EXHIBIT 3.3
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
POST PROPERTIES, INC.
I.
The name of the corporation is Post Properties, Inc. (the
"Corporation").
II.
The amendment (the "Amendment") is to add the following as a new
Article 2(d) of the Corporation's Articles of Incorporation, to determine the
terms of a series of the Preferred Stock:
"(d) 7 5/8% Series B Cumulative Redeemable Preferred Shares.
(i) TITLE. The series of Preferred Stock is hereby designated as
the "7 5/8% Series B Cumulative Redeemable Preferred Shares" (the "Series B
Preferred Shares").
(ii) NUMBER. The maximum number of authorized shares of the Series
B Preferred Shares shall be 2,300,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive dividends
and to participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Series B Preferred Shares
shall rank senior to the Common Stock and any other class or series of shares of
the Corporation ranking, as to dividends and upon liquidation, junior to the
Series B Preferred Shares (collectively, "Junior Shares").
(iv) DIVIDENDS.
(A) The holders of the then outstanding Series B Preferred Shares
shall be entitled to receive, when and as declared by the Board of Directors out
of any funds legally available therefor, cumulative dividends at the rate of
$1.90625 per share per year, payable in equal amounts of $0.47656 per share
quarterly in cash on the last day of each March, June, September, and December
or, if not a Business Day (as hereinafter defined), the next succeeding Business
Day. Dividends shall begin on December 31, 1997 (each such day being hereafter
called a "Quarterly Dividend Date" and each period ending on a Quarterly
Dividend Date being hereinafter called a "Dividend Period"). Dividends shall be
payable to holders of record as they appear in the share records of the
Corporation at the close of business on the applicable record date (the "Record
Date"), which shall be the 15th day of the calendar month in which the
applicable Quarterly Dividend Date falls on or such other date designated by the
Board of Directors of the Corporation for the payment of dividends that is not
more than 30 nor less than 10 days prior to such Quarterly Dividend Date. The
amount of any dividend payable for any Dividend Period shorter than a full
Dividend Period shall be prorated and computed on the basis of a 360-day year of
twelve 30-day months. Dividends paid on the Series B Preferred Shares in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a per share basis among
all such shares at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
(B) The amount of any dividends accrued on any Series B Preferred
Shares at any Quarterly Dividend Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Quarterly Dividend Date,
whether or not earned or declared, and the amount of dividends accrued on any
shares of Series B Preferred Shares at any date other than a Quarterly Dividend
Date shall be equal to the sum of the amount of any unpaid dividends accumulated
thereon, to and including the last preceding Quarterly Dividend Date, whether or
not earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $1.90625 per share for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the calculation is
made based on a 360-day year of twelve 30-day months.
(C) Except as provided in this paragraph (d), the Series B
Preferred Shares will not be entitled to any dividends in excess of full
cumulative dividends as described above and shall not be entitled to participate
in the earnings or assets of the Corporation, and no interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series B Preferred Shares which may be in arrears.
(D) Any dividend payment made on the Series B Preferred Shares
shall be first credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable.
(E) If, for any taxable year, the Corporation elects to designate
as "capital gain dividends" (as defined in Section 857 of the Internal Revenue
Code of 1986, as amended (the "Code")), any portion (the "Capital Gains Amount")
of the dividends paid or made available for the year to holders of all classes
of shares (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocated to the holders of the Series B Preferred Shares shall
equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal
to (a) the total dividends paid
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or made available to the holders of the Series B Preferred Shares for the year
over (b) the Total Dividends.
(F) No dividends on the Series B Preferred Shares shall be
authorized by the Board of Directors or be paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. Notwithstanding the foregoing, dividends on the
Series B Preferred Shares will accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such dividends and whether or not such dividends are authorized.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary dissolutions, liquidation or
winding up of the Corporation, the holders of the Series B Preferred Shares then
outstanding shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Shares, the amount of $50.00 per
share, plus accrued and unpaid dividends thereon.
(B) After the payment to the holders of the Series B Preferred
Shares of the full preferential amounts provided for in this paragraph (d), the
holder of the Series B Preferred Shares, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(C) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable with respect
to the preference value of the Series B Preferred Shares and any other shares of
the Corporation ranking as to any such distribution on a parity with the Series
B Preferred Shares are not paid in full, the holders of the Series B Preferred
Shares and of such other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full respective preference
amounts to which they are entitled.
(D) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Corporation, nor the merger
or consolidation of the Corporation into or with any other entity or the merger
or consolidation of any other entity into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up, voluntary or involuntary,
for the purposes of this paragraph (d).
