-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DgIIPAZIYdomtUZrKM6eGovg4oaQY4f54v9lmBT/zLK9copszJg43UjvB03vs8La FWs2Zw2hSgLx5BOIwUSIFQ== 0000950144-99-000334.txt : 19990118 0000950144-99-000334.hdr.sgml : 19990118 ACCESSION NUMBER: 0000950144-99-000334 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990115 EFFECTIVENESS DATE: 19990115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: POST PROPERTIES INC CENTRAL INDEX KEY: 0000903127 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 581550675 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-70689 FILM NUMBER: 99507339 BUSINESS ADDRESS: STREET 1: ONE RIVERSIDE STREET 2: SUITE 800 CITY: ATLANTA STATE: GA ZIP: 30327 BUSINESS PHONE: 4048465000 MAIL ADDRESS: STREET 1: ONE RIVERSIDE STREET 2: SUITE 800 CITY: ATLANTA STATE: GA ZIP: 30327 S-8 1 POST PROPERTIES INC 1 As filed with the Securities and Exchange Commission on January 15, 1999 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. (Exact name of registrant as specified in its charter) GEORGIA 58-1550675 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.)
ONE RIVERSIDE 4401 NORTHSIDE PARKWAY SUITE 800 ATLANTA, GEORGIA 30327 (Address of principal executive offices) POST PROPERTIES, INC. 1995 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) JOHN T. GLOVER PRESIDENT POST PROPERTIES, INC. ONE RIVERSIDE 4401 NORTHSIDE PARKWAY, SUITE 800 ATLANTA, GEORGIA 30327 (Name and address of agent for service) (404) 846-5000 (Telephone number, including area code, of agent for service) COPIES TO: JOHN J. KELLEY III KING & SPALDING 191 PEACHTREE STREET ATLANTA, GEORGIA 30303-1763 (404) 572-4600 CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Proposed Title of Amount Maximum Maximum Amount of Securities to to be Offering Price Aggregate Registration be Registered Registered Per Share Offering Price Fee - --------------------------------------- -------------------- ------------------- -------------------- ---------------- Common Stock, par value $.01 per share............... 150,000 shares $37.7813(1) $5,667,195(1) $1,576 - --------------------------------------- -------------------- ------------------- -------------------- ---------------- Interests in Post Properties, Inc. 1995 Non-Qualified Stock Purchase Plan...... (3) -- -- -- - --------------------------------------- -------------------- ------------------- -------------------- ----------------
(1) Does not include shares of Common Stock Post Properties, Inc. previously registered on Registration Statement No. 33-86674 and to which the Prospectus relating to this Registration Statement relates. Registration fees of $1,011 were previously paid in connection with an aggregate of 100,000 shares of Common Stock (including the shares not yet issued) previously registered. (2) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low sales prices per share of Common Stock of Post Properties, Inc. as reported on the New York Stock Exchange on January 13, 1999. (3) This Registration Statement is deemed to register an indeterminate amount of interests in the Post Properties 1995 Non-Qualified Employee Stock Purchase Plan. 2 PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS RELATING TO THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS RELATING ALSO TO REGISTRATION STATEMENT NO. 33-86674 PREVIOUSLY FILED BY THE REGISTRANT ON FORM S-8 ON NOVEMBER 23, 1994. -2- 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents have been previously filed by Post Properties, Inc. (the "Company") with the Securities and Exchange Commission and are hereby incorporated by reference into this Registration Statement as of their respective dates: (a) Annual Report on Form 10-K for the year ended December 31, 1997; (b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998, and September 30, 1998; (c) Current Reports on Form 8-K and Form 8-K/A dated February 26, 1998, March 11, 1998, March 31, 1998, April 23, 1998, May 27, 1998 and October 29, 1998; and (d) the description of the Common Stock of the Company included in the Company's Registration Statement on Form 8-A, dated July 22, 1993. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereunder have been sold or that deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Inapplicable. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. The validity of the shares of Common Stock covered by this Registration Statement has been passed upon for the Company by King & Spalding, Atlanta, Georgia. Herschel M. Bloom, a member of King & Spalding, is a director of the Company. -3- 4 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. As permitted by the Georgia Business Corporation Code, the Company's Articles of Incorporation provide that a director shall not be personally liable to the Company or its shareholders for monetary damages for breach of duty of care or other duty as a director, except that such provision shall not eliminate or limit the liability of a director (a) for any appropriation, in violation of his duties, of any business opportunity of the Company, (b) for acts or omissions that involve intentional misconduct or a knowing violation of law, (c) for unlawful corporate distributions or (d) for any transaction from which the director derived an improper personal benefit. The Articles of Incorporation of the Company further provide that if the Georgia Business Corporation Code is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent permitted by the Georgia Business Corporation Code, as amended. Under Article VI of the Company's Bylaws, the Company is required to indemnify to the fullest extent permitted by the Georgia Business Corporation Code, any individual made a party to a proceeding (as defined in the Georgia Business Corporation Code) because he is or was a director or officer against liability (as defined in the Georgia Business Corporation Code), incurred in the proceeding, if he acted in a manner he believed in good faith to be in or not opposed to the best interests of the Company and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. The Company is required to pay for or reimburse the reasonable expenses incurred by a director or officer who is a party to a proceeding in advance of final disposition of the proceeding if: (a) Such person furnishes the Company a written affirmation of his good faith belief that he has met the standard of conduct set forth above; and (b) Such person furnishes the Company a written undertaking, executed personally on his behalf to repay any advances if it is ultimately determined that he is not entitled to indemnification. The written undertaking required by paragraph (b) above must be an unlimited general obligation of such person but need not be secured and may be accepted without reference to financial ability to make repayment. