directors, any person nominated
by the Board of Directors for election as a Director shall furnish to the
secretary the information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. In the event that a stockholder seeks
to nominate one or more Directors, the secretary shall appoint one or more
inspectors to determine whether a stockholder has complied with this Section 3.
If the inspectors shall determine that a stockholder has not complied with this
Section 3, the inspectors shall direct the Chairman of the meeting to declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the by-laws, and the Chairman shall so declare to the meeting and
the defective nomination shall be disregarded. Except as provided in Section 5
of this Article III, the Directors shall be elected at the annual meeting of
stockholders and shall hold office until the next annual meeting and until their
successors are elected and qualified, unless sooner displaced. Directors are
eligible for re-election, and a Director may resign at any time by giving
written notice to the Company.
Section 4. Removal of Director. The stockholders may remove any Director or
Directors at any time, with or without cause, by the affirmative vote of a
majority of all the votes entitled to be cast for the election of Directors and
may elect a successor or successors to fill any resulting vacancies for the
unexpired terms of the removed Directors. A majority of the Directors may remove
a Director for cause.
Section 5. Vacancies on the Board of Directors. A majority of the remaining
Directors, whether or not sufficient to constitute a quorum, or a sole remaining
Director, may fill a vacancy on the Board of Directors which results from any
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cause except an increase in the number of Directors, and a majority of the
entire Board of Directors may fill a vacancy which results from an increase in
the number of Directors. A Director elected by the Board of Directors to fill a
vacancy serves for the balance of the term of the replaced Director, unless
sooner displaced.
Section 6. Regular Meetings. After each meeting of stockholders at which a
Board of Directors shall have been elected, the Board of Directors so elected
shall meet as soon as practicable for the purpose of organization and the
transaction of other business. No notice of such meeting shall be necessary to
the newly elected Directors in order legally to constitute the meeting, provided
a quorum shall be present. Any other regular meeting of the Board of Directors
shall be held at such time and at any place within or outside of the State of
Florida as may be determined by the Board of Directors, the Chairman of the
Board, Vice Chairman of the Board or the President of the Company.
Section 7. Special Meetings. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President of the Company, or by a
majority of the Board of Directors by vote at a meeting, or by a majority of the
Board of Directors in writing without a meeting. A special meeting of the Board
of Directors shall be held on such date and at any place within or outside of
the State of Florida as may be designated from time to time by the Chairman of
the Board, the Vice Chairman of the Board of Directors, the President of the
Company or the Board of Directors.
Section 8. Notice of Meeting. Except for regular meetings held after a
meeting of the stockholders as provided in Section 6 of this Article III, the
Secretary of the Company, or in the Secretary's absence or inability to act, any
officer of the Company appointed by the Chairman of the Board, the Vice Chairman
of the Board of Directors or the President of the Company, shall give notice to
each Director of each regular and special meeting of the Board of Directors. The
notice shall state the date and place of the meeting. Notice is given to a
Director when it is delivered personally to him, left at his residence or usual
place of business, or sent by telegraph, cablegram, or telephonic communication,
at least twenty-four (24) hours prior to the time of the meeting or, in the
alternative, by first-class mail, postage prepaid, addressed to the Director at
his post office or his address as it appears on the records of the Company, at
least four (4) days before the day on which such meeting is to be held. If
mailed with postage prepaid, such notice shall be deemed to be given when
deposited in the United States mail addressed to the Director at his address as
it appears in the records of the Secretary. The notice need not state the
business to be transacted at or the purpose of the meeting. No no tice of any
meeting of the Board of Directors need be given to any Director who attends, or
to any Director who, in writing executed and filed with the records of the
meeting either before or after the holding thereof, waives such notice. Any
meeting of the Board of Directors may adjourn from time to time to reconvene at
the same or some other place, and no notice need be given of any such adjourned
meeting other than by announcement.
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Section 9. Action by Directors. The action of a majority of the Directors
present at a meeting at which a quorum of the Board of Directors is present
constitutes action of the Board of Directors, except as otherwise provided in
the Act, the Articles of Incorporation, or these ByLaws in respect of any
investment or action by the Company which involves a potential conflict of
interest between the Company and any independent contractor retained by the
Company or any Affiliate (as defined in Section 4 of Article IX of these
By-Laws) of any such independent contractor. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business. In the
absence of a quorum, the Directors present, by majority vote and without notice
other than by announcement, may adjourn the meeting from time to time until a
quorum shall attend. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally no ticed.
