<PAGE> 1
As filed with the Securities and Exchange Commission on November 18, 1997
Registration No. 333-37919
===============================================================================
<TABLE>
<CAPTION>
<S> <C>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1 THE TOTAL NUMBER OF PAGES
TO CONTAINED IN THIS NUMBERED
FORM S-3 MANUALLY SIGNED ORIGINAL,
REGISTRATION STATEMENT AND ANY EXHIBITS OR
UNDER ATTACHMENTS HERETO, IS
THE SECURITIES ACT OF 1933 ------------
------------------------ INDEX FOR EXHIBITS APPEARS
KOGER EQUITY, INC. ON PAGE _______
(Exact name of registrant as specified in its charter)
</TABLE>
FLORIDA 59-2898045
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3986 BOULEVARD CENTER DRIVE
JACKSONVILLE, FLORIDA 32207
(904) 398-3403
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------
VICTOR A. HUGHES, JR. W. LAWRENCE JENKINS
CHAIRMAN OF THE BOARD OF DIRECTORS, VICE PRESIDENT AND SECRETARY
CHIEF EXECUTIVE AND FINANCIAL OFFICER 3986 BOULEVARD CENTER DRIVE
3986 BOULEVARD CENTER DRIVE JACKSONVILLE, FLORIDA 32207
JACKSONVILLE, FLORIDA 32207 (904) 398-3403
(904) 398-3403
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
Copies to:
HAROLD F. MCCART, JR., ESQ. DOUGLASS N. ELLIS, JR., ESQ. GERALD S. TANENBAUM, ESQ.
BOLING & MCCART ROPES & GRAY CAHILL GORDON & REINDEL
(A PROFESSIONAL ASSOCIATION) One International Place 80 Pine Street
76 South Laura Street, Suite 700 Boston, Massachusetts 02110-2624 New York, New York 10005
Jacksonville, Florida 32202 (617) 951-7374 (212) 701-3000
(904) 354-6543 -------------------------
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
----------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration number of the earlier effective
registration statement for the same offering. [ ]
----------------
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [ ]
------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein contains a combined Prospectus that also relates to a total of
$100,000,000 of equity securities of the Registrant previously registered under
a Registration Statement on Form S-3 No. 33-55179 (which was declared effective
on October 7, 1994), which securities have not been issued. In the event any of
such previously registered equity securities are offered and sold prior to the
effective date of this Registration Statement, the amount of such equity
securities will not be included in any Prospectus hereunder.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION
Dated November 18, 1997
$300,000,000
PREFERRED STOCK AND COMMON STOCK
KOGER EQUITY, INC.
--------------------------
Koger Equity, Inc. (the "Company") may offer from time to time, in one
or more classes or series, (a) shares of its Preferred Stock, par value $.01
per share (the "Preferred Stock"), and (b) shares of its Common Stock, par
value $.01 per share (the "Common Stock"), with an aggregate public offering
price of up to $300,000,000 on terms to be determined at the time or times of
offering. The Preferred Stock and the Common Stock (collectively, the
"Securities") may be offered, separately or together, in separate classes or
series in amounts, at prices and on terms to be set forth in a supplement to
this Prospectus (a "Prospectus Supplement").
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (a) in the case of Preferred
Stock, the number of shares, the specific title, any dividend, liquidation,
redemption, conversion or exchange, voting and other rights, and any initial
public offering price, and (b) in the case of Common Stock, the number of
shares and any initial public offering price. In addition, such specific terms
may include limitations on direct or beneficial ownership and restrictions on
transfer of the Securities, in each case as may be appropriate to preserve the
status of the Company as a real estate investment trust (a "REIT") for federal
income tax purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain federal income tax considerations relating to,
and any listing on a securities exchange of, the Securities covered by such
Prospectus Supplement.
The Securities may be offered directly, through agents designated from
time to time by the Company or to or through underwriters or dealers. If any
agents or underwriters are involved in the sale of any of the Securities, their
names, and any applicable purchase price, fee, commission or discount
arrangement between or among them, will be set forth, or will be calculable
from the information set forth, in the applicable Prospectus Supplement. See
"Plan of Distribution." No Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
--------------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
__________ , 1997
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
--------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information........................................................................................... 3
Incorporation of Certain Documents by Reference................................................................. 3
The Company..................................................................................................... 4
Use of Proceeds.................................................................................................. 4
Description of Common Stock..................................................................................... 5
Description of Preferred Stock.................................................................................. 7
Provisions of Florida Law....................................................................................... 12
Ratios of Earnings to Fixed Charges............................................................................. 12
Plan of Distribution............................................................................................ 13
Experts......................................................................................................... 13
Legal Matters................................................................................................... 14
</TABLE>
-2-
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Registration
Statement, the exhibits and schedules forming a part thereof and the reports,
proxy statements and other information filed by the Company with the Commission
in accordance with the Exchange Act can be inspected and copied at the
Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following regional offices of the Commission: Seven World
Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, the Company is
required to file electronic versions of these documents with the Commission
through the Commission's Electronic Data Gathering, Analysis and Retrieval
(EDGAR) system, and such electronic versions are available to the public at the
Commission's World-Wide Web Site, http://www.sec.gov. Furthermore, the Common
Stock is listed on the American Stock Exchange and similar information
concerning the Company can be inspected and copied at the offices of the
American Stock Exchange Inc., 86 Trinity Place, New York, New York 10006-1881.
