<PAGE> 1
EXHIBIT 10(a)(5)
STOCK PURCHASE AND
LOAN AGREEMENT
BETWEEN
THOMAS J. CROCKER
("CROCKER")
AND
KOGER EQUITIES, INC.,
A FLORIDA CORPORATION
(THE "COMPANY")
DATED AS OF FEBRUARY 17, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS....................................................................................................1
SECTION 1.1 DEFINITIONS. .....................................................................................1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS......................................................................4
ARTICLE II PURCHASE OF LOAN STOCK AND AMOUNT AND TERMS OF THE STOCK PURCHASE LOAN...............................5
SECTION 2.1 PURCHASE OF LOAN STOCK ............................................................................5
SECTION 2.2 THE STOCK PURCHASE LOAN............................................................................8
SECTION 2.3 INTENT NOT TO COMMIT USURY........................................................................10
SECTION 2.4 USE OF PROCEEDS...................................................................................10
ARTICLE III SECURITY FOR THE STOCK PURCHASE LOAN...............................................................10
SECTION 3.1 SECURITY INTEREST.................................................................................10
SECTION 3.2 SECURITY DOCUMENTS................................................................................10
SECTION 3.3 FILING AND RECORDING..............................................................................10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................11
SECTION 4.1 DUE AUTHORIZATION; ENFORCEABILITY.................................................................11
SECTION 4.2 FEDERAL REGULATION................................................................................11
ARTICLE V CROCKER'S COVENANTS..................................................................................11
SECTION 5.1 TAXES AND CLAIMS..................................................................................11
SECTION 5.2 PAY INDEBTEDNESS TO THE COMPANY AND PERFORM OTHER COVENANTS.......................................12
ARTICLE VI COVENANTS OF THE COMPANY............................................................................12
SECTION 6.1 PLAN SHARES.......................................................................................12
SECTION 6.2 REGISTRATION OF PLAN SHARES AND DIRECT PURCHASE SHARES............................................12
SECTION 6.3 SALE OF PLAN SHARES...............................................................................12
ARTICLE VII EVENTS OF DEFAULT..................................................................................13
SECTION 7.1 EVENTS OF DEFAULT.................................................................................13
SECTION 7.2 WAIVER OF DEFAULT.................................................................................13
ARTICLE VIII REMEDIES FOR EVENTS OF DEFAULT....................................................................14
SECTION 8.1 REMEDIES FOR EVENTS OF DEFAULT....................................................................14
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 8.2 ACTION FOR ENFORCEMENT............................................................................14
SECTION 8.3 SALE OF COLLATERAL ...............................................................................14
SECTION 8.4 RIGHTS AND REMEDIES CUMULATIVE....................................................................14
ARTICLE IX FEES AND PAYMENTS...................................................................................15
SECTION 9.1 COSTS, TAXES AND ATTORNEYS' FEES..................................................................15
ARTICLE X MISCELLANEOUS........................................................................................15
SECTION 10.1 NOTICES..........................................................................................15
SECTION 10.2 ATTORNEYS' FEES..................................................................................16
SECTION 10.3 SEVERABILITY.....................................................................................16
SECTION 10.4 COUNTERPARTS.....................................................................................17
SECTION 10.5 INTERPRETATION...................................................................................17
SECTION 10.6 CONFLICT.........................................................................................17
SECTION 10.7 HEADINGS.........................................................................................17
SECTION 10.8 JURISDICTION AND VENUE...........................................................................17
SECTION 10.9 AMENDMENTS.......................................................................................18
SECTION 10.10 GOVERNING LAW; BENEFIT..........................................................................18
EXHIBIT "A"
CERTIFICATE AND LOAN ADVANCE REQUEST..........................................................................20
</TABLE>
ii
<PAGE> 4
STOCK PURCHASE AND
LOAN AGREEMENT
THIS STOCK PURCHASE AND LOAN AGREEMENT (this "Agreement") is entered
into as of this 17th day of February, 2000 (the "Effective Date") between KOGER
EQUITY, INC., a Florida corporation, having a place of business at 8880 Freedom
Crossing Trail, Jacksonville, Florida 32256 (the "Company") and THOMAS J.
CROCKER, whose address is 3580 Polo Drive, Gulf Stream, Florida 33483
("Crocker").
RECITALS:
A. The Company and Crocker have entered into an Employment
Agreement, dated as of February 17th, 2000 (the "Employment Agreement"),
pursuant to which Crocker has been hired by the Company to serve as the
Company's chief executive officer.
B. Pursuant to Section 3(c) of the Employment Agreement, the
Company has agreed to lend Crocker certain funds in connection with certain
optional purchases by Crocker of up to a maximum of 500,000 shares of the
Company's Common Stock (the "Loan Stock").
C. Pursuant to a repurchase plan adopted by resolution of the
Board of Directors of the Company, the Company intends to repurchase
approximately 2,650,000 shares of the Company's Common Stock (the "Repurchase
Plan").
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, conditions,
representations and warranties hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 DEFINITIONS.
As used in this Agreement, the Exhibits and Schedules attached hereto,
if any, and in any Loan Document executed in connection herewith, the following
terms shall have the following meanings unless the context otherwise requires:
"25% RECOURSE NOTE" means each 25% Recourse Note in the form of
Exhibit B hereto.
<PAGE> 5
"ACCOUNT" means securities account number 040-21651 at Bear, Stearns
Securities Corp., where all Loan Stock shall be deposited and held subject to
the terms hereof.
