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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1998
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)
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<S> <C>
GEORGIA 58-1550675
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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ONE RIVERSIDE
SUITE 800
4401 NORTHSIDE PARKWAY
ATLANTA, GEORGIA 30327
(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.
ONE RIVERSIDE
SUITE 800
4401 NORTHSIDE PARKWAY
ATLANTA, GEORGIA 30327
(Name and address of agent for service)
(404) 846-5000
(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
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share.................... 2,500,000 shares(1) $39.4375(2) $98,593,750(2) $29,086
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(1) Does not include 3,500,000 shares of Common Stock of Post Properties, Inc.
previously registered on Registration Statement Nos. 333-38725, 333-07374
and 33-85712 and to which the Prospectus relating to this Registration
Statement relates. Registration fees of $26,899, $6,738 and $5,975 were
previously paid in connection with an aggregate of 3,500,000 shares of
Common Stock (including the 3,374,285 shares not yet issued) previously
registered.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 475(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 August 21, 1998.
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, REGISTRATION STATEMENT NO. 33-85712 PREVIOUSLY FILED
BY THE REGISTRANT ON FORM S-8 ON OCTOBER 28, 1994 AND REGISTRATION STATEMENT NO.
333-38725 ON OCTOBER 24, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF 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, 1997;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998 and June 30, 1998
(c) Current Reports on Form 8-K dated February 9, 1998, February 26,
1998, March 3, 1998, March 16, 1998, April 8, 1998, April 24, 1998 and May
29, 1998; 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. INTERESTS 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 duties 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 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
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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
principal amount as to which Messrs. Williams and Glover currently have personal
liability either directly or as a guarantor of such indebtedness.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
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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 PricewaterhouseCoopers LLP
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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;
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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.
(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, 1997 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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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 25th day of August,
1998.
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 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 25th day of August, 1998.
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SIGNATURE TITLE
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/s/ JOHN A. WILLIAMS Chairman of the Board,
------------------------------------------------------ Chief Executive Officer and a Director
John A. Williams (Principal Executive Officer)
/s/ JOHN T. GLOVER President, Chief Operating
------------------------------------------------------ Officer, Treasurer and a Director
John T. Glover (Principal Financial Officer)
/s/ R. GREGORY FOX Senior Vice President --
------------------------------------------------------ Finance (Chief Accounting Officer)
R. Gregory Fox
/s/ ARTHUR M. BLANK Director
------------------------------------------------------
Arthur M. Blank
/s/ HERSCHEL M. BLOOM Director
------------------------------------------------------
Herschel M. Bloom
/s/ RUSSELL R. FRENCH Director
------------------------------------------------------
Russell R. French
/s/ CHARLES E. RICE Director
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Charles E. Rice
Director
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J. C. Shaw
Director
------------------------------------------------------
Robert L. Shaw
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EXHIBIT INDEX
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EXHIBIT SEQUENTIALLY
NO. EXHIBIT NUMBERED PAGE
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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 PricewaterhouseCoopers LLP
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EXHIBIT 5.1
August 25, 1998
Post Properties, Inc.
One Riverside
Suite 800
4401 Northside Parkway
Atlanta, Georgia 30327
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 2,500,000 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 incorporation by reference in this Registration
Statement on Form S-8 of our reports dated March 20, 1998 appearing on pages 32
and 50 of Post Properties, Inc. and Post Apartment Homes, L.P.'s Annual Report
on Form 10-K, respectively, for the year ended December 31, 1997. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
PricewaterhouseCoopers LLP
Atlanta, Georgia
August 24, 1998