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. On and after October 28, 2007, the
Corporation may, at its option, redeem at any time all or, from time to time,
part of the Series B Preferred Shares at a price per share (the " Redemption
Price"), payable in cash, of $25.00, together with all
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accrued and unpaid dividends to and including the date fixed for redemption (the
"Redemption Date"), without interest, to the full extent the Company has funds
legally available therefor. The Series B Preferred Shares have no stated
maturity, except as provided for in subparagraph (ix) below, and will not be
subject to any sinking fund or mandatory redemption provisions.
(B) PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be given by publication in
a newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the Redemption Date.
Notice of any redemption will also be mailed by the registrar, postage
prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the Series B Preferred
Shares to be redeemed at the address set forth in the share transfer
records of the registrar. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series B Preferred Shares except
as to the holder to whom the Corporation has failed to give notice or
except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any
exchange upon which Series B Preferred Shares may be listed or admitted
to trading, such notice shall state: (a) the Redemption Date; (b) the
Redemption Price; (c) the number of Series B Preferred Shares to be
redeemed; (d) the place or places where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (e) that
dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date. If fewer than all of the Series B Preferred Shares
held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of Series B Preferred Shares to be
redeemed from such holder. If fewer than all the Series B Preferred
Shares held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of Series B Preferred Shares to be
redeemed from such holder.
(2) If notice has been mailed in accordance with
subparagraph (vi)(B)(1) above and provided that on or before the
Redemption Date specified in such notice all funds necessary for such
redemption shall have been irrevocably set aside by the Corporation,
separate and apart from its other funds in trust for the pro rata
benefit of the holders of the Series B Preferred Shares so called for
redemption, so as to be, and to continue to be available therefor,
then, from and after the Redemption Date, dividends on the Series B
Preferred Shares so called for redemption shall cease to accumulate,
and said shares shall no longer be deemed to be outstanding and shall
not have the status of Series B Preferred Shares and all rights of the
holders thereof as shareholder of the Corporation (except the right to
receive the Redemption Price) shall cease. Upon surrender, in
accordance with such notice, of the certificates for any Series B
Preferred Shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so
state), such Series B Preferred Shares shall be redeemed by the
Corporation at the Redemption Price. In case fewer than all the Series
B Preferred Shares represented by any
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such certificate are redeemed, a new certificate or certificates shall
be issued presenting the unredeemed Series B Preferred Shares without
cost to the holder thereof.
(3) Any funds deposited with a bank or trust company for
the purpose of redeeming Series B Preferred Shares shall be irrevocable
except that:
(a) the Corporation shall be entitled to receive
from such bank or trust company the interest or other
earnings, if any, earned on any money so deposited in trust,
and the holders of any shares redeemed shall have no claim to
such interest or other earnings; and
(b) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series B
Preferred Shares entitled thereto at the expiration of two
years from the applicable Redemption Date shall be repaid,
together with any interest or other earnings earned thereon,
to the Corporation, and after any such repayment, the holders
of the shares entitled to the funds so repaid to the
Corporation shall look only to the Corporation for payment
without interest or other earnings.
(4) No Series B Preferred Shares may be redeemed except
from proceeds from the sale of other capital stock of the Corporation,
including but not limited to common stock, preferred stock, depositary
shares, interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of
the foregoing.
(5) Unless full accumulated dividends on all Series B
Preferred Shares shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart
for payment for all past Dividend Periods and the then current Dividend
Period, no Series B Preferred Shares shall be redeemed or purchased or
otherwise acquired directly or indirectly (except by conversion into or
exchange for Junior Shares); provided, however, that the foregoing
shall not prevent the redemption of Series B Preferred Shares to
preserve the Corporation's REIT status or the purchase or acquisition
of Series B Preferred Shares pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding Series B Preferred
Shares.
(6) If the Redemption Date is after a Record Date and
before the related Quarterly Dividend Date, the dividend payable on
such Quarterly Dividend Date shall be paid to the holder in whose name
the Series B Preferred Shares to be redeemed are registered at the
close of business on such Record Date notwithstanding the redemption
thereof between such Record Date and the related Quarterly Dividend
Date or the Corporation's default in the payment of the dividend due.
Except as provided above, the Company will make no payment or allowance
for unpaid dividends, whether or not in arrears, on Series B Preferred
Shares to be redeemed.
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(7) In case of redemption of less than all Series B
Preferred Shares at the time outstanding, the Series B Preferred Shares
to be redeemed shall be selected pro rata from the holders of record of
such shares in proportion to the number of Series B Preferred Shares
held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined by the
Corporation.
