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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KOGER EQUITY, INC.
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Florida 1-9997 59-2898045
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(State of incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
8880 Freedom Crossing Trail
Jacksonville, Florida 32256-8280
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
COMMON STOCK PURCHASE RIGHTS
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(Title of Class)
AMERICAN STOCK EXCHANGE
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Name of each exchange on which each class
is to be registered
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
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Item 1. Description of Securities to be Registered.
On September 30, 1990, the Board of Directors (the "Board") of Koger
Equity, Inc. (the "Company") declared a dividend of one Common Stock purchase
right (a "Right") for every outstanding share of the Company's common stock, par
value $.01 per share, (the "Common Stock"). The Rights were distributed to
stockholders of record as of the close of business on October 11, 1990 (the
"Dividend Record Date"). The terms of the Rights are set forth in a Common Stock
Rights Agreement, dated September 30, 1990, as amended and in effect from time
to time (the "Rights Agreement"), between the Company and Wachovia Bank and
Trust Company, N.A., the initial rights agent whose successor was First Union
National Bank of North Carolina, a national association, appointed pursuant to
the First Amendment to the Rights Agreement, dated as of March 22, 1993 (the
"First Amendment") whose successor is Norwest Bank Minnesota, National
Association (the "Rights Agent") appointed pursuant to the Fifth Amendment to
the Rights Agreement, dated as of November 23, 1999 (the "Fifth Amendment"). The
Rights Agreement provided for the issuance of one Right for every share of
Common Stock issued and outstanding on the Dividend Record Date and for each
share of Common Stock which was or is issued after that date and prior to the
"Distribution Date" (as defined below).
Each Right entitles the holder to purchase from the Company one share
of Common Stock at a price of $50 per share, subject to adjustment. The Rights
will expire on September 30, 2000 (the "Expiration Date"), or the earlier
redemption of the Rights, and are not exercisable until the Distribution Date.
No separate Rights certificates have been issued. Until the
Distribution date (or earlier redemption or expiration of the Rights), (i) the
Rights are evidenced by the Common Stock certificates and are transferred with
and only with such Common Stock certificates, (ii) new Common Stock certificates
issued after the Dividend Record Date upon transfer or new issuance of the
Company's Common Stock contained a notation incorporating the Rights Agreement
by reference and (iii) the surrender for transfer of any of the Company's Common
Stock certificates also constitutes the transfer of the Rights associated with
the Common Stock represented by such certificate.
The Rights will separate from the Common Stock and Rights certificates
will be issued on the Distribution Date. Unless otherwise determined by a
majority of the Continuing Directors (as defined below), the Distribution Date
will occur on the earlier of (i) the fifteenth business day following the later
of the date of a public announcement that a person, including affiliates or
associates or associates of such person (an "Acquiring Person"), except as
described below, has acquired or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock or the date
on which an executive officer of the Company has actual knowledge that an
Acquiring Person became such (the "Stock Acquisition Date") or (ii) the
fifteenth business day following commencement of a tender offer or exchange
offer that would result in any person or its affiliates and associates owning
15% or more of the Company's outstanding Common Stock. In any event, the Board
of Directors may delay the distribution of the certificates. After the
Distribution Date, separate certificates evidencing the Rights ("Rights
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Certificates") will be mailed to holders of record of the Company's Common Stock
as of the close of business on the Distribution Date and such separate Rights
Certificates alone will evidence the Rights. "Continuing Director" shall mean
any director of the Company who was either (i) a Director prior to the time a
Person becomes an Acquiring Person and is not an Affiliate of such Person or
(ii) nominated for his or her term of office by a majority of the Continuing
Directors in office at the time of such nomination.
