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<S> <C>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1999 REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
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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GEORGIA 58-1550675
(State or Other Jurisdiction (I.R.S. Employer Identification Number)
of Incorporation)
ONE RIVERSIDE
4401 NORTHSIDE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30327-3057
(404) 846-5000
(Address, including zip code, and telephone number, including area code, of
Principal Executive Offices)
JOHN T. GLOVER
PRESIDENT
ONE RIVERSIDE
4401 NORTHSIDE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30327-3057
(404) 846-5000
(Name, address, including zip code, and telephone number, including area code,
of Agent for Service)
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COPIES TO:
JOHN J. KELLEY III
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [X]
If any securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
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If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
TITLE OF SHARES to be Aggregate Price Aggregate Registration
TO BE REGISTERED Registered(1) Per Share(2) Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock $0.01 par value 750,000 41.4063 31,054,725 8,633.21
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(1) DOES NOT INCLUDE 750,000 SHARES OF COMMON STOCK PREVIOUSLY
REGISTERED ON REGISTRATION STATEMENT NO. 333-39461 AND TO WHICH THE
PROSPECTUS CONTAINED HEREIN RELATES. A REGISTRATION FEE OF $8,395 WAS
PREVIOUSLY PAID IN CONNECTION WITH AN AGGREGATE OF 750,000 SHARES
(INCLUDING THE 113,774 SHARES NOT YET ISSUED) PREVIOUSLY REGISTERED.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF COMPUTING THE REGISTRATION FEE IN
ACCORDANCE WITH RULE 457(C) BASED ON THE AVERAGE OF THE HIGH AND LOW
REPORTED SALES PRICES ON THE NEW YORK STOCK EXCHANGE ON JUNE 4, 1999.
-----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS RELATING ALSO
TO REGISTRATION STATEMENT NO.333-39461 PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-3 ON NOVEMBER 4, 1997, AS AMENDED BY POST EFFECTIVE AMENDMENT NO. 1 FILED
BY THE REGISTRANT ON NOVEMBER 12, 1997.
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PROSPECTUS
750,000
POST PROPERTIES, INC.
DIVIDEND REINVESTMENT STOCK PURCHASE PLAN
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COMMON STOCK
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Post hereby offers to the holders of shares of its common stock, par
value $.01 per share, the opportunity to participate in its Dividend
Reinvestment and Stock Purchase Plan (the "Plan"). The Plan provides a simple
and convenient method for shareholders to invest cash dividends and optional
cash payments in shares of common stock of Post. All holders of record of common
Stock are eligible to participate in the Plan. Some of the significant features
of the Plan are as follows:
o Participants may purchase additional shares of common stock by having
the cash dividends on all, or part, of their shares of common stock
automatically reinvested.
o Participants may purchase additional shares of common stock by
receiving directly, as usual, their cash dividends, if, as and when
declared, on shares of common stock registered in their names and
investing in the Plan by making cash payments of not less than $100 per
payment or more than $10,000 per month (referred to as "optional cash
payments").
o By investing both their cash dividends and such optional cash payments.
A shareholder may begin participating in the Plan by completing an
Authorization Card and returning it to Equiserve Trust Company, N.A., as
plan administrator. Participants may terminate their participation at any time.
Shareholders who do not wish to participate in the Plan need take no action and
will continue to receive their cash dividends, if, as and when declared, as
usual. It is suggested that this Prospectus be retained for future reference.
Our common stock is listed on the New York Stock Exchange under the
symbol "PPS."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is June 10, 1999.
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TABLE OF CONTENTS
PAGE
Where Can You Find More Information............................... 2
THE COMPANY....................................................... 3
DESCRIPTION OF THE PLAN........................................... 3
USE OF PROCEEDS................................................... 12
EXPERTS........................................................... 12
LEGAL MATTERS..................................................... 12
WHERE CAN YOU FIND MORE INFORMATION
Post is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission pursuant to the Exchange Act. Such reports,
proxy statements and other information filed by Post may be examined without
charge at, or copies obtained upon payment of prescribed fees from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and are also available for inspection and copying at the
regional offices of the Commission located at 7 World Trade Center, New York,
New York 10048 and at 500 West Madison Street, Chicago, Illinois 60661-2511. The
common stock of Post is listed on the New York Stock Exchange, and such material
can also be inspected and copied at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005. Such reports, proxy
statements, and other information can also be obtained from the Internet at
http://www.sec.gov.
Post has filed with the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, a Registration Statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, with respect to the common stock offered pursuant to
this prospectus. This prospectus, which is part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement
and the exhibits and financial schedules thereto. For further information
concerning Post and the common stock offered hereby, reference is made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be examined without charge at, or copies obtained upon payment of prescribed
fees from, the Commission and its regional offices at the locations listed
above. Any statements contained herein concerning the provisions of any document
are not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
The following documents heretofore filed by Post with the Commission
(File No. 1-12080) are incorporated herein by reference:
(a) Our Annual Report on Form 10-K for the year ended December 31,
1998; and
(b) The description of our common stock included in our Registration
Statement on Form 8-A, dated July 22, 1993.
The Commission allows us to "incorporate by reference" the information
we file with them, which means that we can disclose important information to you
by referring you to those documents. The information we incorporate by reference
is considered to be a part of this prospectus and information that we file later
with the Commission automatically will update and supersede such information. We
incorporate by reference the documents listed below and any future filings
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we make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act. These documents contain important business information about our
company and its financial condition.
You may request a copy of these filings (including exhibits to such
filings that we have specifically incorporated by reference in such filings), at
no cost, by writing or telephoning our executive offices at the following
address:
Post Properties, Inc.
