<PAGE> 1
As filed with the Securities and Exchange Commission on January 5, 2000
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-----------------
POST PROPERTIES, INC.
POST APARTMENT HOMES, L.P.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1550675
GEORGIA 58-2053632
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE RIVERSIDE, 4401 NORTHSIDE PARKWAY, SUITE 800, ATLANTA, GEORGIA 30327
(Address, including zip code, of registrant's principal executive offices)
POST PROPERTIES, INC. AMENDED AND RESTATED DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND EXECUTIVE COMMITTEE MEMBERS
(Full title of 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
<TABLE>
<CAPTION>
- --------------------------------- ----------------- ----------------------- -------------------- -------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Obligation Offering Price Fee
- --------------------------------- ----------------- ----------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations (1)............. $10,000,000 100% $10,000,000(2) $2,640
- --------------------------------- ----------------- ----------------------- -------------------- -------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of Post
Properties, Inc. and Post Apartment Homes, L.P. to pay deferred
compensation in the future in accordance with the terms of the Post
Properties, Inc. Amended and Restated Deferred Compensation Plan for
Directors and Executive Committee Members.
<PAGE> 2
(2) Estimated solely for the purpose of determining the registration fee.
===============================================================================
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been previously filed by Post Properties,
Inc. ("Post") and Post Apartment Homes, L.P. (the "Operating Partnership") 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, 1998;
and
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999.
All documents filed by Post and the Operating Partnership 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 thereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Post Properties, Inc. Amended and Restated Deferred
Compensation Plan for Directors and Executive Committee Members (the "Plan"),
Post will provide (1) each of the members of Post's board of directors the
opportunity to agree to the deferral of all or portion of the meeting fees
and/or any other fees payable to such director for services as a member of the
board of directors and (2) each employee of Post, the Operating Partnership or
certain other affiliates of Post who is a member of Post's Executive Committee
the opportunity to agree to the deferral of all or a portion of his or her
salary and/or annual bonus. The obligations of Post under such agreements (the
"Obligations") will be unsecured general obligations of Post to pay the deferred
compensation in the future in accordance with the terms of the Plan, and will
rank pari passu with other unsecured and unsubordinated indebtedness of Post
from time to time outstanding. However, the right of Post, and therefore the
right of creditors of Post (including participants in the Plan), to participate
in the distribution of the assets of any subsidiary or affiliate of Post
(including the Operating Partnership) upon its liquidation or reorganization or
otherwise is necessarily subject to the claims of creditors of the subsidiary or
affiliate, except to the extent that claims of Post itself as a creditor of the
subsidiary or affiliate may be recognized. To the extent compensation deferred
by a qualifying employee is payable to such employee by the Operating
Partnership or another affiliate of Post, Post will direct the Operating
Partnership or such other affiliate to defer payment of such compensation in
accordance with the Plan and the Obligations arising from such deferred
compensation shall also be unsecured general obligations of the Operating
Partnership or other affiliate of Post, as applicable.
3
<PAGE> 4
The amount of compensation to be deferred by each participating
director or employee (each a "Participant") will be determined in accordance
with the Plan based on elections by each Participant. Each Obligation will be
payable on a date selected by each Participant in accordance with the terms of
the Plan. The Obligations will be indexed to one or more benchmark return
options (the "Benchmark Return Options") individually chosen by each
Participant from a list of investment alternatives. Each Participant's
Obligation will be adjusted to reflect the investment experience, whether
positive or negative, of the selected Benchmark Return Options, including any
appreciation or depreciation. The Obligations will be denominated and be
payable in United States dollars.
A Participant's right or the right of a Participant's beneficiary, if
any, to the Obligations cannot be alienated, assigned, commuted or otherwise
encumbered.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant, at the
option of Post or through operation of a mandatory or optional sinking fund or
analogous provision. However, Post reserves the right to amend or terminate the
Plan at any time, provided the balance credited to each Participant's account
immediately after any such amendment or termination shall be no less than the
balance credited to each such account immediately before such amendment or
termination and no amendment or termination shall adversely affect the right of
a Participant or his or her beneficiary, if any, to the distribution of the
balance of such Participant's deferred account.
The Obligations are not convertible into another security of Post. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of Post. No trustee has been
appointed having the authority to take action with respect to the Obligations
and each Participant will be responsible for acting independently with respect
to, among other things, the giving of notices, responding to any requests for
consents, waivers or amendments pertaining to the Obligations, enforcing
covenants and taking action upon default.
ITEM 5.INTEREST OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6.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,
4
<PAGE> 5
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.
(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
5
<PAGE> 6
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 or she 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.
14-2-852. Mandatory indemnification.
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:
6
<PAGE> 7
(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 the 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,
7
<PAGE> 8
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 in 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;
(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 wish
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
8
<PAGE> 9
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 the director's
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.
(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;
9
<PAGE> 10
(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 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.
10
<PAGE> 11
(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, Post's Charter
provides that a director shall not be personally liable to Post 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 Post, (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. Post's Charter 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 Post shall be eliminated or limited to the fullest
extent permitted by the Georgia Business Corporation Code, as amended.
Under Article IV of Post's Bylaws and certain agreements entered into
by Post, Post 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 Post
and, in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful. Post 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:
11
<PAGE> 12
(a) Such person furnishes Post a written affirmation of his
good faith belief that he has met the standard of conduct set forth
above; and
(b) Such person furnishes Post 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 Post's Bylaws are not exclusive of any other right which any person may
have under any statute, provision of Post's Articles of Incorporation,
provision of Post's Bylaws, agreement, vote of shareholders or disinterested
directors or otherwise.