Section 10. Organization. The Chairman of the Board of Directors of the
Company shall preside at each meeting of the Board of Directors. In the absence
or inability of the Chairman of the Board to preside at a meeting, the Vice
Chairman of the Board of Directors of the Company shall preside at a meeting. In
the absence or inability of either of the Chairman or Vice Chairman of the Board
to preside at a meeting, the President of the Company shall preside at a
meeting. In the absence or inability of the Chairman of the Board, Vice Chairman
of the Board or the President to preside at a meeting, another Director chosen
by a majority of the Directors present, shall act as Chairman of the meeting and
preside thereat. The Secretary of the Company or, in the Secretary's absence or
inability to act, any person appointed by the Chairman of the Board or the
presiding Chairman shall act as Secretary of the meeting and keep the minutes
thereof.
Section 11. Meeting by a Conference Telephone. Members of the Board of
Directors or of any committee thereof may participate in a meeting by means of a
conference telephone or similar communications equipment, by means of which all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
a meeting.
Section 12. Consent in Lieu of Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if a written consent to such action is signed by
all members of the Board of Directors or of such committee, as the case may be,
and such written consent or consents are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 13. Compensation. Directors may receive compensation for services
to the Company in their capacities as Directors in such manner and in such
amounts as may be fixed from time to time by the Board of Directors, and
expenses, if any, of attendance at each regular or special meeting of the Board
of Directors, or any committee of the Board of Directors, or any meeting of
stockholders. No such payment shall preclude any Director from serving the
Company in any other capacity and receiving compensation therefor.
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ARTICLE IV
COMMITTEES OF DIRECTORS
Section 1. Committees. The Board of Directors may, by resolution adopted by
a majority of the full Board of Directors, appoint or designate one or more
committees, each committee of the Board of Directors to consist of two (2) or
more Directors, and may delegate to such committees any of the powers of the
Board of Directors except such powers as are required to be performed by the
Board of Directors under the Act, the Articles of Incorporation, or these
By-Laws.
Section 2. Minutes and Reports. Each committee of the Board of Directors
shall keep minutes of its proceedings and shall report the same to the Board of
Directors, and any action taken by the committees shall be subject to revision
and alteration by the Board of Directors, provided that no rights of third
persons shall be affected by any such revision or alteration.
Section 3. Notice. Notice of committee meetings shall be given in the same
manner as notice for special meetings of the Board of Directors, and a waiver
thereof in writing, signed by the Director entitled to such notice and filed
with the records of the meeting, whether before or after the holding thereof, or
actual attendance at the committee meeting in person shall be deemed equivalent
to the giving of such notice to such Director.
Section 4. Quorum, Voting and General. One-third (1/3), but not less than
two (2), of the members of any committee shall be present in person at any
meeting of such committee in order to constitute a quorum for the transaction of
business at such meeting, and the act of the majority present shall be the act
of such committee. The Board of Directors or the Chairman of the Board of
Directors may designate a chairman of any committee and such chairman or any two
members of any committee may fix the time and place of its meetings unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
the power at any time to change the membership of any committee, to fill all
vacancies, to designate alternate members to replace any absent or disqualified
member, or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. The officers of the Company shall consist of a Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, a President, a
Secretary and a Treasurer, each of whom shall be elected by the Board of
Directors at the first meeting of directors immediately following the annual
meeting of shareholders of the Company, and shall serve until their successors
are chosen and qualified. Such other officers and assistant officers and agents,
as may be deemed necessary, may be elected or appointed by the Board of
Directors, the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors or the President from time to time. Any two (2) or more
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offices may be held by the same person. The failure to elect a Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, President,
Secretary or Treasurer shall not affect the existence of the Company.
Section 2. Duties. The officers of the Company shall have the following
duties:
The Chairman of the Board of Directors shall have general supervisory
authority over the management of the business and affairs of this
corporation subject to the direction of the Board of Directors and shall
preside at all meetings of Shareholders and the Board of Directors of this
corporation.
The Vice Chairman of the Board of Directors shall have general supervisory
authority over the management of the business and affairs of this
corporation subject to the direction of the Chairman of the Board of
Directors and the Board of Directors and in the absence of the Chairman of
the Board of Directors shall preside at all meetings of the Shareholders
and the Board of Directors.
The President shall have general and active management of the business and
affairs of the corporation subject to the directions of the Chairman of the
Board of Directors, the Vice Chairman of the Board of Directors and the
Board of Directors, and in the absence of the Chairman of the Board of
Directors and the
Vice Chairman of the Board of Directors, shall preside at all meetings of
the shareholders and the Board of Directors.