One Riverside
4401 Northside Parkway, Suite 800
Atlanta, Georgia 30327-3057
(404) 846-5000
THE COMPANY
Post is one of the largest developers and operators of upscale
multifamily apartment communities in the Southeastern United States. As of March
31, 1999, Post owned 84 stabilized communities containing 27,963 apartment units
located primarily in metropolitan Atlanta, Georgia; Dallas, Texas; and Tampa,
Florida. In addition, as of March 31, 1999, Post had under construction or in
initial lease-up 12 new communities and additions to five existing communities
in the Atlanta, Georgia; Dallas and Houston, Texas; Tampa, Florida; Denver,
Colorado; Charlotte, North Carolina; Phoenix, Arizona and Nashville, Tennessee
metropolitan areas that will contain an aggregate of 4,758 apartment units upon
completion. For the year ended December 31, 1998, the average economic occupancy
rate (defined as gross potential rent less vacancy losses, model expenses and
bad debt divided by gross potential rent) of the 71 communities stabilized for
the entire year was 96.5%. The average monthly rental rate per apartment unit at
these communities for December 1998 was $834. Post also manages through
affiliates approximately 11,754 additional apartment units owned by third
parties.
Post is a fully-integrated organization with multifamily development,
acquisition, operation and asset management expertise. Post has approximately
1,860 employees, none of whom is a party to a collective bargaining agreement.
Post also manages through affiliates one community with 260 apartment units
under the Post(R) brand name for a third party and approximately 7,800
additional apartment units owned by third parties. Post conducts all of its
operations through Post Apartment Homes, L.P. (the "Operating Partnership") and
its subsidiaries. Post is the sole shareholder of Post GP Holdings, Inc., the
sole general partner of the Operating Partnership, and the sole shareholder of
Post LP Holdings, Inc., the entity that owns a majority of the limited
partnership interests in the Operating Partnership. As of March 31, 1998, Post
owned 87.9% of the outstanding partnership interests in the Operating
Partnership.
Our executive offices are located at One Riverside, 4401 Northside
Parkway, Suite 800, Atlanta, Georgia 30327-3057, and our telephone number is
(404) 846-5000. Post is a Georgia corporation that was incorporated on January
25, 1984.
DESCRIPTION OF THE PLAN
The provisions of our Dividend Reinvestment and Stock Purchase Plan are
set forth below in question and answer format.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to provide holders of record of shares of
common stock with a simple and convenient method of investing cash dividends or
optional cash payments, or both, to purchase additional shares of common stock
without payment of any brokerage commissions, fees or service charges. Shares of
common stock purchased under the Plan will either be original issue shares or
shares purchased in the open market by the plan administrator, Equiserve Trust
Company, N.A. (the "Administrator") (see Question 4). To the extent shares of
common stock are purchased by the Administrator in the open market, Post will
not receive any proceeds. To the extent the shares of common stock are
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original issue shares, Post will receive additional funds for its working
capital and general corporate purposes. See "Use of Proceeds".
ADVANTAGES
2. What are the options available to Shareholders?
The Plan offers the following investment options to Participants:
o Participants may purchase additional shares of common stock by
having the cash dividends on all, or part, of their shares of
common stock automatically reinvested;
o Participants may purchase additional shares of common stock by
receiving directly, as usual, their cash dividends, if, as and
when declared, on shares of common stock and investing in the
Plan by making cash payments of not less than $100 per payment
or more than $10,000 per month; or
o Participants may purchase additional shares of common stock by
investing both their cash dividends and such optional cash
payments.
3. What are the advantages of the Plan?
No brokerage commissions, fees or service charges are paid by
Participants in connection with purchases under the Plan, provided, however that
if shares are registered in the name of a nominee or broker, such nominee or
broker may charge a commission or fee. Full investment of dividends is possible
under the Plan because the Plan permits fractions of shares, as well as whole
shares, to be purchased and credited to Participants' accounts. Regular
statements of account provide simplified record keeping. In addition, the free
custodial services provided in connection with the Plan serve to protect against
loss, theft or destruction of certificates.
The price of shares of common stock purchased under the Plan from Post
with reinvested cash dividends is 95% of the mean of the high and low sales
prices for such shares on the applicable investment date. The price of shares of
common stock purchased under the Plan from Post with optional cash payments is
100% of the mean of the high and low sales prices for such shares on the
applicable investment date. For open market purchases, the purchase price will
be the average price paid by the Administrator for all purchases for a single
cash dividend or optional cash payment.
ADMINISTRATION
4. Who administers the Plan for Participants?
Equiserve Trust Company, N.A. has been designated by Post as its agent
to administer the Plan for Participants, maintain records, send regular
statements of account to Participants and perform other duties relating to the
Plan. Shares of common stock purchased under the Plan will be held by the
Administrator as agent for Participants and registered in the name of the
Administrator or its nominee. The Administrator also serves as Transfer Agent
for the common and preferred stock. Should the Administrator resign, or be asked
to resign, another agent will be asked to serve.
All communications regarding the Plan should be sent to the
Administrator addressed as follows:
Equiserve Trust Company, N.A.
P. O. Box 8218
Boston, Massachusetts 06628
PARTICIPATION
5. Who is eligible to participate?
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All holders of record of shares of common stock are eligible to
participate in the Plan. In order to be eligible to participate, beneficial
owners of shares of common stock whose shares are registered in names other than
their own (for example, shares registered in the name of a broker, Administrator
nominee or trustee) must either arrange for the holder of record to join the
Plan or have the shares they wish to enroll in the Plan transferred to their own
names.
