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As filed with the Securities and Exchange Commission on October 15, 1997
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KOGER EQUITY, INC.
(Exact name of registrant as specified in its charter)
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)
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VICTOR A. HUGHES, JR. W. LAWRENCE JENKINS
CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT, 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)
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Copies to:
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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 ------------------------------------
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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. [ ]
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CALCULATION OF REGISTRATION FEE
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Title of Each Amount Proposed Proposed Amount of
Class of Securities to be Maximum Offering Maximum Aggregate Registration
to be Registered(1) Registered(2)(3) Price Per Share(4) Offering Price(2)(4) Fee
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Preferred Stock, par value $.01 per share
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Common Stock, par value $.01 per share
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Total $200,000,000 100% $200,000,000 $60,607(5)
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(1) This Registration Statement also covers contracts which may be issued by
the Registrant under which the counterparty may be required to purchase
Preferred Stock or Common Stock. Such contracts would be issued with the
Preferred Stock and/or Common Stock covered hereby. In addition, the
Securities registered hereunder may be sold separately, together or as
units with other Securities registered hereunder.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Does not include $100,000,000 of Common Stock and/or Preferred Stock
registered on Form S-3 File No. 33-55179, which became effective October 7,
1994, and as to which a fee of $34,483 was previously paid. Pursuant to
Rule 429 of the Securities Act of 1933, such shares of Common Stock and/or
Preferred Stock are being carried forward and included in the Prospectus,
which is Part I of this Registration Statement.
(4) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of
shares of Preferred Stock registered hereunder.
(5) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
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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.
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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 October __, 1997
$300,000,000
PREFERRED STOCK AND COMMON STOCK
KOGER EQUITY, INC.
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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.
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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.
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, 1997
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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.
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TABLE OF CONTENTS
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Page
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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............................................ 6
Provisions of Florida Law................................................. 12
Ratios of Earnings to Fixed Charges....................................... 12
Plan of Distribution...................................................... 13
Experts................................................................... 13
Legal Matters............................................................. 14
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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 and June 30, 1997;
(d) Current Reports on Form 8-K dated December 16, 1996, April 7, 1997
and May 27, 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.
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
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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
Koger Equity, Inc. (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 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.
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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 1,847,481 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 following 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").
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. 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
shares 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 entitles 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. The outstanding Common Stock is,
and, when issued, any Common Stock 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, by five or fewer individuals
(as defined in the Code to include certain entities) during the last half of a
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 in which two-thirds of the
outstanding shares of Common Stock not held by the tender offeror 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.
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The Restated Articles of Incorporation provide, subject to certain
exceptions, that no person, or persons acting as a group, may beneficially own
more than 9.8% of the shares of Common Stock outstanding at any time. In the
event that the Board of Directors believes that the tax status of the Company as
a REIT under the Code is jeopardized, including when a holder of Common Stock
acquires in excess of 9.8% of the Company's outstanding Common Stock (the
"Excess Common Stock"), the Board of Directors may, at its option, redeem a
sufficient number of shares of Excess Common Stock to protect and preserve the
Company's status as a REIT. Excess Common Stock is, unless waived by the Board
of Directors, subject to redemption by the Company at a price per share equal to
the average of the 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 for any Excess Common Stock, the
holder of such Excess Common Stock shall cease to be entitled to any
distribution (other than distributions declared prior to the redemption date),
voting rights and other benefits with respect to such Excess 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 to waive the transfer and redemption
restrictions contained in the Restated Articles of Incorporation, including,
without limitation, the ownership limitation on Common Stock, with respect to
the shares of Common Stock held by Apollo Real Estate Investment Fund II, L.P.
and its affiliates (collectively, "Apollo"). As of September 30, 1997, Apollo
held an aggregate of approximately 24.2% of the Common Stock. The Board of
Directors has determined that the waiver of such transfer and redemption
restrictions for Apollo will not jeopardize the Company's status as a REIT.
There are currently three representatives of Apollo on the Board of Directors of
the Company.
