UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2, FINAL AMENDMENT)*
KOGER EQUITY, INC.
------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
----------------------------------------
(Title of Class of Securities)
50022 81 0
(CUSIP Number)
Michael E. Cahill, Esq. (213) 244-0000
Managing Director & General Counsel 865 South Figueroa Street, Suite 1800
The TCW Group, Inc. Los Angeles, California 90017
- ----------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
MARCH 6, 1996
- ----------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 2 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The TCW Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable.
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 880,398
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
880,398
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
880,398
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.96%
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 3 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Trust Company of the West
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable.
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 212,025
OWNED BY
EACH
REPORTING
PERSON WITH 8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
212,025
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
212,025
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.19%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 4 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW Asset Management Company
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable.
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 668,373
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
668,373
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
668,373
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.77%
14 TYPE OF REPORTING PERSON*
CO, IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 5 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW Special Credits
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable.
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 668,373
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
668,373
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
668,373
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.77%
14 TYPE OF REPORTING PERSON*
PN, IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 6 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW Special Credits Fund III
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 470,583
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
470,583
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
470,583
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.65%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP NO. 50022 81 0 PAGE 7 of 16 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW Special Credits Trust
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ]
(b)[X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 212,025
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
212,025
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
212,025
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.19%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Page 8 of 16 Pages
The Schedule 13D, initially filed on December 29, 1995, as amended by Amendment
No. 1 to Schedule 13D, filed on January 24, 1996, by the parties hereto with
respect to the Common Stock, par value $.01 per share ("Common Stock"), of
Koger Equity, Inc., a Florida corporation (the "Issuer"), is hereby amended and
restated in its entirety by this Amendment No. 2 to Schedule 13D as follows.
ITEM 1. SECURITY AND ISSUER
This Statement relates to the Common Stock of the Issuer. The address of the
principal executive office of the Issuer is 3986 Boulevard Center Drive, Suite
101, Jacksonville, Florida 32207.
ITEM 2. IDENTITY AND BACKGROUND
This Statement is filed on behalf of
(1) The TCW Group, Inc., a Nevada corporation ("TCWG");
(2) Trust Company of the West, a California corporation and wholly-owned
subsidiary of TCWG ("TCW");
(3) TCW Asset Management Company, a California corporation and wholly-
owned subsidiary of TCWG ("TAMCO");
(4) TCW Special Credits, a California general partnership of which TAMCO
is the managing general partner ("Special Credits");
(5) TCW Special Credits Fund III, a California limited partnership
("Special Credits Limited Partnership"), of which Special Credits is
the general partner; and
(6) TCW Special Credits Trust, a California collective investment trust
("Special Credits Trust"), of which TCW is the trustee.
Special Credits, Special Credits Trust and Special Credits Limited Partnership
are hereinafter collectively referred to as the "Special Credits Entities."
TCWG, TCW, TAMCO and the Special Credits Entities are hereinafter collectively
referred to as the "TCW Related Entities." Special Credits is also the
investment manager of certain third party accounts that invest in similar
securities as the Special Credit Entities. Such third party accounts that have
invested in the Issuer's Common Stock are hereinafter collectively referred to
as the "Special Credits Accounts".
TCWG is a holding company of entities involved in the principal business of
providing investment advice and management services. TCW is a trust company
which provides investment management services, including to Special Credits
Trust. TAMCO is an investment adviser and provides investment advice and
management services to institutional and individual investors. Special Credits
is an investment adviser and provides investment advice and management services
to Special Credits Limited Partnership and the Special Credits Accounts and
other third party accounts. Special Credits Limited Partnership is an
investment partnership which invests in financially distressed entities.
Special Credits Trust is a collective investment trust which invests in
financially distressed entities. The address of the principal business and
principal office for the TCW Related Entities is 865 South Figueroa Street,
Suite 1800, Los Angeles, California 90017. The Special Credits Entities (other
than Special Credits Trust) and the Special Credits Accounts are managed by
Special Credits whose general partners include TAMCO and four individuals.
(A)-(C) & (F)
(I) The executive officers of TCWG are listed below. The principal business
address for each executive officer is 865 South Figueroa Street, Suite 1800,
Los Angeles, California, 90017. Each executive officer is a citizen of the
United States of America unless otherwise specified below:
<PAGE>
Page 9 of 16 Pages
EXECUTIVE OFFICERS
Robert A. Day Chairman of the Board & Chief Executive Officer
Ernest O. Ellison Vice Chairman of the Board
Marc I. Stern President
Alvin R. Albe, Jr. Executive Vice President, Finance & Administration
Thomas E. Larkin, Jr. Executive Vice President & Group Managing Director
Michael E. Cahill Managing Director, General Counsel & Secretary
David K. Sandie Managing Director, Chief Financial Officer & Assistant
Secretary
Schedule I attached hereto and incorporated herein sets forth with respect to
each director of TCWG his or her name, residence or business address,
citizenship, present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which such
employment is conducted.
(II) The executive officers and directors of TCW are listed below. The
principal business address for each executive officer and director is 865 South
Figueroa Street, Suite 1800, Los Angeles, California 90017. Each executive
officer is a citizen of the United States of America unless otherwise specified
below:
EXECUTIVE OFFICERS & DIRECTORS
Robert A. Day Chairman of the Board & Chief Executive Officer
Ernest O. Ellison Director & Vice Chairman
Thomas E. Larkin, Jr. Director & President
Alvin R. Albe, Jr. Director & Executive Vice President, Finance &
Administration
Marc I. Stern Director, Executive Vice President, Managing
Director & Chief Investment Officer - International
Michael E. Cahill Managing Director, General Counsel & Secretary
David K. Sandie Managing Director, Chief Financial Officer & Assistant
Secretary
(III) The executive officers and directors of TAMCO are listed below. The
principal business address for each executive officer, director and portfolio
manager is 865 South Figueroa Street, Suite 1800, Los Angeles, California,
90017. Each executive officer and director is a citizen of the United States
of America unless otherwise specified below:
EXECUTIVE OFFICERS & DIRECTORS
Robert A. Day Chairman of the Board & Chief Executive Officer
Thomas E. Larkin, Jr. Director & Vice Chairman of the Board
Marc I. Stern Director, Vice Chairman of the Board & Chief
Investment Officer - International
Ernest O. Ellison Chief Investment Officer - Domestic Fixed Income
Alvin R. Albe, Jr. Director, Executive Vice President, Finance &
Administration
Michael E. Cahill Managing Director, General Counsel & Secretary
David K. Sandie Managing Director, Chief Financial Officer & Assistant
Secretary
Hilary G.D. Lord Senior Vice President, Chief Compliance Officer &
Assistant Secretary
(IV) The following sets forth with respect to each general partner of Special
Credits his name, residence or business address, present principal occupation
or employment and the name, principal business and address of any corporation
or other organization in which such employment is conducted for. Each general
partner who is a natural person is a citizen of the United States of America
unless otherwise specified below.
TAMCO is the Managing General Partner. See information in paragraph (iii)
above.
Bruce A. Karsh
President and Principal
Oaktree Capital Management, LLC
550 South Hope Street
Suite 2200
Los Angeles, California 90071
<PAGE>
Page 10 of 16 Pages
Howard S. Marks
Chairman and Principal
Oaktree Capital Management, LLC
550 South Hope Street
Suite 2200
Los Angeles, California 90071
Sheldon M. Stone
Principal
Oaktree Capital Management, LLC
550 South Hope Street
Suite 2200
Los Angeles, California 90071
David Richard Masson
Principal
Oaktree Capital Management, LLC
550 South Hope Street
Suite 2200
Los Angeles, California 90071
(V) Special Credits is the sole general partner of Special Credits Limited
Partnership and the investment adviser with respect to the Special Credits
Accounts. See information in paragraph (iv) above regarding Special Credits
and its general partners.
(D)-(E)
During the last five years, none of the TCW Related Entities and the Special
Credits Accounts, and, to the best of their knowledge, none of their respective
executive officers, directors and general partners (i) has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors); or
(ii) has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceedings was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The TCW Related Entities and the Special Credits Accounts acquired their
respective interests in the Issuer's Common Stock pursuant to the Issuer's
Chapter 11 Plan of Reorganization in late 1993. Under the Plan of
Reorganization, certain debt of the Issuer (the "Debt Securities") held by such
entities was converted into the Issuer's Common Stock. The source of funding
for the acquisition of the Debt Securities was the investment capital of each
of the purchasers thereof.
ITEM 4. PURPOSE OF TRANSACTION
As of December 20, 1995, the TCW Related Entities had determined that it would
be in their best interests, and that it would be in the best interests of the
Special Credits Accounts, to divest their respective holdings of the Issuer's
Common Stock for the maximum realizable value. Pursuant to the Purchase
Agreement (as defined below), the TCW Related Entities and the Special Credits
Accounts have provided for the sale of, and price protection with respect to, a
total of 2,644,827 shares of the Issuer's Common Stock, subject to certain
conditions and as more fully described in the Purchase Agreement. As of March
6, 1996 and after giving effect to the Second Closing (as defined in the
Purchase Agreement), the TCW Related Entities and the Special Credits Accounts
owned a total of 880,398 shares of the Issuer's Common Stock. The TCW Related
Entities continue to believe that it would be in their best interests, and that
it would be in the best interests of the Special Credits Accounts, to divest
their remaining respective holdings of the Issuer's Common Stock. Other than
as set forth in the Purchase Agreement, the TCW Related Entities currently have
no plan or proposal to effect such a divestiture. Depending on market and
other conditions and subject to the terms and conditions of the Purchase
Agreement, the TCW Related Entities and the Special Credits Accounts may
purchase or sell shares of the Issuer's Common Stock in the open market or
privately negotiated transactions.
<PAGE>
Page 11 of 16 Pages
ITEM 5. INTEREST AND SECURITIES OF THE ISSUER
(A) As of the date of this Schedule 13D, Special Credits Limited Partnership
beneficially owns 470,583 shares of the Issuer's Common Stock, which is
approximately 2.65 % of the outstanding shares of the Issuer's Common Stock;
Special Credits, as the general partner of Special Credits Limited Partnership
and the investment manager of the Special Credits Accounts, may be deemed to
beneficially own 668,373 shares of the Issuer's Common Stock, which is
approximately 3.77% of the outstanding shares of the Issuer's Common Stock.
As of the date of this Schedule 13D, Special Credits Trust beneficially owns
212,025 shares of the Issuer's Common Stock, which is approximately 1.19% of
the outstanding shares of the Issuer's Common Stock. TCW, as the trustee of
Special Credits Trust, may be deemed to beneficially own the shares of the
Issuer's Common Stock held by Special Credits Trust.
TAMCO, as the managing partner of Special Credits, may be deemed to
beneficially own shares of the Issuer's Common Stock held by the Special Credit
Entities (other than Special Credits Trust) and the Special Credit Accounts,
all of which constitutes 668,373 shares or approximately 3.77% of the
outstanding shares of the Issuer's Common Stock.
TCWG, as the parent corporation of TCW and TAMCO, may be deemed to beneficially
own shares of the Issuer's Common Stock deemed to be owned by the other TCW
Related Entities, all of which constitutes 880,398 shares of the Issuer's
Common Stock (approximately 4.96% of the outstanding shares of the Issuer's
Common Stock). TCWG, TCW, TAMCO and Special Credits each disclaims beneficial
ownership of the shares of the Issuer's Common Stock reported herein and the
filing of this Statement shall not be construed as an admission that any such
entity is the beneficial owner of any securities covered by this Statement.
(B) Special Credits, as the sole general partner of Special Credits Limited
Partnership, has discretionary authority and control over all of the assets of
Special Credits Limited Partnership pursuant to the limited partnership
agreement for such limited partnership including the power to vote and dispose
of the Issuer's Common Stock held by Special Credits Limited Partnership. In
addition, Special Credits, as the investment manager of the Special Credits
Accounts has the discretionary authority and control over all of the assets of
such accounts pursuant to the investment management agreements relating to such
accounts including the power to vote and dispose of the Issuer's Common Stock
held in the name of the Special Credits Accounts. Therefore, Special Credits
has the power to vote and dispose of 668,373 shares of the Issuer's Common
Stock.
TAMCO, as the managing general partner of Special Credits, also has the power
to vote and dispose of the shares of Issuer's Common Stock held by Special
Credits referenced above. Therefore, TAMCO has the power to vote and dispose
of 668,373 shares of the Issuer's Common Stock.
TCW, as the trustee of Special Credits Trust, has discretionary authority and
control over all the assets of Special Credits Trust pursuant to the trust
agreement for such trust, including the power to vote and dispose of the
Issuer's Common Stock held by Special Credits Trust. Therefore, TCW has the
power to vote and dispose of 212,025 shares of the Issuer's Common Stock.
TCWG, as the parent of TCW and TAMCO, may be deemed to have the power to vote
and dispose of the shares of the Issuer's Common Stock that the other TCW
Related Entities and the Special Credit Accounts have power to vote and
dispose, all of which constitutes 880,398 shares of the Issuer's Common Stock.
(C) Except as set forth herein, none of the TCW Related Entities, and to the
best of their knowledge, none of their respective executive officers, directors
or general partners has effected transactions involving the Issuer's Common
Stock during the last 60 days.
(D) None
(E) Not applicable
<PAGE>
Page 12 of 16 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
REGISTRATION RIGHTS AGREEMENT
The following is a summary of certain provisions of the Registration Rights
Agreement dated as of August 9, 1993 (the "Registration Rights Agreement"), by
and between Koger Equity, Inc. and TCW Special Credits for itself and, as
general partner or investment advisor, on behalf of TCW Special Credits Fund
III, the Special Credits Accounts and TCW Special Credits Trust, a copy of
which is attached as Exhibit 2 hereto and is incorporated herein by reference.
This summary is qualified in its entirety by reference to the Registration
Rights Agreement. Capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Registration Rights Agreement.
Subject to certain terms and conditions, the Registration Rights Agreement
provides for four demand registrations by Holders of Registrable Securities
holding at the time of any such registration the greater of (i) 10% of the
initial Registrable Securities and (ii) an amount of Registrable Securities
consisting of at least 250,000 shares of the Issuer's Common Stock or
securities issued or issuable in respect of or in exchange for such Common
Stock. Subject to certain terms and conditions, the Registration Rights
Agreement provides for unlimited piggyback registrations by Holders of
Registrable Securities upon the filing of a registration statement with respect
to any class of equity securities other than pursuant to a demand registration
under the Registration Rights Agreement.
SHAREHOLDERS AGREEMENT
The following is a summary of certain provisions of the Shareholders Agreement
dated as of August 9, 1993 (the "Shareholders Agreement"), by and between Koger
Equity, Inc. and TCW Special Credits for itself and, as general partner or
investment advisor, on behalf of TCW Special Credits Fund III, the Special
Credits Accounts and TCW Special Credits Trust, a copy of which is attached as
Exhibit 3 hereto and is incorporated herein by reference. This summary is
qualified in its entirety by reference to the Shareholders Agreement.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Shareholders Agreement.
Subject to certain terms and conditions, the Shareholders Agreement provides
that the Board of Directors of the Issuer has determined that the Shareholders,
TCWG, Special Credits and any of their Affiliates are exempt from certain
restrictions on the concentration of ownership contained in the Issuer's
Articles of Incorporation for ownership by such persons of up to the higher of
(i) 4,047,350 shares of the Issuer's Common Stock, as adjusted for subsequent
stock splits, stock dividends or other recapitalizations of the Issuer and (ii)
23% of the outstanding shares of the Issuer's Common Stock (the "Maximum
Amount"). Pursuant to the Shareholders Agreement, the Issuer agreed, subject
to certain terms and conditions, to amend the Common Stock Rights Agreement
dated as of September 30, 1990 (the "Rights Plan"), between the Issuer and
First Union National Bank, as successor Rights Agent, such that the beneficial
ownership of to the Maximum Amount of the Issuer's Common Stock by the
Shareholders, TCWG, Special Credits and any of their Affiliates shall not cause
the distribution of the Rights (as defined in the Rights Plan).