6. How does an eligible shareholder participate?
An eligible shareholder may join the Plan by checking the box of his
choice on an Authorization Card and returning it to the Administrator. A
postage-paid envelope is provided for this purpose. Post shareholders whose
shares are registered in the name of a nominee or broker must have the nominee
or broker sign the Authorization Card and return it to the Administrator.
Additional Authorization Cards may be obtained at any time by written request to
the Administrator at the address indicated above.
7. When may a shareholder join the Plan?
A shareholder may join the Plan at any time and will remain a
Participant until participation is terminated (see Question 20) or all shares
held in the Participant's Plan account are sold.
If an Authorization Card specifying the Participant's desire to
participate in the Plan is received by the Administrator no later than the fifth
business day preceding the record date established for a particular dividend,
receipt of shares of common stock in lieu of cash dividends or reinvestment of
cash dividends, as appropriate, will commence with that dividend. If the
Authorization Card is received after the fifth business day prior to the record
date established for a particular cash dividend, then participation in the Plan
will not begin until the cash dividend payment date following the next record
date, as applicable.
Post has declared and paid dividends as follows during the past two
years:
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DECLARATION DATE Record Date Payment Date
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November 21, 1996 December 31, 1996 January 15, 1997
February 20, 1997 March 31, 1997 April 11, 1997
May 22, 1997 June 30, 1997 July 11, 1997
August 14, 1997 September 30, 1997 October 15, 1997
November 21, 1997 December 31, 1997 January 15, 1998
February 19, 1998 March 31, 1998 April 14, 1998
May 8, 1998 June 30, 1997 July 15, 1998
August 21, 1998 September 30, 1998 October 15, 1998
November 20, 1998 December 31, 1998 January 15, 1999
February 18, 1998 March 31, 1999 April 14, 1999
</TABLE>
Optional cash payments are invested as specified in Question 14.
8. What does the Authorization Card provide?
The Authorization Card provides for the purchase of additional shares
of common stock through the following options:
(a) Dividend Reinvestment Only. If the "Dividend Reinvestment Only" box
is checked, the Administrator will apply cash dividends on all shares
of common stock registered in the Participant's name, or such number as
specified by Participant on the Authorization Card, as well as on all
shares of common stock credited to the Participant's Plan account, to
the purchase of additional shares of common stock.
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(b) Dividend Reinvestment and Optional Cash Payments. If the "Dividend
Reinvestment and Optional Cash Payments" box is checked, the
Administrator will apply cash dividends on all shares of common stock
registered in the Participant's name, or such number as specified by
Participant on the Authorization Card, as well as on all shares of
common stock credited to the Participant's Plan account, and any
optional cash payments to the purchase of additional shares of common
stock.
(c) Optional Cash Payments Only. If the "Optional Cash Payments Only"
box is checked, the Administrator will apply any optional cash payments
and any dividends on shares credited to the Participant's Plan account
to the purchase of additional shares of common stock. Cash dividends on
shares of common stock registered in the Participant's name other than
in his Plan account will be paid to the Participant in the usual
manner.
Except with respect to dividends on shares of common stock in a
Participant's Plan account, which are reinvested automatically, a Participant
may elect to reinvest the dividends on all or part of the shares of common stock
registered in his name by designating his intentions on the Authorization Card.
9. How may Participants change investment options?
A Participant may change his investment option at any time by signing a
new Authorization Card and returning it to the Administrator. A change in
investment option will be effective on the dividend payment date if the
Authorization Card is received by the Administrator no later than the fifth
business day preceding the related dividend record date. If the Authorization
Card is received by the Administrator after the fifth business day preceding the
related dividend record date, the change will be effective on the dividend
payment date for the following quarter.
COSTS
10. Are there any expenses of participation in connection with purchases
under the Plan?
There will be no brokerage commissions or service charges to
Participants for purchases under the Plan, regardless of whether such purchases
are direct from Post or open market purchases. Furthermore, all costs of
administration of the Plan are to be paid by Post. See Question 20, "How does a
Participant terminate participation in the Plan?" and Question 21, "May a
portion of a Participant's Plan shares be sold?" for a discussion of payment by
Participants of brokerage costs and transfer taxes associated with such
termination of participation and sale of shares under the Plan.
If a Participant's shares are registered in the name of a nominee or
broker, such nominee or broker may charge a commission or fee for both shares
purchased in the open market and original issue shares.
PURCHASES
11. How many shares of common stock will be purchased for each Participant?
The number of shares to be purchased for a Participant's account under
the Plan will depend on the amount of a Participant's dividends being
reinvested, the amount of any optional cash payments and the price of the shares
of common stock. Each Participant's account will be credited with that number of
shares, including fractions computed to four decimal places, equal to the total
amount to be reinvested or invested through optional cash payments, divided by
the purchase price per share.
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12. What will be the price of shares of common stock purchased under the
Plan?
The price of shares of common stock purchased under the Plan as
original issue shares with reinvested cash dividends is 95% of the mean of the
high and low sales prices for such shares on the applicable investment date. The
price of shares of common stock purchased under the Plan as original issue
shares with optional cash payments is 100% of the mean of the high and low sales
prices for such shares on the applicable investment date. For open market
purchases, the purchase price will be the average price paid by the
Administrator for all purchases for a single cash dividend or optional cash
payment.
Since purchase prices for the common stock are established on the
applicable investment date, a Participant loses any advantages otherwise
available from being able to select the timing of investments. Participants
should recognize that neither Post nor the Administrator can assure a profit or
protect against a loss on shares of common stock purchased under the Plan.