The Secretary shall have custody of, and maintain, all of the corporate
records except the financial records; shall record the minutes of all
meetings of the shareholders and Board of Directors, send all notices of
meetings out, and perform such other duties as may be prescribed by the
Board of Directors, Chairman of the Board of Directors, Vice Chairman of
the Board of Directors or the President.
The Treasurer shall have custody of all corporate funds and financial
records, shall keep full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of
shareholders and whenever else required by the Board of Directors or the
President, and shall perform such other duties as may be prescribed by the
Board of Directors, Chairman of the Board of Directors, Vice Chairman of
the Board of Directors or the President.
The functions of the chief executive officer, chief financial officer, and
chief accounting officer of the Company shall be performed by those
officers designated as such by the Board of Directors of the Company.
Section 3. Removal of Officers. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board whenever in its judgment
the best interests of the Company will be served thereby.
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Any officer or agent elected by the shareholders may be removed only by
vote of the shareholders, unless the shareholders shall have authorized the
Directors to remove such officer or agent.
Any officer or agent elected or appointed by any of the Chairman of the
Board of Directors, the Vice Chairman of the Board of Directors or the President
may be removed by the officer who appointed such officer or by the Board of
Directors.
Any vacancy, however occurring, in any office may be filled by the Board of
Directors.
Removal of any officer shall be without prejudice to the contract rights,
if any, of the person so removed; however, election or appointment of an officer
or agent shall not of itself create contractual rights.
ARTICLE VI
INVESTMENT POLICIES
Section 1. General. The Board of Directors shall determine the Company's
investment policies and shall review those policies at least annually to
determine that the policies are being followed by the Company and are in the
best interests of its stockholders.
It shall be the duty of the Board of Directors to insure that the purchase,
sale, retention and disposal of Company assets, and the investment policies of
the Company and the limitations thereon or amendment thereof are at all times in
compliance with the restrictions applicable to real estate investment trusts
pursuant to the Internal Revenue Code of 1986, as it may be amended from time to
time (the "Internal Revenue Code").
The Company will not, without the approval of a majority of the Board of
Directors, acquire from or sell to a Director, an officer or employee of the
Company, any person in which a Director owns more than a one percent (1%)
interest, or any Affiliate (as defined in Section 4 of Article IX of these
By-Laws) of any of the foregoing, any of the assets or other property of the
Company, or make loans to any of the foregoing.
Section 2. Limitations. Each of the following limitations shall apply only
to the extent that each limitation must be satisfied in order for the Company to
qualify as a real estate investment trust under the Internal Revenue Code, and
to the extent that each limitation is required for such qualification, each
limitation may not be changed without the approval of the holders of a majority
of the outstanding shares: (1) the Company may not hold property primarily for
sale to customers in the ordinary course of business; (2) the Company may not
issue "redeemable securities" as defined in the Investment Company Act of 1940;
(3) the Company may not invest in any real estate investment trust which holds
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investments or engages in activities which the Company would be prohibited from
engaging in by these By-Laws; (4) the Company may not invest in commodities or
commodity future contracts other than "financial futures" contracts intended to
hedge the Company against losses from its temporary investments; (5) the Company
may not invest more than one percent (1%) of its assets in real estate contracts
of sale, unless such contracts are recordable in the chain of title; and (6) the
Company may not engage in trading (as compared with investment activities) or
engage in the underwriting or the agency distribution of securities issued by
others.
ARTICLE VII
STOCK
Section 1. Certificate for Stock. Every holder of stock in the Company
shall be entitled to have a certificate or certificates which represents and
certifies the number and kind and class of shares of stock owned by each such
stockholder in the Company. Certificates for fractional shares shall not be
issued. Each stock certificate shall include on its face the name of the
Company, the name of the stockholder or other person to whom it is issued, the
class of stock and the number of shares represented by the certificate. It shall
be in such form, not inconsistent with the Act or with the Articles of
Incorporation, as shall be approved by the Board of Directors or any officer or
officers designated for such purpose by resolution of the Board of Directors.
Each stock certificate shall be signed by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the President, or a Vice
President, and countersigned by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer. Each certificate may be sealed with the
actual corporate seal or a facsimile of it or in any other form and the
signatures may be either manual or facsimile signatures. Where a certificate is
countersigned: (i) by a transfer agent other than the Company or its employee;
or (ii) by a registrar other than the Company or its employee, any other
signature on the certificate may be facsimile. In case any officer, transfer
agent or registrar, who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, the certificate may nevertheless be
issued by the Company with the same effect as if such officer, transfer agent or
registrar had not ceased to be such as of the date of its issue.