The Partnership Agreement of the Operating Partnership also provides
for indemnification of Post, the Operating Partnership's general partner, which
is a wholly owned subsidiary of Post (the "General Partner"), and the officers
and directors of Post, the General Partner and the Operating Partnership to the
same extent indemnification is provided to officers and directors of Post in
Post's Charter, and limits the liability of Post, the General Partner and the
officers and directors of Post, the General Partner and the Operating
Partnership to the Operating Partnership and its partners to the same extent
liability of officers and directors of Post to Post and its shareholders is
limited under Post's Charter.
In connection with the formation transactions, Post agreed to
indemnify Messrs. Williams and Glover from any exposure to personal liability
for or under personal guarantees of certain indebtedness of partnerships of
Post 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.
Post's director's and officers are insured against damages from
actions and claims incurred in the course of their duties, and Post is insured
against expenses incurred in defending lawsuits arising from certain alleged
acts of its directors and officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Inapplicable.
<TABLE>
<CAPTION>
ITEM 8. EXHIBITS
<S> <C> <C>
5 -- Opinion of King & Spalding
23(a) -- Consent of King & Spalding (included as part of Exhibit 5)
</TABLE>
12
<PAGE> 13
<TABLE>
<S> <C> <C>
23(b) -- Consent of PricewaterhouseCoopers LLP
24 -- Power of Attorney (included on page 15)
</TABLE>
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
13
<PAGE> 14
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 5th day of
January, 2000.
POST PROPERTIES, INC.
By: /s/ John T. Glover
--------------------------------
John T. Glover
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John T. Glover, R. Gregory Fox and
Sherry W. Cohen and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for such person and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 5th day of January, 2000.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ John A. Williams Chairman of the Board,
-------------------------------- Chief Executive Officer and a Director
John A. Williams (Principal Executive Officer)
/s/ John T. Glover President, Chief Operating
-------------------------------- Officer, Treasurer and a Director (Principal
John T. Glover Financial Officer)
</TABLE>
15
<PAGE> 16
<TABLE>
<S> <C>
/s/ Gregory Fox Executive Vice President, Chief
-------------------------------- Accounting Officer
R. Gregory Fox
/s/ Arthur M. Blank Director
--------------------------------
Arthur M. Blank
Director
/s/ Herschel M. Bloom
--------------------------------
Herschel M. Bloom
/s/ Russell R. French Director
--------------------------------
Russell R. French
Director
--------------------------------
Zell Miller
/s/ Charles E. Rice Director
--------------------------------
Charles E. Rice
Director
--------------------------------
J. C. Shaw
</TABLE>
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 5th day of
January, 2000.
POST APARTMENT HOMES, L.P.
By: Post GP Holdings, Inc., as General Partner
By: /s/ John T. Glover
--------------------------------
John T. Glover, President
(Principal Financial Officer)
By: /s/ R. Gregory Fox
--------------------------------
R. Gregory Fox,
Executive Vice President, Chief
Accounting Officer
17
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
No. Exhibit Numbered Page
- ------- ------- ------------------
<S> <C> <C>
5 -- Opinion of King & Spalding
23(a) -- Consent of King & Spalding (included as part of Exhibit 5)
23(b) -- Consent of PricewaterhouseCoopers LLP
24 -- Power of Attorney (included on page 15)
</TABLE>
18
<PAGE> 1
Exhibit 5
[Letterhead of King & Spalding]
January 5, 2000
Post Properties, Inc.
Post Apartment Homes, L.P.
One Riverside
4401 Northside Parkway
Suite 800
Atlanta, Georgia 30327
Re: Obligations to Pay Deferred Compensation pursuant to the
Post Properties, Inc. Amended and Restated Deferred Compensation
Plan
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia
corporation (the "Company"), and Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), in connection with the registration
under the Securities Act of 1933, as amended, of $10,000,000 of obligations of
the Company and the Operating Partnership (the "Obligations") to pay deferred
compensation pursuant to the terms of the Post Properties, Inc. Amended and
Restated Deferred Compensation Plan for Directors and Executive Committee
Members, effective as of January 1, 2000 (the "Plan").
In our capacity as such counsel, we have reviewed the Plan. We have
also reviewed such matters of law and examined original, certified, conformed
or photographic copies of such other documents, records, agreements and
certificates as we have deemed necessary as a basis for the opinions
hereinafter expressed. In such review we have assumed the genuineness of
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all copies submitted to us as certified, conformed or photographic copies of
such documents.
This opinion is 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.
Based upon the foregoing, and the other limitations and qualifications
set forth herein, we are of the opinion that:
1. The Obligations have been duly authorized; and
19
<PAGE> 2
2. When issued in accordance with the provisions of the Plan, the
Obligations will be valid and binding obligations of the Company
or the Operating Partnership, as appropriate, enforceable against
the Company or the Operating Partnership in accordance with their
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, and 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 and the Operating Partnership in connection with the matters
addressed herein. This opinion may not be furnished to or relied upon by any
person or entity for any purpose without our prior written consent.
We consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 to be filed by the Company and the Operating
Partnership and to the references to us in such registration statement.
Very truly yours,
/s/ King & Spalding
20
<PAGE> 1
Exhibit 23(b)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 26, 1999 relating to the
consolidated financial statements, which appear in the Post Properties, Inc.
and Post Apartment Homes, L.P. Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ PricewaterhouseCoopers LLP
Atlanta, Georgia
December 30, 1999
21