13. What is the source of shares purchased under the Plan?
It is anticipated that all of the shares under the Plan will be issued
out of Post's authorized but unissued shares of common stock. The Plan, however,
does provide the Administrator the flexibility of using dividends and optional
cash payments to purchase shares of common stock on the open market.
14. How are optional cash payments made?
Optional cash payments may be made at any time and in varying amounts
of not less than $100 per payment or more than $10,000 per month. A shareholder
may make an optional cash payment when enrolling in the Plan by enclosing a
check (made payable to Equiserve Trust Company, N.A.) with the Authorization
Card. Thereafter, optional cash payments may be made through the use of optional
cash payment forms which will be sent to Participants by the Administrator.
Optional cash payments will be invested monthly, generally on the first
business day of each month or, if the common stock is not traded on such day,
the next trading day. However, only payments received no later than the fifth
business day preceding the related monthly investment date will be invested on
the related investment date. Optional cash payments received after the fifth
business day preceding the related monthly investment date will be invested on
the following monthly investment date. NO INTEREST WILL BE PAID ON OPTIONAL CASH
PAYMENTS. IT IS THEREFORE SUGGESTED THAT ANY OPTIONAL CASH PAYMENTS A
PARTICIPANT WISHES TO MAKE BE SENT SO AS TO REACH THE ADMINISTRATOR AS CLOSE AS
POSSIBLE TO THE 25TH DAY OF THE MONTH PRECEDING THE MONTHLY INVESTMENT DATE. The
same amount of money need not be sent each month, and there is no obligation to
make an optional cash payment each month.
A shareholder may participate through the investment of optional cash
payments without the necessity of reinvesting cash dividends by checking the
"Optional Cash Payments Only" box on the Authorization Card. However, even if
the "Optional Cash Payments Only" box is checked, all dividends payable on
shares purchased with optional cash payments and retained in the Participant's
Plan account will be reinvested automatically in additional shares of common
stock.
REPORTS TO PARTICIPANTS
15. What kind of reports will be sent to Participants in the Plan?
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Shareholders who participate in the Plan through the reinvestment of
dividends will be sent a quarterly statement of their accounts and shareholders
who participate through the investment of optional cash payments will be sent a
monthly statement for any months within which an optional cash payment is
invested. These statements of account will show any cash dividends and optional
cash payments received, the number of shares purchased, the purchase price for
the shares, the number of Plan shares held for the Participant by the
Administrator, the number of enrolled shares registered in the name of the
Participant, and an accumulation of the transactions for the calendar year to
date. Quarterly statements will be mailed as soon as practicable after each
dividend payment date, and monthly statements will be mailed on or about the
tenth day of each month. These statements are a Participant's continuing record
of the cost of his purchases and should be retained for income tax purposes.
In addition, each Participant will receive the most recent Prospectus
constituting the Plan and copies of the same communications sent to every other
holder of shares of common stock, including Post's Annual Report, Notice of
Annual Meeting and Proxy Statement and income tax information for reporting
distributions (including dividends) paid by Post.
DIVIDENDS
16. How are dividends credited to Participants' accounts under the Plan?
On shares of common stock for which a Participant has directed that
dividends be reinvested, cash dividends will automatically be credited to a
Participant's account and reinvested in additional shares of common stock. Cash
dividends also will be automatically reinvested on all shares which have been
purchased under the Plan and credited to a Participant's account; provided,
however, that no dividends will be earned on such shares purchased under the
Plan until the dividend payment for the first dividend record date which follows
the date of purchase of such shares. On shares of common stock for which a
Participant has not directed that dividends be reinvested and on shares owned by
shareholders who are not participating in the Plan, cash dividends, as declared,
will be received by them by check as usual.
Stock dividends or stock splits distributed by Post on the shares
purchased for and credited to the account of a Participant under the Plan will
be added to the Participant's account. Stock dividends or stock splits
distributed on shares owned and held outside the Plan by a Participant
(including shares for which a Participant has directed that cash dividends be
reinvested) will be mailed directly to such Participant.
17. Will Participants be credited with dividends on fractions of shares?
Yes. Account balances will be computed to four decimal places and
dividends will be paid on the fractional shares.
18. Will certificates be issued for shares of common stock purchased under
the Plan?
Unless requested by a Participant, certificates for shares of common
stock purchased under the Plan will not be issued. Shares will be held in the
name of the Administrator or its nominees. The number of shares credited to a
Participant's account under the Plan will be shown on his statement of account.
This service protects against loss, theft or destruction of stock certificates.
Certificates for any number of whole shares credited to an account
under the Plan will be issued upon the written request of a Participant. The
remaining whole shares and fractions of shares, if any, will continue to be
credited to the Participant's account. A request for issuance of Plan shares,
including issuance of all of the shares in a Participant's account, will not
constitute a termination of participation in the Plan by the Participant.
Termination may be effected only through the delivery
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to the Administrator of a notice of termination as outlined in Question 20, "How
does a Participant terminate participation in the Plan?".
Shares held by the Administrator for the account of a Participant may
not be pledged. A Participant who wishes to pledge such shares must request that
a certificate for such shares be issued in his or her name.
Certificates for fractions of shares will not be issued under any
circumstances.
19. In whose name will certificates be issued?
A Participant's account under the Plan will be maintained in the name
in which his shares of common stock were registered at the time he enrolled in
the Plan. Consequently, if and when certificates for shares held under the Plan
are issued, such certificates will be issued only in that name. Certificates
will be issued for whole shares only.