Section 2. Transfers. The Board of Directors shall have power and authority
to make such rules and regulations as it may deem expedient concerning the
issue, transfer and registra tion of certificates of stock and may appoint
transfer agents and registrars thereof. The duties of transfer agent and
registrar may be combined.
Section 3. Stock Ledger. The Company shall maintain a stock ledger which
contains the name and address of each stockholder of the Company and the number
of shares of stock of each class which the stockholder holds. The stock ledger
may be in written form or in any other form capable of producing copies for
visual inspection. The original or a duplicate of the stock ledger shall be kept
at the offices of the transfer agent, within or outside the State of Florida,
or, if none, at the principal executive office of the Company.
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Section 4. Lost, Destroyed or Mutilated Certificates. Subject to such
rules, regulations and procedures as may be determined or set by the Board of
Directors, the holder of any certificates representing shares of stock in the
Company shall immediately notify the Company of any loss, destruction or
mutilation of such certificate, and the Company may issue a new certificate of
stock in the place of any certificate theretofore issued by the Company upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be stolen, lost or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
stolen, lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and to
give the Company a bond, with sufficient surety, to indemnify it against any
loss or claim which may arise by reason of the issuance of a new certificate.
Section 5. Payment of Redeemed Shares. Any shares of stock in the Company,
redeemed by the Company as Excess Shares pursuant to the provisions of Paragraph
(d) of Article V - CAPITAL STOCK of the Articles of Incorporation, shall be paid
for by the Company at the redemption price, as provided in Article V of the
Articles of Incorporation, as soon as reasonably practicable after the receipt
by the stockholder of the notice calling the Excess Shares for redemption by the
Company.
ARTICLE VIII
FINANCE
Section 1. Checks, Drafts, Etc. All checks, drafts and orders for the
payment of money, notes and other evidences of indebtedness issued in the name
of the Company shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 2. Fiscal Year. The fiscal year of the Company shall be the
calendar year.
ARTICLE IX
SUNDRY PROVISIONS
Section 1. Books and Records. The Company shall keep correct and complete
books and records of its accounts and transactions and minutes of the
proceedings of its stockholders and Board of Directors and of any committee when
exercising any of the powers of the Board of Directors.
Section 2. Distributions to Stockholders. Each distribution to stockholders
of income or capital assets shall be accompanied by a written statement
disclosing the source of the funds distributed. The amount and date of
distributions to stockholders shall be determined in the sole discretion of the
Board of Directors of the Company.
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Section 3. Transactions With Affiliates. Except as otherwise provided in
the Articles of Incorporation or these By-Laws, the Company shall not enter into
any transaction with any independent contractor retained by the Company or any
Affiliate (as defined in Section 4 below) of such independent contractor, or
with any officer or Director, or any Affiliate of any officer of Director
unless: (i) such transaction is approved by a majority of the Directors, who are
not Affiliates (as defined in Section 4 below) of such independent contractor or
a party to the transaction or (ii) such transaction is approved by the
stockholders of the Company; or (iii) such transaction is fair and reasonable to
the Company and its stockholders; or (iv) the terms of such transaction are at
least as favorable as the terms of any comparable transaction made on an arm's
length basis and known to the Board of Directors; or (v) the appraised value of
any property being acquired in such transaction is not less than the total
consideration paid by the Company in such transaction.
Section 4. Affiliates Defined. As used in these By-Laws, the term
"Affiliate" of another person shall mean any person directly or indirectly
owning, controlling, or holding with power to vote, five percent (5%) or more of
the outstanding voting securities of such other person; any person, five percent
(5%) or more of whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote, by such person; any person
directly or indirectly controlling, controlled by, or under common control with,
such other person; and any officer, Director, or employee of such person. The
term "person" includes a natural person, company, corporation, trust,
partnership (limited or general) or any other organization.
Section 5. Company Seal. There shall be a suitable seal, bearing the name
of the Company, which shall be in the charge of the Secretary. It shall be in
such form, not inconsistent with the Act or with the Articles of Incorporation,
as shall be approved by the Board of Directors or any officer or officers
designated for such purpose by resolution of the Board of Directors. The Board
of Directors may authorize one or more duplicate seals and provide for the
custody thereof. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Amendments. Any and all provisions of these By-Laws may be
altered or repealed and new By-Laws may be adopted by the stockholders of the
Company at any regular or special meeting in accordance with Section 5 of
Article II of these By-Laws, or by the Board of Directors.
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August 20, 1996
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