OTHER ARRANGEMENTS
Special Credits, as general partner of Special Credits Limited Partnership,
receives a fee for managing all the assets of Special Credits Limited
Partnership. In addition, Special Credits, as investment manager of the
Special Credits Accounts, receives a management fee for managing the assets of
each Special Credits Account. Special Credits Limited Partnership and the
Special Credits Accounts have similar investment strategies of investing in
financially distressed entities; however, the implementation of these
strategies may differ from among such entities.
TCW, as trustee of Special Credits Trust, receives a management fee for
managing all the assets of Special Credits Trust. Special Credits Trust has an
investment strategy similar to Special Credits Limited Partnership and the
Special Credits Accounts in investing in financially distressed entities.
However, the implementation of this strategy may differ among such entities.
Except to the extent the securities referred to in this Statement constitute
assets of the Special Credits Entities and Special Credits Accounts, there are
no contracts, understandings or relationships (legal or otherwise) among or
between any member of the TCW Related Entities or, to the best of their
knowledge, their respective executive officers, directors or general partners
or between or among any of such persons and with respect to any securities of
the Issuer.
<PAGE>
Page 13 of 16 Pages
COMMON STOCK PURCHASE AND SALE AGREEMENT
The following is a summary of certain provisions of the Common Stock Purchase
and Sale Agreement, dated January 18, 1996 (as amended by Amendment No. 1
thereto, dated as of March 5, 1996, the "Purchase Agreement"), by and among
Special Credits, for itself and as general partner or investment manager for
Special Credits Limited Partnership and the Special Credits Accounts, TCW, for
itself and as trustee for Special Credits Trust, and Resource Group
International, Inc., a Washington corporation ("Purchaser"), a copy of which is
attached as Exhibit 1 hereto and is incorporated herein by reference. This
summary is qualified in its entirety by reference to the Purchase Agreement.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Purchase Agreement.
Pursuant to the Purchase Agreement, the TCW Related Entities and the Special
Credits Accounts (i) sold to Purchaser 1,200,000 shares (the "Initial Shares")
of the Issuer's Common Stock on January 19, 1996, (ii) sold to Purchaser an
additional 1,249,571 shares (the "Secondary Shares") of the Issuer's Common
Stock and (iii) granted Purchaser a proxy to vote the Secondary Shares on their
behalf. In addition, if Special Credits Limited Partnership, Special Credits
Trust or the Special Credits Accounts should sell to third parties up to an
additional 195,256 shares (the "Gross-Up Shares"), Purchaser will make the
payments described below, subject to certain conditions. As of the date
hereof, the TCW Related Entities and the Special Credits Accounts continue to
have all rights with respect to the voting and disposition of the Gross-Up
Shares. The purchase price (1) paid by Purchaser for the Initial Shares and
the Secondary Shares purchased in accordance with the Purchase Agreement and
(2) guaranteed by Purchaser to be received by Special Credits Limited
Partnership, Special Credits Trust and the Special Credits Accounts with
respect to the Gross-Up Shares and the Remaining Secondary Shares was and shall
be $12.00 per share of the Issuer's Common Stock, plus a carrying cost from
January 1, 1996 until the date of sale of each such share. The above-described
price protection shall remain in effect until six months after the expiration
of the Blackout Period.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following are filed herewith as Exhibits to this Schedule 13D:
Exhibit 1- Agreement of TCW Related Entities regarding a joint Schedule 13D
(and such amendments as may become necessary) with respect to
the Common Stock of Koger Equity, Inc. dated as of December 28,
1995.
Exhibit 2- Registration Rights Agreement dated as of August 9, 1993, by and
between Koger Equity, Inc. and TCW Special Credits for itself
and, as general partner or investment advisor, on behalf of TCW
Special Credits Fund III, the Special Credits Accounts and TCW
Special Credits Trust.
Exhibit 3- Shareholders Agreement dated as of August 9, 1993, by and
between Koger Equity, Inc. and TCW Special Credits for itself
and, as general partner or investment advisor, on behalf of TCW
Special Credits Fund III, the Special Credits Accounts and TCW
Special Credits Trust.
Exhibit 4- Common Stock Purchase and Sale Agreement, dated January 18,
1996, by and among Special Credits, on its own behalf and as
general partner or investment manager for Special Credits
Limited Partnership and the Special Credits Accounts, TCW, for
itself and as trustee for Special Credits Trust, and Purchaser.
Exhibit 5- Amendment No. 1, dated as of March 5, 1996, to the Common Stock
Purchase and Sale Agreement, dated January 18, 1996, by and
among Special Credits, on its own behalf and as general partner
or investment manager for Special Credits Limited Partnership
and the Special Credits Accounts, TCW, for itself and as trustee
for Special Credits Trust, and Purchaser.
Exhibit 6- Irrevocable Proxy granted as of March 5, 1996, by the TCW
Related Entities to RGI Realty, Inc.
<PAGE>
Page 14 of 16 Pages
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certify that the information set forth in this Statement is true,
complete and correct.
Dated as of the 13th day of March, 1996.
THE TCW GROUP, INC.
/S/ MICHAEL E. CAHILL
- -----------------------------------------------
Michael E. Cahill
Managing Director, General Counsel and Secretary
TRUST COMPANY OF THE WEST
/S/ KENNETH LIANG
- ------------------------------------------------
Kenneth Liang, Authorized Signatory
TCW ASSET MANAGEMENT COMPANY
/S/ KENNETH LIANG
- ------------------------------------------------
Kenneth Liang, Authorized Signatory
TCW SPECIAL CREDITS
/S/ KENNETH LIANG
- ------------------------------------------------
Kenneth Liang, Authorized Signatory of
TCW Asset Management Company, the
Managing General Partner of TCW
Special Credits
TCW SPECIAL CREDITS FUND III
/S/ KENNETH LIANG
- ------------------------------------------------
Kenneth Liang, Authorized Signatory of
TCW Asset Management Company,
the Managing General Partner of TCW
Special Credits, the General Partner of
TCW Special Credits Fund III
TCW SPECIAL CREDITS TRUST
/S/ KENNETH LIANG
- ------------------------------------------------
Kenneth Liang, Authorized Signatory of
Trust Company of the West, the trustee
of TCW Special Credits Trust
<PAGE>
Page 15 of 16 Pages
SCHEDULE I
BOARD OF DIRECTORS
OF
TCW GROUP, INC.
All of the following individuals are directors of TCW Group, Inc. Each
director is a citizen of the United States of America unless otherwise
specified below:
HOWARD P. ALLEN HAROLD R. FRANK
Former Chairman & CEO Chairman of the Board
Southern California Edison Applied Magnetics Corporation
2244 Walnut Grove Blvd. 75 Robin Hill Rd.
Rosemead, CA 91770 Goleta, CA 93017
JOHN M. BRYAN DR. HENRY A. KISSINGER
Partner Chairman
Bryan & Edwards Kissinger Associates, Inc.
600 Montgomery St., 35th Floor 350 Park Ave., 26th Floor
San Francisco, CA 94111 New York, NY 10022
ROBERT A. DAY
Chairman of the Board, KENNETH L. LAY
Chairman and Chief Executive Officer Enron Corp.
Trust Company of the West 1400 Smith Street
200 Park Avenue, Suite 2200 Houston, TX 77002-7369
New York, New York 10166
DAMON P. DE LASZLO, ESQ. MICHAEL T. MASIN, ESQ.
Managing Director of Harwin Vice Chairman
Engineers S.A., Chairman & D.P. GTE Corporation
Advisers Holdings Limited One Stamford Forum
Byron's Chambers Stamford, CT 06904
A2 Albany, Piccadilly
London W1V 9RD - England EDFRED L. SHANNON, JR.
(Citizen of United Kingdom) Investor/Rancher
1000 S. Fremont Ave.
Alhambra, CA 9l802
WILLIAM C. EDWARDS ROBERT G. SIMS
Partner - Bryan & Edwards Private Investor
3000 Sand Hill Road, Suite 190 11828 Rancho Bernardo, Box 1236
Menlo Park, CA 94025 San Diego, CA 92128
ERNEST O. ELLISON CARLA A. HILLS
Vice Chairman 1200 19th Street, N.W.
Trust Company of the West 5th Floor
865 South Figueroa St., Suite 1800 Washington, DC 20036
Los Angeles, California 90017
<PAGE>
Page 16 of 16 Pages
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
Exhibit 1- Agreement of TCW Related Entities regarding a joint
Schedule 13D (and such amendments as may become
necessary) with respect to the Common Stock of
Koger Equity, Inc. dated as of December 28, 1995.
Exhibit 2- Registration Rights Agreement dated as of
August 9, 1993, by and between Koger Equity, Inc.
and TCW Special Credits for itself and, as general
partner or investment advisor, on behalf of TCW
Special Credits Fund III, the Special Credits
Accounts and TCW Special Credits Trust.
Exhibit 3- Shareholders Agreement dated as of August 9, 1993,
by and between Koger Equity, Inc. and TCW Special
Credits for itself and, as general partner or
investment advisor, on behalf of TCW Special
Credits Fund III, the Special Credits Accounts
and TCW Special Credits Trust.
Exhibit 4- Common Stock Purchase and Sale Agreement, dated
January 18, 1996, by and among Special Credits,
on its own behalf and as general partner or
investment manager for Special Credits Limited
Partnership and the Special Credits Accounts,
TCW, for itself and as trustee for Special
Credits Trust, and Purchaser.
Exhibit 5- Amendment No. 1, dated as of March 5, 1996, to
the Common Stock Purchase and Sale Agreement,
dated January 18, 1996, by and among Special
Credits, on its own behalf and as general
partner or investment manager for Special
Credits Limited Partnership and the Special
Credits Accounts, TCW, for itself and as
trustee for Special Credits Trust, and Purchaser.
Exhibit 6- Irrevocable Proxy granted as of March 5, 1996, by
the TCW Related Entities to RGI Realty, Inc.
AGREEMENT
WHEREAS, The TCW Group, Inc. ("TCWG"), Trust Company of the West
("TCW"), TCW Asset Management Company ("TAMCO"), TCW Special Credits ("Special
Credits"), TCW Special Credits Fund III ( "Special Credits Limited
Partnership") and TCW Special Credits Trust ("Special Credits Trust")
individually or collectively, may be deemed to be a beneficial owner within the
meaning of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), for purposes of Section 13(d) of the Exchange Act of the Common Stock,
$0.01 par value per share, of Koger Equity, Inc., a Florida corporation; and
WHEREAS, TCWG, TCW, TAMCO, Special Credits, Special Credits Limited
Partnership and Special Credits Trust each desires to satisfy any filing
obligation each may have under Section 13(d) of the Exchange Act by filing a
single Schedule 13D pursuant to such Section with respect to each class of
securities.
NOW THEREFORE, TCWG, TCW, TAMCO, Special Credits, Special Credits
Limited Partnership and Special Credits Trust agree to file a Schedule 13D
under the Exchange Act relating to the Common Stock of Koger Equity, Inc. and
agree further to file any such amendments thereto as may become necessary
unless and until such time as one of the parties shall give written notice to
the other parties of this Agreement that it wishes to file a separate Schedule
13D relating to the Common Stock of Koger Equity, Inc. provided that each
person on whose behalf the Schedule 13D or any amendment is filed is
responsible for the timely filing of such Schedule 13D and any amendments
thereto necessitated by the actions or intentions of such person and for the
completeness and accuracy of the information pertaining to it and its actions
and intentions.
The Agreement may be executed in two or more counterparts, each of which
shall constitute but one instrument.
<PAGE>
Dated as of 28TH day of December, 1995.
THE TCW GROUP, INC.
/s/ David K. Sandie
_______________________________________
David K. Sandie
Chief Financial Officer and Managing Director
TRUST COMPANY OF THE WEST
/s/ Kenneth Liang
_______________________________________
Kenneth Liang, Authorized Signatory
TCW ASSET MANAGEMENT COMPANY
/s/ Kenneth Liang
_______________________________________
Kenneth Liang, Authorized Signatory
TCW SPECIAL CREDITS
/s/ Kenneth Liang
________________________________________
Kenneth Liang, Authorized Signatory of
TCW Asset Management Company,
the Managing General Partner of
TCW Special Credits
TCW SPECIAL CREDITS FUND III
/s/ Kenneth Liang
_________________________________________
Kenneth Liang, Authorized Signatory of
TCW Asset Management Company,
the Managing General Partner of
TCW Special Credits, the General
Partner of TCW Special Credits Fund III
TCW SPECIAL CREDITS TRUST
/s/ Kenneth Liang
_________________________________________
Kenneth Liang, Authorized Signatory of
Trust Company of the West, the trustee of
TCW Special Credits Trust
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of this the 9th day of August, 1993 by and between
Koger Equities, Inc., a Florida corporation, and TCW Special Credits, a
California general partnership ("TCW Special Credits"), for itself and,
as general partner or investment advisor, on behalf of TCW Special
Credits Fund III, Weyerhauser Company Master Pension Trust, The Common
Fund for Bond Investments and TCW Special Credits Trust (collectively,
the "Shareholders").
This Agreement is entered into in connection with the Plan (as
defined below) which provides for the reorganization of Koger Properties,
Inc., a Florida corporation, through a merger of Koger Properties, Inc.
into Koger Equities, Inc.
The Company (as defined below) and TCW Special Credits, for
itself and on behalf of the Shareholders, are simultaneously herewith
entering into a Shareholders Agreement (the "Shareholders Agreement")
providing, among other things, that TCW Special Credits shall vote or
direct the Shareholders to vote for the Plan and the merger contemplated
thereby. As a condition to its willingness to enter into the
Shareholders Agreement, TCW Special Credits has requested that the
Company grant certain registration rights as provided in this Agreement.
To induce TCW Special Credits to enter into, and in
consideration of its entering into, the Shareholders Agreement, and for
and in consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the following meanings when used herein:
(a) "BUSINESS DAY" means any Monday, Tuesday, Wednesday,
Thursday or Friday that is not a day on which banking institutions in New
York, New York are authorized by law, regulation or executive order to
close.
(b) "COMMISSION" means the Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act.
(c) "COMMON STOCK" means the Common Stock, par value $.0l
per share of the Company.
(d) "COMPANY" means Koger Equities, Inc., a Florida
corporation, and its successors and assigns.
(e) "DEMAND REGISTRATION" means any registration of
Registrable Securities effected pursuant to SECTION 3 hereof.
(f) "EFFECTIVE DATE" means the effective date of the
Plan.
(g) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended (or any similar successor federal statute), and the
rules and regulations thereunder, as in effect from time to time.
(h) "INITIATING HOLDERS" shall have the meaning ascribed
to such term in SECTION 3(A) HEREOF.
(i) "HOLDER" mean any Person that owns Registrable
Securities, including such successors and assigns as acquire Registrable
Securities, directly or indirectly, from such Person. For purposes of
this Agreement, the Company may deem and treat the registered of a
Registrable Security as the Holder and absolute owner thereof.
(j) "MAJORITY REGISTERED HOLDERS" means in the case of
any registration statement, the Holders of a majority of the Registrable
Securities proposed to be covered (or so covered) in such registration
statement.
(k) "PERSON" means any individual, partnership,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture, or other entity, or a
government or any political subdivision or agency.
(l) "PIGGYBACK REGISTRATION" means any registration of
Registrable Securities effected pursuant to SECTION 4 hereof.
(m) "PLAN" means the plan of reorganization of Koger
Properties, Inc., as amended to date, filed with the Bankruptcy Court in
Chapter 11 Case No. 91-12294-8P1 in the United States Bankruptcy Court
for the Middle District of Florida, Tampa Division and distributed to
creditors pursuant to that order of the Bankruptcy Court dated June 8,
1993 in said Chapter 11 Case approving the Third Amended and Restated
Disclosure Statement (the "Disclosure Statement").