TERMINATION OF PARTICIPATION
20. How does a Participant terminate participation in the Plan?
A Participant may terminate participation in the Plan at any time by
making written notification to the Administrator. A Participant's notice of
termination takes effect when such written notice is received by the
Administrator; provided, however, if the notice of termination is received less
than five business days prior to the record date for a dividend payment date,
the dividend will be reinvested for that Participant's account. The
Administrator may terminate a Participant's account by mailing a written notice
of termination to the Participant 30 days prior to such termination. The account
then will be terminated and all subsequent dividends will be paid to the
Participant. When a Participant terminates participation in the Plan, or upon
termination of such participation by the Administrator, certificates for whole
shares credited to a Participant's account under the Plan will be issued to him
and a cash payment will be made for any fractional share. However, in the
Participant's notice of termination of participation in the Plan, the
Participant may, if he desires, direct that all of the shares credited to his
account in the Plan, whether whole or fractional, be sold. Such sales will be
made at market. Any brokerage fees and transfer taxes in connection with
effecting such sales will be paid by the withdrawing Participant. The proceeds
of the sale, net of such expenses, will be sent to the Participant.
Former Participants may become Participants in the Plan again at any time by
signing a new Authorization Card and returning it to the Administrator.
SALES OF PLAN SHARES
21. May a portion of a Participant's Plan shares be sold?
A Participant may sell all or part of shares of common stock held in
the Plan in either of two ways. First, the Participant may request certificates
for full shares and arrange for the sale of these shares through a securities
broker of the Participant's choice. Alternatively, within 10 business days after
receipt of written instructions, the Administrator will sell any portion or all
of the shares held by the Administrator for the Participant. Such shares will be
sold through independent securities brokers selected by the Administrator in its
sole discretion. The Participant will be charged a commission, transfer and
other taxes and other transaction expenses, which amounts will be deducted from
the cash proceeds paid to the Participant. Shares being sold for the Participant
may be aggregated with those of other Plan Participants who have requested
sales. In that case, the Participant will receive proceeds based on the average
sales price of all shares sold, less a pro rata share of brokerage
9
<PAGE> 12
commissions, transfer and other taxes and other transaction expenses. A check
representing the proceeds of the sale of shares will be forwarded to the
Participant as soon as practicable after settlement of the sale.
TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN
22. What are the federal income tax consequences of participation in the
Plan?
Under the current provisions of the Internal Revenue Code of 1986, as
amended, (the "Code") the purchase of shares of common stock under the Plan will
generally result in the following federal income tax consequences:
(a) A dividend on shares of common stock will be treated for
federal income tax purposes as a dividend received by the Participant
notwithstanding that it is used to purchase additional common stock
pursuant to the Plan. The full amount of cash dividends reinvested
under the Plan, plus the 5% purchase discount represent dividend income
to the Participants. In addition, the amount of any brokerage
commissions, mark-ups, and other fees or expenses incurred by Post on
behalf of a Participant in connection with such purchases on the open
market will also constitute a dividend to such Participant for federal
income tax purposes.
(b) Dividends paid to corporate shareholders, including
amounts taxable as dividends to corporate Participants under (a) above,
will not be eligible for the corporate dividends-received deduction
under the Code.
(c) A Participant's tax basis in additional shares of common
stock acquired under the Plan will be equal to the amount treated as a
dividend for federal income tax purposes. The Participant's holding
period for such shares of common stock will commence on the day after
the investment date.
(d) A Participant will not realize any taxable income upon the
receipt of a certificate for full shares credited to the Participant's
account. A Participant will recognize gain or loss when a fractional
share interest is liquidated or when the Participant sells or exchanges
shares received from the Plan. Such gain or loss will equal the
difference between the amount which the Participant receives for such
fractional share interest or such shares and the tax basis therefor.
In the case of Participants whose dividends are subject to withholding
of federal income tax, dividends will be reinvested less the amount of tax
required to be withheld.
The above is intended only as a general discussion of the current
federal income tax consequences of participation in the Plan. Participants
should consult their own tax advisers regarding the federal and state income tax
consequences (including the effects of any changes in the law) of their
individual participation in the Plan.
OTHER INFORMATION
23. What happens if Post issues a stock dividend or declares a stock split?
Any stock dividends or stock splits distributed by Post on the shares
purchased for and credited to the account of a Participant under the Plan will
be added to the Participant's account. Stock dividends or stock splits
distributed on shares owned and held outside the Plan by a Participant
(including shares for which a Participant has directed that cash dividends be
reinvested) will be mailed directly to such Participant in the same manner as to
shareholders who are not participating in the Plan.
10
<PAGE> 13
In the event Post makes available to shareholders rights to purchase
additional shares of common stock or other securities, such rights will be made
available to Participants based on the number of shares (including fractional
share interests to the extent practicable) held in their Plan accounts on the
record date established for determining shareholders who are entitled to such
rights.
24. How will a Participant's shares be voted at meetings of shareholders?
The Administrator will forward, as soon as practicable, any proxy
solicitation materials to the Participant. The Administrator will vote any full
and/or fractional shares of common stock that it holds for the Participant's
account in accordance with the Participant's directions. If a Participant does
not return a signed proxy to the Administrator, the Administrator will not vote
such shares.
25. What is the responsibility of Post under the Plan?
Neither Post nor the Administrator will be liable for any act done in
good faith or for any good faith omission to act, including, without limitation,
any claims of liability arising out of failure to terminate a Participant's
account upon such Participant's death or adjudicated incompetency prior to the
receipt of notice in writing of such death or adjudicated incompetency, the
prices at which shares are purchased for the Participant's account, the times
when purchases are made of fluctuations in the market value of the common stock.
Neither Post nor the Administrator has any duties, responsibilities or
liabilities except those expressly set forth in the Plan.
