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Filed Pursuant to Rule 424(b)(2)
Registration Statement No. 333-37919
PROSPECTUS SUPPLEMENT
(to Prospectus dated November 18, 1997)
1,000,000 SHARES
KOGER EQUITY, INC.
COMMON STOCK
PAR VALUE $.01 PER SHARE
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Koger Equity, Inc. (together with its subsidiaries, the "Company") is a
self-administered and self-managed equity real estate investment trust (a
"REIT") which develops, owns, operates and manages suburban office buildings
primarily located in 19 office centers located in 14 metropolitan areas
throughout the southeastern and southwestern United States.
All of the 1,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock") of the Company offered hereby are being offered by the Company.
The Common Stock is listed on the American Stock Exchange (the "ASE") under
the symbol "KE." On March 24, 1998, the last reported sale price of the Common
Stock on the ASE was $21.3125 per share.
Wheat, First Securities, Inc. (the "Underwriter") has agreed to purchase
the Common Stock offered hereby from the Company at a price of $20.246875 per
share, resulting in aggregate proceeds to the Company of $20,196,875, after
deducting estimated expenses of $50,000 payable by the Company, subject to the
terms and conditions set forth in the Underwriting Agreement. The Underwriter
intends to sell the Common Stock to Van Kampen American Capital for an
aggregate price of $20,460,000. Van Kampen American Capital intends to deposit
the Common Stock, together with the common stock of other entities also
acquired from the Underwriter, into the Wheat First Union REIT Income & Growth
Trust, Series 1 (the "Trust"), in exchange for Units in the Trust. The Company
has agreed to indemnify the Underwriter against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Securities
Act"). See "Underwriting."
For information concerning restrictions on the ownership of Common Stock,
see "Description of Common Stock" in the accompanying Prospectus.
FOR A DESCRIPTION OF CERTAIN RISK FACTORS THAT SHOULD BE CONSIDERED IN
CONNECTION WITH AN INVESTMENT IN THE COMMON STOCK, SEE PAGES 19 THROUGH 26 IN
THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1997.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT
OR THE ACCOMPANYING PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The Common Stock offered by this Prospectus Supplement is offered by the
Underwriter, subject to prior sale, when, as and if delivered to and accepted
by the Underwriter and subject to its right to reject orders in whole or in
part. It is expected that delivery of the Common Stock offered hereby will be
made at the offices of Wheat First Union, Richmond, Virginia, on or about March
30, 1998.
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WHEAT FIRST UNION
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The date of this Prospectus Supplement is March 24, 1998
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FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 (the "Securities
Litigation Reform Act") provides a "safe harbor" for forward-looking statements
to encourage companies to provide prospective information about their
businesses without fear of litigation so long as those statements are
identified as forward-looking information and are accompanied by meaningful
cautionary statements identifying important factors that could cause actual
results to differ materially from those projected in such statements. The
Company desires to take advantage of the "safe harbor" provisions of the
Securities Litigation Reform Act.
This Prospectus Supplement and the accompanying Prospectus contain
forward-looking statements within the meaning of the Securities Litigation
Reform Act which are not historical facts and which involve risks and
uncertainties that could cause actual results to differ materially from those
expected, projected, estimated or budgeted. These forward-looking statements,
together with related data and projections, about the Company's projected
financial results and its future plans and strategies are based on management's
then-current expectations. The business in which the Company is engaged
involves changing and competitive markets and a high degree of risk, and there
can be no assurance that the forward-looking statements and projections will
prove accurate. Accordingly, the Company has identified certain important
factors which could cause the Company's actual performance and financial
results to differ materially from any results which might be projected,
forecast, estimated or budgeted by the Company and which are more particularly
described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, which is incorporated herein by reference. These risks
include risks associated with (a) real estate financing, (b) leverage and debt
policy, (c) geographic concentration, (d) renewal of leases and reletting of
space, (e) illiquidity of real estate, (f) competition, (g) changes in laws,
(h) uninsured losses, (i) bankruptcy and financial condition of tenants, (j)
compliance with the Americans with Disabilities Act, (k) property ownership
through partnerships and joint ventures, (l) impact of inflation, (m)
development, construction and acquisition activities, (n) changes in policies
of the Company without shareholder approval, (o) limitations of REIT status on
business subsidiaries, (p) adverse consequences of failure to qualify as a
REIT, (q) possible environmental liabilities and (r) the effect of market
interest rates on the price of the Common Stock. Additional disclosure of
risks to which the Company is subjected is contained herein and in certain of
the documents incorporated herein and in the accompanying Prospectus under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
THE COMPANY
The Company is a self-administered and self-managed equity REIT which
develops, owns, operates and manages suburban office buildings primarily
located in 19 office centers (each a "Koger Center") located in 14 metropolitan
areas throughout the southeastern and southwestern United States. As of
December 31, 1997, the Company owned 228 office buildings (each an "Office
Building"), of which 224 are in Koger Centers and four are outside Koger
Centers but in metropolitan areas where Koger Centers are located. The Office
Buildings contain approximately 8.5 million net rentable square feet and were
on average 92 percent leased as of December 31, 1997. During 1997, the Company
began construction of eight buildings which will contain approximately 650,000
net rentable square feet and will be ready for occupancy at various times
throughout 1998. Since December 31, 1997, the Company has acquired two Office
Buildings and completed construction of one Office Building containing in the
aggregate 231,500 net rentable square feet. While the Company has initiated
and expects to continue a pattern of vertically integrated development of
suburban office properties for its own account, it may from time to time
acquire developed properties compatible with its properties in other markets
primarily in the Southeast and Southwest if such acquisitions can be made on
terms favorable to the Company.