"AGREEMENT" shall mean this Stock Purchase and Loan Agreement, as the
same may be amended, supplemented or otherwise modified from time to time by an
agreement in writing signed by Crocker and the Company.
"BUSINESS DAY" shall mean a day other than Saturday, Sunday or other
day on which commercial banks in Palm Beach County, Florida are authorized or
required by law to close.
"CLOSING" shall mean the execution and delivery of this Agreement by
the parties hereto.
"CLOSING DATE" shall mean the date on which the Closing takes place.
"COLLATERAL" means (i) the Pledged Shares; (ii) the Account, all funds,
Financial Assets and Investment Property therein and all certificates and
instruments from time to time representing or evidencing the Account or any
funds, securities, investments, Financial Assets, Investment Property or other
property deposited and held in the Account (including, without limitation, all
Pledged Shares deposited in the Account) and all other property or rights
assigned or allocable to the Account; (iii) all notes, certificates of deposit,
deposit amounts, checks and other investments from time to time hereafter
delivered to or otherwise possessed by Crocker in substitution for any or all
of the foregoing; (iv) all interest, cash, instruments and other property from
time to time received, receivable, or distributed in respect of any or all of
the foregoing; (v) all Security Entitlements of Crocker in or with respect to
any and all of the foregoing; (vi) all rights of Crocker under the Control
Agreement; and (vii) all proceeds of any and all of the foregoing.
"COMMON STOCK" means the Company's Common Stock, $.01 par value.
"COLLATERAL SECURITY AGREEMENT" means the Collateral Security
Agreement, dated as of even date herewith, between Crocker and the Company.
"CONTROL AGREEMENT" shall mean the Account Control Agreement, dated as
of even date herewith, among Crocker, the Company and Bear, Stearns Securities
Corp.
"DIRECT PURCHASE" has the meaning set forth in Section 2.1(B)(ii)
hereof.
"DIRECT PURCHASE LIMIT" has the meaning set forth in Section 2.1(B)(ii)
hereof.
"DOLLARS" AND "$" shall mean dollars in lawful currency of the United
States of America.
"ENTITLEMENT ORDER" shall have the meaning set forth in Section
678.1021 of the Uniform Commercial Code.
"EVENT OF DEFAULT" shall mean any of the events specified in Section
7.1 hereof.
2
<PAGE> 6
"FAIR MARKET VALUE" of a share of Repurchased Common Stock on any
date of reference shall mean the "Closing Price" (as defined below) of the
Common Stock on the business day immediately preceding such date. For the
purpose of determining Fair Market Value, the "Closing Price" of the Common
Stock on any business day shall be (i) if the Common Stock is listed or
admitted for trading on any United States national securities exchange, or if
actual transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of Common Stock on such exchange
or reporting system, as reported in any newspaper of general circulation, (ii)
if the Common Stock is quoted on the National Association of Securities Dealers
Automated Quotations System ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices in common use, the mean
between the closing high bid and low asked quotations for such day of Common
Stock on such system, (iii) if neither clause (i) or (ii) is applicable, the
mean between the high bid and low asked quotations for the Common Stock as
reported by the National Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least five of the ten preceding days, or (iv) if neither clause (i), (ii)
or (iii) are applicable, the fair market value of the Common Stock shall be
determined by the Company's Board of Directors.
"FINANCIAL ASSET" shall have the meaning set forth in Section 678.1021
of the Uniform Commercial Code.
"INTERIM PURCHASE" shall have the meaning set forth in Section
2.1(B)(ii) hereof.
"INVESTMENT PROPERTY" shall have the meaning set forth in Section
679.115 of the Uniform Commercial Code.
"LOAN" means the Stock Purchase Loan.
"LOAN ADVANCE REQUEST" means the Certificate and Loan Advance Request
in the form of Exhibit A hereto.
"LOAN DOCUMENTS" shall mean this Agreement, each Note, the Collateral
Security Agreement, the Control Agreement and all other documents, agreements,
instruments or certificates delivered to the Company in connection with the
Loan (whether at, prior to or after the Closing).
"LOAN STOCK" has the meaning set forth in the Recitals.
"LOAN TO VALUE RATIO" has the meaning set forth in Section 2.1(B)(iv)
hereof.
"NO RECOURSE NOTE" means each No Recourse Note in the form of Exhibit
C hereto.
"NOTE" means each 25% Recourse Note and each No Recourse Note.
"OPEN MARKET PURCHASES" has the meaning set forth in Section
2.1(B)(ii) hereof.
3
<PAGE> 7
"PLAN" means the Koger Equity, Inc. 1998 Equity and Cash Incentive
Plan.
"PLAN PURCHASES" has the meaning set forth in Section 2.1(B)(i) hereof.
"PLEDGED SHARES" shall mean all shares of Loan Stock purchased by
Crocker the purchase of which is funded in whole or in part by the Company
pursuant to the terms hereof.
"RECONCILIATION DATE" has the meaning set forth in Section 2.1(B)(iv)
hereof.
"REPURCHASED COMMON STOCK" has the meaning set forth in Section
2.1(B)(ii) hereof.
"SECURITY DOCUMENTS" shall have the meaning set forth in Section 3.3
hereof.
"SECURITY ENTITLEMENT" shall have the meaning set forth in Section
678.1021 of the Uniform Commercial Code.
"SHARE CAP" has the meaning set forth in Section 2.1(A) hereof.
"STOCK PURCHASE EXPENSES" shall mean all costs and expenses incurred
by Crocker, if any, in the acquisition of the Loan Stock, whether by Open
Market Purchases or Direct Purchases, including with respect to Open Market
Purchases all brokerage commissions and fees.