(vii) VOTING RIGHTS. Except as required by law, and as set forth
below, the holders of the Series B Preferred Shares shall not be entitled to
vote at any meeting of the shareholders for election of Directors or for any
other purpose or otherwise to participate in any action taken by the Corporation
or the shareholders thereof, or to receive notice of any meeting of
shareholders.
(A) Whenever dividends on any Series B Preferred Shares shall be
in arrears for six or more quarterly periods, whether or not such quarterly
periods are consecutive, the holders of such Series B Preferred Shares (voting
separately as a class with all other series of preferred shares upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of two additional Directors of the Corporation at a special
meeting called by the holders of record of at least ten percent (10%) of any
series of preferred shares so in arrears (unless such request is received less
than 90 days before the date fixed for the next annual or special meeting of the
shareholders) or at the next annual meeting of shareholders, and at each
subsequent annual meeting until all dividends accumulated on such Series B
Preferred Shares for the past dividend periods and the then current dividend
period shall have been fully paid or declared and a sum sufficient for the
payment thereof set aside for payment. In such case, the entire Board of
Directors of the Corporation will be increased by two Directors.
(B) So long as any Series B Preferred Shares remain outstanding,
the Corporation will not, without the affirmative vote or consent of the holders
of at least two-thirds of the Series B Preferred Shares outstanding at the time,
given in person or by proxy, either in writing or at a meeting (such series
voting separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any class or series of shares of capital stock
ranking prior to the Series B Preferred Shares with respect to the payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up or reclassify any authorized shares of the Corporation into such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares; or (ii) amend, alter or repeal
the provisions of the Corporation's Articles of Incorporation, including this
Amendment, whether by merger, consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting power
of the Series B Preferred Shares or the holders thereof; provided, however, with
respect to the occurrence of any of the Events set forth in (ii) above, so long
as the Series B Preferred Shares remain outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of an Event,
the Corporation may not be the surviving entity, the occurrence of any such
Event shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of Series B Preferred Shares
and provided further that (x) any increase in the amount of the authorized
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Preferred Stock or the creating or issuance of any other series of Preferred
Stock, or (y) any increase in the amount of authorized Series B Preferred Shares
or any other series of Preferred Stock, in each case ranking on a parity with or
junior to the Series B Preferred Shares with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up, shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Series B Preferred Shares shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
(C) On each matter submitted to a vote of the holders of Series B
Preferred Shares in accordance with this paragraph (d), or as otherwise required
by law, each Series B Preferred Share shall be entitled to one vote. With
respect to each Series B Preferred Share, the holder thereof may designate a
proxy, with each such proxy having the right to vote on behalf of the holder.
(viii) CONVERSION. The Series B Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Corporation.
(ix) RESTRICTIONS ON OWNERSHIP.
(A) Definitions. The following terms shall have the following meanings:
(1) "Acquire" shall mean the acquisition of Beneficial
Ownership of Series B Preferred Shares by any means whatsoever including,
without limitation, (A) the acquisition of direct ownership of shares by any
Person, including through the exercise of any option, warrant, pledge, security
interest or similar right to acquire shares, and (B) the acquisition of indirect
ownership of shares (taking into account the constructive ownership rules of
Section 544 of the Code, as modified by Section 856(h)(l)(B) of the Code, and
also applying the look-thru rule contained in Section 856(h)(3)(A) of the Code
to pension trusts described in Section 401(a) of the Code) by a Person who is an
"individual" within the meaning of Section 542(a) (2) of the Code, including
through the acquisition by any Person of any option, warrant, pledge, security
interest or similar right to acquire shares.
(2) "Beneficial Ownership" shall mean, with respect to any
Person that is an "individual" as defined in Section 542(a) (2) of the Code, the
Series B Preferred Shares owned by such Person after taking into account the
constructive ownership rules of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code, and after applying the pension trust look-thru rule
contained in Section 856(h)(3)(A) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
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(3) "Code" shall mean the Internal Revenue Code of 1986, as
amended. Any reference herein to any current provision of the Code shall be
deemed to refer to any future successor provision of federal income statutory
law.
(4) "Initial Public Offering" means the sale of Series B
Preferred Shares pursuant to the Corporation's prospectus supplement dated
October 23, 1997 as filed with the Securities and Exchange Commission pursuant
to Rule 424(b)(5) promulgated under the Securities Act of 1933, as amended.
(5) "Ownership Limit" shall initially mean 6% of the
outstanding Series B Preferred Shares of the Corporation, and after any
adjustment as set forth in subparagraph (ix)(H) below, shall mean such greater
percentage (but not greater than 9.8%) of the outstanding Series B Preferred
Shares as so adjusted.