The Company has filed with the Commission a registration statement
(the "Registration Statement") (of which this Prospectus is a part) under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities. This Prospectus does not contain all of the information set forth
in the Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. Statements contained
in this Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference and the exhibits and schedules thereto. For further information
regarding the Company and the Securities, reference is hereby made to the
Registration Statement and such exhibits and schedules, which may be obtained
from the Commission at its principal office in Washington, D.C., upon payment
of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission (File No. 1-9997) and are incorporated herein
by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1996;
(b) Definitive proxy statement dated April 18, 1997 relating to the
Annual Meeting of Shareholders held on May 20, 1997;
(c) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1997, June 30, 1997 and September 30, 1997;
(d) Current Reports on Form 8-K dated December 16, 1996, April 7,
1997, May 27, 1997 and October 1, 1997; and
(e) Description of Common Stock contained in Registration Statement on
Form 8-A dated August 18, 1988, including any amendments thereto or reports
filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities shall be deemed to
be incorporated by reference in this Prospectus and to be part hereof from the
date of filing such documents.
-3-
<PAGE> 5
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in the applicable Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference
(not including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed to Koger Equity, Inc., 3986 Boulevard Center Drive, Jacksonville,
Florida 32207, Attn: W. Lawrence Jenkins, Vice President and Secretary,
telephone number (904) 398-3403.
THE COMPANY
The Company is a self-administered and self-managed equity real estate
investment trust (a "REIT") which, as of September 30, 1997, owned, operated
and managed 225 office buildings (the "Office Buildings") of which 222 are in
office centers (the "Koger Centers") located in 13 metropolitan areas
throughout the southeastern and southwestern United States and three of which
are outside Koger Centers but in metropolitan areas where Koger Centers are
located. The Office Buildings contain approximately 8.2 million net rentable
square feet and were on average 92% leased as of September 30, 1997.
The Company also owned, as of September 30, 1997, approximately 145
acres of unencumbered land held for development (the "Development Land"). A
majority of the Development Land adjoins Office Buildings in ten Koger Centers
and has infrastructure, including roads and utilities, in place.
The Company is committed to providing a high level of tenant services,
and provides leasing, management and other customary tenant-related services
for each of the Koger Centers. In addition, the Company manages for third
parties 22 office buildings containing approximately 1.3 million net rentable
square feet. Including the Office Buildings, the Company manages a total of 247
office buildings containing approximately 9.5 million net rentable square feet
through 16 management offices in eight states. The Company's property
management personnel have substantial leasing and marketing experience and have
leased, or renewed leases for, approximately 1.9 million square feet of
suburban office space during the first nine months of 1997.
The Company was incorporated in Florida in 1988 for the purpose of
investing in office buildings located in suburban office centers throughout the
southeastern and southwestern United States. The Company has been
self-administered since 1992 and self-managed since December 21, 1993.
The principal executive offices of the Company are located at 3986
Boulevard Center Drive, Jacksonville, Florida 32207, and its telephone number
is (904) 398-3403. Unless the context indicates otherwise, references in this
Prospectus to the Company include all of the Company's subsidiaries.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities to
repay certain indebtedness, for working capital and for general corporate
purposes, which may include the acquisition of properties and the development,
expansion and improvement of certain properties in the Company's portfolio.
-4-
<PAGE> 6
DESCRIPTION OF COMMON STOCK
GENERAL
The Amended and Restated Articles of Incorporation of the Company (the
"Restated Articles of Incorporation") authorize the issuance of up to
100,000,000 shares of Common Stock. As of September 30, 1997, there were
21,886,921 shares of Common Stock issued and outstanding, and the Company had
reserved 1,913,589 shares of Common Stock for issuance upon the exercise of
stock options. In addition, as of September 30, 1997, the Company held
2,987,333 shares of Common Stock in treasury.
The description of the Common Stock set forth below is in all respects
subject to and qualified in its entirety by reference to the applicable
provisions of the Restated Articles of Incorporation and the By-laws of the
Company (the "By-laws") and is also subject to any terms specified in the
applicable Prospectus Supplement.
Holders of Common Stock are entitled to receive dividends when, as and
if declared by the Board of Directors of the Company (the "Board of
Directors"), out of funds legally available therefor. Payment and declaration
of dividends on the Common Stock and purchases of shares thereof by the Company
will be subject to certain restrictions if the Company fails to pay dividends
on the Preferred Stock. See "Description of Preferred Stock." Upon any
liquidation, dissolution or winding up of the Company, holders of Common Stock
will be entitled to share equally and ratably in any assets available for
distribution to them, after payment or provision for payment of the debts and
other liabilities of the Company and the preferential amounts owing with
respect to any outstanding Preferred Stock. Although the Company is authorized
to issue up to 50,000,000 of Preferred Stock, par value $.01 per share, as of
the date hereof, the Company has not issued any such shares. The Common Stock
possesses ordinary voting rights for the election of directors and in respect
of other corporate matters, each share entitling the holder thereof to one
vote. Holders of Common Stock do not have cumulative voting rights in the
election of directors, which means that holders of more than 50% of all of the
shares of Common Stock voting for the election of directors can elect all of
the directors if they choose to do so and the holders of the remaining shares
cannot elect any directors. Holders of Common Stock generally do not have
preemptive rights, which means they have no right to acquire any additional
shares of Common Stock that may be issued by the Company at a subsequent date.
However, pursuant to a Stock Purchase Agreement dated as of October 10, 1996,
between the Company and AP-KEI Holdings, LLC ("Apollo"), Apollo and its
affiliates were granted such a right. The outstanding Common Stock is, and,
when issued, the Common Stock to be issued in connection with this Prospectus
will be, fully paid and nonassessable.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"), not more than 50% in value of its outstanding
capital stock may be owned, directly or indirectly, after applying certain
constructive ownership rules, by five or fewer individuals (as defined in the
Code to include certain entities) at any time during the last half of any
taxable year, and its capital stock must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year. Therefore, the Restated Articles
of Incorporation contain certain provisions set forth below restricting the
ownership and transfer of the Common Stock.