"STOCK PURCHASE LOAN" shall mean the facility described in Section 2.1
hereof the proceeds of which shall be used by Crocker to purchase the Loan
Stock and pay all Stock Purchase Expenses.
"STOCK PURCHASE LOAN INTEREST RATE" means the interest rate set forth
in the Notes.
"SUBSEQUENT PLAN PURCHASES" has the meaning set forth in Section
2.1(B)(iii) hereof.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted
in the State of Florida and in effect from time to time.
SECTION I.2 OTHER DEFINITIONAL PROVISIONS
4
<PAGE> 8
(a) All of the terms defined in this Agreement shall have
such defined meanings when used in other documents issued under, or delivered
pursuant to, this Agreement unless the context shall otherwise require; (b) all
terms defined in this Agreement in the singular shall have comparable meanings
when used in the plural, and vice versa; (c) accounting terms to the extent not
otherwise defined shall have the respective meanings given them under, and
shall be construed in accordance with, GAAP; (d) the words "hereby," "hereto,"
"hereof," "herein," "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; and (e) whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
heirs, personal representatives, participants, successors and assigns of such
parties unless the context shall expressly provide otherwise.
ARTICLE II
PURCHASE OF LOAN STOCK AND
AMOUNT AND TERMS OF THE STOCK PURCHASE LOAN
SECTION II.1 PURCHASE OF LOAN STOCK
(A) Generally. Pursuant to the Employment Agreement, the Company
has agreed to provide Crocker with the Stock Purchase Loan to enable Crocker to
purchase the Loan Stock. The total maximum number of shares of Loan Stock that
the Company will finance pursuant to the Stock Purchase Loan is 500,000 shares
of Common Stock ("Share Cap"). If there shall occur any recapitalization,
reclassification, stock dividend, stock split, reverse stock split, or other
distribution with respect to such shares, or any other change in the corporate
structure affecting the quantity of such shares, the Share Cap shall be
equitably adjusted to preserve Crocker's right to purchase the maximum number
of shares originally contemplated by this Agreement.
(B) Method of Purchases. Crocker shall have the right, in
Crocker's sole and absolute discretion, to purchase any number of shares of
Loan Stock (up to the Share Cap), in the following manner:
(i) Plan Purchases. As of the date hereof, 198,700 shares
of Common Stock are reserved for issuance pursuant to the Plan, up to 149,025
shares of which may be purchased by Crocker. In the event that Crocker elects
to purchase all or any part of such Common Stock as Loan Stock pursuant to the
Plan ("Plan Purchases"), the Company shall, upon the execution and delivery by
Crocker of a Loan Advance Request, lend to Crocker, pursuant to the Plan, an
amount equal to one hundred percent (100%) of the purchase price of such shares
of Loan Stock, plus applicable Stock Purchase Expenses, if any. All Loan Stock
so purchased shall be deposited in the Account and shall be subject to the
terms of the Loan Documents and the other Security Documents.
(ii) Interim Purchases. In the event that Crocker shall
opt to purchase Loan Stock other than pursuant to the Plan or any successor plan
thereto (each such purchase, an "Interim Purchase"), upon the execution and
delivery by Crocker of a Loan Advance Request, the Company
5
<PAGE> 9
shall lend to Crocker, an amount equal to fifty percent (50%) of the purchase
price of such shares of Loan Stock, plus applicable Stock Purchase Expenses, if
any. Interim Purchases may be effected by open market purchases via Crocker's
own securities broker or through private negotiations between Crocker and a
third-party (each such purchase being an "Open Market Purchase"). Interim
Purchases may also be effected by direct purchases of Loan Stock from the
Company (a "Direct Purchase") following any purchase by the Company of its
Common Stock pursuant to the Repurchase Plan. The Company shall immediately
notify Crocker of each repurchase of Common Stock under the Repurchase Plan or
otherwise (a "Notification of Common Stock Repurchase"), which notification
shall specify in writing the number of shares of Common Stock so repurchased
("Repurchased Common Stock"). Provided that Crocker shall provide notice to the
Company of his intent to purchase a number of shares of such Repurchased Common
Stock (which number shall not exceed twenty five percent (25%) of such
Repurchased Common Stock (the "Direct Purchase Limit")) on the date of
Crocker's receipt of such Notification of Common Stock Repurchase, the Company
shall sell to Crocker on such date such number of shares of Repurchased Common
Stock at the price per share paid by the Company for such shares of Repurchased
Common Stock (excluding all of the Company's fees, costs and expenses
associated with effecting such repurchase). In the event that Crocker fails for
any reason to deliver such notice to the Company on the date of any such
repurchase, Crocker may, within fifteen (15) Business Days after Crocker's
receipt of a Notification of Common Stock Repurchase and by written notice to
the Company, elect to purchase from the Company a number of shares of such
Repurchased Common Stock (not to exceed the Direct Purchase Limit) at a price
per share equal to the Fair Market Value per share on the date that Crocker
delivers such notice to the Company. Any notice to be delivered by Crocker
under this Section 2.1(B)(ii) shall specify the total number of shares Crocker
elects to purchase up to the Direct Purchase Limit (which amount, together with
any previously purchased Loan Stock, may not exceed the Share Cap), and shall
provide such other information as is reasonably necessary for the Company to
transfer such shares to Crocker. Upon receipt of such notice, the Company shall
take all action necessary to properly transfer such Repurchased Common Stock
purchased by Crocker to Crocker and to register Crocker as the owner of same.