(n) "REGISTRABLE SECURITIES" means (i) the 552,600 shares
of Common Stock held by the Shareholders on the date hereof and the
shares of Common Stock to be issued to the Shareholders pursuant to the
Plan, and (ii) any securities issued or issuable in respect of or in
exchange for any of the shares of Common Stock referred to in clause (i)
above by way of a stock dividend or other distribution on the Common
Stock, stock split or combination of shares, recapitalization,
reclassification, merger, consolidation or exchange offer. For purposes
of this Agreement, a Registrable Security ceases to be a Registrable
Security when (1) it has been effectively registered under the Securities
Act and sold or distributed to any Person pursuant to an effective
registration statement covering it, (2) it has been sold or distributed
to any Person pursuant to Rule 144, or (3) it has been sold or
distributed pursuant to an exemption from the registration requirements
of the Securities Act to any Person other than any investment fund for
which TCW Special Credits acts as manager, any partnership or other
entity for which TCW Special Credits acts directly or indirectly as a
general partner or controlling stockholder, any Person otherwise
affiliated with TCW Special Credits, The TCW Group, Inc. and its direct
or indirect subsidiaries.
(o) "REGISTRATION" means any Demand Registration or
Piggyback Registration.
(p) "RULE 10B-6" means Rule 10b-6 promulgated by the
Commission under the Exchange Act, as such Rule may be amended from time
to time, or any similar successor rule that may be promulgated by the
Commission.
(q) "RULE 144," "RULE 145," "RULE 415" AND "RULE 424"
mean, respectively, Rule 144, Rule 145, Rule 415 and Rule 424, each
promulgated by the Commission under the Securities Act, in each case as
amended from time to time, or any similar successor rule thereto that may
be promulgated by the Commission.
(r) "SECURITIES ACT" means the Securities Act of 1933, as
amended (or any similar successor federal state), and the rules and
regulations thereunder, as the same are in effect from time to time.
2. [RESERVED]
3. DEMAND REGISTRATIONS.
(a) At any time after six months following the Effective
Date, upon written notice to the Company from one or more Holders (the
"Initiating Holders") of Registrable Securities holding in the aggregate
the greater of (i) 10% of the initial Registrable Securities and (ii) an
amount of Registrable Securities consisting of at least 250,000 shares of
Common Stock or securities issued or issuable in respect of or in
exchange for such shares of Common Stock by way of a stock dividend or
other distribution on the Common Stock, stock split or combination of
shares, recapitalization, reclassification, merger or exchange offer,
requesting that the Company effect, pursuant to this SECTION 3, the
registration of any of such Initiating Holders' Registrable Securities
under the Securities Act (which notice shall specify the Registrable
Securities so requested to be registered which amount of Registrable
Securities to be so registered shall be equal to or greater than 10% of
the initial Registrable Securities, the proposed amounts thereof and the
intended method or methods of disposition by such Initiating Holders
(including whether or not the proposed offering is to be underwritten)),
the Company shall promptly (but in any event within 15 days) give written
notice of such requested registration to all Holders, and thereupon the
Company shall use its best efforts to effect the registration under the
Securities Act of:
(A) the Registrable Securities that the Initiating
Holders have requested the Company to register, for disposition in
accordance with the intended method or methods of disposition stated
in their notice to the Company; and
(B) all other Registrable Securities the Holders of
which shall have made a written request to the Company for
registration thereof (which request shall specify such Registrable
Securities and the proposed amounts thereof) within 15 days after
the receipt of such written notice from the Company;
as expeditiously as possible (but in any event shall file such
registration statement within 45 days of the receipt of such request),
all to the extent requisite to permit the disposition by Holders of the
securities then constituting Registrable Securities so to be registered.
(b) FREQUENCY; DURATION. The Company is obligated to
effect only four registrations pursuant to this SECTION 3 with respect to
all Holders. Notwithstanding the foregoing, the Company shall not be
required to effect a Demand Registration pursuant to this SECTION 3: (i)
if it shall have so effected a Demand Registration during the previous
seven months; (ii) if the Initiating Holders shall have requested such
Demand Registration after the eighth anniversary of the Effective Date or
(iii) during the period starting with the date 30 days prior to the
Company's good faith estimate of the date of filing of, and ending on the
date 90 days following the effective date of, a registration statement
pertaining to an underwritten public offering for the account of the
Company with respect to which Holders have piggyback registration rights
pursuant to SECTION 4 hereof; PROVIDED, HOWEVER, that a Demand
Registration shall not be deemed to have been effected for purposes of
SECTION 3(B)(I) if the applicable registration statement has not been
declared effective and kept effective until the earlier of (i) four
months flowing the date on which such registration statement was declared
effective and (ii) the sale pursuant to such registration statement of
the Registrable Securities covered thereby, and FURTHER, PROVIDED, that
in the event a request for registration is refused pursuant to clause
(iii) above, if the Company then elects not to file a registration
statement or, if a registration statement is filed, the Company elects
not to complete the proposed offering, the Company shall notify in
writing the Holders whose request for registration has been refused
pursuant to clause (iii) above, and such Holders shall have the right,
within 10 days after receiving written notice of the Company's election
to request the Company to effect the registration of Registrable
Securities for the account of Holders, and such registration shall be
considered a Demand Registration under SECTION 3 hereof.
(c) RIGHT TO DELAY REGISTRATION. The Company shall have
the right to delay the filing of a registration statement required to be
riled under this SECTION 3 if the Company shall furnish the Initiating
Holders a certificate signed by the President of the Company (the
"Certificate") (i) stating that in the good faith judgment of a majority
of the disinterested members of the Board of Directors of the Company an
undisclosed material event has occurred and is continuing or is likely to
occur within 90 days the public disclosure of which would have a material
adverse effect on the Company or on a proposed material transaction
involving the Company or a substantial amount of its assets and (ii)
describing in reasonable detail the undisclosed material event. The
filing of the registration statement may be delayed by the Company
pursuant to this SECTION 3(C) until such time as the undisclosed material
event referred to in the Certificate shall have been publicly disclosed
or shall have ceased to be material but in no event more than 90 days
after receipt of the demand registration request from the Initiating
Holders; PROVIDED, HOWEVER, that the Company may not utilize the right
set forth in this SECTION 3(C) more than once in any 24-month period; and
FURTHER, PROVIDED, HOWEVER, that if, following the receipt of the
Certificate the Initiating Holders elect to withdraw their registration
request, the last proviso of SECTION 7 hereof (relating to payment of
registration expense or forfeiture of a Demand Registration right upon
withdrawal of demand registration request) shall not apply to such
withdrawal.
(d) INCLUSION OF OTHER SECURITIES. The Company may
include in a Demand Registration securities held by other Persons who
have piggyback registration rights pursuant to written agreements with
the Company. If any securities other than Registrable Securities are
included, Registrable Securities shall have absolute priority over
securities included by the Company at the request of such other Persons.
The Shareholders hereby acknowledge and recognize that if any Registrable
Securities are included in a registration statement filed by the Company
pursuant to demand registration rights granted by the Company to Persons
other than the Holders, the Company may provide in the appropriate
agreement that such other Persons' securities shall have absolute
priority over Registrable Securities requested by Holders to be included,
pursuant to SECTION 4 hereof, in such other Persons' demand registration.
4. PIGGYBACK REGISTRATIONS.
(a) EFFECTIVE REGISTRATION. If, but without any
obligation to do so, the Company proposes to file a registration
statement under the Securities Act with respect to any class of equity
securities (other than in connection with the registration of equity
securities issued or issuable pursuant to an employee stock option, stock
purchase, stock bonus or similar plan or dividend reinvestment plan or
pursuant to a merger, exchange offer or transaction of the type specified
in Rule 145(a) under the Securities Act), including, but not limited to,
a registration statement pursuant to demand registration rights granted
by the Company to Persons other than the Holders, at any time on or prior
to the eighth anniversary of the Effective Date, then the Company shall
give written notice of such proposed filing to the Holders at least 15
days before the anticipated filing date, and such notice shall offer the
Holders the opportunity to register such amount of Registrable Securities
as each such Holder may request. The Company shall use its reasonable
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the inclusion therein of any Registrable
Securities the Holders of which request, within 10 days after receiving
written notice of the proposed filing from the Company, such inclusion,
on the same terms and conditions as any similar securities of the Company
so included. Any Holder's request for such inclusion may be withdrawn,
in whole or in part, at any time prior to five days prior to the
effective date of the registration statement for such offering. The
Company shall be under no obligation to complete any offering of its
securities it proposes to make under this SECTION 4 and shall incur no
liability to any Holder for its failure to do so except for any
obligation it may have under SECTION 3(B) hereof.
(b) CUT-BACKS. Notwithstanding the provisions of SECTION
4(A) hereof, if the managing underwriter or underwriters of a proposed
underwritten offering as described in such SECTION 4(A) advise in writing
the Holders requesting inclusion of their Registrable Securities that the
total amount or kind of securities that they and any other Persons seek
to include in such offering would materially and adversely affect the
success of such offering, then the amount or kind of securities,
including Registrable Securities, to be offered for the accounts of
Holders and of Persons exercising piggyback registration rights pursuant
to written agreements with the Company shall be reduced PRO RATA to the
extent necessary to reduce the total amount of securities, including
Registrable Securities, to be included in such offering to that
recommended by such managing underwriter or underwriters (which amount
may be zero).
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON SALES BY HOLDERS OF REGISTRABLE
SECURITIES. To the extent not inconsistent with applicable law, each
Holder of Registrable Securities that is timely notified in writing by
the managing underwriter or underwriters of any equity securities or
securities convertible into or exchangeable for equity securities being
registered in an underwritten offering (other than pursuant to an
employee stock option, stock purchase, stock bonus or similar plan, or
dividend reinvestment plan pursuant to a merger, exchange offer or a
transaction of the specified in Rule 145(a) under the Securities Act or
pursuant to a "shelf" registration), shall not effect any sale or
distribution (including a sale pursuant to Rule 144) of any Registrable
Securities that are similar to any such securities or any Registrable
Securities convertible into or exchangeable or exercisable for any such
securities, during the 10-day period prior to, and during the 90-day
period beginning on, the effective date of the applicable registration
statement, except as part of such registration, without the prior written
consent of such underwriters.
(b) RESTRICTIONS ON SALES BY THE COMPANY. The Company
shall not effect any sale of any securities of the Company similar to any
Registrable Securities being offered in an underwritten offering under a
registration statement filed pursuant to SECTION 3 hereof or any
securities of the Company convertible into or exchangeable or exercisable
for any such Registrable Securities, during the 10-day period prior to,
and during the 90-day period beginning on, the effective date of such a
registration statement, except pursuant to an employee stock option,
stock purchase, stock bonus or similar plan or dividend reinvestment plan
or pursuant to a merger, exchange offer or a transaction specified in
Rule 145(a) under the Securities Act.
6. REGISTRATION PROCEDURES.
(a) COMPANY PROCEDURES. Whenever the Company is required
by this Agreement to effect the registration of any Registrable
Securities under the Securities Act pursuant to a registration statement,
the Company shall use its best efforts to effect each such registration
to permit the sale of such Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto
the Company shall, as soon as practicable:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and
thereafter use its best efforts to cause such registration statement to
be declared effective as soon as practicable and to remain continuously
effective for the time period required by this Agreement to the extent
permitted under the Securities Act, PROVIDED that as soon as practicable
but in no event later than three Business Days before filing such
registration statement, any related prospectus or any amendment or
supplement thereto, other than any amendment or supplement made solely as
a result of incorporation by reference of documents filed with the
Commission subsequent to the filing of such registration statement, the
Company shall furnish to the Holders of the Registrable Securities
covered by such registration statement and the underwriters, if any,
copies of all such documents proposed to be filed; the Company shall not
file any registration statement or amendment thereto or any prospectus or
any supplement thereto (other than any amendment or supplement made
solely as a result of incorporation by reference of documents filed with
the Commission subsequent to the filing of such registration statement)
to which the managing underwriters of the applicable offering, if any, or
the Majority Registered Holders shall have reasonably objected in writing
within two Business Days after receipt of such documents to the effect
that such registration statement or amendment thereto or prospectus or
supplement thereto does not comply in all material respects with the
requirements of the Securities Act (PROVIDED that the foregoing shall not
limit the right of any Holder whose Registrable Securities are covered by
a registration statement to reasonably object within two Business Days
after receipt of such documents, to any particular information that is to
be contained in such registration statement, amendment, prospectus or
supplement and relates specifically to such Holder, including, without
limitation, any information describing the manner in which such Holder
acquired such Registrable Securities and the intended method or methods
of distribution of such Registrable Securities), and if the Company is
unable to file any such document due to the objections of such
underwriters or such Holders, the Company shall use its best efforts to
cooperate with such underwriters and Holders to prepare, as soon as
practicable, a document that is responsive in all material respects to
the reasonable objections of such underwriters and Holders;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to such registration statement
as may be necessary to keep such registration statement continuously
effective and current for the period required by this Agreement to the
extent permitted under the Securities Act; and cause each related
prospectus to be supplemented by any prospectus supplement as may be
required, and as so supplemented to be filed pursuant to Rule 424; and
otherwise comply with the provisions of the Securities Act as may be
necessary to facilitate the disposition of all Registrable Securities
covered by such registration statement during the applicable period in
accordance with the intended method or methods of disposition by the
selling Holders thereof set forth in such registration statement or such
prospectus or prospectus supplement.