Upon demand of the Company, each shareholder will be required to
disclose to the Board of Directors in writing such information with respect to
direct and indirect beneficial ownership of shares of the Company's capital
stock as the Board of Directors may deem necessary to comply with provisions of
the Code applicable to the Company or to comply with the requirements of any
other taxing authority or governmental entity or agency.
The limitations on ownership of the Company's capital stock may have
the effect of discouraging tender offers or other takeover proposals. Such
limitations do not apply to cash tender offers made for all of the outstanding
shares of Common Stock in which two-thirds of the outstanding shares of Common
Stock not held by
-5-
<PAGE> 7
the tender offeror or any affiliate or associate thereof are tendered and
accepted for cash. In view of the importance to the Company of its tax
treatment as a REIT, the Board of Directors believes that such limitations on
ownership are necessary.
The Restated Articles of Incorporation provide, subject to certain
exceptions, that no person, or persons acting as a group, may acquire ownership
in the aggregate of more than 9.8% of the shares of Common Stock outstanding at
any time. In applying this limit, a person is deemed to own shares of Common
Stock constructively owned by such person after applying the relevant
constructive ownership rules of the Code. All shares of Common Stock which any
person has the right to acquire upon exercise of outstanding rights, options
and warrants, and upon conversion of any securities convertible into shares of
Common Stock, if any, shall be considered outstanding for purposes of applying
the 9.8% limit if such inclusion would cause such person to own shares in
excess of such limit. In the event that the Board of Directors believes that
the tax status of the Company as a REIT under the Code is jeopardized, or that
any person has acquired ownership, whether direct, indirect or constructive, of
in excess of 9.8% of the Company's outstanding Common Stock ("Excess Shares"),
the Board of Directors may, at its option, redeem a sufficient number of shares
of Common Stock to protect and preserve the Company's status as a REIT, as well
as all Excess Shares. In the case of such a redemption, the subject shares of
Common Stock will be redeemed by the Company at a price per share equal to the
average closing prices over a 20-day period prior to the redemption date (or,
if no such prices are available, as determined by the Board of Directors). From
and after the redemption date, the holder of any shares of Common Stock called
for redemption shall cease to be entitled to any distributions, voting rights
and other benefits with respect to such shares of Common Stock, except the
right to receive payment of the redemption price. Any transfer of shares of
Common Stock that would prevent continued REIT qualification of the Company
shall be void ab initio and any purported acquisition of shares of Common Stock
resulting in disqualification of the Company as a REIT will be null and void.
The Board of Directors has agreed subject to certain limitations, that so long
as Apollo and its affiliates collectively hold no more than 25% of the then
outstanding shares of Common Stock, no shares shall be deemed Excess Shares
under the Restated Articles of Incorporation. As of September 30, 1997, Apollo
held an aggregate of approximately 23% of the Common Stock. There are currently
three representatives of Apollo on the Board of Directors of the Company.
SHAREHOLDER RIGHTS AGREEMENT
On September 30, 1990, the Board of Directors adopted and entered into
a Common Stock Rights Agreement (the "Rights Agreement"), pursuant to which the
Company issued Common Stock purchase rights (the "Rights"). Under the Rights
Agreement, one Right was issued for each outstanding share of Common Stock held
as of October 1, 1990, and one Right attached to each share of Common Stock
issued thereafter and will attach to each share of Common Stock issued in the
future. Each Right entitles the holder thereof, upon the occurrence of certain
events, to acquire shares of Common Stock with a market value of two times the
exercise price of the Right, which Right becomes exercisable if any person
(other than (a) the Company, (b) its subsidiaries, (c) employee benefit plans
of the Company or its subsidiaries or any person or entity organized appointed
or established pursuant thereto and (d) any Exempt Person (as defined in the
Rights Agreement)), acquires 15% or more of the outstanding shares of Common
Stock (the "Acquiring Person"). If any Exempt Person acquires shares of Common
Stock in excess of the number of shares for which such Exempt Person is exempt,
such Exempt Person will then be an Acquiring Person and will not be able to
exercise his, her or its Rights. One of the events which will trigger the
Rights is the acquisition or commencement of a tender offer, of 15% or more of
the outstanding shares of Common Stock. The Rights are redeemable by the
Company for $.01 and expire September 30, 2000. As of September 30, 1997,
Apollo is an Exempt Person under the Rights Plan.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is First Union
National Bank.
-6-
<PAGE> 8
DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 50,000,000 shares of Preferred
Stock, par value $.01 per share, of which no shares were outstanding at
September 30, 1997.
Under the Restated Articles of Incorporation, the Board of Directors
is authorized to issue the Preferred Stock from time to time in one or more
classes or series and to establish from time to time the number of shares of
Preferred Stock to be included in each such class and series and to fix the
voting powers, conversion rights, designations, preferences and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions of each such class and series, without any further
vote or action by stockholders. Unless otherwise designated in the Restated
Articles of Incorporation (including any applicable amendments thereto), all
series of Preferred Stock shall constitute a single class of Preferred Stock.
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of the Restated Articles of Incorporation (including any
applicable amendments thereto) and the By-laws.
Subject to limitations prescribed by Florida law and the Restated
Articles of Incorporation, the Board of Directors is authorized to fix the
number of shares constituting each class or series of Preferred Stock and the
designations and powers, preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof,
including such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange,
and such other subjects or matters as may be fixed by resolution of the Board
of Directors or a duly authorized committee thereof. The Preferred Stock will,
when issued, be fully paid and nonassessable and will have no preemptive
rights.
