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EXHIBIT 3(a)
ARTICLES OF AMENDMENT AND RESTATEMENT
of the
ARTICLES OF INCORPORATION
OF
KOGER EQUITY, INC.
1. These Articles of Amendment amend and restate the Amended and
Restated Articles of Incorporation of Koger Equity, Inc.
2. The Amended and Restated Articles of Incorporation of Koger
Equity, Inc. are hereby amended to add a new subsection 10. to Section (D) of
Article V to read as follows:
10. While nothing contained herein shall in any way limit the
powers of the Board of Directors, neither the exercise of such power
nor the provisions of subsections 5. and/or 8. of this Section (D)
shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange.
3. This amendment was voted on by shareholders at their meeting
on May 18, 2000, and the number of votes cast for the amendment by the
shareholders was sufficient for approval of the amendment.
4. The new Amended and Restated Articles of Incorporation of
Koger Equity, Inc. are attached hereto as Exhibit A and, by this reference, made
a part hereof.
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IN WITNESS WHEREOF, the undersigned Chairman of the Board and the
Secretary of this Corporation have executed these Articles of Amendment, this
18th day of May, 2000.
KOGER EQUITY, INC.
Attest:
/s/ W. Lawrence Jenkins /s/ Thomas J. Crocker
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W. Lawrence Jenkins Thomas J. Crocker
Secretary Chief Executive Officer
STATE OF FLORIDA
COUNTY OF DUVAL
BEFORE ME, a notary public authorized to take acknowledgments in the
state and county set forth above, personally appeared THOMAS J. CROCKER and W.
LAWRENCE JENKINS, known by me to be the persons who executed the foregoing
Articles of Amendment, and they acknowledged before me that they executed these
Articles of Amendment.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, in the state and county aforesaid, this 18th day of May, 2000.
Pamela K. Walker
--------------------------------------
Notary Public, State of
Florida at Large
My Commission Expires:
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
KOGER EQUITY, INC.
These Amended and Restated Articles of Incorporation of Koger Equity,
Inc. amend and restate the Amended and Restated Articles of Incorporation as
filed with the Secretary of State of the State of Florida on May 24, 1999. These
Amended and Restated Articles of Incorporation were adopted by the Board of
Directors on May 18, 2000, in accordance with Section 607.1007 of the Florida
Business Corporation Act and include an amendment which was approved by the
shareholders of Koger Equity, Inc. on May 18, 2000, in accordance with Section
607.1003 of the Florida Business Corporation Act. The substantive amendment to
the Articles of Incorporation made in the Amended and Restated Articles of
Incorporation is contained in subsection 10. to Section (D) of Article V hereof.
ARTICLE I - NAME
The name of the Company is KOGER EQUITY, INC. (the "Company").
ARTICLE II - DURATION
The period of duration of the Company is perpetual.
ARTICLE III - PURPOSE
The purpose for which the Company is formed is to engage in any lawful
act or activity for which corporations may be organized under the General Laws
of the State of Florida as now or hereafter in force.
ARTICLE IV - PRINCIPAL OFFICE AND MAILING ADDRESS
The principal office and the mailing address of the Company in the
State of Florida are 8880 Freedom Crossing Trail, Jacksonville, Florida
32256-8280.
ARTICLE V - CAPITAL STOCK
The total number of shares of stock that this corporation shall have
authority to issue is 100,000,000 shares of Common Stock, each of which shall
have a par value of $.01 per share (the "Common Stock") and 50,000,000 shares of
Preferred Stock, each of which shall have a par value of $.01 per share (the
"Preferred Stock"). The board of directors is authorized to issue the Preferred
Stock from time to time in one or more classes or series thereof, each such
class or series to have such
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voting powers (if any), conversion rights (if any), designations, preferences
and relative, participating, optional or other special rights, and such
qualifications, limitations or restrictions thereof, as shall be determined by
the board of directors and stated and expressed in a resolution or resolutions
thereof providing for the issue of such Preferred Stock. Subject to the powers,
preferences and rights of any Preferred Stock, including any class or series
thereof, having any preference or priority over, or rights superior to, the
Common Stock and except as otherwise provided by law, the holders of the Common
Stock shall have and possess all powers and voting and other rights pertaining
to the stock of this corporation and each share of Common Stock shall be
entitled to one vote.