SHAREHOLDER RIGHTS PLAN
On September 30, 1990, the Board of Directors adopted a Shareholder
Rights Plan (the "Rights Plan"), pursuant to which the Company issued Common
Stock purchase rights (the "Common Stock Purchase Rights"). Under the Rights
Plan, one Common Stock Purchase Right was issued for each outstanding share of
Common Stock held as of October 1, 1990, and one Common Stock Purchase Right
attached to each share of Common Stock issued thereafter and will attach to each
share of Common Stock issued in the future. The Common Stock Purchase Rights
authorize the holders to purchase shares of Common Stock at a 50% discount from
market value upon the occurrence of certain events, including, unless approved
by the Board of Directors, an acquisition by a person or group of certain levels
of beneficial ownership of the Common Stock or a tender offer for the Common
Stock. The Common Stock Purchase Rights are redeemable by the Company for $.01
and expire September 30, 2000. One of the events which will trigger the Common
Stock Purchase Rights is the acquisition, or commencement of a tender offer, by
a person (an Acquiring Person, as defined in the Rights Plan), other than an
Exempt Person (as defined in the Rights Plan), the Company or any of its
subsidiaries or employee benefit plans, of 15% or more of the outstanding shares
of Common Stock. An Acquiring Person who is not an Exempt Person, may not
exercise a Common Stock Purchase Right. 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.
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
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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);
(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;
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(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.
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
-8-
<PAGE> 10
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 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
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<PAGE> 11
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 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
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<PAGE> 12
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.
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<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>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
-------------- -------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.22X 1.54X 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 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.
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<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.
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<PAGE> 15
With respect to the unaudited interim financial information for
the periods ended March 31, 1997 and 1996 and June 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 and
June 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.
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<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1):
<TABLE>
<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 (filed herewith).
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).
</TABLE>
II-2
<PAGE> 18
<TABLE>
<S> <C>
15 Letter re: unaudited interim financial information
(filed herewith).
23(a) Independent Auditors' Consent (filed herewith).
23(b) Consent of Boling & McCart (included in Exhibit 5
hereto).
24 Powers of Attorney (included on the signature page
hereto).
</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 14th day of
October, 1997.
KOGER EQUITY, INC.
By: Victor A. Hughes, Jr.
-------------------------------
Victor A. Hughes, Jr.
Chairman of the Board of Directors,
President and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes 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 October 14, 1997
- ------------------------------- Directors, President and Director
Victor A. Hughes, Jr. (Chief Executive and Financial
Officer)
James C. Teagle Executive Vice President and Chief October 14, 1997
- ------------------------------- Operating Officer and Director
James C. Teagle
James L. Stephens Vice President (Chief Accounting October 14, 1997
- ------------------------------- Officer)
James L. Stephens
D. Pike Aloian Director October 14, 1997
- -------------------------------
D. Pike Aloian
Benjamin C. Bishop, Jr. Director October 14, 1997
- -------------------------------
Benjamin C. Bishop, Jr.
Irvin H. Davis Director, Vice Chairman of the October 14, 1997
- ------------------------------- Board of Directors
Irvin H. Davis
David B. Hiley Director October 14, 1997
- -------------------------------
David B. Hiley
John R. S. Jacobsson Director October 14, 1997
- -------------------------------
John R. S. Jacobsson
G. Christian Lantzsch Director October 14, 1997
- -------------------------------
G. Christian Lantzsch
William L. Mack Director October 14, 1997
- -------------------------------
William L. Mack
Lee S. Neibart Director October 14, 1997
- -------------------------------
Lee S. Neibart
George F. Staudter Director October 14, 1997
- -------------------------------
George F. Staudter
S. D. Stoneburner Director October 14, 1997
- -------------------------------
S. D. Stoneburner
</TABLE>
<PAGE> 1
Exhibit 5
OPINION OF BOLING & MCCART
October 14, 1997
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, Florida 32207
Re: Koger Equity, Inc. Preferred and Common Stock
Gentlemen:
We have acted as counsel to Koger Equity, Inc. (the "Company") in
connection with the preparation and filing of the registration statement on Form
S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), in
respect of up to $200,000,000 of shares of Preferred and Common Stock of the
Company (together the "Securities"). The Securities may be offered in several
offerings. The Preferred Stock may be offered in series, and may be convertible
into shares of Common Stock.