Reference is made to the applicable Prospectus Supplement relating to
the Preferred Stock offered thereby for specific terms, including:
(a) The title of such Preferred Stock;
(b) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such
Preferred Stock;
(c) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(d) The date from which dividends on such Preferred Stock
shall accumulate, if applicable;
(e) The procedures for any auction and remarketing, if any,
for such Preferred Stock;
(f) The provision for a sinking fund, if any, for such
Preferred Stock;
(g) The provision for redemption, if applicable, of such
Preferred Stock;
(h) Any listing of such Preferred Stock on any securities
exchange;
(i) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock, including the
conversion price (or manner of calculation thereof);
-7-
<PAGE> 9
(j) Any other specific terms, preferences, rights (including
voting rights), limitations or restrictions of such Preferred Stock;
(k) A discussion of federal income tax considerations
applicable to such Preferred Stock;
(l) The relative ranking and preferences of such Preferred
Stock as to dividend rights and rights upon liquidation, dissolution
or winding up of the affairs of the Company;
(m) Any limitations on issuance of any Preferred Stock
ranking senior to or on a parity with such series of Preferred Stock
as to dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company; and
(n) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate to
preserve the status of the Company as a REIT.
RANK
Unless otherwise specified in the applicable Prospectus Supplement,
the Preferred Stock will, with respect to dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (a) senior to all
Common Stock, and to all equity securities ranking junior to such Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution
or winding up of the Company; (b) on a parity with all equity securities issued
by the Company, the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Company;
and (c) junior to all equity securities issued by the Company the terms of
which specifically provide that such equity securities rank senior to the
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company. As used in the Restated Articles of
Incorporation for these purposes, the term "equity securities" does not include
convertible debt securities.
DIVIDENDS
Holders of Preferred Stock of any series shall be entitled to receive,
when, as and if declared by the Board of Directors, out of assets of the
Company legally available for payment, cash dividends at such rates and on such
dates as will be set forth in the applicable Prospectus Supplement. Each such
dividend shall be payable to holders of record as they appear on the stock
transfer books of the Company on such record dates as shall be fixed by the
Board of Directors. Dividends on any series of Preferred Stock will be
cumulative from and after the date set forth in the applicable Prospectus
Supplement.
If any shares of the Preferred Stock of any series are outstanding, no
full dividends shall be declared or paid or set apart for payment on the
Preferred Stock of any other series ranking, as to dividends, on a parity with
or junior to the Preferred Stock of such series for any period unless full
cumulative dividends have been or contemporaneously are declared and paid for
all past dividend periods and a sum sufficient has been set apart for the
payment of full dividends on the Preferred Stock of such series for the then
current dividend period. When dividends are not paid in full (or a sum
sufficient for such payment is not so set apart) upon the shares of Preferred
Stock of any series and the shares of any other series of Preferred Stock
ranking on a parity as to dividends with the Preferred Stock of such series,
all dividends declared upon shares of Preferred Stock of such series and any
other series of Preferred Stock ranking on a parity as to dividends with such
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share on the Preferred Stock of such series and such other series
of Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of Preferred Stock of such series and
such other series of Preferred Stock bear to each other. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on Preferred Stock of such series which may be in arrears.
-8-
<PAGE> 10
Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid for all past dividend periods and a sum
sufficient has been set apart for the payment of full dividends for the then
current dividend period, no dividends (other than in Common Stock or other
capital stock ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution shall be declared or made upon the Common Stock
or any other capital stock of the Company ranking junior to or on a parity with
the Preferred Stock of such series as to dividends or upon liquidation, nor
shall any Common Stock or any other capital stock of the Company ranking junior
to or on a parity with the Preferred Stock of such series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Company, except (a)
by conversion into or exchange for other capital stock of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation or (b) by a redemption or purchase or other acquisition of Common
Stock made for purposes of any employee incentive or benefit plan of the
Company or any of its subsidiaries.
Any dividend payment made on shares of a series of Preferred Stock
shall first be credited against the earliest accrued but unpaid dividend due
with respect to shares of such series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the shares of
Preferred Stock will be subject to mandatory redemption or redemption at the
option of the Company, as a whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that
is subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Stock of any series is payable only from the net
proceeds of the issuance of capital stock of the Company, the terms of such
Preferred Stock may provide that, if no such capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into shares of the applicable
capital stock of the Company pursuant to conversion provisions specified in the
applicable Prospectus Supplement.