The Company owns approximately 137 acres of unencumbered land held for
development and approximately 21 acres of unencumbered land expected to be
sold. A majority of the land held for development adjoins Office Buildings in
11 Koger Centers which have infrastructure, including roads and utilities, in
place. The Company intends over time to develop and construct office buildings
using this land and currently has eight buildings under construction on
approximately 52 acres of land held for development. The Company expects to
acquire additional land for development. In addition, the Company provides
leasing, management and other customary tenant-related services for the Koger
Centers and for 22 office buildings containing approximately 1.3 million net
rentable square feet owned by unaffiliated parties.
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RECENT DEVELOPMENTS
The Company is currently engaged in negotiations for the acquisition of a
property and has a binding contract on another property, both located in the
Southeast.
One proposed acquisition, which would be made by a newly formed so-called
"downREIT" limited partnership with the Company as general partner, is an
approximately 51-acre office park with buildings containing in excess of
530,000 square feet and additional property which will accommodate
approximately 160,000 feet of office development. The purchase price of $53.8
million is payable by assumption of approximately $22.5 million of debt and
under certain circumstances either (i) issuance of downREIT limited partnership
units having a minimum value of approximately $17.5 million up to a maximum
value of $23.3 million with the balance in cash, or (ii) in the alternative
this acquisition may be accomplished by cash and assumption of debt. The
partnership units would be convertible into a minimum of approximately 762,000
shares and a maximum of approximately 1,015,000 shares of the Company's Common
Stock (or at the option of the Company such units may be redeemed for cash).
No binding purchase agreement has been signed at this time, and there can be no
assurance that this proposed acquisition will be consummated. Based on
information supplied to the Company by the current owner, the rentals revenues
and operating expenses (excluding management costs) of these properties for the
twelve months ended December 31, 1997 were approximately $7.1 million and $2.4
million, respectively.
The second acquisition, for which the Company has a binding contract, is a
property including office buildings containing approximately 318,000 square
feet of office space and retail shopping buildings containing approximately
112,500 square feet, together covering approximately 34.5 acres of land. Also
included are an additional 22 acres of land suitable for development of
approximately 350,000 square feet of office space. The total purchase price of
this acquisition is $58,356,000 to be paid in cash. Based on information
supplied to the Company by the current owner, the rental revenues and operating
expenses (excluding management costs) of these properties for the twelve months
ended December 31, 1997 were approximately $7.6 million and $2.6 million,
respectively.
David B. Hiley, a Director of the Company since 1993 and Chairman of the
Finance/Investment Committee of the Company's Board of Directors is joining the
Company as its Executive Vice President and Chief Financial Officer effective
April 1, 1998. Mr. Hiley has had an extensive career in financial management,
currently serving as a full-time consultant to Nortek, Inc., in Providence,
Rhode Island. He formerly was Managing Director of Berkshire Capital
Corporation; a Director and former Senior Executive Vice President and head of
investment banking for Thomson McKinnon Securities, Inc.; and a Director of
Newcity Communications, Inc. prior to its recent sale. Mr. Hiley is a graduate
of Dartmouth College and received his M.B.A. degree from the Amos Tuck School;
he is 59 years old.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock offered
hereby after deducting the underwriting discount and estimated expenses of the
Offering, are estimated to be approximately $20,196,875. The Company expects
to use the net proceeds of the Offering to finance the acquisition and
development of office buildings and to repay debt. The immediate use of these
proceeds will be to reduce short term debt which includes outstanding
borrowings under the Company's secured revolving credit facility ($15 million
as of March 24, 1998), which borrowings bear interest at a weighted average
rate of 7.54% per annum and mature in April 1999. The borrowings under the
secured revolving credit facility were incurred to finance the Company's
acquisition activities.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain federal income tax considerations
relating to the Company is based on the Internal Revenue Code of 1986, as
amended, (the "Code"), is for general information only and is not intended to
constitute tax advice. The tax treatment of a holder of any of the Common Stock
of the Company may vary depending on such holder's personal investment and tax
circumstances and as between different types of shareholders subject to special
treatment under the Code (including insurance companies, tax-exempt
organizations, financial institutions,
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broker dealers, foreign corporations and other persons who are not domestic
shareholders (defined below)). The summary does not address all possible
federal tax issues, nor does the summary discuss any state, local, or foreign
tax considerations. Further, the statements in this discussion and the opinion
of Ropes & Gray (discussed below) are based on current provisions of the Code,
current, temporary and proposed Treasury Regulations, the legislative history
of the Code, existing administrative rulings and practices of the Service, and
judicial decisions. No assurance can be given that future legislative,
judicial, or administrative actions or decisions, which may be retroactive in
effect, will not affect the accuracy of any statements in this Prospectus
Supplement.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OR HER OWN TAX
ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF THE PURCHASE,
OWNERSHIP AND SALE OF COMMON STOCK IN AN ENTITY ELECTING TO BE TAXED AS A REAL
ESTATE INVESTMENT TRUST, INCLUDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP AND SALE AND THE CONSEQUENCES OF
POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY AS A REIT
The Company was organized and elected to be taxed as a REIT in 1988. The
Company believes that it was organized, has operated and that it will be able
to continue to operate in such a manner as to meet the requirements for
qualification and taxation as a REIT under the Code, and the Company intends to
continue to operate in such a manner, although no assurance can be given that
it will at all times so qualify.
Ropes & Gray, special tax counsel to the Company, has reviewed with the
officers of the Company the organizational and operational requirements for
REIT qualification. Based upon information and data provided by the Company in
connection with that review, Ropes & Gray is of the opinion that, for federal
income tax purposes, (a) the Company qualified to be taxed as a REIT pursuant
to Sections 856 through 860 of the Code for its taxable years ending December
31, 1996 and 1997, and (b) the Company is in a position to continue to qualify
to be taxed as a REIT for the Company's current taxable year. Code provisions
governing eligibility for taxation as a REIT are technical and complex.