(iii) notify the Holders and the managing
underwriters, if any, of the applicable offering (providing, if requested
by any such Persons, confirmation in writing) as soon as practicable
after becoming aware of: (A) the filing of any prospectus or prospectus
supplement or the filing or effectiveness (or anticipated date of
effectiveness) of such registration statement or any post-effective
amendment thereto; (B) any request by the Commission for amendments or
supplements to such registration statement or the related prospectus or
for additional information; (C) the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (D) the receipt by
the Company of any notification with respect to the suspension of the
qualification or registration (or exemption therefrom) of any Registrable
Securities for sale in any jurisdiction in the United States or the
initiation or threatening of any proceeding for such purposes; or (E) the
happening of any event that makes any statement made in such registration
statement or in any related prospectus, prospectus supplement, amendment
or document incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such registration
statement or in any such prospectus, supplement, amendment or other such
document so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus
in the light of the circumstances under which they were made) not
misleading;
(iv) make every reasonable effort to obtain the
withdrawal of any order or other action suspending the effectiveness of
any such registration statement or suspending the qualification or
registration (or exemption therefrom) of the Registrable Securities for
sale in any jurisdiction;
(v) if reasonably requested by the managing
underwriters, if any, of the applicable offering, or by the Majority
Registered Holders, as soon as practicable incorporate in a prospectus
supplement or post-effective amendment such information as such
underwriters or the Majority Registered Holders, as the case may be,
agree should be included therein relating to the sale and offering of the
applicable Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being
sold to any underwriters, the purchase price being paid therefor by any
such underwriters and any other terms of the offering of the Registrable
Securities; and make all required filings of such prospectus supplement
or post-effective amendment as soon as practicable following receipt of
notice of the matters to be incorporated therein;
(vi) as soon as practicable after filing such
documents with the Commission, furnish to the Holders and each of the
underwriters, if any, without charge, at least one manually signed or
conformed copy of such registration statement and any post-effective
amendment thereto, including financial statements and schedules; and as
soon as practicable after the request of any Holder or underwriter,
furnish to such Holder or underwriter, as the case may be, at least one
copy of any document incorporated by reference in such registration
statement or in any related prospectus, prospectus supplement or
amendment, together with all exhibits thereto (including those previously
furnished or incorporated by reference);
(vii) deliver to the Holders and to each of the
underwriters, if any, without charge, as many copies of the prospectus or
prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; subject to
SECTION 6(B)(I) hereof, the Company consents to the use of any such
prospectus or any amendment or supplement thereto by the Holders and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by any such prospectus or any amendment or
supplement thereto;
(viii) use its best efforts to register or qualify
the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be,
required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any
such states or jurisdiction or to subject itself to taxation in any such
jurisdiction or to consent to any material condition which is not
reasonable in the judgment of the Board of Directors of the Company;
(ix) cooperate with Holders participating in such
registration and the underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing the Registrable
Securities to be sold; and enable such Registrable Securities to be in
such denominations and registered in such names as the underwriters, if
any, may request as provided in the underwriting agreement;
(x) as soon as practicable after the occurrence of
any event described in SECTION 6(A)(III)(E) hereof, prepare a supplement
or post-effective amendment to such registration statement or to the
related prospectus or any document incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such
prospectus shall not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
not misleading; if any event described in SECTION 6(A)(III)(B) hereof
occurs, use its best efforts to cooperate with the Commission to prepare,
as soon as practicable, any amendment or supplement to such registration
statement or such related prospectus and any other additional
information, or to take other action that may have been requested by the
Commission;
(xi) use its best efforts to cause all Common Stock
constituting Registrable Securities covered by such registration
statement to be listed on each securities exchange (or quotation system
operated by a national securities association) on which the Common Stock
of the Company is then listed (or included), if so requested by the
Majority Registered Holders or the underwriters, if any, and enter into
customary agreements including, if necessary, a listing application in
customary form, and provide a transfer agent for such Registrable
Securities no later than the effective date of such registration
statement; use its best efforts to cause any other Registrable Securities
covered by such registration statement to be listed (or included) on each
securities exchange (or quotation system operated by a national
securities association) on which securities of the same class and series,
if any, are then listed (or included) (or on any exchange or quotation
system on which any Person other than a Holder shall have the right to
have securities of the same class and series, if any, listed or
included), if so requested by the Majority Registered Holders or the
underwriters, if any, and enter into customary agreements including, if
necessary, a listing application in customary form, and, if necessary,
provide a transfer agent for such securities no later than the effective
date of such registration statement;
(xii) provide a CUSIP number for the Registrable
Securities no later than the effective date of such registration
statement;
(xiii) enter into customary agreements
(including, in the case of an underwritten offering, an underwriting
agreement in customary form with the managing underwriters with respect
to issuers of similar market capitalization and reporting and financial
histories) and take all such other reasonable actions in connection
therewith in order to expedite or facilitate the disposition of the
Registrable Securities included in such registration statement and, in
the case of an underwritten offering: (A) make representations and
warranties to each of the underwriters, in such form, substance and scope
as are customarily made to the managing underwriters by issuers of
similar market capitalization and reporting and financial histories and
confirm the same to the extent customary if and when requested; (B)
obtain opinions of counsel to the Company and updates thereof addressed
to each Holder of Registrable Securities participating in such offering
and to each of the underwriters, such opinions and updates to be in
customary form and covering the matters customarily covered in opinions
obtained in underwritten offerings by the managing underwriters for
issuers of similar market capitalization and reporting and financial
histories; (C) obtain "comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to each
Holder of Registrable Securities participating in such offering and to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters to
the managing underwriters in connection with underwritten offerings by
them for issuers of similar market capitalization and reporting and
financial histories; (D) provide, in the underwriting agreement to be
entered into in connection with such offering, indemnification in such
form, substance and scope as are customarily provided by issuers of
similar market capitalizations and reporting and financial histories; and
(E) deliver such customary documents and certificates as may be
reasonably requested by the Majority Registered Holders and the managing
underwriters to evidence compliance with clause (A) of this paragraph
(xiv) and with any customary conditions contained in the underwriting
agreement entered into by the Company in connection with such offering;
(xiv) in the case of any non-underwritten offering:
(A) obtain an opinion of counsel to the Company at the time of the sale
of Registrable Securities covered by such registration statement)
addressed to each Holder of any Registrable Securities covered by such
registration statement, covering matters that are no more extensive in
scope than would be customarily covered in opinions obtained in
underwritten offerings by issuers with similar market capitalization and
reporting and financial histories; (B) obtain a "comfort" letter from the
Company's independent certified public accountants at the time of sale of
Registrable Securities covered by such registration statement and, upon
the request of the Majority Registered Holders, updates thereof, in each
case addressed to each Holder of Registrable Securities participating in
such offering and covering matters that are no more extensive in scope
than would be customarily covered in "comfort" letters and updates
obtained in underwritten offerings by issuers with similar market
capitalization and reporting and financial histories; and (C) deliver a
certificate of a senior executive officer of the Company at the time of
sale of Registrable Securities covered by such registration statement
such certificates to cover matters no more extensive in scope than those
matters customarily covered in officers' certificates delivered in
connection with underwritten offerings by issuers with similar market
capitalization and reporting and financial histories;
(xv) make available, for inspection by the Holders
of the Registrable Securities included in such registration, any
underwriter participating in any disposition of Registrable Securities
pursuant to such registration statement, and any attorney, accountant or
other representative retained by such selling Holders or by any such
underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such underwriter, attorney, accountant or
other representative in connection with such registration;
(xvi) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission relating to such
registration and the distribution of the securities being offered
(including, without limitation, Rule 10b-6 and make generally available
to its security holders earning statements satisfying the provisions of
SECTION 11 (A) of the Securities Act, no later than as provided in the
underwriting agreement in an underwritten offering, or, if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
such registration statement, which earning statements shall cover the 12-
month periods thereafter;
(xvii) cooperate and assist in any filings required
to be made with the National Association of Securities Dealers, Inc. and
in the performance of any customary or required due diligence
investigation by any underwriter; and
(xviii) use its best efforts to take all other
reasonable steps necessary and appropriate to effect such registration in
the manner contemplated by this Agreement.
(b) FURNISHED INFORMATION. It shall be a condition
precedent to the obligations of the Company to take any action pursuant
to this Agreement that the selling Holders shall furnish to the Company
such information regarding themselves or the Registrable Securities held
by them, and the intended method of disposition of such securities as
shall be required to effect the registration of their Registrable
Securities.
(c) HOLDER PROCEDURES.
(i) Each Holder agrees that upon receipt of any
notice from the Company of the happening of any event described in
SECTION 6(A) paragraphs (iii)(B), (iii)(C), (iii)(D) or (iii)(E) hereof,
such Holder shall forthwith discontinue disposition of any Registrable
Securities (but, in the case of an event described in SECTION
6(A)(III)(D), in the affected jurisdiction or jurisdictions only) covered
by the affected registration statement or prospectus until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by SECTION 6(A) paragraphs (iii) or (xi) hereof or until
such Holder is (it being agreed by the Company that the underwriters, if
any, shall also be) advised in writing (the "Advice") by the Company that
the use of the applicable prospectus may be resumed. If the Company
shall have given any such notice during a period when a Demand
Registration is in effect, the four-month period mentioned in SECTION
3(B) hereof, shall be extended by the number of days from and including
the date of the giving of such notice to and including the date when each
Holder of Registrable Securities included in such Registration shall have
received the copies of the supplemented or amended prospectus
contemplated by SECTION 6(A) paragraphs (iii) or (xi) hereof or the
Advice, as the case may be.
(ii) In connection with any underwritten public
offering of Registrable Securities pursuant to a Demand Registration, the
managing underwriter of such offering shall be an investment banking firm
selected by the Majority Registered Holders and shall be reasonably
acceptable to the Company.
7. REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees
and disbursements of counsel in connection with blue sky qualifications
or registrations (or the obtaining of exemptions therefrom) of the
Registrable Securities), printing expenses (including expenses of
printing prospectuses), messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees of the Company performing legal or accounting
duties), fees and disbursements of its counsel and its independent
certified public accountants (including the expenses of any special audit
or "comfort" letters required by or incident to such performance or
compliance), securities acts liability insurance (if the Company elects
to obtain such insurance), reasonable fees and expenses of any special
experts retained by the Company in connection with any registration
hereunder, reasonable fees and expenses of other Persons retained by the
Company, reasonable fees and expenses of one counsel for the Holders,
selected by the Majority Registered Holders, incurred in connection with
each registration hereunder (all such expenses being herein referred to
as "Registration Expenses"), shall be borne by the Company; PROVIDED that
Registration Expenses shall not include any underwriting discounts,
commissions or fees attributable to the sale of the Registrable
Securities, PROVIDED, FURTHER, that the Company shall not be required to
pay for any expenses of any registration proceeding begun pursuant to
SECTION 3 if the registration request is subsequently withdrawn at any
time at the request of the Majority Registered Holders (in which case all
participating Holders shall bear such expenses), unless the Majority
Registered Holders agree to forfeit their right to one Demand
Registration pursuant to SECTION 3.
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event any
Registrable Securities are included in a registration statement under
this Agreement, the Company shall indemnify, to the full extent permitted
by law, each Holder of Registrable Securities, its officers, directors,
employees and agents, each Person who controls such Holder (within the
meaning of the Securities Act) and any investment adviser thereof or
agent therefor, against all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue of alleged untrue statement of a
material fact contained in any registration statement covering any
Registrable Securities, any related prospectus or any amendment or
supplement thereto, or any omission or alleged omission to state in any
thereof a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus or prospectus
supplement, in light of the circumstances under which they were made) not
misleading unless such untrue statement or alleged untrue statement or
omission or alleged omission was contained in a preliminary prospectus
and corrected in a final or amended prospectus and the seller failed to
deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the persons
asserting any such loss, claim, damage or liability in the case where
such delivery by the selling Holder is required by the Securities Act,
except in each case insofar, but only insofar, as the same arises out of
or is based upon an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material fact
in such registration statement, prospectus, preliminary prospectus,
amendment or supplement, as the case may be, made or omitted, as the case
may be, in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use therein;
PROVIDED, HOWEVER, that in no event shall the disability of any holder
for indemnification under this SECTION 8(B) exceed the proceeds received
by such holder from the sale of Registrable Securities under the
applicable registration statement. This indemnity is in addition to any
liability that the Company may otherwise have. The Company shall also
indemnify any underwriters of the Registrable Securities, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution and their officers and directors and
each Person who controls such underwriters or other Persons (within the
meaning of the Securities Act) to the extent provided in the, applicable
underwriting agreement.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
In connection with any registration statement covering Registrable
Securities, each Holder any of whose Registrable Securities are covered
thereby shall furnish to the Company in writing such information and
affidavits with respect to such Holder as the Company reasonably requests
for use in connection with such registration statement, any related
prospectus or preliminary prospectus, or any amendment or supplement
thereto, and shall indemnify, to the full extent permitted by law, the
Company, the Company's directors, officers, employees and agents, each
Person who controls the Company (within the meaning of the Securities
Act) and any investment adviser thereof or agent therefor against all
losses, claims, damages, liabilities costs of investigation and legal
expenses) using out of or based upon any untrue or alleged untrue
statement of a material fact contained in any registration statement
covering any Registrable Securities, any related prospectus or
preliminary prospectus, or any amendment or supplement thereto, or any
omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus or prospectus supplement, in light of the
circumstances under which they were made) not misleading, in each case to
the extent, but only to the extent, that the same arises out of or is
based upon an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in such
registration statement or in such related prospectus, preliminary
prospectus, amendment or supplement, as the case may be, made or omitted,
as the case may be, in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use
therein; PROVIDED, HOWEVER, that in no event shall the liability of any
Holder for indemnification under this SECTION 8(B) exceed the proceeds
received by such Holder from the sale of Registrable Securities under the
applicable registration statement. This indemnity is in addition to any
liability that a Holder may otherwise have. Each Holder participating in
an offering of Registrable Securities shall, if requested by the managing
underwriter or underwriters of such offering, also indemnify any
underwriters of such Registrable Securities, selling brokers, dealer
managers and similar securities industry professionals participating in
the distribution of such Registrable Securities and their officers and
directors and each Person who controls such underwriters or other Persons
(within the meaning of the Securities Act) to the extent provided in the
applicable underwriting agreement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification under this SECTION 8 agrees to give prompt
written notice to the indemnifying party after the receipt by such Person
of any written notice of the commencement of any action, suit, proceeding
or investigation or threat thereof made in writing for which such Person
will claim indemnification or contribution pursuant to this Agreement and
the indemnifying party shall have the right to participate in, and,
unless in the reasonable judgment of such indemnified party a conflict of
interest may exist between such indemnified party and the indemnifying
party with respect to such claim, permit the indemnifying party to assume
the defense of such claim with counsel reasonably and mutually
satisfactory to the parties. If the indemnifying party is not entitled
to, or elects not to, assume the defense of a claim, it shall not be
obligated to pay the reasonable fees and expenses of more than one
counsel with respect to such claim, unless in the reasonable judgment of
counsel to such indemnified party, expressed in a writing delivered to
the indemnifying party, a conflict of interest may exist between such
indemnified party and any other indemnified party with respect to such
claim, in which event the indemnifying party shall be obligated to pay
the reasonable fees and expenses of such additional counsel or counsels
(which shall be limited to one counsel per indemnified party). The
indemnifying party shall not be subject to any liability for any
settlement made without its consent, which consent shall not be
unreasonably withheld. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
under this SECTION 8 to the extent of such prejudice.
(d) CONTRIBUTION.
(i) If the indemnification provided for in this
SECTION 8 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified
parties in connection with the actions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations; PROVIDED, HOWEVER, that in no event shall the
liability of any Holder for contribution under this SECTION 8(D) exceed
the. proceeds received by such Holder from the sale of Registrable
Securities under the applicable registration statement. The relative
fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party
or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in SECTION 8(C) hereof, any
legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this SECTION 8(D) were
determined by PRO RATA allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
the immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
(iii) If indemnification is available under this
SECTION 8, the indemnifying parties shall indemnify each indemnified
party to the full extent provided in SECTION 8(A) and SECTION 8(B) hereof
without regard to the relative fault of said indemnifying party or
indemnified party or any other equitable consideration provided for in
this SECTION 8(D).
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any underwritten registration
hereunder unless such Person (a) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements, (b) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements and (c) agrees to pay such
Person's PRO RATA portion of all underwriting discounts and commissions.
10. COOPERATION WITH THE COMPANY.
Each Holder by the acceptance of Registrable Securities
agrees to use its best efforts to cooperate with the Company in all
reasonable respects in connection with the preparation and filing of
Registrations hereunder in which such Registrable Securities are included
or requested to be included.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to any of its securities
that contains provisions more favorable in any material respect to the
holders thereof than the provisions contained in this Agreement without
providing for the granting of comparable rights to the Holders in this
Agreement or that contains provisions that conflict with the provisions
hereof in any material respect. TCW Special Credits, for itself and on
behalf of the Shareholders, hereby acknowledges and agrees, however, that
the Company may grant to other Persons registration rights, and that if
such registration rights are granted, except as otherwise specifically
provided herein, the registration rights granted to such Persons shall be
PARI PASSU with the registration rights of the Holders as provided
herein.
(b) REMEDIES. Each Holder of Registrable Securities, in
addition to being entitled to exercise ail rights in an action at law,
including recovery of damages, shall be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate confirmation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the company shall have obtained the prior
written consent of (i) the Holders of a majority of the securities then
constituting Registrable Securities and (ii) each Holder materially and
adversely affected by such amendment, modification, supplement, waiver or
departure.
(d) NOTICES. All notices, requests, waivers, releases,
consents, and other communications required or permitted by this
Agreement (collectively, "Notices") shall be in writing. Notices shall
be deemed sufficiently given for all purposes under this Agreement when
delivered in person, when dispatched by telegram or (upon written
confirmation of receipt) by electronic facsimile transmission or (upon
written confirmation of receipt), when dispatched by a nationally
recognized overnight courier service, or five Business Days after being
deposited in the mail, postage prepaid, if mailed. All Notices shall be
delivered as follows:
(i) if to a Holder of Registrable Securities, at the
address indicated on Company's registrar relating to such securities or
at such other address as such Holder may have furnished to the Company in
writing; and
(ii)if to the Company, at:
Koger Equities, Inc.
3986 Boulevard Center Drive
Suite 101
Jacksonville, Florida 32207
Attention: Victor Hughes
Telephone Number: (904) 346-1409
Fax Number: (904) 346-1413
with a copy to:
William F. McCarthy, Esq.