THE PARTICIPANT SHOULD RECOGNIZE THAT POST CANNOT ASSURE A PROFIT OR
PROTECT AGAINST A LOSS ON THE SHARES PURCHASED BY A PARTICIPANT UNDER THE PLAN.
26. May the Plan be changed or discontinued?
While the Plan is intended to continue indefinitely, Post reserves the
right to suspend or terminate the Plan at any time. Post also reserves the right
to make modifications to the Plan. Notice of such suspension, termination or
modification will be sent to all Participants.
Post intends to use its best efforts to maintain the effectiveness of
the Registration Statement filed with the Commission covering the offer and sale
of common stock under the Plan. However, Post has no obligation to offer, issue
or sell common stock to Participants under the Plan if, at the time of the
offer, issuance or sale, such Registration Statement is for any reason not
effective. Also, Post may elect not to offer or sell common stock under the Plan
to participants residing in any jurisdiction or foreign country where, in the
judgment of Post, the burden or expense of compliance with applicable blue sky
or securities laws makes such offer or sale there impracticable or inadvisable.
In any of these circumstances, dividends, if, as and when declared, will be paid
in the usual manner to the shareholders and any optional cash payments received
from such shareholder will be returned to him.
11
<PAGE> 14
USE OF PROCEEDS
The net proceeds from the sale of original issue shares of common stock
issued under the Plan will be used to increase working capital and for other
general purposes. Post has no basis for estimating either the number of shares
of common stock that ultimately will be sold pursuant to the Plan or prices at
which such shares will be sold.
Post will not receive any funds under the Plan from the purchase of
shares of common stock in the open market by the Administrator.
EXPERTS
The Consolidated Financial Statements incorporated in this prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31,
1998, 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.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered
pursuant to this Prospectus will be passed upon for Post by King & Spalding,
Atlanta, Georgia. Herschel M. Bloom, a member of King & Spalding, is a director
of Post.
12
<PAGE> 15
================================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED BY POST
PROPERTIES, INC. TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT
CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING COVERED BY THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY POST. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE COMMON
STOCK, IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO
MAKE ANY SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF POST SINCE THE DATE HEREOF.
POST PROPERTIES, INC.
750,000 SHARES
COMMON STOCK
---------------
PROSPECTUS
---------------
June 10, 1999
================================================================================
13
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the issuance and distribution of the Securities, other than underwriting
discounts and commissions. All of the amounts shown are estimated except the
Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
SEC registration fee...................... $ 8,633.21
---------
Printing and engraving expenses...........
---------
Legal fees and expenses...................
---------
Miscellaneous.............................
---------
Total............................... $
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Part 5 of Article 8 of the Georgia Business Corporation Code states:
14-2-850. PART DEFINITIONS.
As used in this part, the term:
(1)"Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(2)"Director" or "officer" means an individual who is or was a director or
officer, respectively, of a corporation or who, while a director or officer of
the corporation, is or was serving at the corporation's request as a director,
officer, partner, trustee, employee, or agent of another domestic or foreign
corporation, partnership, joint venture, trust, employee benefit plan, or other
entity. A director or officer is considered to be serving an employee benefit
plan at the corporation's request if his or her duties to the corporation also
impose duties on, or otherwise involve services by, the director or officer to
the plan or to participants in or beneficiaries of the plan. Director or officer
includes, unless the context otherwise requires, the estate or personal
representative of a director or officer.
(3)"Disinterested director" means a director who at the time of a vote referred
to in subsection (c) of Code Section 14-2-853 or a vote or selection referred to
in subsection (b) or (c) of Code Section 14-2-855 or subsection (a) of Code
Section 14-2-856 is not:
(A)A party to the proceeding; or
(B)An individual who is a party to a proceeding having a
familial, financial, professional or employment relationship with the director
whose indemnification or advance for expenses is the subject of the decision
being made with respect to the proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on the director's
judgment when voting on the decision being made.
(4)"Expenses" includes counsel fees.
(5)"Liability" means the obligation to pay a judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee benefit plan), or
reasonable expenses incurred with respect to a proceeding.
II-1
<PAGE> 17
(6)"Official capacity" means:
(A)When used with respect to a director, the office of
director in a corporation; and
(B)When used with respect to an officer, as contemplated in
Code Section 14-2-857, the office in a corporation held by the
officer.
Official capacity does not include service for any other domestic or foreign
corporation or any partnership, joint venture, trust, employee benefit plan, or
other entity.
(7)"Party" means an individual who was, is, or is threatened to be made a named
defendant or respondent in a proceeding.
(8)"Proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative and whether formal or informal.
14-2-851. AUTHORITY TO INDEMNIFY.
(a)Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1)Such individual conducted himself or herself in good faith;
and
(2)Such individual reasonably believed:
(A) In the case of conduct in his or her official
capacity, that such conduct was in the best interests
of the corporation;
(B) In all other cases, that such conduct was at
least not opposed to the best interests of the
corporation; and
(C) In the case of any criminal proceeding, that the
individual had no reasonable cause to believe such
conduct was unlawful.
(b)A director's conduct with respect to an employee benefit plan for a purpose
he believed in good faith to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subparagraph (a)(2)(B) of this Code section.
(c)The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Code section.
(d)A corporation may not indemnify a director under this Code section:
(1)In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in
connection with the proceeding if it is determined that the
director has met the relevant standard of conduct under this
Code section; or
(2)In connection with any proceeding with respect to conduct
for which he or she was adjudged liable on the basis that
personal benefit was improperly received by him or her,
whether or not involving action in his or her official
capacity.
