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As filed with the Securities and Exchange Commission on January 15, 1999
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
4401 NORTHSIDE PARKWAY
SUITE 800
ATLANTA, GEORGIA 30327
(Address of principal executive offices)
POST PROPERTIES, INC. 1995 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JOHN T. GLOVER
PRESIDENT
POST PROPERTIES, INC.
ONE RIVERSIDE
4401 NORTHSIDE PARKWAY, SUITE 800
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
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- --------------------------------------- -------------------- ------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share............... 150,000 shares $37.7813(1) $5,667,195(1) $1,576
- --------------------------------------- -------------------- ------------------- -------------------- ----------------
Interests in Post Properties, Inc. 1995
Non-Qualified Stock Purchase Plan...... (3) -- -- --
- --------------------------------------- -------------------- ------------------- -------------------- ----------------
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(1) Does not include shares of Common Stock Post Properties, Inc.
previously registered on Registration Statement No. 33-86674 and to
which the Prospectus relating to this Registration Statement relates.
Registration fees of $1,011 were previously paid in connection with an
aggregate of 100,000 shares of Common Stock (including the 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 January 13, 1999.
(3) This Registration Statement is deemed to register an indeterminate
amount of interests in the Post Properties 1995 Non-Qualified Employee
Stock Purchase Plan.
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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. 33-86674 PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-8 ON NOVEMBER 23, 1994.
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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, June 30, 1998, and September 30, 1998;
(c) Current Reports on Form 8-K and Form 8-K/A dated February 26,
1998, March 11, 1998, March 31, 1998, April 23, 1998, May 27,
1998 and October 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. 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.
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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 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.
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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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4.1 -- Restated Articles of Incorporation of Registrant (incorporated by
reference to Exhibit 3.1 to Registrant's Registration Statement on
Form S-11 (File No. 33-61936))
4.3 -- Bylaws of the Registrant, as amended and restated (incorporated by
reference to Exhibit 3.2 of Registrant's Registration Statement on
Form S-11 (File No. 33-61936))
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
99.1 -- Post Properties, Inc. 1995 Non-Qualified Employee Stock Purchase
Plan (incorporated by reference to Exhibit 99.1 of Registrant's
Registration Statement on Form S-8 (File No. 33-86674)
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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;
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
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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 of Post Properties,
Inc. 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 15th day of January,
1999.
POST PROPERTIES, INC.
By: /s/ John T. Glover
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John T. Glover
President
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 15th day of January, 1999.
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Signature Title
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/s/ John A. Williams
- ------------------------------ Chairman of the Board, Chief Executive
John A. Williams Officer and a Director (Principal Executive
Officer)
/s/ John T. Glover
- ------------------------------ President, Chief Operating Officer, Treasurer
John T. Glover and a Director (Principal Financial Officer)
/s/ R. Gregory Fox
- ------------------------------ Executive Vice President
R. Gregory Fox (Chief Accounting Officer)
/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
Charles E. Rice
/s/ J. C. Shaw
- ------------------------------ Director
J. C. Shaw
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Pursuant to the requirements of the Securities Act, the Post
Properties, Inc. 1995 NonQualified Employee Stock Purchase Plan 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 January
15, 1999.
POST PROPERTIES, INC. 1995
NON-QUALIFIED EMPLOYEE STOCK
PURCHASE PLAN
By: Arthur M. Blank
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Arthur M. Blank
Compensation Committee Member
By:Charles E. Rice
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Charles E. Rice
Compensation Committee Member
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EXHIBIT 5.1
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January 15, 1999
Post Properties, Inc.
One Riverside
4401 Northside Parkway
Suite 800
Atlanta, Georgia 30327
Re: Post Properties, Inc. -- Registration Statement on Form S-8
relating to 150,000 shares of Common Stock
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") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the registration of an additional 150,000 shares of the Company's
Common Stock, par value $.01 per share (the "Shares") issuable by the Company
pursuant to the Post Properties, Inc. 1995 Non-Qualified Employee Stock Purchase
Plan.
In connection with this opinion, 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. As to matters of fact material to
this opinion, we have relied upon statements and representations of
representatives of the Company and of public officials.
The opinions expressed herein are limited in all respects to
the federal laws of the United States of America and the 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.
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Post Properties, Inc.
January 15, 1999
Page 2
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Based upon and subject to the foregoing, we are of the opinion
that:
(i) The Shares are duly authorized.
(ii) Upon the issuance of the Shares against payment
therefor as provided in the 1995 Non-Qualified Employee Stock Purchase
Plan, the 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 the Company 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 hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Matters" in the Prospectus that is related to the Registration Statement.
Very truly yours,
King & Spalding
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EXHIBIT 23.2
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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 page 32
of Post Properties, Inc.'s Annual Report on Form 10-K 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
January 15, 1999