Qualification and taxation as a REIT depends in part upon an entity's having
met, and its ability to meet, as a factual matter, certain operating tests,
distribution requirements, diversity of stock ownership requirements and other
qualification tests imposed by the Code. It must be emphasized that Ropes &
Gray's opinion is based in part on certain assumptions and the accuracy of
representations as to factual matters made by the Company. Opinions of Ropes &
Gray have no binding effect or official status of any kind, and in the absence
of a ruling from the Service, there can be no assurance that the Service will
not challenge the conclusion or propriety of any of Ropes & Gray's opinions.
As a REIT, provided certain detailed conditions imposed by the REIT
provisions of the Code are met, the Company generally would not be subject to
federal income tax on that portion of its ordinary income and net capital gain
that is currently distributed to shareholders (subject to certain exceptions
described below). This treatment substantially eliminates the "double taxation"
(i.e., taxation at both the corporate and shareholder levels) that usually
results from the use of corporate investment vehicles. However, the Company
will be taxed at regular corporate rates on any of its income that is not
distributed to its shareholders. See "--Taxation of the Company" for a further
discussion of this matter.
As the discussion set forth below indicates, continued qualification of
the Company as a REIT depends on meeting Code requirements that may not be
wholly within the Company's control. Accordingly, no assurance can be given
that the Company will be able to operate in a manner so as to remain qualified
as a REIT in any particular year. If the Company fails to qualify as a REIT in
any year, it will be subject to federal income tax as if it were a domestic
corporation, and its shareholders will be taxed in the same manner as
shareholders of ordinary corporations. In this event, the Company could be
subject to potentially significant tax liabilities, and the amount of cash
available for distribution to its shareholders could be materially reduced.
Moreover, a REIT that fails to qualify for REIT taxation in any year may not
reelect REIT status for any taxable year prior to the fifth taxable year
beginning after the taxable year of disqualification unless it can establish
that its failure to qualify was due to reasonable cause and not due to willful
neglect and it meets certain other requirements.
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REQUIREMENTS FOR QUALIFICATION AS A REIT
The Code defines a real estate investment trust as a corporation, trust or
unincorporated association (a) which is managed by one or more trustees or
directors; (b) the beneficial ownership of which is evidenced by transferable
shares or by transferable certificates of beneficial interest; (c) which would
be taxable as a domestic corporation but for Sections 856 through 860 of the
Code; (d) which is neither a financial institution nor an insurance company
subject to certain provisions of the Code; (e) the beneficial ownership of
which is held by 100 or more persons; (f) not more than 50% in value of the
outstanding stock of which is 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 (the "five or fewer test"); and (g) which meets certain other
tests, described below, under the headings "Asset Tests," "Gross Income Tests,"
and "Annual Distribution Requirements."
In an effort to ensure compliance with the ownership tests described in
clauses (e) and (f) of the preceding paragraph, the Company's charter contains
certain restrictions on the acquisition and transfer of its stock to prevent
concentration of stock ownership that could adversely affect the Company's
qualification as a REIT. Moreover, to evidence compliance with these ownership
requirements, the Company must maintain records which are generally intended to
disclose the actual ownership of its outstanding stock. In fulfilling its
obligations to maintain records, the Company is required to and will demand
written statements each year from the record holders of designated percentages
of its stock disclosing the actual owners of such stock. A list of those
persons failing or refusing to comply with such demand must be maintained as
part of the Company's records. A shareholder failing or refusing to comply with
the Company's written demand is required by the Treasury Regulations to submit
with his tax returns a similar statement disclosing the actual ownership of
stock and certain other information.
Under the Taxpayer Relief Act of 1997, enacted on August 5, 1997 (the
"Taxpayer Relief Act"), if the Company complies with the demand letter
requirement, but does not know, and exercising reasonable diligence would not
have known, whether it satisfied the five or fewer test, the Company will be
treated as having met such requirement. If the Company fails to comply with
the demand letter requirement for any year, it will be subject to certain
prescribed penalties, rather than (as under prior law) loss of its status as a
REIT.
Asset Tests
At the close of each quarter of the Company's taxable year, the Company
must satisfy two tests relating to the nature and diversification of its
assets. First, at least 75% of the value of the Company's total assets must be
represented by interests in real property, interests in mortgages on real
property, shares in other REITs, cash, cash items and government securities (as
well as certain temporary investments in stock or debt instruments purchased
with the proceeds of new capital raised by the Company). Second, although the
remaining 25% of the Company's assets generally may be invested without
restriction, except for stock of qualified REIT subsidiaries, securities in
this class may not exceed either (a) 5% of the value of the Company's total
assets as to any one non-government issuer or (b) 10% of the outstanding voting
securities of any one issuer. Under the Code, all assets, liabilities, and
items of income, deduction, and credit of any qualified REIT subsidiary will be
treated as owned and realized directly by the Company. The Company has two
qualified REIT subsidiaries, Southeast Properties Holding Corporation, Inc. and
Koger Real Estate Services, Inc. Additionally, if a "downREIT" limited
partnership in which the Company is the general partner effects the proposed
acquisition described above under "Recent Developments," the Company's
proportionate share of all assets, liabilities and items of income, gain, loss,
deduction and credit of the partnership will be treated as owned and realized
directly by the Company.