Pursuant to the Second Amendment to the Koger Equity, Inc. Common Stock
Rights Agreement, dated as of December 21, 1993, (the "Second Amendment"), TCW
Special Credits, a California general partnership, the TCW Group, Inc. and their
Affiliates (collectively "TCW") would not be considered an Acquiring Person, and
would be an "Exempt Person", but only so long as TCW is the Beneficial Owner of
shares of Common Stock outstanding in an amount not in excess of an aggregate of
the higher of (i) 23% of the shares of Common Stock then outstanding and (ii)
4,047,350 shares of Common Stock, as adjusted for any stock splits, stock
dividends or other recapitalizations of the Company on or after December 21,
1993. Pursuant to Amendment No. 3 to the Rights Agreement, dated as of October
10, 1996 (the "Third Amendment"), collectively (a) AP-KEI Holdings, LLC, a
Delaware limited liability company ("Apollo"), and its Affiliates (as defined in
the Stock Purchase Agreement dated as of October 10, 1996, as amended and in
effect from time to time (the "Stock Purchase Agreement") between the Company
and Apollo) would not be considered an Acquiring Person, and would be an "Exempt
Person", but only so long as neither Apollo nor any of its Affiliates (as
defined in the Stock Purchase Agreement) is the Beneficial Owner (as defined in
the Stock Purchase Agreement) of any Prohibited Security (as defined in the
Stock Purchase Agreement) and (b) any person who is an Affiliate of Apollo to
the extent that such Affiliate would be an Acquiring Person as a result of
Beneficially Owning any Permitted Securities (as defined in the Stock Purchase
Agreement) will not be considered an Acquiring Person and shall be an Exempt
Person. Pursuant to the Fourth Amendment to Common Stock Rights Agreement dated
as of February 27, 1997 (the "Fourth Amendment"), if any Exempt Person described
in the immediately preceding sentence (each an "Apollo Exempt Person") (1)
pledges any Permitted Securities to one or more financial institutions described
in the Rights Agreement (the "Permitted Assignees") and (2) any such Permitted
Assignee purchases any such Permitted Securities in connection with any
foreclosure proceedings, then (A) each Apollo Exempt Person shall immediately
and automatically cease to be an Exempt Person and (B) such Permitted Assignees,
collectively, shall be deemed to be an Exempt Person, but only so long as none
of such Permitted Assignees is the Beneficial Owner of any Prohibited Security.
(The Fourth Amendment also sets forth in their entirety certain definitions set
forth in the Stock Purchase Agreement and cross-referenced in the Third
Amendment.) According to Company records, at November 22, 1999, the TCW Group,
Inc. and its affiliates beneficially own less than 5% of the outstanding Common
Stock. At November 23, 1999, Apollo and its Affiliates beneficially own
approximately 21.5% of the outstanding Stock with the right to acquire an
additional 3.5% or in the aggregate 25% of the outstanding Common Stock either
from the Company or in the market at the option of the Company which holdings
would be Permitted Securities (as defined in the Stock Purchase Agreement). In
addition, any employee benefit plan of the Company will not be considered an
Acquiring Person.
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Under the provisions described above, the continued holding of such
shares by Exempt Persons will not cause the Rights to be exercisable. Any
transfer of shares held by an Exempt Person to a third party who, after such
transfer, beneficially owns 15% or more of the outstanding shares of Common
Stock would cause the Rights to become exercisable, except in the case of a
foreclosure by a pledgee of Apollo or its Affiliates of Permitted Securities if
such pledgee purchases the securities at the foreclosure sale. In addition, any
institution of a tender or exchange offer by an Exempt Person would also trigger
the exercisability of the Rights.
If, at any time after the Stock Acquisition Date, the Company were
acquired in a merger or other business combination, or more than 25% of its
assets or earning power were sold, each holder of a Right would have the right
to exercise such Right and thereby receive common stock of the acquiring company
with a market value of two times the exercise price of the Right. For example,
if the exercise price is $50, the holder of each Right would be entitled to
receive $100 in market value of the acquiring company's common shares (e.g., 10
shares if the per share market value is $10) for $50. Also, in the event that
(i) any person or group or affiliated or associated persons (other than the
Company, its subsidiaries, employee benefit plans and an Exempt Person) shall
become an Acquiring Person, or (ii) an Acquiring Person engages in one of a
number of self-dealing transactions specified in the Rights Agreement, each
holder of a Right will, upon payment of the exercise price, have the right to
receive shares of the Company's Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a market value of two
times the exercise price of the Right. If the exercise price is $50, the holder
of each right would be entitled to receive $100 in market value of the Company's
common stock for $50. Following the occurrence of any of the events described in
this paragraph (as defined in the Rights Agreement, a "Common Stock Event"), any
rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person (or any affiliates,
associates or transferees of any Acquiring Person) shall immediately become null
and void.
The Board may, at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Rights for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of declaration of the
Rights (such exchange ratio being hereinafter referred to as the "Exchange
Ratio"). The Board, however, may not effect an exchange at any time after any
person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary, any entity holding Common
Stock for or pursuant to the terms of any such plan or any Exempt Person),
together with all affiliates of such Person, becomes the beneficial owner of 50%
or more of the Common Stock then outstanding. Immediately upon the action of the
Board ordering the exchange of any Rights and without any further action and
without any notice, the right to exercise such Rights will terminate and the
only right thereafter of a holder of such Rights will be to receive that number
of shares of Common Stock equal to the number of such Rights held by the holder
multiplied by the Exchange Ratio.
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The exercise price of the Rights, and the number of whole or fractional
shares of the Common Stock or other securities or property issuable upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe for shares of the Common
Stock or convertible securities at less than the current market price of the
Common Stock of evidences of indebtedness or assets (excluding cash dividends
paid out of the earnings or retained earnings of the Company and certain other
distributions) or of subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustments in the exercise price of the
Rights will be required until cumulative adjustments equal at least 1% in such
price. The Company is not obligated to issue fractional shares of any securities
upon the exercise of the Rights and, in lieu thereof, at the election of the
Company, an adjustment in cash may be made based on the market price of such
securities on the last trading date prior to the date of exercise.
