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As filed with the Securities and Exchange Commission on October 24, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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POST PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1550675
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
3350 CUMBERLAND CIRCLE, N.W.
SUITE 2200
ATLANTA, GEORGIA 30339
(Address, including zip code, of registrant's principal executive offices)
POST PROPERTIES, INC. EMPLOYEE STOCK PLAN
(Full title of plan)
JOHN T. GLOVER
PRESIDENT
POST PROPERTIES, INC.
3350 CUMBERLAND CIRCLE, N.W.
ATLANTA, GEORGIA 30339
(Name and address of agent for service)
(770) 850-4400
(Telephone number, including area code, of agent for service)
Copies to:
JOHN J. KELLEY III
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 2,300,000 shares $38.59375 $88,765,625 $26,899
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Does not include 1,200,000 shares of Common Stock Post Properties, Inc.
previously registered on Registration Statement Nos. 333-02374 and
33-85712 and to which the Prospectus relating to this Registration
Statement relates. Registration fees of $6,738 and $5,975 were previously
paid in connection with an aggregate of 1,200,000 shares of Common Stock
(including the 1,125,670 shares not yet issued) previously registered.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
sales prices per share of Common Stock of Post Properties, Inc. as
reported on the New York Stock Exchange on October 23, 1997.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
RELATING TO THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS RELATING ALSO
TO REGISTRATION STATEMENT NO. 333-02734 PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-8 ON MARCH 22, 1996 AND REGISTRATION STATEMENT NO. 33-85712 PREVIOUSLY
FILED BY THE REGISTRANT ON FORM S-8 ON OCTOBER 28, 1994.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been previously filed by Post Properties,
Inc. (the "Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) Annual Report on Form 10-K for the year ended December 31,
1996;
(b) Quarterly Reports on Form 10-Q for the quarters ended March
31, 1997 and June 30, 1997;
(c) Current Reports on Form 8-K filed on February 27, 1997,
August 6, 1997, September 17, 1997 and October 22, 1997; and
(d) The description of the Common Stock of the Company included
in the Company's Registration Statement on Form 8-A, dated
July 22, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered hereunder have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock covered by this
Registration Statement has been passed upon for the Company by King & Spalding,
Atlanta, Georgia. Herschel M. Bloom, a member of King & Spalding, is a director
of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Georgia Business Corporation Code, the Company's
Articles of Incorporation provide that a director shall not be personally
liable to the Company or its shareholders for monetary damages for breach of
duty of care or other duty as a director, except that such provision shall not
eliminate or limit the liability of a director (a) for any appropriation, in
violation of his duties, of any business opportunity of the Company, (b) for
acts or omissions that involve intentional misconduct or a knowing violation of
law, (c) for unlawful corporate distributions or (d) for any transaction from
which the director derived an improper personal
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benefit. The Articles of Incorporation of the Company further provide that if
the Georgia Business Corporation Code is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Company shall be eliminated or limited to the
fullest extent permitted by the Georgia Business Corporation Code, as amended.
Under Article VI of the Company's Bylaws, the Company is required to
indemnify to the fullest extent permitted by the Georgia Business Corporation
Code, any individual made a party to a proceeding (as defined in the Georgia
Business Corporation Code) because he is or was a director or officer against
liability (as defined in the Georgia Business Corporation Code), incurred in
the proceeding, if he acted in a manner he believed in good faith to be in or
not opposed to the best interests of the Company and, in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. The Company is required to pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding in
advance of final disposition of the proceeding if:
(a) Such person furnishes the Company a written
affirmation of his good faith belief that he has met
the standard of conduct set forth above; and
(b) Such person furnishes the Company a written
undertaking, executed personally on his behalf to
repay any advances if it is ultimately determined
that he is not entitled to indemnification.
The written undertaking required by paragraph (b) above must be an unlimited
general obligation of such person but need not be secured and may be accepted
without reference to financial ability to make repayment.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in Article
VI of the Company's Bylaws are not exclusive of any other right which any
person may have under any statute, provision of the Company's Articles of
Incorporation, provision of the Company's Bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
The Restated and Amended Agreement of Limited Partnership of Post
Apartment Homes, L.P. also provides for indemnification of the Company and its
officers and directors to the same extent indemnification is provided to
officers and directors of the Company in its Articles of Incorporation, and
limits the liability of the Company and its officers and directors to the
Operating Partnership and its partners to the same extent liability of officers
and directors of the Company to the Company and its shareholders is limited
under the Company's Articles of Incorporation.