All Loan Stock so purchased by Crocker (including all shares of Loan Stock
purchased in part with Crocker's own funds and whether purchased in an Open
Market Purchase or as a Direct Purchase) shall be deposited in the Account and
shall be subject to the terms of the Loan Documents and the other Security
Documents.
(iii) Subsequent Plan Purchases. A minimum of one million
(1,000,000) additional shares of Common Stock will be reserved for issuance
under the Plan (or a successor plan) upon the approval of the Company's
shareholders. In the event that Crocker elects to purchase additional Loan
Stock pursuant to the Plan (or a successor plan) ("Subsequent Plan Purchases"),
the Company shall, upon the execution and delivery by Crocker of a Loan Advance
Request, lend to Crocker, pursuant to the Plan (or such successor plan), an
amount up to one hundred percent (100%) of the purchase price of such shares of
Loan Stock, plus applicable Stock Purchase Expenses, if any. All Loan Stock so
purchased shall be deposited in the Account and shall be subject to the terms
of the Loan Documents and the other Security Documents.
(iv) Reconciliation of Loan to Value.
6
<PAGE> 10
(a) Payments by Crocker. In the event that the
aggregate amount loaned by the Company to Crocker in connection with the
purchase of Loan Stock (whether purchased as a Plan Purchase, an Interim
Purchase or a Subsequent Plan Purchase) shall, on September 1, 2001 (the
"Reconciliation Date"), exceed seventy-five percent (75%) of the aggregate
purchase price of the Loan Stock purchased as of the Reconciliation Date (the
"Loan to Value Ratio"), Crocker shall promptly pay to the Company such amounts
in reduction of the principal amount of the Loan as shall cause the Loan to
Value Ratio to be less than or equal to seventy-five percent (75%).
(b) Payments by Company. In the event that the
aggregate amount of Crocker's own funds paid by Crocker in connection with the
purchase of Loan Stock hereunder (whether purchased as a Plan Purchase, an
Interim Purchase or a Subsequent Plan Purchase) shall, on the Reconciliation
Date, exceed twenty-five percent (25%) of the aggregate purchase price of the
Loan Stock purchased as of the Reconciliation Date, the Company shall (i)
forgive such portion of the aggregate principal amount of the 25% Recourse Note
as shall cause the notional amount paid by Crocker toward the purchase of all
Loan Stock to equal twenty-five percent (25%) of the aggregate purchase price
thereof and (ii) promptly pay to Crocker such amounts as shall be necessary to
compensate Crocker for any income taxes imposed upon Crocker as a result of
such forgiveness of loan principal.
(C) Method of Payment. Crocker shall pay for purchases of Loan
Stock as follows:
(i) Payment for Plan Purchases. Crocker shall pay for all
Plan Purchases of Loan Stock from the Company within three (3) Business Days
after Crocker receives written notice from Crocker's broker that the applicable
number of shares of Loan Stock have been transferred by the Company to
Crocker's brokerage account. Payment for Plan Purchases of Loan Stock will be
made by Crocker's execution and delivery of a Loan Advance Request to the
Company in a principal amount equal to the aggregate purchase price of the Loan
Stock being purchased. The Company shall pay for any Stock Purchase Expenses.
(ii) Payment for Open Market Purchases. Crocker shall pay
for all Open Market Purchases of Loan Stock by: (i) wire transferring directly
to Crocker's broker or a third-party, as the case may be, fifty percent (50%)
of the aggregate purchase price for such shares of Loan Stock being purchased,
(ii) the Company advancing to Crocker an amount equal to fifty percent (50%) of
the aggregate purchase price of such shares, plus Stock Purchase Expenses (the
"Draw Amount") and (iii) Crocker's execution and delivery of a Loan Advance
Request to the Company in a principal amount equal to fifty percent (50%) of
the aggregate purchase price of the Loan Stock being purchased (plus Stock
Purchase Expenses). The Company shall wire transfer the Draw Amount to
Crocker's broker or such third-party, as the case may be, within one (1)
Business Day after receiving written notice from Crocker containing: (a) the
total number of shares of Loan Stock being purchased; (b) the aggregate
purchase price for all such shares of Loan Stock being purchased; (c) evidence
confirming such purchase from Crocker's broker or third-party, as the case may
be; and (d) wire transfer instructions to the broker or such third-party, as
the case may be. The Company shall deliver all Draw Amounts directly to
Crocker's securities
7
<PAGE> 11
broker or such third-party, as the case may be, in accordance with such
broker's or such third-party's requirements.
(iii) Payment for Direct Purchases from Company. Crocker
shall pay for all Direct Purchases of Loan Stock from the Company within three
(3) Business Days after Crocker receives written notice from Crocker's broker
that the applicable number of shares of Loan Stock have been transferred by the
Company to the Account. Crocker shall pay for Direct Purchases of Loan Stock
by: (i) wire transferring directly to the Company fifty percent (50%) of the
aggregate purchase price of the shares of Loan Stock being purchased and (ii)
executing and delivery a Loan Advance Request to the Company in a principal
amount equal to fifty percent (50%) of the aggregate purchase price of the Loan
Stock being purchased. Any Stock Purchase Expenses shall be paid by the
Company.
(iv) Payment for Subsequent Plan Purchases. Crocker shall
pay for all Subsequent Plan Purchases of Loan Stock from the Company within
three (3) Business Days after Crocker receives written notice from Crocker's
broker that the applicable number of shares of Loan Stock have been transferred
by the Company to Crocker's brokerage account. Payment for Subsequent Plan
Purchases of Loan Stock will be made by (i) Crocker's execution and delivery of
a Loan Advance Request to the Company in a principal amount equal to the
Company funded portion of the of Loan Stock (plus Stock Purchase Expenses)
being purchased and (ii) Crocker wire transferring directly to the Company the
portion of the purchase price of the Loan Stock not being funded by the
Company. Any Stock Purchase Expenses shall be paid by the Company.