The Company owns 100% of the nonvoting, participating preferred stock, but
none of the voting common stock, of Koger Realty Services, Inc. ("KRSI"), a
corporation providing management and leasing services with respect to certain
office buildings not owned by the Company. The Company does not believe that
the value of the KRSI nonvoting, participating preferred stock exceeds 5% of
the total value of the Company's assets. No independent appraisals have been
obtained to support this conclusion. Ropes & Gray, in rendering its opinion as
to the qualification of the Company as a real estate investment trust, is
relying on the representation of the Company as to the value of the KRSI
preferred stock. There can be no assurance that the Service might not contend
that the value of the KRSI preferred stock held by the Company exceeds 5% of
the value of the Company's total assets. See "--Proposed Tax Legislation."
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Gross Income Tests
There are currently two separate percentage tests relating to the sources
of the Company's gross income which must be satisfied for each taxable year of
the Company, both of which are described below.
The 75% Test
At least 75% of the Company's gross income for the taxable year must be
"qualifying income." Qualifying income generally includes (a) rents from real
property (except as modified below); (b) interest on obligations collateralized
by mortgages on, or interests in, real property; (c) gains from the sale or
other disposition of interests in real property and real estate mortgages,
other than gain from property held primarily for sale to customers in the
ordinary course of the Company's trade or business ("dealer property"); (d)
dividends or other distributions with respect to shares in other REITs, as well
as gain from the sale of such shares; (e) abatements and refunds of real
property taxes; (f) income from the operation, and gain from the sale, of
property acquired at or in lieu of a foreclosure of the mortgage collateralized
by such property ("foreclosure property"); and (g) commitment fees received for
agreeing to make loans collateralized by mortgages on real property or to
purchase or lease real property.
The 95% Test
In addition to deriving at least 75% of its gross income from the sources
listed above, at least 95% of the Company's gross income for the taxable year
must be comprised of qualifying income, as described in the preceding
paragraph, or dividends, interest or gain from the sale or disposition of stock
or other securities that are not dealer property. Dividends and interest on any
obligation not collateralized by an interest in real property are included for
purposes of the 95% test, but not for purposes of the 75% test. For purposes of
determining whether the Company complies with the 75% and 95% gross income
tests, gross income does not include income from prohibited transactions. A
"prohibited transaction" is a sale of dealer property, excluding certain
property held by the Company for at least four years and foreclosure property.
See "--Taxation of the Company".
For purposes of both the 75% test and the 95% test, rents received from a
tenant will not qualify as rents from real property if the Company, or an owner
of 10% or more of the Company, directly or constructively owns 10% or more of
such tenant (a "related party tenant") or a subtenant of such tenant (in which
case only rent attributable to the subtenant is disqualified). In addition, if
rent attributable to personal property, which may only be leased in connection
with a lease of real property, is greater than 15% of the total rent received
under the applicable lease, the portion of rent attributable to such personal
property will not qualify as rents from real property. Moreover, an amount
received or accrued generally will not qualify as rents from real property (or
as interest income) for purposes of the 75% and 95% gross income tests if it is
based in whole or in part on the income or profits of any person. Rent or
interest will not be disqualified, however, solely by reason of being based on
a fixed percentage or percentages of gross receipts or sales. Finally, for
rents received to qualify as rents from real property, the Company generally
must not operate or manage the property or furnish or render services to
tenants of such property, other than through an "independent contractor" who is
adequately compensated and from whom the Company derives no revenue. The
"independent contractor" requirement, however, does not apply to the extent
that the services provided by the Company are "usually or customarily rendered"
in connection with the rental of real property solely for occupancy in the
geographic area in which the property is located (i.e., services that are not
considered "rendered to the occupant"). Under a recently enacted de minimis
rule, as long as any income accrued during a taxable year by the Company for
impermissible tenant services provided in respect of a property does not exceed
1% of all amounts accrued during such year directly or indirectly with respect
to such property, only the income from the impermissible tenant services
provided in respect of such property (and not as under prior law, all rents
from such property) will fail to qualify as rents from real property.
The Company is a self-managed REIT and provides certain services with
respect to its properties and will provide such services with respect to any
newly acquired properties. The Company believes and has represented that the
services now provided by the Company are limited to services usually or
customarily rendered in connection with the rental of space for occupancy only,
and therefore that the provision of such services will not cause the rents
received with respect to the properties to fail to qualify as rents from real
property for purposes of the 75% and 95% gross income tests. The Company has
not and does not intend to (i) charge rent for any property that is based in
whole or in part on the income or profits of any person (other than being based
on a percentage of receipts or sales), (ii) receive rents in excess of a de
minimis amount from related party tenants, (iii) derive rents attributable to
personal property which constitute greater than 15% of the total rents received
under the lease, (iv) perform services that are not considered usual
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or customary or (v) perform services that are considered to be rendered to the
occupant of property, other than through an independent contractor from whom
the Company derives no income.
The Company will endeavor to hold and manage its properties in a manner
that will give rise to rental income qualifying under the 75% and 95% gross
income tests. Gains on sales of the properties will generally qualify under the
75% and 95% gross income tests. However, the Company derives and expects to
continue to derive management fees from the management of property owned by
others. This fee income is not qualifying income, dividends, interest or gains,
and if the amount thereof, together with any other income that could not be
counted towards satisfaction of the 95% test, should exceed 5% of gross income
of the Company in any taxable year, the receipt of such fee income would
adversely affect the Company's qualification as a REIT. The Company currently
does not expect that its management fee income, together with other income that
cannot be counted towards satisfaction of the 95% test, will exceed 5% of gross
income in any taxable year.
As described above, the Company owns all of the non-voting stock of KRSI,
a corporation that is taxable as a regular corporation. KRSI provides
management and leasing services for real properties owned by third parties. The
income earned by KRSI would be nonqualifying income if earned directly by the
Company; as a result of the ownership structure described above, the income
will be earned by and taxed to KRSI. Dividends paid by KRSI to the Company will
be counted towards satisfaction of the 95% gross income test.