(e)Indemnification permitted under this Code section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
14-2-852. MANDATORY INDEMNIFICATION.
II-2
<PAGE> 18
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
14-2-853. ADVANCE FOR EXPENSES.
(a)A corporation may, before final disposition of a proceeding, advance funds to
pay for or reimburse the reasonable expenses incurred by a director who is a
party to a proceeding because he or she is a director if he or she delivers to
the corporation:
(1)A written affirmation of his or her good faith belief
that he or she has met the relevant standard of conduct
described in Code Section 14-2-851 or that the proceeding
involves conduct for which liability has been eliminated under
a provision of the articles of incorporation as authorized by
paragraph (4) of subsection (b) of Code Section 14-2-202; and
(2)His or her written undertaking to repay any funds advanced
if it is ultimately determined that the director is not
entitled to indemnification under this part.
(b)The undertaking required by paragraph (2) of subsection (a) of this Code
section must be an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability of the
director to make repayment.
(c)Authorizations under this Code section shall be made:
(1)By the board of directors:
(A)When there are two or more disinterested directors,
by a majority vote of all the disinterested directors
(a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee
of two or more disinterested directors appointed by
such a vote; or
(B)When there are fewer than two disinterested
directors, by the vote necessary for action by the
board in accordance with subsection (c) of Code Section
14-2-824, in which authorization directors who do not
qualify as disinterested directors may participate; or
(2)By the shareholders, but shares owned or voted under the
control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not
be voted on the authorization.
14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES.
(a)A director who is a party to a proceeding because he or she is a director
may apply for indemnification or advance for expenses to the court conducting
the proceeding or to another court of competent jurisdiction. After receipt of
an application and after giving any notice it considers necessary, the court
shall:
(1)Order indemnification or advance for expenses if it
determines that the director is entitled to indemnification
under this part; or
(2)Order indemnification or advance for expenses if it
determines, in view of all the relevant circumstances, that it
is fair and reasonable to indemnify the director or to advance
expenses to the director, even if the director has not met the
relevant standard of conduct set forth in subsections (a) and
(b) of Code Section 14-2-851, failed to comply with Code
Section 14-2-853, or was adjudged liable in a proceeding
referred to in paragraph (1) or (2) of subsection (d) of Code
Section 14-2-851, but if the director was adjudged so liable,
the indemnification shall be limited to reasonable expenses
incurred in connection with the proceeding.
(b)If the court determines that the director is entitled to indemnification or
advance for expenses under this part, it may also order the corporation to pay
the director's reasonable expenses to obtain court-ordered indemnification or
advance for expenses.
14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a)A corporation may not indemnify a director under Code Section 14-2-851 unless
authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth Code Section 14-2-851.
(b)The determination shall be made:
(1)If there are two or more disinterested directors, by the
board of directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose
constitute a quorum) or by a majority of the members of a
committee of two or more disinterested directors appointed by
such a vote;
II-3
<PAGE> 19
(2)By special legal counsel:
(A)Selected in the manner prescribed in paragraph (1)
of this subsection; or
(B)If there are fewer than two disinterested
directors, selected by the board of directors
(in which selection directors who do not
qualify as disinterested directors may
participate); or
(3)By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
(c)Authorization of indemnification or an obligation to indemnify and evaluation
as to reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b)(2)(B) of this Code section to select special legal counsel.
14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION.
(a)If authorized by the articles of incorporation or a bylaw, contract, or
resolution approved or ratified by the shareholders by a majority of the votes
entitled to be cast, a corporation may indemnify or obligate itself to indemnify
a director made a party to a proceeding including a proceeding brought by or in
the right of the corporation, without regard to the limitations in other Code
sections of this part, but shares owned or voted under the control of a
director who at the time does not qualify as a disinterested director with
respect to any existing or threatened proceeding that would be covered by the
authorization may not be voted on the authorization.
(b)The corporation shall not indemnify a director under this Code section for
any liability incurred in a proceeding in which the director is adjudged liable
to the corporation or is subjected to injunctive relief in favor of the
corporation:
(1)For any appropriation, in violation of his duties, of any
business opportunity of the corporation;
(2)For acts or omissions which involve intentional misconduct
or a knowing violation of law;
(3)For the types of liability set forth in Code Section
14-2-832; or
(4)For any transaction from which he or she received an
improper personal benefit.
(c)Where approved or authorized in the manner described in subsection (a) of
this Code section, a corporation may advance or reimburse expenses incurred in
advance of final disposition of the proceeding only if:
(1)the director furnishes the corporation a written
affirmation of his or her good faith belief that his or her
conduct does not constitute behavior of the kind described in
subsection (b) of this Code section; and
(2)The director furnishes the corporation a written
undertaking, executed personally or on his or her behalf, to
repay any advances if it is ultimately determined that the
director is not entitled to indemnification under this Code
section.
14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS.
II-4
<PAGE> 20
(a) A corporation may indemnify and advance expenses under this part
to an officer of the corporation who is a party to a proceeding because he
or she is an officer of the corporation:
(1) To the same extent as a director; and
(2) If he or she is not a director, to such further extent as may
be provided by the articles of incorporation, the bylaws, a resolution
of the board of directors, or contract except for liability arising
out of conduct that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omissions which involve intentional misconduct
or a knowing violation of law;
(C) The types of liability set forth in Code Section
14-2-832; or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code
section shall apply to an officer who is also a director if the sole basis
on which he or she is made a party to the proceeding is an act or omission
solely as an officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a
court under Code Section 14-2-854 for indemnification or advances for
expenses, in each case to the same extent to which a director may be
entitled to indemnification or advances for expenses under those
provisions.