(D) Indemnification for Failure to Fund. The Company shall defend,
indemnify, and hold harmless Crocker from and against all claims, defense costs
(including reasonable attorneys' fees), judgments and other expenses arising
out of or in connection with a breach by the Company of any of its obligations
under Section 2.1(C) above, time being of the essence with respect to each such
obligation.
(E) Other Purchases. Notwithstanding anything herein to the
contrary, the Share Cap set forth herein is only applicable to shares of Loan
Stock purchased by Crocker, in whole or in part, with funds loaned to Crocker
by the Company and Crocker may purchase such of the Companies securities with
his own funds as he desires, without restriction by the Company, except as
provided by law.
SECTION II.2 THE STOCK PURCHASE LOAN
(A) The Stock Purchase Loan. Subject to the Share Cap and each of
the other terms, conditions and other requirements set forth in this Agreement
and in the Loan Documents, the Company agrees to lend Crocker (the "Stock
Purchase Loan") an amount equal to (i) one hundred percent (100%) of the total
purchase price of the Loan Stock purchased by Crocker in a Plan Purchase, (ii)
fifty percent (50%) of the total purchase price of the Loan Stock (plus any and
all Stock Purchase Expenses) purchased by Crocker in an Open Market Purchase,
in a Direct Purchase, or in a combination thereof and (iii) up to one hundred
percent (100%) of the total
8
<PAGE> 12
purchase price of the Loan Stock (plus any and all Stock Purchase Expenses)
purchased by Crocker in a Subsequent Plan Purchase. At the Closing, Crocker
shall execute and deliver to the Company the Collateral Security Agreement, the
Control Agreement, the 25% Recourse Note and the No Recourse Note. Each advance
under the Notes shall be funded following Crocker's execution and delivery to
the Company of a Loan Advance Request.
(B) Non-Recourse. Except as provided below, the Stock Purchase
Loan shall be non-recourse to Crocker such that the Company shall not seek to
enforce any monetary judgement with respect to the Stock Purchase Loan or any
sums due under any Note or any of the Loan Documents against Crocker,
individually, except through recourse to the Collateral and solely to the
Collateral. The non-recourse nature of the Stock Purchase Loan is a material
inducement to Crocker agreeing to accept employment under the Employment
Agreement and Crocker would not have agreed to accept such employment nor
borrow any funds from the Company under the Stock Purchase Loan, but for the
non-recourse nature of the Stock Purchase Loan. Notwithstanding the foregoing,
Crocker shall be individually liable for twenty five percent (25%) of the
amounts due under the 25% Recourse Note insofar as such amounts are advanced in
connection with a Plan Purchase or a Subsequent Plan Purchase.
(C) Interest Rate. The Stock Purchase Loan shall accrue interest,
at the Stock Purchase Loan Interest Rate, as provided in each Note. Interest
under each Note shall commence to accrue as of the date of disbursal or wire
transfer by the Company. When monies are disbursed by wire transfer, such
monies shall be considered advanced at the time of receipt thereof by the
receiving institution.
(D) Repayment and Term. The Stock Purchase Loan shall be repaid as
provided in each Note, which shall be generally as follows: quarterly payments
of accrued interest only shall be due on June 30, September 30, December 31 and
March 31 during each year during the term of the Loan and shall be paid within
thirty (30) days after the due date thereof, and all accrued interest and
outstanding principal shall be paid on the Maturity Date (as defined below).
The Stock Purchase Loan shall mature at the earlier of (the "Maturity Date"):
(i) ten (10) years from the date of this Agreement; or (ii) two (2) years
following termination of Crocker's employment by the Company under the
Employment Agreement with "Cause" pursuant to Section 4(C) of the Employment
Agreement.
(E) Prepayments and Sale of Loan Stock. The Stock Purchase Loan
may be prepaid, in whole or in part, any time without any penalty or premium.
Except for prepayments made by Crocker pursuant to Section 2.1(B)(iv) hereof,
prepayments shall first be applied to accrued interest, then to principal. At
any time Crocker shall have the right to sell all or any portion of the Loan
Stock constituting the Collateral provided that Crocker pays the Company the
"Per Share Release Price" from the proceeds derived from such sale. The "Per
Share Release Price" shall be an amount calculated by dividing the outstanding
principal amount of and accrued interest on the Stock Purchase Loan as of the
date of such sale by the total number of shares of Loan Stock subject to the
Collateral Security Agreement immediately prior to such sale.
9
<PAGE> 13
(F) Security. The Stock Purchase Loan shall be secured by the Loan
Stock pursuant to a Collateral Security Agreement, as more particularly
provided for in Article III below.
(G) Shareholder Rights. Crocker shall have all rights of a
stockholder with respect to the Loan Stock, including without limitation, the
right to vote such Loan Stock and the right to receive dividends; provided that
Crocker may not sell, transfer, assign, or hypothecate the Loan Stock or take
any action which would violate the terms of the Stock Pledge Agreement unless,
in respect of each share of such Loan Stock, Crocker has paid the Company the
Per Share Release Price described above.