At any time prior to the Expiration Date, the Company, by a majority
vote of the Continuing Directors then in office, may redeem the Rights at a
redemption price of $.01 per Right (the "Redemption Price"), as described in the
Rights Agreement. Immediately upon the action of the Continuing Directors
electing to redeem the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
Neither the distribution of the Rights nor the subsequent separation of
the Rights on the Distribution Date will be a taxable event for the Company or
its stockholders. Holders of Rights may, depending upon the circumstances,
recognize taxable income upon the occurrence of a Common Stock Event. In
addition, holders of Rights may have taxable income as a result of (i) an
exchange by the Company of shares of Common Stock for Rights as described above
or (ii) certain anti-dilution adjustments made to the terms of the Rights after
the Distribution Date. A redemption of the Rights would be a taxable event to
holders.
The Rights Agreement may be amended by the Continuing Directors at any
time prior to the Distribution Date without the approval of the holders of the
Rights, provided, however no amendment may prejudice the rights of an Exempt
Person. From and after the Distribution Date, the Rights Agreement may be
amended without the approval of the holders of the Rights in order to cure any
ambiguity, to correct any defective or inconsistent provisions, to change any
time period for redemption or any other time period under the Rights Agreement
or to make any other changes that do not adversely affect the interests of the
holders of the Rights (other than any Acquiring Person or its affiliates,
associates or transferees).
As of November 22, 1999, there were 26,771,869 shares of Common Stock
outstanding. Each share of Common Stock outstanding on the Dividend Record Date
received one Right. As
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long as the Rights are attached to the Common Stock, the Company has issued and
will issue one Right with each newly issued share of Common Stock so that all
shares of Common Stock outstanding on the Distribution Date will have attached
Rights.
The exercise of the Rights may have certain anti-takeover effects. The
Rights distribution will not be dilutive of shareholder's ownership of the
Company and will not affect reported earnings per share. The Company will
receive no proceeds from the distribution of the Rights.
The Rights Agreement (including as exhibits thereto the form of Rights
Certificate and the Summary of Rights), the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, and Fifth Amendment are
attached hereto as exhibits hereto and are hereby incorporated herein by
reference. The foregoing description of the Rights does not purport to be
complete and therefore is qualified in its entirety by reference to such
exhibits.
Item 2. Exhibits.
The exhibits which are filed with this amendment are set forth in the
Exhibit Index which appears at pages 8 and 9 hereof.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
KOGER EQUITY, INC.
Date: November 23, 1999 By: /s/ W. Lawrence Jenkins
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W. Lawrence Jenkins
Vice President/Administration
and Corporate Secretary
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EXHIBIT INDEX
The following designated exhibits are filed herewith:
Exhibits
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1. Common Stock Rights Agreement,
dated as of September 30, 1990 (the "Rights
Agreement"), between the Koger Equity, Inc.
(the "Company") and Wachovia Bank and
Trust Company, N.A. as Rights Agent.(1)
2. Form of Common Stock Purchase Rights Certificate
(attached as Exhibit A to the Rights Agreement).
Pursuant to the Rights Agreement, printed Common
Stock Purchase Rights Certificates will not be mailed
until the Distribution Date (as defined in the Rights
Agreement).(1)
3. Summary of Common Stock Purchase Rights (attached as
Exhibit B to the Rights Agreement).(1)
4. First Amendment to Koger Equity, Inc. Common Stock
Rights Agreement, dated as of March 22, 1993, between
the Company and First Union National Bank of North
Carolina, a national association, as successor Rights
Agent ("First Union").(2)
5. Second Amendment to Koger Equity, Inc. Common Stock
Rights Agreement, dated as of December 21, 1993,
between the Company and First Union.(2)
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(1) Filed with original Form 8-A
(2) Filed with amendment on Form 8-A/A,
dated December 21, 1993
(3) Filed with Amendment on Form 8-A/A,
dated November 7, 1996
(4) Filed with Amendment on Form 8-A/A,
dated March 17, 1997
(5) Filed herewith
EXHIBIT INDEX (Continued)
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Exhibits
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6. Amendment No. 3 to Rights Agreement, dated
as of October 10, 1996, between the Company
and First Union.(3)
7. Stock Purchase Agreement, dated as of October
10, 1996, between the Company and AP-KEI
Holdings, LLC.(3)
8. Fourth Amendment to Common Stock Rights Agreement,
dated as of February 27, 1997, between the Company
and First Union.(4)
9. Amendment No. 1 to Stock Purchase Agreement,
dated as of February 27, 1997, between the
Company and AP-KEI Holdings, LLC.(4)
10. Assignment and Assumption Agreement, dated as of
February 27, 1997, among the Company, AP-KEI
Holdings, LLC and AREIF Realty Trust, Inc.(4)
11. Fifth Amendment to Rights Agreement, dated as of
November 23, 1999, between the Company and Norwest
Bank Minnesota, National Association, as successor
Rights Agent(5)
</TABLE>
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(1) Filed with original Form 8-A
(2) Filed with amendment on Form 8-A/A,
dated December 21, 1993
(3) Filed with Amendment on Form 8-A/A,
dated November 7, 1996
(4) Filed with Amendment on Form 8-A/A,
dated March 17, 1997
(5) Filed herewith
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EXHIBIT 11
FIFTH AMENDMENT TO KOGER EQUITY, INC.