Notwithstanding the foregoing, unless full cumulative dividends on all
shares of such series and any other series of Preferred Stock on a parity with
such series as to dividends shall have been or contemporaneously are declared
and paid for all past dividend periods and a sum sufficient has been set apart
for the payment of full dividends for the then current dividend period, no
shares of any series of Preferred Stock shall be redeemed unless all
outstanding shares of Preferred Stock of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of Preferred Stock of any series pursuant to any restrictions on
ownership set forth herein or in any applicable Prospectus Supplement or
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Preferred Stock of such series. If fewer than all of the
outstanding shares of Preferred Stock of any series are to be redeemed, the
number of shares to be redeemed will be determined by the Company and such
shares may be redeemed pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (with adjustments
to avoid redemption of fractional shares) or any other equitable method
determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of a share of
Preferred Stock of any series to be redeemed at the address shown on the stock
transfer books of the Company. Each notice shall state: (a) the redemption
date; (b) the number of shares and series of Preferred Stock to be redeemed;
(c) the redemption price; (d) the place or places where
-9-
<PAGE> 11
certificates for such Preferred Stock are to be surrendered for payment of the
redemption price; (e) that dividends on the shares to be redeemed will cease to
accrue on such redemption date; and (f) the date upon which the holder's
conversion rights, if any, as to such shares shall terminate. If fewer than all
the shares of Preferred Stock of any series are to be redeemed, the notice
mailed to each such holder thereof shall also specify the number of shares of
Preferred Stock to be redeemed from each such holder. If notice of redemption
of any shares of Preferred Stock has been given and if the funds necessary for
such redemption have been set apart by the Company in trust for the benefit of
the holders of any shares of Preferred Stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on such
shares of Preferred Stock, such shares of Preferred Stock shall no longer be
deemed outstanding and all rights of the holders of such shares of Preferred
Stock will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company, then, before any distribution or payment
shall be made to the holders of any Common Stock, Excess Common Stock or any
other class or series of capital stock of the Company ranking junior to any
series of Preferred Stock in the distribution of assets upon any liquidation,
dissolution or winding up of the Company, the holders of such series of
Preferred Stock shall be entitled to receive out of assets of the Company
legally available for distribution to stockholders liquidating distributions in
the amount of the liquidation preference per share (set forth in the applicable
Prospectus Supplement), plus an amount equal to all dividends accrued and
unpaid thereon. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of any series of
Preferred Stock will have no right or claim to any of the remaining assets of
the Company. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the legally available assets of the
Company are insufficient to pay the amount of the liquidating distributions on
all outstanding shares of any series of Preferred Stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of
the Company ranking on a parity with such series of Preferred Stock in the
distribution of assets upon liquidation, dissolution or winding up, then the
holders of such series of Preferred Stock and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
If liquidating distributions shall have been made in full to all
holders of shares of any series of Preferred Stock and the holders of any class
or series of capital stock ranking on a parity with such series of Preferred
Stock in the distribution of assets upon any liquidation, dissolution or
winding up of the Company, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of capital stock
ranking junior to such series of Preferred Stock upon liquidation, dissolution
or winding up, according to their respective rights and preferences and in each
case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, or
the sale, lease, transfer or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any shares of Preferred Stock shall be in
arrears for six or more quarterly periods, the holders of such shares of
Preferred Stock upon which such voting rights have been conferred (voting
separately as a class with all other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of two additional directors of the Company at a special
meeting called by the holders of record of at least 10% of any series of
Preferred Stock so in arrears (unless such request is received less than 90
days before the date fixed for the next annual or special meeting of the
stockholders) or at the next annual meeting of stockholders, and at each
subsequent annual meeting until all dividends accumulated on such shares of
Preferred Stock for the past dividend periods shall have been fully paid
-10-
<PAGE> 12
or declared and a sum sufficient for the payment thereof set apart for payment.
In such case, the entire Board of Directors will be increased by two directors.
Under Florida law, notwithstanding anything to the contrary set forth
above, holders of each series of Preferred Stock will be entitled to vote as a
class upon any proposed amendment to the Restated Articles of Incorporation,
whether or not entitled to vote thereon by the Restated Articles of
Incorporation, if the amendment would increase or decrease the aggregate number
of authorized shares of such series, increase or decrease the par value of the
shares of such series or change the designations, rights, preferences or
limitations of the shares of such series. In addition, unless provided
otherwise for any series of Preferred Stock, so long as such series of
Preferred Stock remains outstanding, the Company will not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of such series of Preferred Stock then outstanding, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (a) authorize or create, or increase the authorized or issued amount
of, any class or series of capital stock ranking prior to such series of
Preferred Stock with respect to the payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify any authorized
capital stock of the Company into any such shares, or create, authorize or
issue any obligation or security convertible into or evidencing the right to
purchase any such shares, or (b) amend, alter or repeal the provisions of the
Restated Articles of Incorporation (or any applicable amendments thereto),
whether by merger, consolidation or otherwise (each an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting
power of such series of Preferred Stock or the holders thereof; provided,
however, that with respect to the occurrence of any Event, so long as the
Preferred Stock remains outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of an Event the Company
may not be the surviving entity, the occurrence of such Event shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting power of the holders of Preferred Stock; and provided, further, that
(i) any increase in the amount of the authorized Preferred Stock or the
creation or issuance of any other series of Preferred Stock, or (ii) any
increase in the amount of authorized shares of such series or any other series
of Preferred Stock, in each case ranking on a parity with or junior to the
Preferred Stock of such series with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, shall not
be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of such series of Preferred Stock
shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock are convertible into Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the Preferred Stock is convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Stock or the Company and the events requiring an adjustment of the
conversion price.
RESTRICTIONS ON OWNERSHIP
The applicable Prospectus Supplement will set forth any restrictions
on ownership applicable to any series of Preferred Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent, dividend and redemption price disbursement agent
and registrar for shares of each series of the Preferred Stock will be set
forth in the applicable Prospectus Supplement.
-11-
<PAGE> 13
PROVISIONS OF FLORIDA LAW
The Company is subject to several anti-takeover provisions under
Florida law. These provisions permit a corporation to elect to opt out of such
provisions in its Articles of Incorporation or (depending on the provision in
question) its by-laws. The Company has not elected to opt out of these
provisions. The Florida Business Corporation Act (the "Florida Act") contains a
provision that prohibits the voting of shares in a publicly-held Florida
corporation which are acquired in a "control share acquisition" unless the
holders of a majority of the corporation's voting shares (exclusive of shares
held by officers of the corporation, inside directors or the acquiring party)
approve the granting of voting rights as to the shares acquired in the control
share acquisition. A control share acquisition is defined as an acquisition
that immediately thereafter entitles the acquiring party to vote in the
election of directors within each of the following ranges of voting power: (a)
one-fifth or more but less than one-third of such voting power, (b) one-third
or more but less than a majority of such voting power and (c) a majority or
more of such voting power.