Ropes & Gray
One International Place.
Boston, Massachusetts 02110-2624
Telephone Number: (617) 951-7000
Fax Number: (617) 951-7050
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each
of the parties hereto, including any successors by merger to the Company.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(g) HEADINGS; CONSTRUCTION. The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof. Unless the context otherwise
requires, all references to Sections are to Sections of this Agreement,
"or" is inclusively disjunctive, and words in the singular include the
plural and VICE VERSA. In computing any period of time specified in this
Agreement, the date of the act or event from which such period of time is
to be measured shall be included, any such period shall expire at 5:00
p.m., New York City time, on the last day of such period, and any such
period denominated in months shall expire on the date in the last month
of such period that has the same numerical designation as the date of the
act or event from which such period is to be measured; PROVIDED, HOWEVER,
that if there is no date in the last month of such period that has the
same numerical designation as the date of such act or event, such period
shall expire on the last day of the last month of such period.
(h) CERTAIN ADJUSTMENTS. Notwithstanding anything to the
contrary contained in this Agreement, the Board of Directors of the
Company may make or provide for such adjustments in the numbers of shares
of Common Stock or other Registrable Securities specified in any other
provision of this Agreement specifying a number or percentage of
Registrable Securities, as the Board may determine after consultation
with TCW Special Credits on behalf of the Shareholders (or, if TCW
Special Credits and the Shareholders are no longer Holders, Holders
holding a majority of the securities then constituting Registrable
Securities), is equitably required to prevent diminution or enlargement
of the rights of Holders that otherwise would result from any stock
dividend, stock split, combination of shares, recapitalization, or other
similar change in the capital structure of the Company.
(i) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
Florida, without regard to the principles of conflicts of laws thereof.
(j) SEVERABILITY. If one or more of ft provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect, for any reason, the
validity, legality and enforceability of the remaining provisions
contained herein shall not be in any way affected or impaired thereby,
and the provision held to be invalid, illegal or unenforceable shall be
reformed to the minimum extent necessary, and in a manner as consistent
with the purposes thereof as is practicable, so as to render it valid,
legal and enforceable, it being intended that all of the rights and
privileges of the Holders hereunder shall be enforceable to the fullest
extent permitted by law.
(k) AGREEMENT. This Agreement is intended by the Company
and TCW Special Credits to be a final expression thereof and is intended
to be a complete and exclusive statement of the agreement and
understanding of the Company and TCW Special Credits, for itself and on
behalf of the Shareholders, in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings among the Company and
any Holders with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
KOGER EQUITIES, INC.
By:________________________________
Name:
Title:
TCW SPECIAL CREDITS, a California
general partnership, for itself and on
behalf of the Shareholders (as defined
herein)
By: TCW ASSET MANAGEMENT COMPANY, its managing
general partner
By:________________________________
Name:
Title:
___________________________________
Name:
Title:
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "Agreement") made this 9th day
of August, 1993 by and between Koger Equity, Inc., a Florida corporation
("KE" or the "Company"), and TCW Special Credits, a California general
partnership ("TCW Special Credits"), for itself and, as general partner
or investment advisor, on behalf of Weyerhauser Company Master Pension
Trust, TCW Special Credits Fund III, The Common Fund for Bond Investments
and TCW Special Credits Trust (collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, the Shareholders are holders of certain unsecured debt
of Koger Properties, Inc., a Florida corporation ("KPI"), as debtor or
debtor-in-possession under Chapter 11 of title 11 of the United States
Code in the United States Bankruptcy Court for the Middle District of
Florida, Tampa Division (the "Bankruptcy Court"), case No. 91-12294-8P1
(the "KPI Bankruptcy Case");
WHEREAS, KE and KPI have filed with the Bankruptcy Court, as
joint proponents, a Third Amended and Restated Disclosure Statement (the
"Disclosure Statement") relating to the Third Amended and Restated Plan
of Reorganization of KPI (the "Plan");
WHEREAS, the Bankruptcy Court approved the Disclosure Statement
on June 8, 1993;
WHEREAS, the Shareholders currently beneficially own 552,600
shares of the common stock, $.01 par value, of KE (the "Common Stock")
and, upon consummation of the Plan and the merger of KPI with and into KE
(the "Merger"), as contemplated by the Agreement and Plan of Merger
between KPI and KE attached as Exhibit F to the Plan (the "Merger
Agreement") will receive additional shares of Common Stock;
WHEREAS, TCW Special Credits acts as general partner of or
investment advisor to each of the Shareholders and, as such, has the
authority to take certain actions on behalf of the Shareholders and has
or shares the power to vote or dispose of, or to direct the voting or
disposition of, the Shares (as defined in Section 2.2 hereof) and will
have or will share such power with respect to the Plan Shares (as defined
in Section 2.2 hereof);
WHEREAS, the Company and TCW Special Credits for itself and on
behalf of the Shareholders desire to enter into this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
1.1 AUTHORIZATION OF AGREEMENT; NO VIOLATIONS; CONSENTS.
The execution, delivery and performance of this Agreement by the Company
has been duly authorized by its Board of Directors. This Agreement has
been duly and validly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except that such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally. Neither the execution, delivery and
performance of this Agreement nor the consummation of the transactions
contemplated herein will, with or without the giving of notice or the
lapse of time, or both, conflict with or result in any violation of or
default under (a) any provision of the articles of incorporation, or the
bylaws, of KE, (b) any note, bond, mortgage, indenture, lease, agreement
or other material instrument, permit, concession, grant, franchise or
license to which KE is a party or by which any of their properties or
assets may be bound, (c) any judgment, order, decree, injunction,
statute, rule, permit, license or regulation applicable to KE, any of its
respective properties, or (d) which result in the acceleration of any
material obligation or the creation of any material lien, charge or
encumbrance upon any of the assets of KE. No authorization, consent or
approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution and delivery of this
Agreement by KE and neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby require the
consent of any person or entity, other than consents which have been
obtained.
1.2 EXEMPTION FROM CERTAIN PROVISIONS OF ARTICLES OF
INCORPORATION. Pursuant to Article V(d) of the Company's Articles of
Incorporation, the Board of Directors of the Company has determined that
the ownership of up to the higher of (i) 4,047,350 shares of Common
Stock, as adjusted for any subsequent stock splits, stock dividends or
other recapitalizations of the Company and (ii) twenty-three percent
(23%) of the then outstanding shares of Common Stock of the Company (the
"Maximum Amount") by the Shareholders, The TCW Group, Inc., TCW Special
Credits and any of their Affiliates (as such term is defined under the
Securities Exchange Act of 1934 (the "Exchange Act") is exempt from the
Limit (as defined in the Articles of Incorporation of the Company),
ownership, redemption and transfer restrictions as set forth in the
Articles of Incorporation of the Company while owned by the Shareholders,
The TCW Group, Inc., TCW Special Credits or any of their Affiliates
restrictions as set forth in the Articles of Incorporation of the Company
while owned by the Shareholders, The TCW Group, Inc., TCW Special
Credits or any of their Affiliates and has determined that, based upon
the representations and warranties of TCW Special Credits, for itself and
on behalf of the Shareholders as set forth herein, such exemption shall
not jeopardize the qualification of the Company as a real estate
investment trust under the Internal Revenue Code of 1986, as amended.
TCW Special Credits, for itself and on behalf of the Shareholders
understands, acknowledges and agrees that such exemption applies only to
the Shareholders, The TCW Group, Inc., TCW Special Credits or any of
their Affiliates and is limited to the shares held by the Shareholders up
to the Maximum Amount. The Company hereby covenants and agrees that for
a period of eight (8) years following the effective date of the Merger,
the Company shall not revoke, rescind, alter or otherwise take any action
to limit or eliminate the exemption from the Limit granted in this
Agreement without the prior written consent of TCW Special Credits.
1.3 SHAREHOLDER RIGHTS PLAN AMENDMENT. The Common Stock
Rights Agreement dated as of September 30, 1990 between the Company and
First Union National Bank, as successor Rights Agent (the "Rights
Agreement"), as of the effective date of the Merger, will be amended to
provide that the beneficial ownership by the Shareholders, The TCW Group,
Inc., TCW Special Credits and their Affiliates of shares of Common Stock
of the Company up to the Maximum Amount shall not cause the distribution
of the Rights as defined in the Rights Agreement. A true and correct
copy of the Rights Agreement, to be amended as contemplated hereby, is
attached hereto as Exhibit A. The Company hereby covenants and agrees
that for a period of eight (8) years following the effective date of the
Merger, the Company shall not amend, alter or otherwise modify the Rights
Agreement or take any other action to limit or eliminate the right of the
Shareholders, The TCW Group, Inc. and any of their Affiliates to acquire
and maintain beneficial ownership of shares of Common Stock of the
Company of, in the aggregate, up to the Maximum Amount without causing a
distribution of the Rights without the prior written consent of TCW
Special Credits.
2. REPRESENTATIONS AND WARRANTIES OF TCW SPECIAL CREDITS.
TCW Special Credits represents and warrants that it has the power and
authority under the terms and provisions of a partnership or other
written agreement with each of the Shareholders to enter into this
Agreement on behalf of the Shareholders and to make the following
representations and warranties on their behalf and further represents and
warrants that:
2.1 AUTHORIZATION OF AGREEMENT; NO VIOLATION; CONSENTS.
The execution, delivery and performance of this has been duly and validly
executed and delivered by TCW Special Credits for itself and on behalf of
the Shareholders and constitutes a valid and binding agreement of each of
TCW Special Credits and the Shareholders, enforceable in accordance with
its terms, except that such enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors'
rights generally. Neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions contemplated
herein will, with or without the giving of notice or the lapse of time,
or both, conflict with or result in any violation of or default under (a)
any provision of the articles of incorporation, partnership agreement,
bylaws or other governing document, of the Shareholders, (b) any note,
bond, mortgage, indenture, lease, agreement or other material instrument,
permit, concession, grant, franchise or license to which the Shareholders
are a party or by which any of their properties or assets may be bound,
(c) any judgment, order, decree, injunction, statute, rule, permit,
license or regulation applicable to TCW Special Credits or the
Shareholders or any of their respective properties, or (d) which result
in the acceleration of any material obligation of the creation of any
material lien, charge or encumbrance upon any of the assets of TCW
Special Credits or the Shareholders. No authorization, consent or
approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution and delivery of this
Agreement by TCW Special Credits for itself and on behalf of the
Shareholders and neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby require the
consent of any person or entity, other than consents which have been
obtained.
2.2 OWNERSHIP OF COMMON STOCK. The Shareholders, as of
the date hereof, are the beneficial holders of 552,600 shares of Common
Stock (the "Shares") in the amounts set forth in Schedule I hereto, free
and clear of all liens, claims, charges and encumbrances. Other than the
Shares, and any shares of Common Stock to be received by the Shareholders
pursuant to the Plan (the "Plan Shares"), neither TCW Special Credits nor
the Shareholders have any right, directly or indirectly, to purchase or
have any interest in, any other shares of Common Stock. Except as set
forth in the Plan or Disclosure Statement, there are no agreements
restricting the transfer, assignment, pledge or encumbrance of or
affecting the rights of TCW Special Credits or any Shareholder with
respect to the Shares or Plan Shares. The Shares and Plan Shares are the
only shares of Common Stock beneficially owned, within the meaning of
<section> 13(d) of the Exchange Act by TCW Special Credits, the
Shareholders or any of their respective Affiliates, as defined under the
Exchange Act.
2.3 OWNERSHIP OF KPI UNSECURED DEBT. The Shareholders are
the beneficial holders of an aggregate principal amount of $65,553,000 of
unsecured debt of KPI, in the amounts set forth in Schedule I hereto,
free and clear of all liens, claims, charges and encumbrances (the "KPI
Debt"). Other than the KPI Debt, neither TCW Special Credits nor the
Shareholders have any right, directly or indirectly, to purchase or have
any interest in any other indebtedness of KPI. There are no agreements
relating to the transfer, assignment or encumbrance of or affecting the
rights of TCW Special Credits or any Shareholder with respect to the KPI
Debt.
3. VOTING AGREEMENT. TCW Special Credits has the power and
authority to vote or direct the voting of all Shares held by the
Shareholders and all KPI Debt. TCW Special Credits agrees to vote or
direct the voting of all Shares held by Shareholders in favor of the
Merger and Merger Agreement as provided in the Company's proxy statement,
to be considered at the Company's 1993 Annual Meeting. TCW Special
Credits agrees to vote or direct the Shareholders, as holders of KPI
Debt, to vote in favor of the Plan as provided in the Disclosure
Statement.
4. CERTIFICATE. TCW Special Credits, for itself and on
behalf of the Shareholders, agrees to execute and deliver to KE, on or
before the date of the closing of the Merger, a certificate, dated as of
the closing, pursuant to which a duly authorized representative or
officer of each of the Shareholders represents, warrants and certifies
that neither TCW Special Credits nor the Shareholders have any present
plan or intention to sell, exchange, or otherwise dispose of any of the
Plan Shares.
5. NOTICES.
5.1 All notices, requests, demands and other
communications which are required to be or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or upon receipt when transmitted by telecopy or
telex or after dispatch by certified or registered first class mail,
postage prepaid, return receipt requested, or Federal Express, to the
party to whom the same is so given or made:
If to KE, to: Irvin H. Davis, President
Koger Equity, Inc.
4986 Boulevard Center Drive
Suite 101
Jacksonville, Florida 32207
With copies to:William F. McCarthy, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
and
Harold F. McCart, Jr., Esq.
Boling & McCart
76 South Laura Street
Suite 700
Jacksonville, Florida 32202
If to the Shareholders, to:
Thomas K. Smith, Jr.
TCW Special Credits
865 South Figueroa Street
Suite 1800
Los Angeles, California 90017
With copies to:
Jesse H. Austin, Esq.
Power, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
5.2 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
agreements, representations, warranties, statements, promises and
understandings, whether written or oral, with respect to the subject
matter hereof, and cannot be changed or terminated orally. No party
hereto shall be bound by or charged with any written or oral agreements,
representations, warranties, statements, promises, or understandings not
specifically set forth in this Agreement.
5.3 HEADINGS; CERTAIN TERMS. The section and other
headings contained in this Agreement are for reference purposes only and
shall not be deemed to be part of this Agreement or to affect the meaning
or interpretation of this Agreement.
5.4 GOVERNING LAW. This Agreement shall be construed as
to both validity and performance and enforced in accordance with and
governed by the laws of the State of Florida.
5.5 SEVERABILITY. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder
of this Agreement shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law. Upon the determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to affect
their original intent as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
5.6 PUBLIC ANNOUNCEMENTS. KE and TCW Special Credits
shall cooperate in connection with all actions to publicize, advertise,
announce, or disclose to any governmental authority or other third person
the execution or terms of this Agreement or the transactions contemplated
hereby. Except as required by the Bankruptcy Code or the federal
securities laws, neither party will make any public disclosure, release
or announcement without the prior written consent of the other party.
5.7 AMENDMENTS. This Agreement may not be modified or
changed except by an instrument or instruments in writing signed by each
of KE and TCW Special Credits.
5.8 SECTION REFERENCES. All references contained in this
Agreement to any section number are references to sections of this
Agreement unless otherwise specifically stated.
5.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which, when executed, shall be deemed to
be an original and all of which together shall be deemed to be one and
the same instrument.
[The remainder of this page has been intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement, or have caused this Agreement to be signed on their behalf by
an officer thereunto duly authorized, on the respective dates stated
below.
KOGER EQUITY, INC.
By:
Title: Senior Vice President,
Chief Financial Officer
TCW SPECIAL CREDITS, a California general
partnership for itself and on behalf of the
Shareholders (as defined herein)
By: TCW ASSET MANAGEMENT COMPANY, Managing
General Partner
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement, or have caused this Agreement to be signed on their behalf by
an officer thereunto duly authorized, on the respective dates stated
below.
KOGER EQUITY, INC.