COMMON STOCK RIGHTS AGREEMENT
DATED AS OF NOVEMBER 23, 1999
This Fifth Amendment to the Common Stock Rights Agreement dated as of
November 23, 1999 (the "Amendment"), is between Koger Equity, Inc., a Florida
corporation (the "Company") and Norwest Bank Minnesota, National Association
("Norwest"), and amends the Common Stock Rights Agreement dated as of September
30, 1990 (as amended and in effect on the date hereof, prior to giving effect to
the Amendment, the "Amended Rights Agreement").
W I T N E S S E T H:
WHEREAS, on September 30, 1990, the Company entered into a rights
agreement (the "Rights Agreement") with the Wachovia Bank and Trust Company,
N.A., a national banking association, as Rights Agent under the Rights Agreement
authorizing the issuance of rights to purchase on the terms and subject to the
provisions of the Rights Agreement, shares of the Company's Common Stock; and
WHEREAS, on March 22, 1993, the Company entered into the First
Amendment to the Rights Agreement with First Union National Bank of North
Carolina, a national banking association ("First Union"), as successor Rights
Agent; and
WHEREAS, pursuant to Section 21 of the Rights Agreement, First Union
has advised the Company that it desires to resign as Rights Agent under the
Amended Rights Agreement; and
WHEREAS, Norwest has agreed to become the Rights Agent under the
Amended Rights Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises
herein set forth and other good and valid consideration the sufficiency hereof
and thereof being hereby acknowledged, the parties hereto hereby agree as
follows:
1. The Company does hereby appoint Norwest as the Rights Agent
under the Amended Rights Agreement to be the successor to
First Union, the successor Rights Agent named under the First
Amendment to the Rights Agreement, and Norwest does hereby
accept the appointment as Rights Agent under the Amended
Rights Agreement and agrees to all of the provisions contained
in the Amended Rights Agreement and to perform all of
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the duties and other acts and assume all of the obligations
and responsibilities which may be required of it as Rights
Agent under the Amended Rights Agreement except that the
Amended Rights Agreement shall be amended as follows:
(a) In Section 3(c), the reference in the legend contained therein
to First Union National Bank of North Carolina, a national
banking association, as Rights Agent under the Rights
Agreement, is hereby deleted and substituted therefore is
Norwest Bank Minnesota, National Association, as the Rights
Agent under the Amended Rights Agreement.
(b) In Section 26 concerning the notice to the Rights Agent, the
reference to First Union National Bank of North Carolina, Two
First Union Center, M-12, 301 South Tryon Street, Charlotte,
North Carolina 28288-1154, Attention: Shareholder Services
Group, is hereby deleted, and substituted therefore is the
following:
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<CAPTION>
Mailing Address: Street (or Courier) Address:
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Norwest Bank Minnesota, N.A. Norwest Bank Minnesota, N.A.
Shareowner Services Shareowner Services
P. O. Box 64854 161 North Concord Exchange
St. Paul, MN 55164-0854 South St. Paul, MN 55075
</TABLE>
(c) In the Form of Rights Certificate which is Exhibit A to the
Rights Agreement, the references to First Union National Bank
of North Carolina as the Rights Agent and as the
Counter-signatory are hereby deleted and substituted therefore
is the Norwest Bank Minnesota, National Association.
2. Except for the amendments set forth in paragraph 1 of this
Agreement, all of the provisions, covenants, rights and
obligations contained in the Amended Rights Agreement shall
continue in full force and effect and be binding upon the
parties hereto the same as though they were contained in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and set their respective hands and seals all as of the
date and year first above written.
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KOGER EQUITY, INC.
By: /s/ W. Lawrence Jenkins
---------------------------------
W. Lawrence Jenkins
Vice President/Administration
and Corporate Secretary
Attest:
By: /s/ Mary H. McNeal
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Title: Assistant Secretary
NORWEST BANK MINNESOTA, N.A.,
As Rights Agent
/s/ Nancy J. Rosengren
By:
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Nancy J. Rosengren
Title: Vice President
Attest:
By: /s/ Susan J. Roeder
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Title: Assistant Secretary
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