The Florida Act also contains an "affiliated transaction" provision
that prohibits a publicly-held Florida corporation from engaging in a broad
range of business combinations or other extraordinary corporate transactions
with an "interested shareholder" unless (a) the transaction is approved by a
majority of disinterested directors before the person becomes an interested
shareholder, (b) the interested shareholder has owned at least 80% of the
corporation's outstanding voting shares for at least five years, or (c) the
transaction is approved by the holders of two-thirds of the corporation's
voting shares other than those owned by the interested shareholder. An
interested shareholder is defined as a person who together with affiliates and
associates beneficially owns more than 10% of the corporation's outstanding
voting shares. A transaction with Apollo would be an "affiliated transaction"
under the Florida Act thereby requiring the approval of the holders of
two-thirds of the shares of outstanding Common Stock other than the shares held
by Apollo.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------- ---------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
2.30X 1.53X 1.67X 2.21X 1.17X 1.21X 1.08X
</TABLE>
The ratios of earnings to fixed charges were computed by
dividing earnings by fixed charges. For purposes of computing these ratios,
earnings have been calculated by adding fixed charges (excluding capitalized
interest) to income (loss) before income taxes and extraordinary items. Fixed
charges consist of interest costs, whether expensed or capitalized, the
interest component of rental expense and the amortization of debt discounts and
issue costs, whether expensed or capitalized.
As of the date of this Prospectus, the Company has not issued
any Preferred Stock; therefore, the ratios of earnings to combined fixed
charges and Preferred Stock dividends are unchanged from the ratios presented
in this section.
-12-
<PAGE> 14
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters
for public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of the Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Securities at a fixed price
or prices, which may be changed, at prices related to the prevailing market
prices at the time of sale or at negotiated prices. The Company also may offer
and sell the Securities in exchange for one or more of its then outstanding
issues of debt or convertible debt securities. The Company also may, from time
to time, authorize underwriters acting as the Company's agents to offer and
sell the Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by the Company to
underwriters or agents in connection with the offering of Securities and any
discounts, concessions or commissions allowed by underwriters to participating
dealers will be set forth in the applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities
may be deemed to be underwriting discounts and commissions under the Securities
Act. Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize dealers or other persons acting as the Company's agents
to solicit offers by certain institutions to purchase Securities from the
Company at the public offering price set forth in such Prospectus Supplement
pursuant to delayed delivery contracts (the "Contracts") providing for payment
and delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and the aggregate number of
Securities sold pursuant to the Contracts shall not be less nor more than, the
amount or number, as the case may be, stated in the applicable Prospectus
Supplement. Institutions with whom the Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the Company.
The Contracts will not be subject to any conditions except (a) the purchase by
an institution of the Securities covered by its Contracts shall not at the time
of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject and (b) if the Securities not
covered by Contracts are being sold to underwriters, the Company shall have
sold to such underwriters the number of the Securities less the number thereof
covered by the Contracts. The underwriters and such other agents will not have
any responsibility in respect of the validity or performance of such Contracts.
Certain of the underwriters and their affiliates may be
customers of, engage in transactions with and perform services for the Company
and its subsidiaries in the ordinary course of business.
EXPERTS
The consolidated financial statements and the related financial
statement schedules which are incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1996
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report which is incorporated herein by reference, and have been so
incorporated in reliance upon their authority as experts in accounting and
auditing.
-13-
<PAGE> 15
With respect to the unaudited interim financial information for
the periods ended March 31, 1997 and 1996, June 30, 1997 and 1996, and
September 30, 1997 and 1996, which is incorporated herein by reference,
Deloitte & Touche LLP have applied limited procedures in accordance with
professional standards for a review of such information. However, as stated in
their reports included in the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997 and
incorporated by reference herein, they did not audit and they do not express an
opinion on that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Deloitte & Touche LLP are
not subject to the liability provisions of Section 11 of the Securities Act for
their reports on the unaudited interim financial information because those
reports are not "reports" or a "part" of the registration statement prepared or
certified by an accountant within the meaning of Sections 7 and 11 of the
Securities Act.
LEGAL MATTERS
The validity of the Securities will be passed upon for the
Company by Boling & McCart, a professional association, 76 South Laura Street,
Suite 700, Jacksonville, Florida 32202. Certain legal matters with respect to
the Securities will be passed upon for any underwriters, dealers or agents by
Cahill Gordon & Reindel (a partnership including a professional corporation),
80 Pine Street, New York, New York 10005.
-14-
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1):
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Filing Fee........................................................................... $ 60,607
Stock Exchange Listing Fee............................................................................ 30,000
Blue Sky Fees and Expenses............................................................................ 10,000
Printing and Engraving Costs.......................................................................... 50,000
Legal Fees and Expenses............................................................................... 250,000
Accounting Fees and Expenses.......................................................................... 60,000
Transfer Agent Fee.................................................................................... 5,000
Miscellaneous......................................................................................... 25,000
----------
Total............................................................................................ $ 490,607
==========
</TABLE>
- -----------
(1) All expenses are estimates except for the SEC registration filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Articles of Incorporation provide that the
Company shall indemnify its officers and directors to the fullest extent
permitted by the General Corporation Law of the State of Florida (predecessor
statute to the Florida Business Corporation Act) as now or hereafter in force,
including the advance of expenses and reasonable counsel fees.