By:
Title: Senior Vice President,
Chief Financial Officer
TCW SPECIAL CREDITS, a California general
partnership for itself and on behalf of the
Shareholders (as defined herein)
By: TCW ASSET MANAGEMENT COMPANY, Managing
General Partner
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
EXHIBIT A
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This amendment, dated as of August __, 1993, amends the Common
Stock Rights Agreement dated as of September 30, 1990 (the "Rights
Agreement"), between Koger Equity, Inc., a Florida corporation (the
"Company"), and First Union National Bank, as successor Rights agent (the
"Rights Agent"). Terms defined in the Rights Agreement and not otherwise
defined herein are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on September 30, 1990, the Board of Directors of the
Company authorized the issuance of Rights to purchase, on the terms and
subject to the provisions of the Rights Agreement, one share of the
Company's Common Stock; and
WHEREAS, on September 30, 1990, the Board of Directors of the
Company authorized and declared a dividend distribution of one Right for
every share of Common Stock of the Company outstanding on the Dividend
Record Date and authorized the issuance of one Right (subject to certain
adjustments) for each share of Common Stock of the Company issued between
the Dividend Record Date and the Distribution Date; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Continuing Directors now unanimously desire to further amend certain
provisions of the Rights Agreement;
NOW, THEREFORE, the Rights Agreement is hereby amended as
follows:
1. Section 1(v) is amended by replacing Section (v) in its
entirety with the following:
(v) "Exempt Person" shall mean, collectively, TCW Special
Credits, a California general partnership, The TCW Group, Inc. and
their Affiliate, only so long as TCW Special Credits, a California
general partnership, The TCW Group, Inc. and their Affiliates are,
collectively, the Beneficial Owners of shares of Common Stock
outstanding in an amount not in excess of and aggregate of the higher
of (i) 23% of the shares of Common Stock then outstanding and (ii)
4,047,350 shares of Common Stock, as adjusted for any stock splits,
stock dividends or other recapitalizations of the Company on or after
August , 1993.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to the Rights Agreement to be duly executed as of the day and year
first above written.
KOGER EQUITY, INC.
By:
Title:
Attest:
By:____________________________
Secretary
FIRST UNION NATIONAL BANK
By:
Title:
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"),
dated January 18, 1996, by and among TCW SPECIAL CREDITS, a California
general partnership, for itself (in its individual capacity, "TCW") and
as general partner or investment manager for the entities (other than TCW
Trust (as defined below)) set forth on Schedule I attached hereto (each
entity set forth on Schedule I (including TCW Trust), a "Selling
Shareholder" and, collectively, the "Selling Shareholders"), TRUST
COMPANY OF THE WEST, a California corporation, for itself (in its
individual capacity, "Trust") and as trustee for TCW Special Credits
Trust, a California collective investment trust ("TCW Trust"), and
RESOURCE GROUP INTERNATIONAL, INC., a Washington corporation
("Purchaser").
WITNESSETH:
WHEREAS, the Common Stock, par value $0.01 per share (including the
common stock purchase rights associated therewith, the "Common Stock"),
of Koger Equity, Inc., a Florida corporation (the "Company"), is publicly
traded on the American Stock Exchange under the symbol "KE";
WHEREAS, the Selling Shareholders collectively own and desire to
sell 2,449,571 shares of the Company's Common Stock as more particularly
set forth on Schedule I attached hereto under the headings "Initial
Shares" and "Secondary Shares" (as appropriately adjusted as necessary to
reflect a stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction, the
"Shares"), which Shares constitute approximately 13.8% of the total
issued and outstanding shares of Common Stock;
WHEREAS, TCW acts as general partner of, or investment manager to,
each of the Selling Shareholders (other than TCW Trust) and, in such
capacity, has the authority to take certain actions on behalf of the
Selling Shareholders (other than TCW Trust) and has or shares the power
to vote or dispose of, or to direct the voting or disposition of, the
Shares (other than those owned by TCW Trust);
WHEREAS, Trust acts as trustee of TCW Trust and, in such capacity,
has the authority to take certain actions on behalf of TCW Trust and has
or shares the power to vote or dispose of, or to direct the voting or
disposition of, the Shares owned by TCW Trust;
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
WHEREAS, the Selling Shareholders require, and the Purchaser wishes
to provide, certain assurance regarding the minimum consideration which
each Selling Shareholder is entitled to receive with respect to the sale
of the number of shares of Common Stock set forth opposite the name of
such Selling Shareholder during the time period set forth in Section 12;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement, (i) on the Initial Closing Date (as
hereinafter defined) the Selling Shareholders shall sell to Purchaser,
and Purchaser shall purchase from the Selling Shareholders, the Shares
set forth on Schedule I hereto under the heading "Initial Shares" (the
"Initial Shares") and (ii) on the Second Closing Date (as hereinafter
defined), the Selling Shareholders shall sell to Purchaser, and Purchaser
shall purchase from the Selling Shareholders, the Shares set forth on
Schedule I hereto under the heading "Secondary Shares" (the "Secondary
Shares").
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per
Share to be purchased by Purchaser hereunder shall be, as of any date,
$12.00 (appropriately adjusted as necessary to reflect a stock split,
stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction with respect to the Common Stock), PLUS
interest on such amount from January 1, 1996 through the date on which
the Closing (as hereinafter defined)) with respect to such Share occurs
at a rate of 5% per annum, compounded monthly, based on a year of 366
days.
(b) All amounts payable by Purchaser to the Selling
Shareholders pursuant to this Section 2 shall be paid by wire transfer of
immediately available funds in accordance with the wire transfer
instructions set forth on Schedule I hereto.
3. REPRESENTATIONS AND WARRANTIES OF TCW, TRUST AND SELLING
SHAREHOLDERS. TCW, Trust and the Selling Shareholders (each on behalf of
and with respect to itself) make the following representations and
warranties to Purchaser, each of which is true and correct on the date
hereof, shall remain true and correct to and as of the Second Closing (as
hereinafter defined) (except for representations and warranties with
respect to the Initial Shares, which shall remain true and correct to and
as of the Initial Closing (as hereinafter defined)) and shall survive the
Closings:
(a) Each of TCW and Trust is duly organized, validly existing
and in good standing under the laws of the State of California. Each of
TCW and Trust has all requisite entity power and authority to enter into
this Agreement and the other documents and instruments to be executed and
delivered by TCW and Trust, respectively, and to carry out the
transactions contemplated hereby and thereby. All entity actions and
proceedings necessary to be taken by or on the part of each of TCW and
Trust in connection with the transactions contemplated by this Agreement
have been duly and validly taken.
(b) Each of TCW and Trust has the power and authority under
the terms and provisions of a partnership, trust or other written
agreement with, or concerning the governance of, each of the Selling
Shareholders (other than TCW Trust) and TCW Trust, respectively, to enter
into this Agreement on behalf of such Selling Shareholder and to make the
representations and warranties set forth herein on such Selling
Shareholder's behalf.
(c) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by (i) TCW for
itself and on behalf of the Selling Shareholders (other than TCW Trust)
and (ii) Trust for itself and on behalf of TCW Trust, and the
consummation of the transactions contemplated hereby and thereby, have
been duly authorized by TCW and Trust, respectively.
(d) No other act or proceeding on behalf of TCW, Trust or any
Selling Shareholder is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by TCW, Trust and
the Selling Shareholders pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement has been
duly and validly executed and delivered by TCW, Trust and the Selling
Shareholders and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by TCW, Trust and
the Selling Shareholders pursuant hereto will constitute, valid and
binding agreements of each of TCW, Trust and the Selling Shareholders
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforceability of creditors' rights
generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of
notice or the lapse of time, or both, (i) conflict with or result in any
violation of or default under (a) any provision of the articles of
incorporation, partnership agreement, bylaws, trust agreement or other
governing document, of TCW, Trust or any Selling Shareholder, (b) any
note, bond, mortgage, indenture, lease, agreement or other material
instrument, permit, concession, grant, franchise or license to which TCW,
Trust or any Selling Shareholder is a party or by which any of their
properties or assets may be bound (provided that no representation or
warranty is being made under this clause (b) as to the Amended and
Restated Articles of Incorporation of the Company (as the same may be
further amended from time to time, the "Articles")) or (c) any judgment,
order, decree, injunction, statute, rule, permit, license or regulation
applicable to TCW, Trust any Selling Shareholder or any of their
respective properties, or (ii) result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of TCW, Trust or any Selling Shareholder. No
authorization, consent or approval of, or declaration of, filing with or
notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by TCW, Trust or
any Selling Shareholder.
(e) The Selling Shareholders are the owners of the Shares in
the amounts set forth in Schedule I hereto, free and clear of all liens,
claims, charges and other encumbrances (subject to any encumbrances
imposed thereon or with respect thereto by the Articles or the
restrictions on transfer contained in any applicable securities laws) and
the Shares are held by Sanwa Bank & Trust, as custodian, through an
account on the book entry system maintained by the Depositary Trust
Corporation. Upon the Initial Closing and the Second Closing, the
Selling Shareholders shall convey to Purchaser or its permitted designee
or assignee good and marketable title to the Initial Shares and the
Secondary Shares, respectively, in each case free and clear of all liens,
claims, charges and other encumbrances (subject to any encumbrances
imposed thereon or with respect thereto by the Articles or the
restrictions on transfer contained in any applicable securities laws).
None of the Selling Shareholders has any right, directly or indirectly,
to purchase or has any interest in any shares of Common Stock other than
the Shares and those shares of Common Stock described in filings on
Schedule 13D (as it may be amended from time to time) made collectively
by TCW and certain other parties.
(f) Neither the Selling Shareholders nor any directors,
partners, officers, employees or agents thereof has retained, employed or
used any broker or finder in connection with the transactions provided
for herein or in connection with the negotiation thereof.
(g) None of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited
any offer to buy any such Shares, by means of any general advertising or
by any other form of general solicitation. None of the Selling
Shareholders has offered, directly or indirectly, any Shares beneficially
owned thereby for sale, nor solicited any offer to buy any such Shares,
in any other manner that would require the sale of the Shares to be
subject to the registration requirements of the Securities Act of 1933,
as amended. Each of the Selling Shareholders confirms that it did not
acquire any Shares with a view to, or for, resale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended, which would not be exempt from the registration requirements of
such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes
the following representations and warranties to TCW, Trust and the
Selling Shareholders, each of which is true and correct on the date
hereof, shall remain true and correct to and as of the Second Closing,
and shall survive the Closings:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Washington.
Purchaser has all requisite corporate power to enter into this Agreement
and the other documents and instruments to be executed and delivered by
Purchaser pursuant hereto and to carry out the transactions contemplated
hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser
pursuant hereto and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by the Board of Directors of
Purchaser. No other corporate act or proceeding on the part of Purchaser
or its shareholders is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by Purchaser
pursuant hereto or the consummation of the transactions contemplated
hereby and thereby. This Agreement constitutes, and when executed and
delivered, the other documents and instruments to be executed and
delivered by Purchaser pursuant hereto will constitute, valid and binding
agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally, and
by general equitable principles.
(c) Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated herein
will, with or without the giving of notice or the lapse of time, or both,
(i) conflict with or result in any violation of or default under (a) any
provision of the Articles of Incorporation or the bylaws of Purchaser,
each as amended and/or restated to date, (b) any note, bond, mortgage,
indenture, lease, agreement or other material instrument, permit,
concession, grant, franchise or license to which Purchaser is a party or
by which any of its properties or assets may be bound (provided that no
representation or warranty is being made under this clause (b) as to the
Articles) or (c) any judgment, order, decree, injunction, statute, rule,
permit, license or regulation applicable to Purchaser or any of its
properties, or (ii) which result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of Purchaser. Except as contemplated by Section
6(a), no authorization, consent or approval of, or declaration of, filing
with or notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers,
employees or agents has retained, employed or used any broker or finder
in connection with the transaction provided for herein or in connection
with the negotiation thereof.
(e) Purchaser is a sophisticated investor capable of
evaluating the merits and risks of investment in the Shares and of making
an informed investment decision with respect thereto. Purchaser
acknowledges that it has conducted its own review of the documents filed
by the Company with the Securities and Exchange Commission (including,
without limitation, any exhibits or schedules) and that neither TCW,
Trust nor any of the Selling Shareholders is making any representations
or warranties with respect to such documents (other than agreements to
which TCW, Trust or a Selling Shareholder is a party) or their
applicability to any of the transactions contemplated hereby. Neither
TCW, Trust nor any Selling Shareholder has made any representation or
warranty to Purchaser other than those set forth in Section 3. The
Shares are being acquired by Purchaser for investment only and not with a
view to resale or other distribution. Purchaser acknowledges and
understands that the Shares being acquired hereunder shall have the
status of securities acquired in a transaction under Section 4(2) of the
Securities Act of 1933, as amended, and cannot be resold without
registration under such Act or an exemption therefrom. Purchaser
acknowledges and understands that TCW and the Selling Shareholders have a
representative serving on the Company's Board of Directors.
(f) Purchaser has a tangible net worth in excess of $100
million and Purchaser has cash or cash equivalents available in an amount
sufficient to consummate the transactions contemplated hereby.
5. COVENANTS OF TCW, TRUST AND THE SELLING SHAREHOLDERS.
(a) From the date hereof until the later of (i) the forty-
fifth day after the Initial Closing Date and (ii) the earlier of (x) the
sixtieth day after the Initial Closing Date and (y) three (3) business
days after the date on which the condition set forth in Section 7(b)(ii)
shall have been satisfied (the "Blackout Period"), each of the Selling
Shareholders covenants and agrees that it will not transfer any of the
Shares, except to Purchaser pursuant hereto.
(b) TCW, Trust and the Selling Shareholders covenant and agree
to cooperate with Purchaser and the Company in causing the event in
Section 7(b)(ii) to occur including, without limitation, responding to
any inquiries from the Federal Trade Commission (the "FTC") or the United
States Department of Justice ("DOJ").
(c) TCW, Trust and the Selling Shareholders covenant and agree
to assign their respective rights under the Registration Rights
Agreement, dated as of August 9, 1993, by and between the Company and
TCW, with respect to any Shares purchased hereunder, but only if such
assignment is consented to by the Company and otherwise constitutes a
valid assignment in accordance with such agreement.
6. COVENANTS OF PURCHASER.
(a) Purchaser covenants and agrees that, as soon as possible
(but in no event later than five (5) business days) after the Initial
Closing, Purchaser shall prepare and file all documents with the FTC and
the DOJ as are required to be filed by Purchaser pursuant to the Hart-
Scott-Rodino Act of 1976, as amended (the "HSR Act") with respect to the
Second Closing and shall furnish promptly all materials thereafter
requested by any of the regulatory agencies having jurisdiction over such
filings by Purchaser.
(b) Purchaser covenants and agrees that after the Initial
Closing, Purchaser shall use commercially reasonable efforts to cause the
condition set forth in Sections 7(b)(ii) to be satisfied.
7. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
(a) Each and every obligation of Purchaser to be performed on
any Closing Date (as hereinafter defined) shall be subject to the
satisfaction prior to or at the Closing on such date of each of the
following conditions:
(i) Each of the representations and warranties made by
TCW, Trust and each Selling Shareholder in this Agreement shall be true
and correct in all material respects when made and shall be true and
correct in all material respects at and as of such Closing Date as though
such representations and warranties were made or given on and as of such
Closing Date, except for any representation or warranty that expressly
indicates that it is being made as of a specific date.
(ii) Each of TCW, Trust and the Selling Shareholders shall
have in all material respects performed and complied with all of its
agreements and obligations under this Agreement which are to be performed
or complied with by it prior to or on such Closing Date, including the
delivery of the closing documents specified in Section 10.
(iii) No injunction or restraining order shall have been
issued by any court of competent jurisdiction that enjoins consummation
of the transactions contemplated hereby.
(b) Each and every obligation of Purchaser to be performed on
the Second Closing Date shall be subject to the satisfaction prior to or
at the Second Closing of each of the following conditions:
(i) The Initial Closing shall have been consummated in
accordance with the terms of this Agreement.