(d) A corporation may also indemnify and advance expenses to an
employee or agent who is not a director to the extent, consistent with
public policy, that may be provided by its articles of incorporation,
bylaws, general or specific action of its board of directors, or contract.
14-2-858. INSURANCE.
A corporation may purchase and maintain insurance on behalf of an individual who
is a director, officer, employee, or agent of the corporation or who, while a
director, officer, employee, or agent of the corporation, serves at the
corporation's request as a director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify or advance expenses to him or her against the same
liability under this part.
14-2-859. APPLICATION OF PART.
(a) A corporation may, by a provision in its articles of incorporation
or bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or
omission giving rise to a proceeding to provide indemnification or advance
funds to pay for or reimburse expenses consistent with this part. Any such
obligatory provision shall be deemed to satisfy the requirements for
authorization referred to in subsection (c) of Code Section 14-2-853 or
subsection (c) of Code Section 14-2-855. Any such provision that obligates
the corporation to provide indemnification to the fullest extent permitted
by law shall be deemed to obligate the corporation to advance funds to pay
for or reimburse expenses in accordance with Code Section 14-2-853 to the
fullest extent permitted by law, unless the provision specifically provides
otherwise.
(b) Any provision pursuant to subsection (a) of this Code section
shall not obligate the corporation to indemnify or advance expenses to a
director of a predecessor of the corporation, pertaining to conduct with
respect to the predecessor, unless otherwise specifically provided. Any
provision for indemnification or advance for expenses in the articles of
incorporation, bylaws, or a resolution of the board of directors or
shareholders, partners, or, in the case of limited liability companies,
members or managers of a predecessor of the corporation or other entity in
a merger or in a contract to which the predecessor is a party, existing at
the time the merger takes effect, shall be governed by paragraph (3) of
subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of
incorporation, limit any of the rights to indemnification or advance for
expenses created by or pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a
party.
(e) Except as expressly provided in Code Section 14-2-857, this part
does not limit a corporation's power to indemnify, advance expenses to, or
provide or maintain insurance on behalf of an employee or agent.
ARTICLES OF INCORPORATION
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 IV of the Company's Bylaws and certain agreements entered into by
the Company, 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.
II-5
<PAGE> 21
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 Partnership Agreement of the Operating Partnership 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
stockholders is limited under the Company's Articles of Incorporation.
In connection with the formation transactions, the Company agreed to indemnify
Messrs. Williams and Glover from any exposure to personal liability for or under
personal guarantees of certain indebtedness of Property Partnerships aggregating
[$107,900,000] in principal amount as to which Messrs. Williams and Glover
currently have personal liability either directly or as a guarantor of such
indebtedness.
The Company's director's and officers are insured against damages from actions
and claims incurred in the course of their duties, and the Company is insured
against expenses incurred in defending lawsuits arising from certain alleged
acts of its directors and officers.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <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 PricewaterhouseCoopers LLP
24.1 -- Power of Attorney (included on page II-7)
</TABLE>
- ----------
II-6
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta on June 9, 1999.
POST PROPERTIES, INC.
By: /s/ John T. Glover
----------------------------------------
John T. Glover
President and Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Sherry W. Cohen and John T.
Glover, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all amendments and supplements to
any prospectus relating thereto and any other documents and instruments
incidental thereto, and any registration statement filed pursuant to Rule 462
under the Securities Act of 1933, as amended, 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 Sherry W. Cohen and John T. Glover, 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 to all intents and purposes as he might or
could do in person, hereby ratifying and confirming that each of said
attorneys-in-fact and agents and/or Sherry W. Cohen and John T. Glover, or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 9th day of June, 1999.
II-7
<PAGE> 23
SIGNATURE Title
/s/ John A. Williams Chairman of the Board, Chief Executive Officer
- --------------------------- and a Director (Principal Executive Officer)
John A. Williams
/s/ John T. Glover President, Chief Operating Officer, Treasurer and
- --------------------------- a Director (Principal Financial Officer)
John T. Glover
/s/ R. Gregory Fox Senior Vice President -- Post Corporate
- --------------------------- Services (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/ Zell Miller Director
- ---------------------------
Zell Miller
/s/ J. C. Shaw Director
- ---------------------------
J. C. Shaw
/s/ Charles E. Rice Director
- ---------------------------
Charles E. Rice
<PAGE> 1
EXHIBIT 5.1
June 9, 1999
Post Properties, Inc.
One Riverside
4401 Northside Parkway
Suite 800
Atlanta, Georgia 30327-3057
Re: Post Properties, Inc. -- Shelf Registration Statement on Form S-3
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-3 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the offering pursuant to the Post Properties, Inc. Dividend Reinvestment
Plan, as set forth in the prospectus contained in the Registration Statement
(the "Prospectus"), of 750,000 shares (the "Shares") of common stock, par value
$.01 per share ("Common Stock") of the Company.
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.
This opinion is limited in all respects to the federal laws of
the United States of America and the laws of the States 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 the other limitations and
qualifications set forth herein, we are of the opinion that:
(i) The Company is a corporation validly existing and,
based solely on a certificate of the Secretary of State of the State of
Georgia, in good standing under the laws of the State of Georgia;
(ii) Upon the due authorization of the issuance of the
Shares and the issuance and sale thereof as described in the
Registration Statement and the Prospectus, such Shares will be validly
issued, fully paid and nonassessable;
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law).
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 included in the Registration
Statement.
Very truly yours,
/s/ King & Spalding
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 26, 1999 appearing on page 35 of Post properties, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Atlanta, Georgia
June 9, 1999