Even if the Company fails to satisfy one or both of the 75% or 95% gross
income tests for any taxable year, it may still qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions will generally be available if: (a) the Company's failure to comply
was due to reasonable cause and not to willful neglect; (b) the Company reports
the nature and amount of each item of its income included in the 75% and 95%
gross income tests on a schedule attached to its tax return; and (c) any
incorrect information on this schedule is not due to fraud with intent to evade
tax. It is not possible to state whether in all circumstances the Company would
be entitled to the benefit of these relief provisions. If these relief
provisions apply, however, the Company will still be subject to a special tax
upon the greater of the amount by which it fails either the 75% or 95% gross
income test for that year.
The 30% Test
Under prior federal income tax law, the Company was required in 1997 and
all other taxable years to derive less than 30% of its gross income for each
taxable year from the sale or other disposition of (a) real property held for
less than four years (other than foreclosure property and property exchanged in
an involuntary conversion), (b) stock or securities held for less than one
year, and (c) property disposed of in a prohibited transaction. The Company
complied with this test in such years. Effective as of January 1, 1998, the
Company is no longer required to satisfy the 30% test for federal income tax
purposes. However, the Company may be required to comply, and, if so required,
will comply, with the 30% test for state income tax purposes until such time as
the laws of the relevant states are amended to reflect the recent repeal at the
federal level of the 30% test.
Annual Distribution Requirements
The Company, in order to qualify as a REIT, is required to distribute
dividends (other than capital gains dividends) to its shareholders each year in
an amount at least equal to (a) the sum of (i) 95% of the Company's REIT
taxable income for such year (computed without regard to the dividends-paid
deduction and the REIT's net capital gain) and (ii) 95% of the net income
(after tax), if any, from foreclosure property, minus (b) the sum of certain
items of non-cash income. To the extent permitted, certain net operating loss
carry forwards acquired by the Company in a 1993 merger may be taken into
account in determining REIT taxable income and therefore the distribution
requirement. Such distributions as are required to maintain the Company's REIT
status must be paid in the taxable year to which they relate, or in the
following taxable year if declared before the Company timely files its tax
return for the earlier year and if paid on or before the first regular dividend
payment after such declaration. To the extent that the Company does not
distribute all of its net capital gain or distributes at least 95%, but less
than 100%, of its REIT taxable income, as adjusted, it will be subject to tax
on the undistributed amounts at regular corporate tax rates; provided, however,
that as discussed below under "Taxation of Domestic Shareholders," the
Company's shareholders may claim a credit for taxes paid by the Company in
respect of undistributed net capital gains if the Company so elects.
Furthermore, if the Company should fail to distribute during each calendar year
at least the sum of (A) 85% of its ordinary income for such year, (B) 95% of
its capital gain net income for such year, and (C) any undistributed taxable
income from prior periods, the Company would be subject to a 4% excise tax on
the excess of the required distribution over the amounts actually distributed.
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Dividends declared by the Company in October, November or December of a
calendar year payable to shareholders of record on a specified date in any such
month will be deemed to have been paid by the Company and received by each
shareholder on December 31 of such year as long as they are actually paid in
January of the following year.
The Company intends to make timely distributions sufficient to satisfy the
annual distribution requirements. However, it is possible that the Company may
not have sufficient cash or other liquid assets to meet the 95% distribution
requirement, due to timing differences between the actual receipt of income and
the actual payment of expenses on the one hand and the inclusion of such income
and the deduction of such expenses in computing the Company's REIT taxable
income on the other hand. Similarly, it is possible that, under some
circumstances, a disposition of depreciated property by the Company may produce
income or gain that exceeds the cash proceeds of such disposition available for
distribution. To avoid any problem with the 95% distribution requirement, the
Company will closely monitor the relationship between its REIT taxable income
and cash flow and, if necessary, may seek to sell assets or borrow funds in
order to satisfy the distribution requirement. The Company may be required to
raise funds at a time when market conditions are not favorable and loan
covenants restrict borrowing.
If the Company fails to meet the 95% distribution requirement as a result
of an adjustment to the Company's tax return by the Service, the Company may
retroactively cure any failure by paying a "deficiency dividend" (plus
applicable penalties and interest) within a specified period if certain
requirements are satisfied. However, should such a situation arise, there is no
assurance that the Company will be in a financial position to pay a deficiency
dividend.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable year
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in which the
Company fails to qualify will not be deductible by the Company, nor will they
be required to be made. In such event, to the extent of the Company's current
and accumulated earnings and profits, all distributions to shareholders will be
taxable as ordinary income, and, subject to certain limitations in the Code,
corporate distributees may be eligible for the dividends-received deduction.
Unless entitled to relief under specific statutory provisions, the Company also
will be disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not possible to
state whether the Company would be entitled to such statutory relief.
Proposed Tax Legislation
On February 2, 1998, the Clinton Administration released its budget
proposal for fiscal year 1999. One provision contained in the proposal
potentially could affect the Company if enacted in final form. That provision
would prohibit a REIT from owning, directly or indirectly, more than 10% of the
voting power or value of all classes of a C corporation's stock (other than the
stock of a qualified REIT subsidiary). Currently, a REIT may own no more than
10% of the voting stock of a C corporation (other than the stock of a qualified
REIT subsidiary), but its ownership of the nonvoting stock of a C corporation
is not limited (other than by the rule that the value of a REIT's combined
equity and debt interests in a C corporation may not exceed 5% of the value of
a REIT's total assets). That provision is proposed to be effective with
respect to stock in a C corporation acquired by a REIT on or after the date of
"first committee action" with respect to the provision. A REIT that owns stock
in a C corporation in excess of the new ownership limit prior to "first
committee action" would be "grandfathered," but only to the extent that the C
corporation does not engage in a new trade or business or acquire substantial
new assets on or after the effective date of the legislation. The Company
currently owns 100% of the nonvoting preferred stock of KRSI. If enacted as
presently proposed, the proposed provision would prevent KRSI from expanding
its current operations and would significantly limit the Company's ability to
use other taxable subsidiaries to conduct businesses the income from which
would be nonqualifying income if received directly by the Company.