Except as otherwise provided in the Articles of Incorporation and
subject to the rights of the holders of Preferred Stock, the following is a
description of the voting rights, limitations as to dividends, preemptive
rights, restrictions, and terms and conditions of redemption of the Common Stock
of the Company:
(A) Voting Rights
At every annual or special meeting of stockholders of the
Company, every holder of Common Stock shall be entitled to one vote, in
person or by proxy, for each share of Common Stock standing in the
stockholder's name on the books of the Company in the election of
directors and upon all other matters submitted to a vote of the
stockholders of the Company.
(B) Dividends and Liquidation Rights.
1. Dividends. The holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors,
out of the assets of the Company which are legally available therefor,
dividends payable either in cash, in property or in shares of Common
Stock.
2. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation, or winding up of the affairs of the Company
after payment or provision for payment of the debts and other
liabilities of the Company, the holders of all outstanding shares of
Common Stock shall be entitled to share ratably in the remaining net
assets of the Company.
(C) Preemptive Rights.
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No stockholder of the Company shall have any preemptive or other
right to purchase or subscribe for any shares of the Common Stock of
the Company which it may issue or sell, whether now or hereafter
authorized, other than such right, if any, as the Board of Directors in
its discretion from time to time may determine.
(D) Restrictions on Transfer; Redemption.
1. The stockholders shall upon demand disclose to the Board of
Directors in writing such information with respect to direct and
indirect ownership of the Common Stock of the Company as the Board of
Directors deems necessary to comply with the provisions of the Internal
Revenue Code of 1986, as amended or as hereafter amended if such
amendments are applicable to the Company (the "Code"), pertaining to
the qualification of the Company as a real estate investment trust (a
"REIT") or to comply with the requirements of any taxing authority or
governmental entity or agency.
2. Whenever it is deemed by the Board of Directors to be
reasonably necessary to protect the tax status of the Company as a
REIT, the Board of Directors may require a statement or affidavit from
any stockholder or proposed transferee of shares of Common Stock
setting forth the number of shares of Common Stock already owned by the
stockholder and any related Person (as hereinafter defined) specified
in the form prescribed by the Board of Directors for that purpose. If,
in the opinion of the Board of Directors, which opinion shall be
conclusive on the proposed transferor and transferee, the proposed
transfer may jeopardize the qualification of the Company as a REIT, the
Board of Directors has the right, but not a duty, to refuse to transfer
the shares of Common Stock to the proposed transferee. All contracts
for the sale or other transfer of shares of Common Stock shall be
subject to this provision.
3. Notwithstanding any other provision of these Articles of
Incorporation to the contrary and subject to the provisions of Section
6 of Paragraph (D) of this Article V, no person shall at any time
directly or indirectly acquire ownership in the aggregate of more than
9.8% of the outstanding shares of Common Stock of the Company (the
"Limit"). Shares of Common Stock owned by a Person in excess of the
Limit at any time shall be deemed excess shares ("Excess Shares"). For
purposes of this Article V a person shall be deemed to own shares of
Common Stock actually owned by such Person after applying the rules of
Section 544 of the Code as modified in the case of a REIT by Section
856(a)(6), Section 856(d)(3), and Section 856(h) of the Code. All
shares of Common Stock which any Person has
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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 the Limit if such inclusion will cause such Person to own more than
the Limit.