(6) "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a) or
501(c) (17) of the Code), a portion of a trust permanently set aside for or to
be used exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity and also includes a group as that term
is used for purposes of Section 13(d) (3) of the Securities Exchange Act of
1934, as amended; but does not include an underwriter that participates in a
public offering of the Series B Preferred Shares for a period of 90 days
following the purchase by such underwriter of the Series B Preferred Shares.
(7) "REIT" shall mean a Real Estate Investment Trust under
Section 856 of the Code.
(8) "Restricted Transfer Redemption Price" shall mean the
lower of (A) the price paid by the transferee from whom shares are being
redeemed and (B) the average of the last reported sales prices on the New York
Stock Exchange of Series B Preferred Shares on the ten trading days immediately
preceding the date fixed for redemption by the Board of Directors, or if the
Series B Preferred Shares are not then traded on the New York Stock Exchange,
the average of the last reported sales prices of the Series B Preferred Shares
on the ten trading days immediately preceding the relevant date as reported on
any exchange or quotation system over which the Series B Preferred Shares may be
traded, or if the Series B Preferred Shares are not then traded over any
exchange or quotation system, then the price determined in good faith by the
Board of Directors of the Corporation as the fair market value of Series B
Preferred Shares on the relevant date.
(9) "Restriction Termination Date" shall mean the first day
after the date of the Initial Public Offering on which the Corporation
determines pursuant to subparagraph (ix)(K) below that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT.
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(10) "Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition that results in a change in the record
or Beneficial Ownership of Series B Preferred Shares or the right to vote or
receive dividends on Series B Preferred Shares (including (A) the granting of
any option or entering into any agreement for the sale, transfer or other
disposition of Series B Preferred Shares or the right to vote or receive
dividends on Series B Preferred Shares or (B) the sale, transfer, assignment or
other disposition or grant of any securities or rights convertible into or
exchangeable for Series B Preferred Shares, or the right to vote or receive
dividends on Series B Preferred Shares), whether voluntary or involuntary and
whether by operation of law or otherwise.
(B) Restrictions.
(1) During the period commencing on the date of the Initial
Public Offering and prior to the Restriction Termination Date: (a) no Person
shall Acquire any Series B Preferred Shares if, as a result of such acquisition,
any "individual," as defined in Section 542(a)(2) of the Code (other than a
pension trust which is described in Section 401(a) of the Code) shall
Beneficially Own an amount of Series B Preferred Shares in excess of the
Ownership Limit; (b) no Person shall Acquire any shares of Series B Preferred
Shares if, as a result of such acquisition, the Series B Preferred Shares and
Common Stock of the Corporation would be directly or indirectly owned by less
than 100 Persons (determined without reference to the rules of attribution under
Section 544 of the Code); and (c) no Person shall Acquire any shares if, as a
result of such acquisition, the Corporation would be "closely held" within the
meaning of Section 856(h) of the Code.
(2) Any Transfer that (x) would result in a violation of the
restrictions in subparagraph (ix)(B)(1)(b) or (c) or (y) a transferring
shareholder has actual knowledge will result in a violation of any of the
restrictions in subparagraph (ix)(B)(1)(a) shall be void ab initio as to the
Transfer of such Series B Preferred Shares that would cause the violation of the
applicable restriction in subparagraph (ix)(B)(1), and the intended transferee
shall acquire no rights in such Series B Preferred Shares.
(C) Remedies for Breach.
(1) If the Board of Directors or a committee thereof shall at
any time determine in good faith that a Transfer has taken place that falls
within the scope of subparagraph (ix)(B)(2) or that a Person intends to Acquire
Beneficial Ownership of any shares of the Corporation that will result in
violation of subparagraph (ix)(B)(1) or (2) (whether or not such violation is
intended), the Board of Directors or a committee thereof shall take such action
as it or they deem advisable to refuse to give effect to or to prevent such
Transfer, including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer.
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(2) Without limitation to subparagraph (ix)(B)(2) or (C)(1),
any purported transferee of Beneficial Ownership of Series B Preferred Shares
acquired in violation of subparagraph (ix)(B) shall, if it shall be deemed to
have received any such Beneficial Ownership, be deemed to have acted as agent on
behalf of the Corporation in acquiring such of the interests as result in a
violation of subparagraph (ix)(B) and shall be deemed to hold such interests in
trust on behalf and for the benefit of the Corporation. The transferee shall
have no right to receive dividends or other distributions with respect to such
interests, and shall have no right to vote such interests. Such transferee shall
have no claim, cause of action, or any other recourse whatsoever against a
transferor of interests acquired in violation of subparagraph (ix)(B). The
transferee's sole right with respect to such interests shall be to receive at
the Corporation's sole and absolute discretion, either (A) consideration for
such interests upon the resale of the interests as directed by the Corporation
pursuant to subparagraph (ix)(C)(3) or (B) the Restricted Transfer Redemption
Price pursuant to subparagraph (ix)(C)(3).