TAXATION OF THE COMPANY
In any year in which the Company qualifies as a REIT, in general it will
not be subject to federal income tax on that portion of its net income that it
distributes to shareholders. This treatment substantially eliminates the
"double taxation" on income at the corporate and shareholder levels that
generally results from investment in a corporation. However, the REIT will be
subject to federal income tax as follows: First, the REIT will be taxed at
regular corporate rates on any undistributed REIT taxable income, including
undistributed net capital gains (although, as discussed below
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under "Taxation of Taxable Domestic Shareholders," if the Company so elects,
its shareholders may claim a credit for taxes paid by the Company in respect of
undistributed net capital gains). Second, under certain circumstances, a REIT
may be subject to the "alternative minimum tax" on its items of tax preference,
including alternative minimum taxable income attributable to its use of net
operating loss carryforwards. Third, if the REIT has (a) net income from the
sale or other disposition of "foreclosure property" which is held primarily for
sale to customers in the ordinary course of business or (b) other
non-qualifying income from foreclosure property, it will be subject to tax at
the highest corporate rate on such income. Fourth, if the REIT has net income
from prohibited transactions (which are, in general, certain sales or other
dispositions of property held primarily for sale to customers in the ordinary
course of business, other than foreclosure property), such income will be
subject to a 100% tax. Under existing law, whether property is held primarily
for sale to customers in the ordinary course of a trade or business is a
question of fact that depends on all the facts and circumstances with respect
to the particular transaction. The Company has represented that it holds its
real property for investment with a view to long-term appreciation, is engaged
in the business of acquiring, developing, owning and operating the properties
and makes such occasional sales of the properties as are consistent with the
investment objectives of the Company. There can be no assurance, however, that
the Service would not contend that one or more of sales of Company property is
subject to the 100% penalty tax. Fifth, if the REIT should fail to satisfy the
75% gross income test or the 95% gross income test (as discussed above) but has
nonetheless maintained its qualification as a real estate investment trust
because certain other requirements have been met, it will be subject to a 100%
tax on the net income attributable to the greater of the amount by which the
REIT fails the 75% or 95% test, multiplied by a fraction intended to reflect
the Company's profitability. Sixth, if the REIT should fail to distribute
during each calendar year at least the sum of (i) 85% of its ordinary income
for such year, (ii) 95% of its capital gain net income for such year, and (iii)
any undistributed taxable income from prior periods, the REIT would be subject
to a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. Seventh, if the REIT acquires any asset from a C
corporation (i.e., generally a corporation subject to full corporate-level tax)
in a transaction in which the basis of the asset in the REIT's hands is
determined by reference to the basis of the asset (or any other property) in
the hands of the C corporation, and the REIT subsequently recognizes gain on
the disposition of such asset during the 10-year period beginning on the date
on which such asset was acquired by the REIT, then, to the extent of any
built-in gain at the time of acquisition, such gain will be subject to tax at
the highest regular corporate rate pursuant to guidelines set forth by the
Service in Notice 88-19, assuming the REIT makes an election pursuant to Notice
88-19. In 1993 a C Corporation merged into the Company, but the Company does
not believe there was a net built-in gain with respect to the property acquired
from such corporation and has not made any election under Notice 88-19.
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
The following discussion of the taxation of persons owning Common Stock in
the Company is intended for taxable domestic shareholders only. As used herein,
the term "domestic shareholder" means a holder of Common Stock that for U.S.
federal income tax purposes is (i) a citizen or resident of the United States,
(ii) a corporation, partnership, or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof,
(iii) an estate, the income of which is subject to United States federal income
taxation regardless of its source, or (iv) a trust, if a court within the
United States is able to exercise primary supervision over the administration
of the trust and one or more United States persons have the authority to
control all substantial decisions of the trust. This discussion assumes that
the Common Stock constitutes a capital asset in the hands of the shareholder.
Dividends and Other Distributions
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable domestic shareholders out of current or accumulated earnings
and profits (and not designated as capital gain dividends) will be taken into
account by them as ordinary income and will not be eligible for the
dividends-received deduction for corporations. Subject to the discussion below
regarding recent changes to the capital gains tax rates, distributions that are
designated as capital gain dividends will be taxed as long-term capital gains
(to the extent they do not exceed the Company's actual net capital gain for the
taxable year) without regard to the period for which the holder has held its
Common Stock. However, corporate holders may be required to treat up to 20% of
certain capital gain dividends as ordinary income. Distributions in excess of
current and accumulated earnings and profits will not be taxable to a holder to
the extent that they do not exceed the adjusted tax basis of the holder's
shares, but rather will be treated as a return of capital and reduce the
adjusted basis of such shares. To the extent that such distributions exceed the
adjusted basis of a holder's shares, they will be included in income as
long-term capital gain if the holder has held its shares for more than 12
months and otherwise as short-term capital gain, subject to the discussion
below regarding recent changes to
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capital gains tax rates. In addition, any dividend declared by the Company in
October, November or December of any year payable to a shareholder of record on
a specified date in any such month shall be treated as both paid by the Company
and received by the shareholder on December 31 of such year, provided that the
dividend is actually paid by the Company during January of the following
calendar year. Shareholders may not include in their individual income tax
returns any net operating losses or capital losses of the Company. Instead,
such losses would be carried over by the Company for potential offset against
its future income (subject to certain limitations). Taxable distributions from
the Company and gain from the disposition of Common Stock will not be treated
as passive activity income and, therefore, shareholders generally will not be
able to apply any "passive activity losses" (such as losses from certain types
of limited partnerships in which the shareholder is a limited partner) against
such income. In addition, taxable distributions from the Company generally will
be treated as investment income for purposes of the investment interest
limitations. Capital gains from the disposition of shares of Common Stock (or
distributions treated as such) will be treated as investment income only if the
shareholder so elects, in which case such capital gains will be taxed at
ordinary income rates. The Company will notify shareholders after the close of
the Company's taxable year as to the portions of the distributions attributable
to that year that constitute each of (i) distributions taxable at ordinary
income tax rates, (ii) capital gains dividends and (iii) returns of capital.