In connection with the formation of the Company, the Company agreed to
indemnify John A. Williams, the Chairman of the Board and Chief Executive
Officer of the Company, and John T. Glover, the President, Chief Operating
Officer and Treasurer of the Company from any exposure to personal liability
for or under personal guarantees of indebtedness aggregating $102,800,000 in
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principal amount as to which Messrs. Williams and Glover currently have
personal liability either directly or as a guarantor of such indebtedness.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
5.1 -- Opinion of King & Spalding regarding the
validity of the securities being registered
23.1 -- Consent of King & Spalding (included as part of
Exhibit 5.1)
23.2 -- Consent of Price Waterhouse LLP
23.3 -- Consent of Ernst & Young LLP
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by
reference in the registration statement.
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(2) That for purposes of determining any liability under
the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act 1934 (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
EXPERTS
The Consolidated Financial Statements incorporated in this
Registration Statement by reference to the Annual Report on Form 10-K for the
year ended December 31, 1996 have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The consolidated financial statements of Columbus Realty Trust for the
year ended December 31, 1996 and 1995 and for each of the three years in the
period ended December 31, 1996, included in the Current Report on Form 8-K dated
September 17, 1997 filed by Post Properties, Inc. have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements have been incorporated herein by reference in reliance upon such
reports given the authority of such firm as experts in accounting and auditing.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on the 24th day of
October, 1997.
POST PROPERTIES, INC.
By: /s/ John T. Glover
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John T. Glover
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John T. Glover, Timothy A. Peterson and
Sherry W. Cohen and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for such person and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of the 24th day of October, 1997.
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<TABLE>
<CAPTION>
Signature Title
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<S> <C>
Chairman of the Board,
Chief Executive Officer and a Director
/s/ John A. Williams (Principal Executive Officer)
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John A. Williams
President, Chief Operating
Officer, Treasurer and a Director
/s/ John T. Glover (Principal Financial Officer)
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John T. Glover
Senior Vice President -
/s/ R. Gregory Fox Finance (Chief Accounting Officer)
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R. Gregory Fox
/s/ Arthur M. Blank Director
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Arthur M. Blank
/s/ Herschel M. Bloom Director
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Herschel M. Bloom
/s/ Russel R. French Director
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Russell R. French
Director
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William A. Parker, Jr.
/s/ J. C. Shaw Director
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J. C. Shaw
/s/ Robert L. Shaw Director
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Robert L. Shaw
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
No. Exhibit Numbered Page
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<S> <C> <C> <C>
5.1 -- Opinion of King & Spalding regarding the
validity of the securities being registered
23.1 -- Consent of King & Spalding (included as part of
Exhibit 5.1)
23.2 -- Consent of Price Waterhouse LLP
23.3 -- Consent of Ernst & Young LLP
</TABLE>
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EXHIBIT 5.1
October 24, 1997
Post Properties, Inc.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, Georgia 30339
Re: Post Properties, Inc. -- Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission. The Registration Statement relates
to 2,300,000 shares of the Company's common stock, par value $.01 per share, to
be issued pursuant to the Post Properties Inc. Employee Stock Plan (the "Stock
Plan") (all such shares are referred to herein as the "Shares").
As such counsel, we have examined and relied upon such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to
be accurate.
For purposes of this opinion, we have assumed that the Shares that may
be issued pursuant to the Stock Plan will continue to be duly authorized on the
dates of such issuance.
The opinions expressed herein are limited in all respects to the
federal laws of the United States of America and laws of the State of Georgia,
and no opinion is expressed with respect to the laws of any other jurisdiction
or any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(a) The Shares are duly authorized; and
(b) When the Shares are issued pursuant to the Stock Plan against
payment therefor, as provided in the Stock Plan, such Shares
will be validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the benefit
of Post Properties, Inc. in connection with the matters addressed herein. This
opinion may not be furnished to or relied upon by any person or entity for any
purpose without our prior written consent.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
KING & SPALDING
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorportion by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated February 11, 1997 appearing on page 34 of Post Properties, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1996. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
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Price Waterhouse LLP
Atlanta, Georgia
October 23, 1997
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 pertaining to the Post Properties, Inc.
Emplyee Stock Plan and to the incorporation by reference therein of our report
dated January 28, 1997, except for Note 15, as to which the date is March 7,
1997, with respect to the consolidated financial statements of Columbus Realty
Trust as of December 31, 1996 and 1995 and for the three years ended December
31, 1996, included in Post Properties, Inc.'s Current Report on Form 8-K dated
September 17, 1997 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Dallas, Texas
October 22, 1997