4. If at any time the Board of Directors shall in good faith
determine that direct or indirect ownership of shares of Common Stock
of the Company by any Person or Persons has or may become concentrated
to the extent which would cause the Company to fail to qualify or to be
disqualified as a REIT or that any Person has acquired Excess Shares
(including shares of Common Stock that remain or become Excess Shares
because of the decrease in the outstanding shares of Common Stock
resulting from such redemption), the Board of Directors shall have the
power to call for the purchase from any stockholder of the Company, by
notice to such stockholder, of a number of shares of Common Stock
sufficient in the opinion of the Board of Directors to maintain or to
bring the direct or indirect ownership of shares of Common Stock into
conformity with the provisions of the Code pertaining to the
qualification of the Company as a REIT and/or to redeem all shares of
Common Stock that are Excess Shares owned by such Person. From and
after the date fixed for redemption by the Board of Directors, the
holder of any shares of Common Stock so called for redemption shall
cease to be entitled to distributions, voting rights, and other
benefits with respect to such shares of Common Stock, excepting only
the right to payment by the Company of the redemption price pursuant to
this Article V as set forth in the following paragraph.
The redemption price of each share of Common Stock called for
redemption shall be:
(a) the average daily per share composite closing sales
price if the shares of the Company are listed on a national securities
exchange, and if the shares are not so listed shall be the mean between
the average per share closing bid prices and the average per share
closing asked prices, in each case during the twenty (20) trading day
period ending on the business day prior to the redemption date, or
(b) if there have been no sales on a national
securities exchange and no published bid quotations and no published
asked quotations with respect to shares of the Company during such
twenty (20) trading day period, the redemption price shall be the price
determined in good faith by the Board of Directors.
In order to assure further that ownership of the shares of
Common Stock of the Company does not become concentrated
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so as to cause the Company to fail to qualify or to be disqualified as
a REIT, any transfer of shares that would prevent the Company from
continuing to be qualified as a REIT under the Code, including any
attempt to effect a transfer that was prohibited by the Board of
Directors under Section 6 of Paragraph (D) of this Article V, shall be
void ab initio and the intended transferee of such shares shall be
deemed never to have had any legal or equitable interest therein. If
the foregoing provision is determined to be void and invalid by virtue
of any legal decision, statute, rule, or regulation, then the
transferee of such shares of Common Stock shall be deemed, at the
option of the Company, to have acted as agent on behalf of the Company
in acquiring such shares of Common Stock and to hold such shares of
Common Stock on behalf of the Company. A conspicuous legend noting the
restrictions on transfer set forth in these Articles of Incorporation
shall be placed on each certificate evidencing ownership of shares of
Common Stock of the Company.
5. Notwithstanding any other provision of these Articles of
Incorporation or the By-Laws to the contrary, any purported acquisition
of shares of Common Stock of the Company which results in the
disqualification of the Company as a REIT under the Code shall be null
and void. All contracts for the sale or other transfer of shares of
Common Stock shall be subject to this provision.
6. The Limit set forth in Section 3 of this Article V shall
not apply to acquisitions of shares of Common Stock pursuant to a cash
tender offer made for all outstanding shares of Common Stock of the
Company (including securities convertible into shares of Common Stock)
in conformity with applicable federal and state securities laws where
two-thirds (2/3) of the outstanding shares of Common Stock (not
including shares of Common Stock or securities convertible into shares
of Common Stock held by the tender offerer and/or any "affiliates" or
"associates" thereof within the meaning of the Securities Exchange Act
of 1934, as amended) are duly tendered and accepted pursuant to the
cash tender offer; nor shall the limit apply to the acquisition of
shares of Common Stock by an underwriter in a public offering of shares
of Common Stock, or in any transaction involving the issuance of shares
of Common Stock by the Company in which the Board of Directors
determines that the underwriter or other person or party initially
acquiring such shares of Common Stock will make a timely distribution
of such shares of Common Stock to or among other holders such that,
following such distribution, none of such shares of Common Stock will
be Excess Shares. The Board of Directors in its discretion may exempt
from the Limit
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ownership of certain designated shares of Common Stock while owned by a
Person who has provided the Company with evidence and assurances
acceptable to the Board of Directors that the qualification of the
Company as a REIT would not be jeopardized thereby.