SECTION II.3 INTENT NOT TO COMMIT USURY
Crocker does not intend or expect to pay, nor does the Company intend
or expect to charge, accept or collect, any interest under this Agreement, any
Note or any other Loan Document or other instrument executed in connection
herewith greater than the maximum legal rate of interest which may be charged
under applicable law. Should any event result in the computation or earning of
interest in excess of such maximum legal rate, any and all such excess shall be
refunded to Crocker. Notwithstanding anything to the contrary contained in this
Agreement, any Note or other Loan Document or instrument delivered in
connection herewith, the amount of interest due under the terms of this
Agreement, each Note, each other Loan Document or any other instrument shall in
no event exceed the maximum amount of interest permitted to be charged by law.
SECTION II.4 USE OF PROCEEDS
The proceeds of the Stock Purchase Loan shall be used by Crocker
solely to purchase the Loan Stock as provided in this Agreement.
ARTICLE III
SECURITY FOR THE STOCK PURCHASE LOAN
SECTION III.1 SECURITY INTEREST
As security for the full and timely payment of the principal and
interest under the Stock Purchase Loan, Crocker grants to the Company a first
priority and continuing security interest in and lien upon the Collateral.
SECTION III.2 SECURITY DOCUMENTS
Crocker, in order to set forth the terms and conditions under which
the Collateral described in Section 3.1 hereof will be held by the Company,
shall execute and deliver to the Company, in form and substance reasonably
satisfactory to the Company, any and all security agreements, hypothecation
agreements, assignments, pledge agreements, financing statements,
10
<PAGE> 14
notices of lien, guarantees and any other documents relating to any security as
the Company shall reasonably require from time to time (all herein referred to
collectively as the "Security Documents").
SECTION III.3 FILING AND RECORDING
The Company shall bear the cost and expense of causing such of the
Security Documents to be duly recorded and/or filed in all places necessary, in
the reasonable opinion of the Company, to perfect and protect the interest of
the Company in the Collateral covered thereby. Crocker hereby authorizes the
Company to file any financing statement or notice of lien in respect of any
security interest created pursuant to this Agreement which may at any time be
required or which, in the reasonable opinion of the Company, may at any time be
desirable, although the same may have been executed only by the Company, or, at
the reasonable opinion of the Company, to sign such financing statement or
notice of lien on behalf of Crocker and file the same. In the event that any
rerecording or refilling thereof (or the filing of any statements of
continuation or assignment of any financing statement) is required to protect
and preserve security interests in favor of the Company, the Company shall bear
the cost and expense of causing the same to be recorded and/or refiled at the
time and in the manner reasonably required by the Company. The Company shall
provide Crocker with written notice before recording or filing any documents
pursuant to this provision.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION IV.1 DUE AUTHORIZATION; ENFORCEABILITY
This Agreement, the Stock Pledge Agreement and the Control Agreement
have been duly executed and delivered by the Company and each constitutes, the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium, and other
laws affecting the rights of creditors generally and by general principles of
equity regardless of whether enforcement is pursuant to a proceeding in equity
or at law.
SECTION IV.2 FEDERAL REGULATION
The Company represents and warrants to Crocker that the Stock Purchase
Loan does not violate, and is not inconsistent with, the provisions of
Regulation U of the Board of Governors of the Federal Reserve System or any
other law.
11
<PAGE> 15
ARTICLE 5
CROCKER'S COVENANTS
SECTION V.1 TAXES AND CLAIMS
Crocker shall properly pay and discharge: (a) all taxes, assessments
and governmental charges upon the Collateral, prior to the date on which
penalties attach thereto, unless and to the extent that such taxes are being
diligently contested in good faith and by appropriate proceedings and
appropriate reserves therefor have been established; and (b) all lawful claims,
whether for labor, materials, supplies, services or anything else which might
or could, if unpaid, become a lien or charge upon the Collateral unless and to
the extent only that the same are transferred to bond, being diligently
contested in good faith and by appropriate proceedings, and appropriate
reserves therefor have been established.
SECTION V.2 PAY INDEBTEDNESS TO THE COMPANY AND PERFORM OTHER
COVENANTS
Crocker shall: (a) make full and timely payments of the principal of
and interest due under each Note; (b) duly comply with all the terms and
covenants contained in each of the Loan Documents and all other instruments and
documents given to the Company pursuant to this Agreement at the times and
places and in the manner set forth herein; and (c) at all times maintain the
liens and security interests provided for under or pursuant to this Agreement
as valid and perfected liens and security interests on the property intended to
be covered thereby.
ARTICLE VI
COVENANTS OF THE COMPANY
SECTION VI.1 PLAN SHARES
The Company shall use its best efforts and shall take all necessary
corporate action to obtain, prior to June 1, 2000, shareholder approval for an
increase in the number of shares of Common Stock reserved for issuance under
the Plan (or a successor plan) to at least 700,000 shares, such that Crocker
may, if he desires, elect to purchase 500,000 shares of Loan Stock under the
Plan (or a successor plan).
SECTION VI.2 REGISTRATION OF PLAN SHARES AND DIRECT PURCHASE SHARES
The Company shall take all necessary action to ensure that all Loan
Stock purchased by Crocker under the Plan (or any successor plan), pursuant to
a Direct Purchase or otherwise (if not already registered under the Securities
Act of 1933, as amended (the "Act") or if registration is terminated as a
result of such acquisition or otherwise) is registered under the Act within
thirty (30) days from the date that such Loan Stock is purchased by Crocker.
SECTION VI.3 SALE OF PLAN SHARES
12
<PAGE> 16
The Company will not sell any shares under the Plan (or any successor
plan) to any person or entity (other than up to 150,000 shares to Robert
Onisko) unless Crocker shall consent thereto. Such consent right shall
terminate thirty (30) days after Crocker shall be notified by the Company that
a sufficient number of shares to permit purchase by Crocker of the Share Cap
are reserved for issuance under the Plan (or any successor plan).