(3) The Board of Directors shall, within 6 months after
receiving notice of a Transfer that violates subparagraph (ix)(C)(2), either (in
its sole and absolute discretion) (A) direct the transferee of such interests to
sell all interests held in trust for the Corporation pursuant to subparagraph
(ix)(C)(2) for cash in such manner as the Board of Directors directs or (B)
redeem such interests for the Restricted Transfer Redemption Price on such date
within such 6 month period as the Board of Directors may determine. If the Board
of Directors directs the transferee to sell the interests, the transferee shall
receive such proceeds as trustee for the Corporation and pay the Corporation out
of the proceeds of such sale all expenses incurred by the Corporation in
connection with such sale plus any remaining amount of such proceeds that
exceeds the amount paid by the transferee for the interests, and the transferee
shall be entitled to retain only the proceeds in excess of such amounts required
to be paid to the Corporation.
(D) Notice of Restricted Transfer. Any Person who Acquires or attempts
or intends to Acquire shares in violation of subparagraph (ix)(B) shall
immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer or attempted or
intended Transfer on the Corporation's status as a REIT.
(E) Owners Required To Provide Information. From the date of the
Initial Public Offering and prior to the Restriction Termination Date each
person who is a Beneficial Owner of Series B Preferred Shares and each Person
(including the shareholder of record) who is holding Series B Preferred Shares
for a Beneficial Owner shall provide to the Corporation such information as the
Corporation may request, in good faith, in order to determine the Corporation's
status as a REIT.
(F) Remedies Not Limited. Except as provided in subparagraph (ix)(M),
nothing contained in this subparagraph (ix) shall limit the authority of the
Board of Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholder in preserving
the Corporation's status as a REIT.
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(G) Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this subparagraph (ix), including any definition contained in
subparagraph (ix)(A), the Board of Directors shall have the power to determine
the application of the provisions of this subparagraph (ix) with respect to any
situation based on the facts known to it.
(H) Modification of Ownership Limit. Subject to the limitations
provided in subparagraph (ix)(I), the Board of Directors may from time to time
increase the Ownership Limit.
(I) Limitations on Modifications.
(1) The Ownership Limit may not be increased if, after giving
effect to such increase, five Persons who are considered "individuals" pursuant
to Section 542(a) (2) of the Code could Beneficially Own (including ownership of
Common Stock for purposes of this subparagraph (ix)(I)(1)), in the aggregate,
more than 49.0% in value of the outstanding shares of stock of the Corporation.
(2) Prior to the modification of the Ownership Limit pursuant
to subparagraph (ix)(H), the Board of Directors of the Corporation may require
such opinions of counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the Corporation's status
as a REIT.
(J) Legend. Each certificate for Series B Preferred Shares shall bear a
legend referring to the restrictions described above.
(K) Termination of REIT Status. The Board of Directors shall take no
action to terminate the Corporation's status as a REIT or to amend the
provisions of this subparagraph (ix) until such time as (A) the Board of
Directors adopts a resolution recommending that the Corporation terminate its
status as a REIT or amend this subparagraph (ix), as the case may be, (B) the
Board of Directors presents the resolution at an annual or special meeting of
the shareholders and (C) such resolution is approved by holders of a majority of
the issued and outstanding Series B Preferred Shares.
(L) Severability. If any provision of this subparagraph or any
application of any such provision is determined to be invalid by any Federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
(M) NYSE Settlement. Nothing in this Amendment shall preclude the
settlement of any transaction with respect to the Series B Preferred Shares of
the Corporation entered into through the facilities of the New York Stock
Exchange."
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III.
This Amendment was adopted on October 23, 1997.
IV.
This Amendment was duly adopted by the Board of Directors without
shareholder approval, as such approval was not required.
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IN WITNESS WHEREOF, Post Properties, Inc. has caused these Articles of
Amendment to be executed and sealed by its duly authorized officers this 23th
day of October, 1997.
POST PROPERTIES, INC.
By: /s/ John A. Williams
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John A. Williams
Chairman and Chief Executive Officer
[CORPORATE SEAL]
Attest:
/s/ Sherry W. Cohen
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Sherry W. Cohen
Senior Vice President and Secretary
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