7. As used in this Article V the word "Person" shall mean and
include individuals, corporations, limited partnerships, general
partnerships, joint stock companies or associations, joint venturers,
companies, trusts, banks, trust companies, land trusts, business
trusts, estates, or other entities and governments and agencies and
political subdivisions thereof and also includes a group as that term
is used for purposes of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended.
8. Nothing contained in this Article V or in any other
provision of these Articles of Incorporation shall limit the authority
of the Board of Directors to take such other action as it deems
necessary or advisable to protect the Company and the interests of the
stockholders by preserving the Company's qualification as a REIT under
the Code.
9. If any provision of this Article V or any application of
any such provision is determined to be invalid by any court having
jurisdiction over the issues, the validity of the remaining provisions
shall not be affected and other applications of such provision shall be
affected only to the extent necessary to comply with the determination
of such court. To the extent this Article V may be inconsistent with
any other provision of these Articles of Incorporation or the By-Laws,
this Article V shall be controlling.
10. While nothing contained herein shall in any way limit the
powers of the Board of Directors, neither the exercise of such power
nor the provisions of subsections 5. and/or 8. of this Section (D)
shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange.
ARTICLE VI - MANAGEMENT
The following provisions shall apply to the management of the business
and to the conduct of the affairs of the Company and its directors, officers,
and stockholders:
(A) Further Powers of the Board of Directors.
1. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
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authorized to do the following:
(a) To make, adopt, alter, amend, and repeal any of
the By-Laws to the extent provided in the By-Laws; provided
that the stockholders may make, adopt, alter, amend, and
repeal any of the By-Laws;
(b) To cause the redemption by the Company of shares
of the Company's Common Stock, and to restrict the transfer of
shares of Common Stock in the manner provided for in these
Articles of Incorporation and the By-Laws;
(c) To authorize, subject as may be required by any
applicable governmental statute, rule, or regulation, or as
provided in the By-Laws for stockholder approval and other
conditions, if any, the execution and performance by the
Company of one or more agreements with any person,
corporation, association, company, trust, partnership (limited
or general), or other organization whereby, subject to the
supervision and control of the Board of Directors, any such
other person, corporation, association, company, trust,
partnership (limited or general), or other organization shall
render or make available to the Company, managerial,
investment advisory, and/or related services and facilities
(including, if deemed advisable by the Board of Directors, the
management or supervision of the investments of the Company)
upon such terms and conditions as may be provided in such
agreement or agreements (including, if deemed fair and
reasonable by the Board of Directors, the compensation payable
thereunder by the Company);
(d) To authorize any agreement of the character
described in Section 1(c) of this Paragraph (A) of this
Article VI or other transaction with any person, corporation,
association, company, trust, partnership (limited or general),
or other organization, even though one or more of the members
of the Board of Directors or officers of the Company may be
the other party to any such agreement or an officer, director,
stockholder, or member of such other party, and no such
agreement or transaction shall be invalidated or rendered
voidable solely by reason of the existence of any such
relationship if (i) the existence is disclosed or known to:
(x) the Board of Directors, and the Board of Directors
authorizes, approves, or ratifies the agreement or transaction
by the affirmative vote of a majority of the disinterested
directors, even if the disinterested directors constitute less
than a quorum; or (y) the stockholders of the Company entitled
to
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vote, and the agreement or transaction is authorized,
approved, or ratified by a majority of votes cast by such
stockholders without regard to the votes of shares owned of
record or beneficially by the interested director or such
other party; or (ii) the contract is fair and reasonable to
the Company. Provided the disclosure, ratification, or
fairness provisions of this subparagraph are satisfied, any
member of the Board of Directors who is also a director or
officer of such other party or who is so interested or
associated with such other party may be counted in determining
the existence of a quorum at any meeting of the Board of
Directors which shall authorize any such agreement or
transaction, and may vote thereat to authorize any such
agreement or transaction, as if the director were not such
director or officer of such other party or not so interested
or so associated;
(e) To allot and authorize the issuance of the
authorized but unissued shares of Common Stock of the Company
for such consideration as the Board of Directors may deem
advisable, subject to such limitations as may be set forth in
these Articles of Incorporation or the By-Laws of the Company;
and
(f) To authorize the issuance and fix the terms,
conditions, and provisions of options to purchase and
subscribe for shares of Common Stock of the Company, including
the option price or prices for which shares of Common Stock of
the Company may be purchased or subscribed.