ARTICLE VII
EVENTS OF DEFAULT
SECTION VII.1 EVENTS OF DEFAULT
(A) Events of Default - Payment-In-Full Without Notice
The occurrence of any one of more of the following events, whether or
not notice is given by the Company, shall constitute an Event of Default:
(1) Crocker: (a) shall file a voluntary
petition under the United States Code for adjudication as a bankrupt; (b) shall
file an answer seeking reorganization or an arrangement under any bankruptcy or
similar statute of the United States of America or any subdivision thereof or
of any foreign jurisdiction in response to an involuntary petition; (c) shall
consent to the filing of a petition in any such bankruptcy or reorganization
proceeding; (d) shall consent to the appointment of a receiver or trustee or
officer performing similar functions with respect to any substantial part of
its property; (e) shall make a general assignment for the benefit of its
creditors; or (f) shall execute a consent to any other type of insolvency
proceedings (under the Bankruptcy Act or otherwise);
(B) Events of Default - Payment-In-Full With Notice
The occurrence of any one or more of the following and giving of a
written notice by the Company shall constitute an Event of Default:
(1) Default by Crocker in the payment of any sum
due under any Note or otherwise under the Loan Documents that is not made
within thirty (30) days after the due date therefor; or
(2) Default in the performance of any other
liability, obligation or covenant of Crocker to the Company hereunder or any of
the Loan Documents that is not cured
13
<PAGE> 17
within thirty (30) days after Crocker's receipt of notice from the Company
specifying such default.
SECTION VII.2 WAIVER OF DEFAULT
The Company may, at any time, waive any Event of Default which shall
have occurred and any of its consequences, in which case the parties hereto
shall be restored to their former positions and rights and obligations
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon, and no such
waiver shall be effective unless it is in a written document executed by a duly
authorized officer.
ARTICLE VIII
REMEDIES FOR EVENTS OF DEFAULT
SECTION VIII.1 REMEDIES FOR EVENTS OF DEFAULT
Upon the occurrence and continuation of an Event of Default provided
in Section 7.1(A) of this Agreement without notice or an Event of Default
provided in Section 7.1(B) of this Agreement after the giving of any applicable
notice and expiration of any applicable cure or grace period, the Stock
Purchase Loan hereby granted and all obligations to make loans or additional
draws under the Stock Purchase Loan shall immediately terminate, and all
principal and interest owing hereunder and under the Notes shall be accelerated
and become due and payable without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived and the Company
may sell any or all of the Collateral and apply the proceeds thereof to reduce
the outstanding principal of the Stock Purchase Loan.
SECTION VIII.2 ACTION FOR ENFORCEMENT
The Company may proceed to protect and enforce its rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein, in
any Note, the other Loan Documents or in any document or instrument delivered
in connection with or pursuant to this Agreement, or to enforce the payment of
any Note or any other legal or equitable right or remedy or sell the Collateral
and apply the proceeds thereof in repayment of the Stock Purchase Loan;
provided, however, the Company shall not seek to enforce any monetary judgement
with respect to the Stock Purchase Loan or any sums due under any Note or any
of the other Loan Documents against Crocker, individually, except as set forth
in Section 2.2(B).
14
<PAGE> 18
SECTION VIII.3 SALE OF COLLATERAL
The Company shall have the right to sell any and all of the Collateral
and apply the proceeds thereof to reduce the outstanding balance of the Loan
upon an Event of Default under Section 7.1 of this Agreement and the expiration
any applicable notice and cure period.
SECTION VIII.4 RIGHTS AND REMEDIES CUMULATIVE
No right or remedy herein conferred upon the Company is intended to be
exclusive of any other right or remedy contained herein, in any Note, the other
Security Documents or in any instrument or document delivered in connection
with or pursuant to this Agreement, and every such right or remedy shall be
cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity
or by statute or otherwise. In the event of any conflict among the Loan
Documents as to the notice required before resort to any remedy, the shortest
notice provision shall control.
ARTICLE IX
FEES AND PAYMENTS
SECTION IX.1 COSTS, TAXES AND ATTORNEYS' FEES
Whether or not the Closing is effectuated and the transactions
contemplated hereby shall be consummated, the Company agrees: (a) to pay all
out-of-pocket costs, expenses, disbursements and fees incurred by the Company
in connection with the origination, preparation, execution and delivery of and
any amendment, supplement or modification to, any of the Loan Documents and any
other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby (whether incurred before or after
the Closing), including, without limitation, title search, examination and
insurance charges, UCC searches, judgment and tax lien searches, recording
fees, charges and taxes, documentary stamps, intangible taxes, disbursement
fees, appraisal fees, reasonable fees and disbursements of counsel to the
Company in connection with the origination and/or the Closing of the Stock
Purchase Loan. The agreements contained in this Section shall survive repayment
of the Notes and all other amounts payable hereunder or under the other Loan
Documents.
15
<PAGE> 19
ARTICLE X
MISCELLANEOUS
SECTION X.1 NOTICES
All notices, requests, consents and other communications hereunder to
any party, shall be deemed to be sufficient if in writing and: (i) delivered in
person, (ii) sent by telex or telecopier, (iii) sent by first class, registered
or certified mail return receipt requested and postage prepaid or (iv) sent by
overnight delivery service, addressed to such party at the address set forth
below (or at such other addresses as shall be specified by like notice):
If to Crocker: Thomas J. Crocker
3580 Polo Drive
Gulf Stream, Florida 33483
with a required copy to: Proskauer Rose LLP
One Boca Place, Suite 340 West
2255 Glades Road
Boca Raton, Florida 33431
Telecopier: (407) 241-7145
Attn: Christopher C. Wheeler, Esq.