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in Article VI of the Company's Bylaws are not exclusive of any other right which any person may have under any statute, provision of the Company's Articles of Incorporation, provision of the Company's Bylaws, agreement, vote of shareholders or disinterested directors or otherwise. -4- 5 The Restated and Amended Agreement of Limited Partnership of Post Apartment Homes, L.P. also provides for indemnification of the Company and its officers and directors to the same extent indemnification is provided to officers and directors of the Company in its Articles of Incorporation, and limits the liability of the Company and its officers and directors to the Operating Partnership and its partners to the same extent liability of officers and directors of the Company to the Company and its shareholders is limited under the Company's Articles of Incorporation. In connection with the formation of the Company, the Company agreed to indemnify John A. Williams, the Chairman of the Board and Chief Executive Officer of the Company, and John T. Glover, the President, Chief Operating Officer and Treasurer of the Company from any exposure to personal liability for or under personal guarantees of indebtedness aggregating $102,800,000 in principal amount as to which Messrs. Williams and Glover currently have personal liability either directly or as a guarantor of such indebtedness. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. ITEM 8. EXHIBITS 4.1 -- Restated Articles of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to Registrant's Registration Statement on Form S-11 (File No. 33-61936)) 4.3 -- Bylaws of the Registrant, as amended and restated (incorporated by reference to Exhibit 3.2 of Registrant's Registration Statement on Form S-11 (File No. 33-61936)) 5.1 -- Opinion of King & Spalding regarding the validity of the securities being registered 23.1 -- Consent of King & Spalding (included as part of Exhibit 5.1) 23.2 -- Consent of PricewaterhouseCoopers LLP 99.1 -- Post Properties, Inc. 1995 Non-Qualified Employee Stock Purchase Plan (incorporated by reference to Exhibit 99.1 of Registrant's Registration Statement on Form S-8 (File No. 33-86674)
-5- 6 ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii)to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the -6- 7 Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. EXPERTS The Consolidated Financial Statements incorporated in this Registration Statement by reference to the Annual Report on Form 10-K of Post Properties, Inc. for the year ended December 31, 1997 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. -7- 8 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia on the 15th day of January, 1999. POST PROPERTIES, INC. By: /s/ John T. Glover ------------------------------------- John T. Glover President Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated as of the 15th day of January, 1999.
Signature Title /s/ John A. Williams - ------------------------------ Chairman of the Board, Chief Executive John A. Williams Officer and a Director (Principal Executive Officer) /s/ John T. Glover - ------------------------------ President, Chief Operating Officer, Treasurer John T. Glover and a Director (Principal Financial Officer) /s/ R. Gregory Fox - ------------------------------ Executive Vice President R. Gregory Fox (Chief Accounting Officer) /s/ Arthur M. Blank - ------------------------------ Director Arthur M. Blank /s/ Herschel M. Bloom - ------------------------------ Director Herschel M. Bloom /s/ Russell R. French - ------------------------------ Director Russell R. French /s/ Charles E. Rice - ------------------------------ Director Charles E. Rice /s/ J. C. Shaw - ------------------------------ Director J. C. Shaw
-8- 9 Pursuant to the requirements of the Securities Act, the Post Properties, Inc. 1995 NonQualified Employee Stock Purchase Plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on January 15, 1999. POST PROPERTIES, INC. 1995 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN By: Arthur M. Blank ------------------------------------- Arthur M. Blank Compensation Committee Member By:Charles E. Rice ------------------------------------- Charles E. Rice Compensation Committee Member -9- EX-5.1 2 OPINION OF KING & SPALDING RE: VALIDITY 1 EXHIBIT 5.1 2 January 15, 1999 Post Properties, Inc. One Riverside 4401 Northside Parkway Suite 800 Atlanta, Georgia 30327 Re: Post Properties, Inc. -- Registration Statement on Form S-8 relating to 150,000 shares of Common Stock Ladies and Gentlemen: We have acted as counsel for Post Properties, Inc., a Georgia corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration of an additional 150,000 shares of the Company's Common Stock, par value $.01 per share (the "Shares") issuable by the Company pursuant to the Post Properties, Inc. 1995 Non-Qualified Employee Stock Purchase Plan. In connection with this opinion, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed or photographic copies, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. As to matters of fact material to this opinion, we have relied upon statements and representations of representatives of the Company and of public officials. The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the laws of the State of Georgia, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. 3 Post Properties, Inc. January 15, 1999 Page 2 - --------------------- Based upon and subject to the foregoing, we are of the opinion that: (i) The Shares are duly authorized. (ii) Upon the issuance of the Shares against payment therefor as provided in the 1995 Non-Qualified Employee Stock Purchase Plan, the Shares will be validly issued, fully paid and nonassessable. This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This letter is being rendered solely for the benefit of the Company in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the reference to us under the caption "Legal Matters" in the Prospectus that is related to the Registration Statement. Very truly yours, King & Spalding EX-23.2 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.2 2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 20, 1998 appearing on page 32 of Post Properties, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. We also consent to the reference to us under the heading "Experts" in such Registration Statement. PricewaterhouseCoopers LLP Atlanta, Georgia January 15, 1999 -----END PRIVACY-ENHANCED MESSAGE-----