2. The determination as to any of the following matters
made by or pursuant to the direction of the Board of Directors
consistent with these Articles of Incorporation and in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard
of duties, shall be final and conclusive and shall be binding upon the
Company and every holder of the shares of its Common Stock: (a) the
amount of net income of the Company for any period and the amount of
assets at any time legally available for the payment of dividends; (b)
the amount of paid-in surplus, other surplus, annual or other net
profit, or net assets in excess of capital, undivided profits, or
excess of profits over losses on sales of assets; (c) the amount,
purpose, time of creation, increase or decrease, alteration, or
cancellation of any reserves or charges and the propriety thereof
(whether or not any obligation or liability for which such reserves or
charges shall have been created shall have been paid or discharged);
(d) the fair values, or any sale, bid or asked price to be applied in
determining the fair value, of any asset owned or held by the Company;
and
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(e) any matter relating to the acquisition, holding, and disposition of
any assets by the Company.
3. The enumeration and definition of particular powers of the
Board of Directors included in this Article VI shall in no way be
limited or restricted by reference to or inference from the terms of
any other clause of this or any other Article of these Articles of
Incorporation, or construed as or deemed by inference or otherwise in
any manner to exclude or limit the powers conferred upon the Board of
Directors under the Florida Business Corporation Act of the State of
Florida as now or hereafter in force.
ARTICLE VII - AMENDMENTS
The Company reserves the right to make any amendments to its Articles
of Incorporation which may be now or hereafter authorized by law, including any
amendments changing the terms or contract rights of any of its outstanding stock
by classification, reclassification, or otherwise, provided such amendment shall
have been authorized by the affirmative vote of a majority of the aggregate
number of shares entitled to vote thereon at a meeting of the stockholders of
the Company or in writing by the stockholders of the Company with or without a
meeting. All rights and powers conferred by these Articles of Incorporation on
stockholders, directors, and officers are granted subject to this reservation.
ARTICLE VIII - INDEMNIFICATION
The Company shall indemnify each of its officers and directors to the
fullest extent permitted by the Florida Business Corporation Act as now or
hereafter in force, including the advance of expenses and reasonable counsel
fees.
ARTICLE IX - CONFLICT
The officers and directors of the Company may without restriction make
real estate investments for their own account or for the account of others, and
the directors are not required to bring to the Company's attention investment
opportunities meeting the Company's investment criteria. The directors of the
Company are not prohibited from engaging in the same activities or lines of
business as the Company.
ARTICLE X - LIABILITY
The liability of the directors and officers of the Company to the
Company or its stockholders for money damages shall be limited to the maximum
extent that the liability of directors and
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officers of corporations organized and existing under the laws of the State of
Florida is permitted to be limited by Florida law, including the Florida
Business Corporation Act, as now or hereafter in effect. Neither the amendment
nor repeal of this Article, nor the adoption of any provision of the Articles of
Incorporation or By-Laws inconsistent with this Article, shall apply to or
affect in any respect the applicability of the preceding sentence with respect
to any act or failure to act which occurred prior to such amendment, repeal or
adoption.
ARTICLE XI - ACTION BY SHAREHOLDERS
Actions shall be taken by the shareholders of the Company only at
annual or special meetings of shareholders, and shareholders may not act by
written consent.
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of Koger
Equity, Inc. has executed these Amended and Restated Articles of Incorporation
this 18th day of May, 2000.
KOGER EQUITY, INC.
By: /Thomas J. Crocker
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Thomas J. Crocker
Chief Executive Officer
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