If to the Company: Koger Equity, Inc.
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
with a copy to: Ropes and Gray
One International Place
Boston, Massachusetts 02110
Attn: Ron Groves
with a copy to: Boling & McCart
1000 Riverside Avenue
Suite 555
Jacksonville, Florida 32204 Attn: Harold F.
McCart, Jr.
All such notices and communications shall be deemed to have been
received: (i) on the date delivered if by personal delivery, (ii) on the date
telecommunicated if sent by telex, telecopier or
16
<PAGE> 20
other telegraphic method, (iii) on the date sent if sent by first class,
registered or certified mail, or (iv) on the following date if received by
overnight delivery; provided, further, that rejection or other refusal to
accept or inability to deliver because of changed address or telecopier number
for which no notice has been received shall also constitute receipt.
SECTION X.2 ATTORNEYS' FEES
Any and all references to the payment of attorneys' fees and
disbursements herein or in any of the other Loan Documents shall include those
incurred before, during and after litigation, whether in negotiating, drafting,
closing, attempting collection without litigation, investigating and litigating
in all trial and appellate levels, as well as those incurred in any bankruptcy
proceedings and post-judgment proceedings. Attorneys' fees includes fees of
paraprofessionals such as paralegals and investigators.
SECTION X.3 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION X.4 COUNTERPARTS
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Confirmation of execution by telex or by telecopied facsimile signature page
shall be binding upon any party so confirming or telecopying. A set of the
copies of this Agreement signed by all the parties hereto shall be lodged with
Crocker and the Company.
SECTION X.5 INTERPRETATION
Each of the parties hereto acknowledges that they have been
represented by their own counsel throughout the negotiations and at the
execution of this Agreement and all of the other Loan Documents and therefore
none of the parties hereto shall, while this Agreement is effective or after
its termination, claim or assert that any provisions of this Agreement or any
of the other Loan Documents should be construed against the drafter of this
Agreement or any of the other Loan Documents.
17
<PAGE> 21
SECTION X.6 CONFLICT
If the terms and provisions of any of the other Loan Documents should
conflict with any of the terms and provisions of this Agreement, the terms and
provisions of this Agreement shall be interpreted as being paramount, superior
and controlling.
SECTION X.7 HEADINGS
The headings of the Articles, Sections, and Subsections of this
Agreement are for convenience of reference only, and are not to be considered a
part hereof, and do not limit or otherwise affect any of the terms hereof.
SECTION X.8 JURISDICTION AND VENUE
Each of the parties irrevocably and unconditionally: (a) agrees that
any suit, action or other legal proceeding arising out of or relating to this
Agreement may, and to the extent permitted by the courts of the State of
Florida shall be brought in the courts of record of the State of Florida in
Palm Beach County or the District Court of the United States, Southern District
of Florida; (b) consents to the jurisdiction of each such court in any such
suit, action or proceeding; (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such court;
and (d) agrees that service of any court paper may be effected on such party by
mail, as provided in this Agreement, or in such other manner as may be provided
under applicable laws or court rules in the State of Florida.
SECTION X.9 AMENDMENTS
The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement.
SECTION X.10 GOVERNING LAW; BENEFIT
This Agreement and all rights hereunder shall be governed by the
internal laws of the State of Florida without giving effect to the conflicts of
laws principles thereof. This Agreement shall bind and inure to the benefit of,
and the terms "Crocker" and the "Company," respectively, as used in this
Agreement shall include, the respective parties and their respective heirs,
personal representatives, participants, successors and assigns. However,
Crocker and the Company may not assign their rights and obligations under this
Agreement.
[SIGNATURES APPEAR ON THE NEXT PAGE]
18
<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THE COMPANY:
KOGER EQUITY, INC., A FLORIDA CORPORATION
By: /s/ W. Lawrence Jenkins
-----------------------------------
Its: Vice President
----------------------------------
Print Name: W. Lawrence Jenkins
---------------------------
CROCKER:
/s/ Thomas J. Crocker
-------------------------------------------
Thomas J. Crocker
19
<PAGE> 23
EXHIBIT "A"
CERTIFICATE AND LOAN ADVANCE REQUEST
DATE: ____________, 2000
Koger Equity, Inc.
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
Dear Sir:
Pursuant to Section ___ of the Stock Purchase and Loan Agreement
between Koger Equity, Inc. and the undersigned, dated as of February 17, 2000
(the "Stock Purchase and Loan Agreement"), the undersigned hereby applies for
an advance of $ ____________ to be credited to the account of
__________________, Account No. ________________________ . Capitalized terms
used and not defined herein shall have the meanings set forth in the Stock
Purchase and Loan Agreement. The undersigned hereby certifies that:
1. No Event of Default as defined in the Stock Purchase and Loan
Agreement has occurred.
2. The amount to be advanced pursuant to this advance is
_____________ of the purchase price of the Loan Stock
proposed to be purchased [(plus Stock Purchase Expenses)].
3. The number of shares of Loan Stock proposed to be purchased
is ____________, which shall be purchased pursuant to [the
Plan][an Open Market Purchase][a Direct Purchase] [a
Subsequent Plan Purchase]. The per share purchase price of
the Loan Stock is $___________.
Thomas J. Crocker
20