Section 93 of the Florida Business Corporation Act (Florida Statutes
Section 607.0850) provides that a director, officer, agent and employee of a
corporation or its subsidiaries or other affiliates may be indemnified under
certain conditions by the corporation against expenses, including attorney's
fees, actually and reasonably incurred in connection with the defense or
settlement of an action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which he becomes a party because he was
such director, officer, agent or employee, including expenses reasonably
incurred in settlement of any of the aforesaid matters, if the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to the proceeding determine that the person seeking indemnification
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation.
Section 607.0850 also provides that the indemnification provided
pursuant to above provisions are not exclusive, and a corporation may make any
other further indemnification of any of its directors, officers, employees, or
agents, under any by-laws, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. However, indemnification
shall not be made to or on behalf of any director, officer, employee, or agent
if a judgment or other final adjudication establishes that his actions, or
omissions to act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
(b) A transaction from which the director, officer, employee or
agent derived an improper personal benefit;
II-1
<PAGE> 17
(c) In the case of a director, a circumstance under which certain
liability provisions relating to the payment of dividends and
asset distributions are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor
or in a proceeding by or in the right of a shareholder.
In addition, the Company carries directors and officers liability
insurance.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4(a)(1) Amended and Restated Articles of Incorporation of Koger Equity, Inc. incorporated by
reference to Exhibit 3(a) to Current Report on Form 8-K dated May 10, 1994 (File
No. 1-9997).
4(a)(2) By-Laws as Amended and Restated on August 21, 1996, of Koger Equity, Inc.
incorporated by reference to Exhibit 3(ii) to Current Report on Form 8-K/A dated
August 22, 1996 (File No. 1-9997).
4(b) Common Stock Certificate of Koger Equity, Inc. Incorporated by reference to Exhibit 4(a)
to Registration Statement on Form S-11 (Registration No. 33-22890).
4(c)(1)(A) Koger Equity, Inc. Rights Agreement (the "Rights Agreement") dated as of September 30,
1990 between the Company and Wachovia Bank and Trust Company, N.A. as Rights
Agent ("Wachovia"). Incorporated by reference to Exhibit 1 to a Registration Statement
on Form 8-A, dated October 3, 1990 (File No. 1-9997).
4(c)(1)(B) First Amendment to the Rights Agreement, dated as of March 22, 1993, between the
Company and First Union National Bank of North Carolina, as Rights Agent ("First
Union"), entered into for the purpose of replacing Wachovia. Incorporated by
reference to Exhibit 4(b)(4) of the Form 10-Q filed by the Registrant for the quarter
ended March 31, 1993 (File No. 1-9997).
4(c)(1)(C) Second Amendment to the Rights Agreement, dated as of December 21, 1993, between the
Company and First Union. Incorporated by reference to Exhibit 5 to an Amendment on
Form 8-A/A, dated December 21, 1993, to a Registration Statement of the Registrant on
Form 8-A, dated October 3, 1990 (File No. 1-9997).
4(c)(1)(D) Third Amendment to Rights Agreement, dated as of October 10, 1996, between Koger
Equity, Inc. and First Union. Incorporated by reference to Exhibit 6 to an Amendment
on Form 8-A/A, dated November 7, 1996, to a Registration Statement of the Registrant
on Form 8-A, dated October 3, 1990 (File No. 1-9997).
4(c)(1)(E) Fourth Amendment to Rights Agreement, dated as of February 27, 1997, between Koger
Equity, Inc. and First Union. Incorporated by reference to Exhibit 8 to an Amendment on
Form 8-A/A, dated March 17, 1997, to a Registration Statement of the Registrant on
Form 8-A, dated October 3, 1990 (File No. 1-9997).
4(c)(2) Form of Common Stock Purchase Rights Certificate (attached as Exhibit A to the Rights
Agreement). Pursuant to the Rights Agreement, printed Common Stock Purchase Rights
Certificates will not be mailed until the Distribution Date (as defined in the Rights
Agreement).
4(c)(3) Summary of Common Stock Purchase Rights (attached as Exhibit B to the Rights
Agreement, Exhibit 4(c)(1)(A)).
5 Opinion of Boling & McCart (previously filed).
12(a) Calculation of Ratio of Earnings to Fixed Charges (filed herewith).
12(b) Calculation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends (filed
herewith).
15 Letter re: unaudited interim financial information (filed herewith).
</TABLE>
II-2
<PAGE> 18
<TABLE>
<CAPTION>
<S> <C>
23(a) Independent Auditors' Consent (filed herewith).
23(b) Consent of Boling & McCart (included in previously filed Exhibit 5 hereto).
24 Powers of Attorney (included on the signature page of previously filed Registration
Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors and officers
and controlling persons of the Registrant pursuant to the provisions referred
to in Item 15 of this Registration Statement or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim against the Registrant for
indemnification against such liability (other than the payment by the
Registrant of expenses incurred or paid by a director or officer of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by a director or officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether or not such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes:
(i) That for purposes of determining any liability under the
Securities Act of 1933, information omitted from the form of
prospectus filed as part of a registration statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(ii) That for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(d) The undersigned Registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
II-3
<PAGE> 19
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(e) The undersigned Registrant hereby undertakes to remove from
registration by means of a post-effective amendment to this Registration
Statement any of the Securities being registered which remain unsold at the
termination of the offering.
II-4
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jacksonville, State of Florida, the 18th day of
November, 1997.
KOGER EQUITY, INC.