The Company may elect to retain and pay income tax on its net capital gain
received during the taxable year. If the Company so elects for a taxable year,
the Company's shareholders would include in income as long-term capital gains
their proportionate share of such portion of the Company's undistributed net
capital gain for the taxable year as the Company may designate. A shareholder
would be deemed to have paid his share of the tax paid by the Company on such
undistributed net capital gain, which would be credited or refunded to the
shareholder. The shareholder's basis in his shares of Common Stock would be
increased by the amount of undistributed net capital gain included in the
shareholder's income, less the capital gains tax paid by the Company.
The Taxpayer Relief Act altered the taxation of capital gain income. Under
the Taxpayer Relief Act, individuals, estates and trusts who hold certain
investments for more than 18 months may be taxed at a maximum long-term capital
gain rate of 20% on the sale or exchange of those investments. Individuals,
estates and trusts who hold certain assets for more than 12 months but no more
than 18 months may be taxed at a maximum rate of 28% on the sale or exchange of
those investments. The Taxpayer Relief Act also provides a maximum rate of 25%
for "unrecaptured section 1250 gain" for individuals, estates and trusts,
special rules for "qualified 5-year gain," as well as other changes to prior
law. The Taxpayer Relief Act allows the Service to prescribe regulations on how
the Act's new capital gain rates will apply to sales of capital assets by
"pass-thru entities," which include REITs such as the Company. To date
regulations have not yet been promulgated. However, in Notice 97-64, issued on
November 10, 1997, the Service indicated that the regulations will provide that
whether capital gain dividends are taxed at the 28%, 25% or 20% rate will be
determined by reference to the Company's holding period in the property that
generates the gain and the amount of unrecaptured straight-line depreciation
attributable to such property. Investors are urged to consult their own tax
advisors with respect to the new rules contained in the Taxpayer Relief Act.
Sale of Common Stock
On the sale of shares of Common Stock, gain or loss will be recognized by
a holder in an amount equal to the difference between (a) the amount of cash
and fair market value of any property received on such sale (less any portion
thereof attributable to accumulated and declared but unpaid dividends, which
will be taxable as a dividend to the extent of the Company's current or
accumulated earnings and profits), and (b) the holder's adjusted basis in the
Common Stock. Such gain or loss (unless recognized by a dealer in securities)
will be long-term gain or loss if the shares of Common Stock have been held for
more than one year and otherwise will be short-term capital gain or loss;
provided, that gain recognized by individuals, trusts and estates in respect of
shares held for more than 18 months will be taxed as "adjusted net capital
gain," taxable at a 20% rate, and in respect of shares held for more than 12
months but not more than 18 months will be taxed as "mid-term capital gain,"
taxable at a 28% rate. In general, any loss upon a sale or exchange of shares
by a holder who has held such shares for six months or less (after applying
certain holding period rules) will be treated as a long-term capital loss to
the extent of distributions from the Company required to be treated by such
holder as long-term capital gain, subject to the possible modification of this
rule as applied to shareholders who are individuals, trusts or estates, to
reflect the new capital gains rate schedule introduced by the Taxpayer Relief
Act. All or a portion of any loss realized upon a taxable disposition of shares
of Common Stock may be disallowed if other shares of Common Stock are purchased
within 30 days before or after the disposition.
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Backup Withholding and Information Reporting
The Company will report to its domestic shareholders and the Service the
amount of distributions paid during each calendar year and the amount of tax
withheld, if any. Under the backup withholding rules, a shareholder may be
subject to backup withholding at the rate of 31% with respect to distributions
paid unless such holder (a) is a corporation or comes within certain other
exempt categories and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of exemption from
backup withholding, and otherwise complies with applicable requirements of the
backup withholding rules. A shareholder that does not provide the Company with
his correct taxpayer identification number may also be subject to penalties
imposed by the Service. Any amount paid as backup withholding will be
creditable against the shareholder's income tax liability. In addition, the
Company may be required to withhold a portion of capital gain distributions to
any shareholders who fail to certify their non-foreign status to the Company.
On October 6, 1997, the Service released regulations that will revise certain
procedures for backup withholding and information reporting, effective
generally as of January 1, 1999. The regulations impose more stringent
requirements to be followed by non-U.S. persons, and financial intermediaries
acting on behalf of such non-U.S. persons, for establishing such non-U.S.
persons' non-U.S. status for the purpose of the withholding rules.