(ii) All applicable waiting periods shall have expired or
early termination shall have been received under the HSR Act to
consummate the Second Closing.
(c) Each and every obligation of Purchaser under Section 12
shall be subject only to the satisfaction prior to the date on which such
obligations mature of the following conditions:
(i) Each of the representations and warranties made by
TCW, Trust and each Selling Shareholder in this Agreement shall be true
and correct in all material respects when made and shall be true and
correct in all material respects at and as of the last day of the
Blackout Period as though such representations and warranties were made
or given on and as of such date, except for any representation or
warranty that expressly indicates that it is being made as of a specific
date.
(ii) Each of TCW, Trust and the Selling Shareholders shall
have in all material respects performed and complied with all of its
agreements and obligations under this Agreement which are to be performed
or complied with by it prior to or on such date.
8. CONDITIONS PRECEDENT TO SELLING SHAREHOLDERS' OBLIGATIONS.
(a) Each and every obligation of the Selling Shareholders to
be performed on any Closing Date shall be subject to the satisfaction
prior to or at the Closing on such date of the following conditions:
(i) Each of the representations and warranties made by
Purchaser in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects
at and as of such Closing Date as though such representations and
warranties were made or given on and as of such Closing Date.
(ii) Purchaser shall have in all material respects
performed and complied with all of its agreements and obligations under
this Agreement which are to be performed or complied with by it prior to
or on such Closing Date, including the delivery of the closing documents
specified in Section 11.
(iii) No injunction or restraining order shall have been
issued by a court of competent jurisdiction that enjoins consummation of
the transactions contemplated hereby.
(b) Each and every obligation of the Selling Shareholders to
be performed on the Second Closing Date shall be subject to the
satisfaction prior to or at the Second Closing of each of the following
conditions:
(i) The Initial Closing shall have been consummated in
accordance with the terms of this Agreement.
(ii) The Second Closing Date shall occur prior to the
expiration of the Blackout Period.
9. CLOSINGS. The closing of (i) the purchase and sale of the
Initial Shares (the "Initial Closing") and (ii) the purchase and sale of
the Secondary Shares (the "Second Closing" and, together with the Initial
Closing, the "Closings") shall take place on January 19, 1996, in the
case of the Initial Closing, and on the third business day following
satisfaction of the condition set forth in Section 7(b)(ii), in the case
of the Second Closing, or at such other time and place as the parties
hereto shall agree upon. The date on which the Initial Closing or the
Second Closing occurs is referred to in this Agreement as the "Initial
Closing Date" or the "Second Closing Date," respectively, and such dates
shall be collectively referred to in this Agreement as the "Closing
Dates."
10. DOCUMENTS TO BE DELIVERED BY TCW, TRUST AND THE SELLING
SHAREHOLDERS AT THE CLOSINGS. At each of the Closings, TCW, Trust or the
Selling Shareholders, as the case may be, shall deliver, or cause to be
delivered, to Purchaser or its wholly-owned designee the following
documents, in each case duly executed or otherwise in proper form:
(a) Either (i) stock certificates duly endorsed for transfer
or with duly executed stock powers attached thereto, representing the
Initial Shares, in the case of the Initial Closing, and representing the
Secondary Shares, in the case of the Second Closing, or (ii) other
customary evidence of transfer of the Initial Shares, in the case of the
Initial Closing, and of the Secondary Shares, in the case of the Second
Closing.
(b) A certificate signed by a duly authorized general partner
of TCW on behalf of TCW and the Selling Shareholders (other than TCW
Trust), and a duly authorized officer of Trust on behalf of Trust and TCW
Trust, that each of the representations and warranties made by TCW and
the Selling Shareholders (other than TCW Trust), and Trust and TCW Trust,
respectively, in this Agreement is true and correct in all material
respects on and as of the Closing Date on which such Closing occurs with
the same effect as though such representations and warranties had been
made or given on and as of such Closing Date, except for any
representation or warranty that expressly indicates that it is being made
as of a specific date, and that TCW and the Selling Shareholders (other
than TCW Trust), and Trust and TCW Trust, respectively, have performed
and complied with all of their respective obligations under this
Agreement which are to be performed or complied with on or prior to such
Closing Date.
11. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSINGS.
At each of the Closings, Purchaser shall deliver to TCW, on
behalf of the Selling Shareholders (other than TCW Trust), and Trust, on
behalf of TCW Trust, the following documents, in each case duly executed
or otherwise in proper form:
(a) A wire transfer in payment of the Purchase Price for
the Initial Shares, in the case of the Initial Closing and, the Secondary
Shares, in the case of the Second Closing, in each case, as required by
Section 2(b) hereof.
(b) A certificate signed by a duly authorized officer of
Purchaser that the representations and warranties made by Purchaser in
this Agreement are true and correct on and as of the Closing Date on
which such Closing occurs with the same effect as though such
representations and warranties had been made or given on and as of such
Closing Date, and that Purchaser has performed and complied with all of
Purchaser's obligations under this Agreement which are to be performed or
complied with on or prior to such Closing Date.
12. GROSS-UP.
(a) If the Second Closing has not occurred prior to the
expiration of the Blackout Period (and without limiting the rights and
remedies of the Selling Shareholders hereunder in the event of a breach
by Purchaser), the Selling Shareholders shall have the right from time to
time to sell any Shares then beneficially owned by the Selling
Shareholders pursuant to a Third Party Sale (as hereinafter defined). At
any time and from time to time, the Selling Shareholders shall have the
right to sell any of the shares of Common Stock set forth on Schedule I
under the heading "Gross-Up Shares" (as appropriately adjusted as
necessary to reflect a stock split, stock dividend, merger,
consolidation, reclassification, recapitalization or other similar
transaction, the "Gross-Up Shares") then beneficially owned by the
Selling Shareholders pursuant to a Third Party Sale. For purposes of
this Agreement, "Third Party Sale" shall mean a sale in accordance with
the terms of this Agreement of any Shares or Gross-Up Shares to an
unaffiliated third party or parties, including, without limitation, to an
underwriter in connection with a public offering. Purchaser shall have
no rights with respect to any Shares from and after the date on which
such Shares are sold pursuant to a Third Party Sale in accordance with
the terms of this Agreement.
(b) If any Third Party Sales are entered into prior to the
date that is six months after the last day of the Blackout Period (the
"Gross-Up Period"), Purchaser shall pay to the Selling Shareholders,
within five (5) business days after receipt of written demand and in
accordance with Section 2(b), the product of (i) the number of Shares
and/or Gross-Up Shares, as the case may be, subject to such Third Party
Sale and (ii) the excess, if any, of (x) the Purchase Price that would
have been payable to the Selling Shareholders by Purchaser pursuant to
Section 2(a) had a Closing occurred on the date of the consummation of
such Third Party Sale over (y) the greater of (1) 90% of the average
closing price of a share of Common Stock on the American Stock Exchange
for the period of ten (10) consecutive trading days (A) during which
Purchaser and Purchaser's Affiliates (as hereinafter defined) shall not
have purchased or offered to purchase any shares of Common Stock and (B)
which most immediately precedes the date on which such Third Party Sale
occurs and (2) the purchase price per Share and/or Gross-Up Share paid in
connection with such Third Party Sale. The Selling Shareholders shall
deliver to Purchaser all agreements regarding such Third Party Sale (or
other documents evidencing such Third Party Sale (E.G., a window ticket
evidencing the transfer of Shares or Gross-Up Shares pursuant to such
Third Party Sale)) and a calculation of the amount due hereunder, which
amount shall be paid within the time period set forth above. Purchaser
agrees that to the extent it has notice of any pending Third Party Sale,
it shall not, and shall cause each of the Purchaser's Affiliates not to,
purchase or offer to purchase any shares of Common Stock during the ten
(10) consecutive trading day period ending on the trading day which
immediately precedes such Third Party Sale.
(c) Notwithstanding the foregoing, if during the Gross-Up
Period and prior to the giving by the Selling Shareholders of notice of a
Third Party Sale pursuant to Section 12(b), Purchaser provides to the
Selling Shareholders a Replacement Offer (as hereinafter defined), then
Purchaser shall be released from its obligations to make any payments
pursuant to Section 12(b); PROVIDED, HOWEVER, that Purchaser shall only
be released if the closing of the Replacement Offer either occurs on the
terms set forth in the Replacement Offer or fails to occur on such terms
as a result of the rejection of such offer by the Selling Shareholders.
For purposes hereof, "Replacement Offer" shall mean a legally binding
written offer to purchase, which shall be irrevocable for at least five
(5) business days after receipt by TCW, Trust and the Selling
Shareholders of such Replacement Offer to TCW, Trust and the Selling
Shareholders, all, but not less than all, of the Shares and Gross-Up
Shares, to the extent then beneficially owned by the Selling
Shareholders, from a potential purchaser that has the financial capacity
to purchase such Shares and Gross-Up Shares and which offer (i) is not
subject to any conditions other than the continued accuracy of TCW's,
Trust's and the Selling Shareholders' representations and warranties
herein and clearance under the HSR Act and (ii) provides for a purchase
price for such Shares and Gross-Up Shares at least equal to the Purchase
Price that would have been payable to the Selling Shareholders by
Purchaser pursuant to Section 2(a) had a Closing occurred on the forty-
fifth day after notice of such Replacement Offer is received by TCW,
Trust and the Selling Shareholders.
13. INDEMNIFICATION.
(a) Subject to the terms and conditions of this Section 13,
TCW hereby agrees to indemnify, defend and hold harmless Purchaser and
its directors, officers, employees and controlled and controlling persons
(hereinafter Purchaser's Affiliates") from and against all Claims (as
hereinafter defined) asserted against, resulting to, imposed upon, or
incurred by Purchaser or Purchaser's Affiliates, directly or indirectly,
by reason of, arising out of or resulting from (a) the inaccuracy or
breach of any representation or warranty of TCW contained in this
Agreement, or (b) the breach of any covenant of TCW contained in this
Agreement. As used in this Section 13, the term "Claim" shall mean: (i)
all debts, liabilities and obligations; (ii) all losses, damages
(including, without limitation, consequential damages), judgments,
awards, settlements, costs and expenses (including, without limitation,
interest (including prejudgment interest in any litigated matter)
penalties, court costs and attorneys' fees and expenses); and (iii) all
demands, claims, suits, actions, costs of investigation, causes of
action, proceedings and assessments, whether or not ultimately determined
to be valid.
(b) Subject to the terms and conditions of this Section 13,
each Selling Shareholder hereby agrees to indemnify, defend and hold
harmless Purchaser and Purchaser's Affiliates from and against all Claims
asserted against, resulting to, imposed upon or incurred by Purchaser or
Purchaser's Affiliates, directly or indirectly, by reason of or resulting
from (a) the inaccuracy or breach of any representation or warranty of
such Selling Shareholder contained in this Agreement, or (b) the breach
of any covenant of such Selling Shareholder contained in this Agreement.
(c) Subject to the terms and conditions of this Section 13,
Trust hereby agrees to indemnify, defend and hold harmless Purchaser and
Purchaser's Affiliates from and against all Claims asserted against,
resulting to, imposed upon or incurred by Purchaser or Purchaser's
Affiliates, directly or indirectly, by reason of or resulting from (a)
the inaccuracy or breach of any representation or warranty of Trust
contained in this Agreement, or (b) the breach of any covenant of Trust
contained in this Agreement.
(d) Subject to the terms and conditions of this Section 13,
Purchaser hereby agrees to indemnify, defend and hold harmless TCW, Trust
and the Selling Shareholders from and against all Claims asserted
against, resulting to, imposed upon or incurred by any of TCW, Trust and
the Selling Shareholders, directly or indirectly, by reason of or
resulting from (a) the inaccuracy or breach of any representation or
warranty of Purchaser contained in this Agreement, or (b) the breach of
any covenant of Purchaser contained in this Agreement.
(e) The obligations and liabilities of any party to indemnify
any other person under this Section 13 with respect to Claims relating to
third parties shall be subject to the following terms and conditions:
(i) The party or parties to be indemnified (whether one
or more, the "Indemnified Party") will give the party from whom
indemnification is sought (the "Indemnifying Party") prompt written
notice of any such Claim, and the Indemnifying Party will undertake the
defense thereof by representatives chosen by it. Failure to give such
notice shall not affect the Indemnifying Party's duty or obligations
under this Section 13, except to the extent the Indemnifying Party is
prejudiced thereby. So long as the Indemnifying Party is defending any
such Claim actively and in good faith, the Indemnified Party shall not
settle such Claim. The Indemnified Party shall make available to the
Indemnifying Party or its representatives all records and other materials
required by them and in the possession or under the control of the
Indemnified Party, for the use of the Indemnifying Party and its
representatives in defending any such Claim, and shall in other respects
give reasonable cooperation in such defense.
(ii) If the Indemnifying Party, within a reasonable time
after notice of any such Claim, fails to defend such Claim actively and
in good faith, the Indemnified Party will (upon further notice) have the
right to undertake the defense, compromise or settlement of such Claim or
consent to the entry of a judgment with respect to such Claim, on behalf
of and for the account and risk of the Indemnifying Party, and the
Indemnifying Party shall thereafter have no right to challenge the
Indemnified Party's defense, compromise, settlement or consent to
judgment therein.
(iii) Anything in this subsection (e) to the contrary
notwithstanding, (x) if there is a reasonable probability that a Claim
may materially and adversely affect the Indemnified Party other than as a
result of money damages or other money payments, the Indemnified Party
shall have the right to defend, compromise or settle such Claim, and (y)
the Indemnifying Party shall not, without the written consent of the
Indemnified Party, settle or compromise any Claim or consent to the entry
of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified party of a
release from all liability in respect of such Claim.
14. TERMINATION. This Agreement may be terminated by either TCW,
Trust and the Selling Shareholders, on one hand, or the Purchaser, on the
other hand, if the Second Closing shall not have been consummated prior
to the expiration of the Blackout Period; PROVIDED, HOWEVER, that the
obligations of each of the parties hereto under Sections 12 (subject to
the satisfaction of the conditions set forth in Sections 7(c)(i) and
(ii)), 13 (solely with respect to events that shall have occurred prior
to such termination) and 16 through 29 shall continue in full force and
effect notwithstanding any such termination, and that no party shall be
relieved from any liability of any kind or nature whatsoever resulting
from or arising out of a breach thereby of this Agreement occurring prior
to such termination.
15. FURTHER ASSURANCES. From time to time prior to, at and after
any Closing, each party hereto shall execute all such instruments and
take all such actions as any other party hereto shall reasonably request
in connection with carrying out and effectuating the transactions
contemplated by this Agreement.
16. NOTICES. Any notices required or allowed to be furnished
pursuant to the terms hereof shall be provided to TCW, Trust, the Selling
Shareholders and Purchaser at the addresses set forth with their
signatures below. Notices hereunder shall be in writing and may be hand
delivered, mailed, delivered by overnight courier service or, if
facsimile numbers are provided below, transmitted by facsimile. If
mailed, such notices shall be sent by certified mail, postage prepaid,
return receipt requested. The date which is three (3) business days
after the date of mailing shall be deemed to be the date on which the
notice was given. The postmark affixed to such notice by the U.S. Post
Office shall be conclusively presumed to be the date of mailing for
purposes of this Section. In the case of notices given by hand delivery
or overnight courier, such notices shall be deemed given on the date of
the actual receipt. If transmitted by facsimile, such notices shall be
deemed given on the date of the actual receipt of a complete, legible
facsimile transmission, except that if a facsimile transmission is
received after business hours or on a weekend or holiday, then the notice
shall be deemed given on the next business day following the receipt of
the facsimile transmission.