By: W. LAWRENCE JENKINS
-------------------------------
W. Lawrence Jenkins
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by an
Attorney-in-Fact on behalf of the following persons in the capacities and on
the dates indicated. Each person whose signature appears below hereby has
authorized Victor A. Hughes, Jr., James C. Teagle, W. Lawrence Jenkins and
James L. Stephens, and each of them, as Attorneys-in-Fact, to sign on his
behalf individually and in each capacity stated below, and to file any
amendments, including Post Effective Amendments, to this Registration
Statement.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- --------------------------------- ------------------
<S> <C> <C>
Victor A. Hughes, Jr.* Chairman of the Board of November 18, 1997
- ----------------------------------------- Directors, Director (Chief
Victor A. Hughes, Jr. Executive and Financial Officer)
James C. Teagle* President and Chief Operating November 18, 1997
- ----------------------------------------- Officer and Director
James C. Teagle
Vice President (Chief Accounting November 18, 1997
James L. Stephens* Officer)
- -----------------------------------------
James L. Stephens
D. Pike Aloian* Director November 18, 1997
- -----------------------------------------
D. Pike Aloian
Benjamin C. Bishop, Jr.*
- ----------------------------------------- Director November 18, 1997
Benjamin C. Bishop, Jr.
Irvin H. Davis*
- ----------------------------------------- Director, Vice Chairman of the November 18, 1997
Irvin H. Davis Officer)
David B. Hiley* Director November 18, 1997
- -----------------------------------------
David B. Hiley
John R. S. Jacobsson* Director November 18, 1997
- -----------------------------------------
John R. S. Jacobsson
G. Christian Lantzsch* Director November 18, 1997
- -----------------------------------------
G. Christian Lantzsch
William L. Mack* Director November 18, 1997
- -----------------------------------------
William L. Mack
Lee S. Neibart* Director November 18, 1997
- -----------------------------------------
Lee S. Neibart
George F. Staudter* Director November 18, 1997
- -----------------------------------------
George F. Staudter
S. D. Stoneburner* Director November 18, 1997
- ------------------------------------------
S. D. Stoneburner
</TABLE>
* By: W. LAWRENCE JENKINS
-----------------------
W. Lawrence Jenkins
Attorney-in-Fact
<PAGE> 1
Exhibit 12(a)
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------------- ----------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income $17,650 $ 7,491 $10,501 $28,990 $ 4,215 $ 2,452 $ 933
Mortgage and loan interest 12,264 14,865 18,701 23,708 25,872 11,471 11,530
Amortization of debt expense 440 146 197 320 212 322 313
Extraordinary items 0 0 1,386 0 0 0 0
Income taxes 189 451 815 66 227 0 0
------- ------- ------- ------- ------- ------- -------
Total earnings $30,543 $22,953 $31,600 $53,084 $30,526 $14,245 $12,776
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Mortgage and loan interest $12,264 $14,865 $18,701 $23,708 $25,872 $11,471 $11,530
Amortization of debt expense 440 146 197 320 212 322 313
Interest capitalized 562 8 57 0 0 0 0
------- ------- ------- ------- ------- ------- -------
Total fixed charges $13,266 $15,019 $18,955 $24,028 $26,084 $11,793 $11,843
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed
charges 2.30X 1.53X 1.67X 2.21X 1.17X 1.21X 1.08X
======= ======= ======= ======= ======= ======= =======
</TABLE>
<PAGE> 1
Exhibit 12(b)
CALCULATION OF RATIO OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------------- --------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income $17,650 $7,491 $10,501 $28,990 $ 4,215 $ 2,452 $ 933
Mortgage and loan interest 12,264 14,865 18,701 23,708 25,872 11,471 11,530
Amortization of debt expense 440 146 197 320 212 322 313
Extraordinary items 0 0 1,386 0 0 0 0
Income taxes 189 451 815 66 227 0 0
------- ------- ------- ------- ------- ------- --------
Total earnings $30,543 $22,953 $31,600 $53,084 $30,526 $14,245 $ 12,776
======= ======= ======= ======= ======= ======= ========
Fixed charges and Preferred
Stock dividends:
Mortgage and loan interest $12,264 $14,865 $18,701 $23,708 $25,872 $11,471 $ 11,530
Amortization of debt expense 440 146 197 320 212 322 313
Interest capitalized 562 8 57 0 0 0 0
Preferred Stock dividends(1) 0 0 0 0 0 0 0
------- ------- ------- ------- ------- ------- --------
Total fixed charges and
Preferred Stock dividends $13,266 $15,019 $18,955 $24,028 $26,084 $11,793 $ 11,843
======= ======= ======= ======= ======= ======= ========
Ratio of earnings to fixed
charges and Preferred Stock
dividends 2.30X 1.53X 1.67X 2.21X 1.17X 1.21X 1.08X
======= ======= ======= ======= ======= ======= ========
</TABLE>
(1) The Company had not issued any Preferred Stock; therefore no Preferred
Stock dividends were paid.
<PAGE> 1
Exhibit 15
November 18, 1997
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, Florida 32207
We have reviewed, in accordance with standards established by the American
Institute of Certified Public Accountants, the unaudited interim financial
information of Koger Equity, Inc. and subsidiaries for the periods ended March
31, 1997 and 1996, June 30, 1997 and 1996, and September 30, 1997 and 1996, as
indicated in our reports dated May 7, 1997, August 6, 1997, and October 24,
1997, respectively; because we did not perform an audit, we expressed no
opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997, June 30,
1997, and September 30, 1997, are being used in this Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
<PAGE> 1
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Koger Equity, Inc. on Form S-3 of our report dated February 28, 1997, appearing
in the Annual Report on Form 10-K of Koger Equity, Inc. for the year ended
December 31, 1996 and our reports on the 1997 acquisitions dated November 6,
1997 appearing in the Current Report on Form 8-K of Koger Equity, Inc. dated
October 1, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
November 18, 1997