TREATMENT OF TAX-EXEMPT SHAREHOLDERS
Dividends from the Company to a tax-exempt employee pension trust or other
domestic tax-exempt shareholder generally will not constitute "unrelated
business taxable income" ("UBTI") unless the shareholder has borrowed to
acquire or carry its shares of Common Stock. Qualified trusts that hold more
than 10% (by value) of the shares of certain REITs, however, may be required to
treat a certain percentage of such a REIT's distributions as UBTI. This
requirement will apply only if (i) the REIT would not qualify as such for
Federal income tax purposes but for the application of a "look-through"
exception to the "five or fewer test" applicable to shares held by qualified
trusts and (ii) the REIT is "predominantly held" by qualified trusts. A REIT is
predominantly held by qualified trusts if either (i) a single qualified trust
holds more than 25% by value of the interests in the REIT or (ii) one or more
qualified trusts, each owning more than 10% by value of the interests in the
REIT, hold in the aggregate more than 50% of the interests in the REIT. The
percentage of any REIT dividend treated as UBTI is equal to the ratio of (a)
the UBTI earned by the REIT (treating the REIT as if it were a qualified trust
and therefore subject to tax on UBTI) to (b) the total gross income of the
REIT. A de minimis exception applies where the percentage is less than 5% for
any year. For these purposes, a qualified trust is any trust described in
section 401(a) of the Code and exempt from tax under section 501(a) of the
Code. The provisions requiring qualified trusts to treat a portion of REIT
distributions as UBTI will not apply if the REIT is able to satisfy the "five
or fewer test" without relying upon the "look-through" exception. The Company
has not in the past relied on the "look-through" exception to satisfy the "five
or fewer" test and does not currently expect that it will rely on such
exception for 1998 or future taxable years, although there can be no assurance
that the Company will not so rely.
STATE AND LOCAL TAXES
The Company and its shareholders may be subject to state or local taxation
in various jurisdictions, including those in which the Company or such
shareholders transact businesses or reside. The state and local tax treatment
of the Company and its shareholders may not conform to the federal income tax
consequences discussed above. Consequently, prospective shareholders should
consult their own tax advisers regarding the effect of state and local tax laws
on an investment in Common Stock.
UNDERWRITING
Subject to the terms and conditions contained in an Underwriting Agreement
dated March 24, 1998, (the "Underwriting Agreement"), between the Company and
Wheat First Securities, Inc. (the "Underwriter"), the Company has agreed to
sell to the Underwriter, and the Underwriter has agreed to purchase from the
Company, 1,000,000 shares of Common Stock. The Underwriting Agreement provides
that the Underwriter's obligation to purchase the Common Stock is subject to
the satisfaction of certain conditions, including the receipt of certain legal
opinions. The nature of the Underwriter's obligation is such that it is
committed to purchase all of the shares of Common Stock if any shares are
purchased.
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The Underwriter intends to sell the Common Stock to Van Kampen American
Capital, which intends to deposit the Common Stock, along with the common stock
of other entities purchased from the Underwriter with the Trustee of the Trust.
in exchange for Units in the Trust. The Underwriter is not an affiliate of Van
Kampen American Capital or the Trust. The Underwriter intends to sell the
Common Stock to Van Kampen American Capital at an aggregate purchase price of
$20,460,000. It is anticipated that the Underwriter will also participate in
the distribution of the Units in the Trust and will receive compensation of
3.25% of the public offering price of the Units sold by it.
Pursuant to the Underwriting Agreement, the Company has agreed to
indemnify the Underwriter against certain liabilities, including liabilities
under the Securities Act, or to contribute to payments the Underwriter may be
required to make in respect thereof.
In the ordinary course of business, the Underwriter may from time to time
provide investment banking, financial advisory and commercial banking services
to the Company and its affiliates for which customary compensation will be
received.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed
upon for the Company by Boling & McCart, a professional association,
Jacksonville, Florida, and for the Underwriters by Hunton & Williams, Richmond,
Virginia. Hunton & Williams will rely on Boling & McCart as to certain matters
of Florida law.
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PROSPECTUS
$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.
November 18, 1997
<PAGE> 14
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>
<S> <C>
Available Information 3
Incorporation of Certain Documents by Reference 3
The Company 4
Use of Proceeds 4
Description of Common Stock 4
Description of Preferred Stock 6
Provisions of Florida Law 9
Ratios of Earnings to Fixed Charges 10
Plan of Distribution 10
Experts 11
Legal Matters 11
</TABLE>
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<PAGE> 15
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.
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.
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<PAGE> 16
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.
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
4
<PAGE> 17
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 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.
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<PAGE> 18
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);
(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
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<PAGE> 19
(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 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
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<PAGE> 20
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 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
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<PAGE> 21
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 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.
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
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<PAGE> 22
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,
---------------------- ----------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ----- -------- -------- -------- -----
<S> <C> <C> <C> <C> <C> <C>
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.
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
10
<PAGE> 23
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.
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.
11
<PAGE> 24
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No dealer, salesperson or other individual has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus Supplement or Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Underwriter. This Prospectus
Supplement and the Prospectus do not constitute an offer or solicitation by
anyone in any state in which such offer or solicitation is not authorized or in
which the person making such offer or solicitation is not qualified to do so or
to anyone to whom it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus Supplement or the Prospectus nor any sale made
hereunder and thereunder shall, under any circumstance, create an implication
that there has been no change in the facts set forth in this Prospectus
Supplement or in the Prospectus or in the affairs of the Company since the date
hereof.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<S> <C>
Forward -Looking Statements. . . . . . . . . . . . . . . . . . . 2
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Recent Developments. . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Income Tax Considerations. . . . . . . . . . . . . . . . 3
Underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 12
PROSPECTUS
Available Information. . . . . . . . . . . . . . . . . . . . . . 3
Incorporation of Certain Documents
By Reference. . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 4
Description of Common Stock. . . . . . . . . . . . . . . . . . . 4
Description of Preferred Stock . . . . . . . . . . . . . . . . . 6
Provisions of Florida Law. . . . . . . . . . . . . . . . . . . . 9
Ratios of Earnings to Fixed Charges. . . . . . . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . 10
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
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1,000,000 SHARES
[LOGO]
KOGER EQUITY, INC.
COMMON STOCK
PAR VALUE $.01 PER SHARE
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PROSPECTUS SUPPLEMENT
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WHEAT FIRST UNION
MARCH 24, 1998
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