17. ATTORNEYS' FEES. In the event any party hereto finds it
necessary to bring any suit, action, or other proceeding at law or equity
to interpret, enforce or implement any of the terms, covenants or
conditions hereof or of any instrument executed pursuant to this
Agreement, or by reason of any breach or default hereunder or thereunder,
the party prevailing in any such action or proceeding, including any
bankruptcy proceeding and/or any appeal, shall be paid all costs and
reasonable attorneys' fees by the non-prevailing party, and in the event
any judgment is secured by such prevailing party, all such costs and
attorneys' fees shall be included in any such judgment, attorneys' fees
to be set by the court and not by the jury. No termination of this
Agreement upon any grounds or in any circumstances addressed herein or
otherwise will impair or limit a prevailing party's right to recover from
the other party its attorneys' fees and costs in accordance with the
provisions of this Section.
18. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Florida without
regard to the conflicts of law provisions thereof.
19. ASSIGNMENT; PARTIES IN INTEREST.
(a) Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or
encumbered without the prior written consent of the other parties.
Notwithstanding the foregoing, TCW, Trust and the Selling Shareholders
hereby consent to Purchaser assigning its rights hereunder to a
corporation, partnership or limited liability company to be formed and in
which Purchaser owns a majority interest. Purchaser agrees to notify
TCW, Trust and the Selling Shareholders within five (5) days after said
assignment or any other assignment of Purchaser's rights under this
Agreement to which TCW, Trust and the Selling Shareholders may hereafter
consent, and such notification shall be accompanied by a copy of the
instrument of assignment. Notwithstanding the foregoing, TCW, Trust and
the Selling Shareholders shall have no obligation to execute and deliver
closing documents pursuant to this Agreement in favor of anyone other
than the original Purchaser identified herein, unless TCW, Trust and the
Selling Shareholders receive written notification at least (i) twenty-
four (24) hours prior to the Initial Closing, in the case of the Initial
Closing, and (ii) three (3) business days prior to the Second Closing, in
the case of the Second Closing. An assignment by Purchaser of its rights
under this Agreement shall not release Purchaser from its obligations and
liabilities under this Agreement, including, without limitation, its
obligation to close the purchase of Shares if its assignee fails to close
this transaction or if Purchaser's notice of an assignment is not duly
given to TCW, Trust and the Selling Shareholders within the time period
provided for herein.
(b) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and permitted assigns
of the parties hereto. Nothing contained herein shall be deemed to
confer upon any other person any right or remedy under or by reason of
this Agreement.
20. EXPENSES. Except as hereinafter set forth, each of the parties
hereto shall bear its own expenses and the expenses of its counsel and
other agents in connection with the transactions contemplated hereby.
Notwithstanding the foregoing, the Selling Shareholders shall pay any
sales, use, excise, transfer or other similar tax imposed with respect to
the transactions provided for in this Agreement (and any interest or
penalties related thereto).
21. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for
performance of any of the terms, conditions and provisions hereof shall
fall on a Saturday, Sunday or legal holiday, then the time of such
performance shall be extended to the next business day thereafter.
22. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders,
the singular shall include the plural, and the plural shall include the
singular, wherever appropriate to the context.
23. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the
entire agreement of the parties with respect to the transactions
contemplated herein, including the purchase and sale of the Shares, and
all prior understandings and agreements of the parties relating thereto
are merged herein. This Agreement may not be modified in any manner
whatsoever except by a written instrument signed by TCW and Purchaser.
24. WAIVER. No delay in exercising any right or remedy of any of
the parties hereunder shall constitute a waiver thereof, and no waiver by
TCW, Trust, the Selling Shareholders or Purchaser of the breach of any
covenant of this Agreement shall be construed as a waiver of any
preceding or succeeding breach of the same or any other covenant or
condition of this Agreement.
25. HEADINGS. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
26. SEVERABILITY. If any term, covenant or condition of this
Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision
hereof and this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
27. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the
content and timing of any public disclosure in relation to the
transactions contemplated hereby, subject to applicable requirements of
law.
28. LIMITATIONS ON LIABILITY. The parties hereto acknowledge and
agree that in no event shall any of the partners, officers, directors,
shareholders, employees, agents or investment managers (collectively
"Representatives") of TCW, Trust or any Selling Shareholder, on one hand,
or of Purchaser on the other hand, have any obligation or liability to
Purchaser or TCW, Trust and the Selling Shareholders, respectively, for
any action taken or omitted by or on behalf of any Selling Shareholder or
Purchaser, respectively, hereunder or in connection herewith (such
obligation and liability being the sole responsibility of such Selling
Shareholder or Purchaser, respectively, hereunder). The parties hereto
further acknowledge and agree that all obligations and liabilities of
each Selling Shareholder, on one hand, and Purchaser, on the other hand,
under this Agreement or in connection herewith are enforceable solely
against such Selling Shareholder and its assets and not against the
assets of TCW, Trust, any other Selling Shareholder or any
Representatives of TCW, Trust or any Selling Shareholder, or Purchaser
and its assets and not against the assets of any Representative of
Purchaser, respectively; PROVIDED, HOWEVER, that if such obligations or
liabilities of the Selling Shareholders are not specifically attributable
to a particular Selling Shareholder, then the obligations and liabilities
of each Selling Shareholder shall be several in the proportions of the
aggregate Shares of each Selling Shareholder set forth on Schedule I
hereto and not joint and several. The provisions of this Section 28
shall in no way limit or otherwise affect TCW's responsibility or Trust's
responsibility to Purchaser for any breach by TCW on its own behalf, or
Trust on its own behalf, respectively, hereunder.
29. TIME. Time is of the essence of this Agreement.
30. EXECUTION. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any party may
execute this Agreement by transmitting a copy of its signature by
facsimile to the other parties. In such event the signing party shall
deliver an original of the signature page to each of the other parties
within one business day of signing, and failure to so deliver such
originals shall result in the facsimile copy of that party's signature
being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date and year first above written.
SELLING
SHAREHOLDERS: TCW SPECIAL CREDITS, a California general
partnership, as general partner or investment
manager of the entities set forth on Schedule I
attached hereto (other than TCW Special Credits
Trust)
By: TCW Asset Management Company, its
managing general partner
By: ________________________________
Bruce A. Karsh
Authorized Signatory
By: ________________________________
Kenneth Liang
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Attn: Bruce A. Karsh,
President
Facsimile No.: (213) 694-1592
TRUST COMPANY OF THE WEST, a California corporation,
as trustee of TCW Special Credits Trust, a
California collective investment trust
By: ________________________________
Bruce A. Karsh
Authorized Signatory
By: ________________________________
Kenneth Liang
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Attn: Bruce A. Karsh,
President
Facsimile No.: (213) 694-1592
TCW: TCW SPECIAL CREDITS, a California general partnership
By: TCW Asset Management Company, its managing
general partner
By: _________________________________
Bruce A. Karsh
Authorized Signatory
By: _________________________________
Kenneth Liang
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Attn: Bruce A. Karsh,
President
Facsimile No.: (213) 694-1592
TRUST: TRUST COMPANY OF THE WEST, a Californiacorporation
By: _________________________________
Bruce A. Karsh
Authorized Signatory
By: _________________________________
Kenneth Liang
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Attn: Bruce A. Karsh,
President
Facsimile No.: (213) 694-1592
PURCHASER: RESOURCE GROUP INTERNATIONAL, INC.,
a Washington corporation
By: /S/ DAVID A. HERRICK
Print Name: DAVID A. HERRICK
Its: TREASURER
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
<PAGE>
SCHEDULE I
KOGER EQUITY, INC.
COMMON STOCK
<TABLE>
<CAPTION>
ENTITY PERCENTAGE INITIAL SECONDARY GROSS-UP TOTAL
SHARES SHARES SHARES
<S> <C> <C> <C> <C> <C>
Weyerhaeuser Company 18.5 222,000 231,171 36,122 489,293
Master Retirement
Trust
TCW Special Credits Fund 53.6 643,200 669,770 104,658 1,417,628
III
The Common Fund for Bond 3.9 46,800 48,733 7,615 103,148
Investments
TCW Special Credits Trust 24.0 288,000 299,897 46,861 634,758
----- --------- --------- ------- ---------
100.0% 1,200,000 1,249,571 195,256 2,644,827
</TABLE>
WIRING INSTRUCTIONS - TCW SPECIAL CREDITS
Sanwa Bank of California/Trust Operations
Monterey Park, California 91754
ABA Routing #122003516
Account: TCW Special Credits Escrow Account
A/C #400-3500
Ref: TCW/Koger/RGI
AMENDMENT NO. 1 TO COMMON STOCK PURCHASE
AND SALE AGREEMENT
Amendment No. 1 dated as of March 5, 1996 (the "Amendment"), to
the Common Stock Purchase and Sale Agreement, dated January 18, 1996, by
and among TCW Special Credits, a California general partnership, for
itself (in its individual capacity, "TCW") and as general partner or
investment manager for the entities (other than TCW Trust (as defined
below)) set forth on Schedule I attached thereto, Trust Company of the
West, a California corporation, for itself and as trustee for TCW Special
Credits Trust, a California collective investment trust ("TCW Trust"),
and Resource Group International, Inc., a Washington corporation
("Purchaser").
Each of the parties to the Agreement have determined that it is
necessary and desirable to amend the Agreement as provided herein, and,
in consideration of the premises and the agreements set forth herein and
in the Agreement, TCW and Purchaser have executed and delivered this
Amendment in accordance with Section 23 of the Agreement.
1. The following is hereby added to the Agreement as Section
31 thereof:
"The parties hereto (other than Purchaser) agree to
execute and deliver to Purchaser an irrevocable proxy
substantially in the form attached as Exhibit A."
2. Exhibit A hereto is hereby added to the Agreement as
Exhibit A thereto.
3. This Amendment to the Agreement is irrevocable and shall
be deemed to be a contract made under the laws of the State of Florida
and for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made and
performed entirely within such State.
4. This Amendment to the Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
Terms not defined herein shall, unless the context otherwise requires,
have the meanings assigned to such terms in the Agreement.
5. In all respects not inconsistent with the terms and
provisions of this Amendment, the Agreement is hereby ratified, adopted,
approved and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Agreement to be duly executed as of the date first above
written.
TCW SPECIAL CREDITS
By: TCW ASSET MANAGEMENT COMPANY, its managing
general partner
By:
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
RESOURCE GROUP INTERNATIONAL, INC.
By
Name: David A. Harrick
Title: Treasurer
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, each of the undersigned hereby
irrevocably constitutes and appoints RGI Realty, Inc., a Florida
corporation ("RGI"), as its true and lawful proxy and attorney-in-fact,
with respect to the portion of the 1,249,571 shares (the "Shares") of
common stock, par value $.01 per share ("Common Stock"), of Koger Equity,
Inc., a Florida corporation (the "Company"), beneficially owned by it as
of the date hereof and identified on Schedule I hereto, to: (i) vote at
any annual or special meeting of the stockholders of the Company, to take
any action, including, without limitation, amending the Company's by-
laws, removing one or more directors with or without cause, and electing
directors or filling vacancies or newly-created directorships; (ii) to
exercise written consent in lieu of voting with respect to the matters
set forth in the preceding clause (i); and (iii) to execute, acknowledge,
swear to and file in the name, place and stead of the undersigned any
proxy, consent, approval, or other documents to be executed by the
stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is
given in connection with the purchase by RGI of shares of Common Stock
pursuant to the Common Stock Purchase and Sale Agreement dated January
18, 1996 (the "Purchase Agreement"), by and among TCW Special Credits, a
California general partnership, for itself and as general partner or
investment manager for the entities (other than TCW Trust (as defined
below)) set forth on Schedule I attached thereto, Trust Company of the
West, a California corporation, for itself and as trustee for TCW Special
Credits Trust, a California collective investment trust ("TCW Trust"),
and Resource Group International, Inc., a Washington corporation;
provided, however, that this Irrevocable Proxy shall automatically
terminate and be of no further force or effect with respect to any Shares
at such time (after giving effect to the execution and delivery of this
Irrevocable Proxy) as such Shares cease to be beneficially owned by RGI
or any of its affiliates.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Irrevocable Proxy as of the 5th day of March, 1996.
TCW SPECIAL CREDITS, a California
general partnership, as general partner or investment manager of the
entities set forth on Schedule I attached to the Purchase Agreement
(other than TCW Special Credits Trust)
By:TCW ASSET MANAGEMENT COMPANY, its managing general partner
By:
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
TRUST COMPANY OF THE WEST, a California
corporation, as trustee of TCW Special Credits Trust, a California
collective investment trust
By:________________________________
Bruce A. Karsh
Authorized Signatory
By:________________________________
Kenneth Liang
Authorized Signatory
<PAGE>
TCW SPECIAL CREDITS, a California
general partnership
By:TCW ASSET MANAGEMENT COMPANY, its
managing general partner
By:
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
TRUST COMPANY OF THE WEST, a California
corporation
By:_________________________________
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
<PAGE>
SCHEDULE I
KOGER EQUITY, INC.
COMMON STOCK
HOLDER SECONDARY
SHARES
Weyerhaeuser Company 231,171
Master Retirement Trust
TCW Special Credits Fund 669,770
III
The Common Fund for Bond 48,733
Investments
TCW Special Credits Trust 299,897
IRREVOCABLE PROXY
By its execution hereof, each of the undersigned parties hereby
irrevocably constitutes and appoints RGI Realty, Inc., a Florida
corporation ("RGI"), as its true and lawful proxy and attorney-in-fact,
with respect to the portion of the 1,249,571 shares (the "Shares") of
common stock, par value $.01 per share ("Common Stock"), of Koger Equity,
Inc., a Florida corporation (the "Company"), beneficially owned by it as
of the date hereof and identified on Schedule I hereto, to: (i) vote at
any annual or special meeting of the stockholders of the Company, to take
any action, including, without limitation, amending the Company's by-
laws, removing one or more directors with or without cause, and electing
directors or filling vacancies or newly-created directorships; (ii) to
exercise written consent in lieu of voting with respect to the matters
set forth in the preceding clause (i); and (iii) to execute, acknowledge,
swear to and file in the name, place and stead of the undersigned any
proxy, consent, approval, or other documents to be executed by the
stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is
given in connection with the purchase by RGI of shares of Common Stock
pursuant to the Common Stock Purchase and Sale Agreement dated January
18, 1996 (the "Purchase Agreement"), by and among TCW Special Credits, a
California general partnership, for itself and as general partner or
investment manager for the entities (other than TCW Trust (as defined
below)) set forth on Schedule I attached thereto, Trust Company of the
West, a California corporation, for itself and as trustee for TCW Special
Credits Trust, a California collective investment trust ("TCW Trust"),
and Resource Group International, Inc., a Washington corporation;
provided, however, that this Irrevocable Proxy shall automatically
terminate and be of no further force or effect with respect to any Shares
at such time (after giving effect to the execution and delivery of this
Irrevocable Proxy) as such Shares cease to be beneficially owned by RGI
or any of its affiliates.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Irrevocable Proxy as of the 5th day of March, 1996.
TCW SPECIAL CREDITS, a California
general partnership, as general partner or investment manager of the
entities set forth on Schedule I hereto (other than TCW Special Credits
Trust)
By:TCW ASSET MANAGEMENT COMPANY, its managing general partner
By:
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
TRUST COMPANY OF THE WEST, a California
corporation, as trustee of TCW Special Credits Trust, a California
collective investment trust
By:________________________________
Bruce A. Karsh
Authorized Signatory
By:________________________________
Kenneth Liang
Authorized Signatory
TCW SPECIAL CREDITS, a California
general partnership
By:TCW ASSET MANAGEMENT COMPANY, its
managing general partner
By:
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
TRUST COMPANY OF THE WEST, a California
corporation
By:_________________________________
Bruce A. Karsh
Authorized Signatory
By:
Kenneth Liang
Authorized Signatory
<PAGE>
SCHEDULE I
KOGER EQUITY, INC.
COMMON STOCK
HOLDER SECONDARY
SHARES
Weyerhaeuser Company 231,171
Master Retirement Trust
TCW Special Credits Fund 669,770
III
The Common Fund for Bond 48,733
Investments
TCW Special Credits Trust 299,897