We have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such documents and records of
the Company and such other instruments and other certificates of public
officials, officers and representatives of the Company and such other persons,
and we have made such investigation of law, as we have deemed appropriate as a
basis for the opinions expressed below.
Based upon the foregoing, we are of the opinion that:
1. When, in respect to the issuance of a class or series of Securities, the
issuance has been duly authorized by all necessary action of the Company, such
Securities, when issued, will be valid and legally issued Securities.
2. When the issuance of a class or series of Securities has been duly
authorized by all necessary action and delivered by the Company, and issued and
sold as contemplated in the Registration Statement and the prospectus, as
amended or supplemented, delivered pursuant to the Act and the applicable rules
thereunder in connection therewith, such Securities will be legally and validly
issued, fully paid and nonassessable, and the holders of such Securities will be
entitled to the benefits of the holders of the class or series of Securities
which they have acquired.
We are admitted to the Bar of the State of Florida and we express no
opinion as to the laws of any other jurisdiction except as to matters that are
governed by federal law. All opinions expressed herein are based on laws,
regulations and policy guidelines currently in force and may be affected by
future regulations.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm in the Registration
Statement and the related prospectus under the heading "Legal Matters."
This opinion is furnished by us as counsel to the Company and is solely for
the benefit of the addressee hereof. It may not be relied upon by any other
person or for any other purpose without our prior written consent.
Very truly yours,
/s/Boling & McCart
Boling & McCart
<PAGE> 1
Exhibit 12(a)
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
--------------------- ---------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C>
Net income $10,701 $5,230 $10,501 $28,990 $ 4,215 $ 2,452 $ 933
Mortgage and loan interest 8,227 9,897 18,701 23,708 25,872 11,471 11,530
Amortization of debt expense 258 98 197 320 212 322 313
Extraordinary items 0 0 1,386 0 0 0 0
Income taxes 181 134 815 66 227 0 0
------- ------- ------- ------- ------- ------- -------
Total earnings $19,367 $15,359 $31,600 $53,084 $30,526 $14,245 $12,776
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Mortgage and loan interest $ 8,227 $ 9,897 $18,701 $23,708 $25,872 $11,471 $11,530
Amortization of debt expense 258 98 197 320 212 322 313
Interest capitalized 251 0 57 0 0 0 0
------- ------- ------- ------- ------- ------- -------
Total fixed charges $ 8,736 $ 9,995 $18,955 $24,028 $26,084 $11,793 $11,843
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges 2.22X 1.54X 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>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
----------------- ---------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C>
Net income $10,701 $ 5,230 $10,501 $28,990 $ 4,215 $ 2,452 $ 933
Mortgage and loan interest 8,227 9,897 18,701 23,708 25,872 11,471 11,530
Amortization of debt expense 258 98 197 320 212 322 313
Extraordinary items 0 0 1,386 0 0 0 0
Income taxes 181 134 815 66 227 0 0
------- ------- ------- ------- ------- ------- -------
Total earnings $19,367 $15,359 $31,600 $53,084 $30,526 $14,245 $12,776
======= ======= ======= ======= ======= ======= =======
Fixed charges and Preferred
Stock dividends:
Mortgage and loan interest $ 8,227 $ 9,897 $18,701 $23,708 $25,872 $11,471 $11,530
Amortization of debt expense 258 98 197 320 212 322 313
Interest capitalized 251 0 57 0 0 0 0
------- ------- ------- ------- ------- ------- -------
Preferred Stock dividends(1) 0 0 0 0 0 0 0
------- ------- ------- ------- ------- ------- -------
Total fixed charges and
Preferred Stock dividends $ 8,736 $ 9,995 $18,955 $24,028 $26,084 $11,793 $11,843
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges
and Preferred Stock dividends 2.22X 1.54X 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
October 14, 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 and June 30, 1997 and 1996, as indicated in our reports dated
May 7, 1997 and August 6, 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 and June
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 to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
October 14, 1997
