EXHIBIT 10.1
POST PROPERTIES, INC.
2003 INCENTIVE STOCK PLAN
STOCK GRANT CERTIFICATE
This Stock Grant Certificate evidences the grant by Post Properties, Inc., a
Georgia corporation ("Post"), in accordance with the Post Properties, Inc. 2003
Incentive Stock Plan ("Plan"), of 7,672 shares of restricted Stock (the "Stock
Grant") to ROBERT C. GODDARD, III ("Director"). This Stock Grant is granted
effective as of JULY 17, 2003, which shall be referred to as the "Grant Date."
POST PROPERTIES, INC.
By: /s/ David P. Stockert
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David P. Stockert
Chief Executive Officer & President
TERMS AND CONDITIONS
SECTION 1. PLAN AND STOCK GRANT CERTIFICATE. This Stock Grant is
subject to all of the terms and conditions set forth in this Stock Grant
Certificate and in the Plan, and if a determination is made that any term or
condition set forth in this Stock Grant Certificate is inconsistent with the
Plan, the Plan shall control. All of the capitalized terms not otherwise defined
in this Stock Grant Certificate shall have the same meaning in this Stock Grant
Certificate as in the Plan. A copy of the Plan will be available to Director
upon written request to the corporate Secretary of Post.
SECTION 2. STOCKHOLDER STATUS. Director shall have an immediate right
to receive cash dividends on all of the shares of Stock subject to the Stock
Grant while the shares remain subject to forfeiture under Section 3 and in
addition shall have the right to vote such shares. If Director forfeits shares
under Section 3, Director shall at the same time forfeit Director's right to
vote the shares and to receive cash dividends paid with respect to the shares.
Any Stock dividends or other distributions of property made with respect to
shares that remain subject to forfeiture under Section 3 shall be held by Post,
and Director's rights to receive such dividends or other property shall vest
under Section 3 at the same time as the shares with respect to which the
dividends or other property are attributable. Except for the right to receive
cash dividends and vote described in this Section 2, Director shall have no
rights as a Stockholder with respect to any shares of Stock subject to the Stock
Grant under this Stock Grant Certificate until such shares have vested under
Section 3.
SECTION 3. FORFEITURE AND VESTING.
(a) General Rule. Subject to Section 3(b), Director shall
vest in the Stock Grant as follows:
(1) the first one-fifth of the shares of Stock
subject to this Stock Grant (rounding down
to the nearest whole number) shall vest only
if he remains a member of the Board through
the first anniversary of the Grant Date,
(2) the second one-fifth of the shares of Stock
subject to this Stock Grant (rounding down
to the nearest whole number) shall vest only
if he remains a member of the Board through
the second anniversary of the Grant Date,
(3) the third one-fifth of the shares of Stock
subject to this Stock Grant (rounding down
to the nearest whole number) shall vest only
if he remains a member of the Board through
the third anniversary of the Grant Date,
(4) the fourth one-fifth of the shares of Stock
subject to this Stock Grant (rounding down
to the nearest whole number) shall vest only
if he remains a member of the Board through
the fourth anniversary of the Grant Date,
and
(5) the balance of the shares of Stock subject
to this Stock Grant shall vest only if he
remains a member of the Board through the
fifth anniversary of the Grant Date.
(b) Acceleration of Vesting.
(1) Before A Change in Control. If Director's
status as a member of the Board terminates
before the Effective Date of a Change in
Control as a result of
(a) his failure to be nominated for
election as a member of the Board
after affirmatively and in good
faith seeking such nomination,
(b) his failure to be elected a member
of the Board after affirmatively
and in good faith seeking such
election, or
(c) his resignation following his
failure to be elected as Chairman
of the Board after affirmatively
and in good faith seeking such
election,
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then the date his status as a member of the
Board terminates shall be treated as the
fifth anniversary of the Grant Date, and
this Stock Grant shall immediately be vested
in full.
(2) After A Change in Control. If Director's
status as a member of the Board terminates
on or after the Effective Date of a Change
in Control as a result of
(a) his failure to be nominated for
election as a member of the Board
at his first opportunity to be so
nominated following such Change in
Control,
(b) his failure to be elected a member
of the Board at his first
opportunity to be so elected
following such Change in Control,
or
(c) his resignation following his
failure to be elected as Chairman
of the Board at his first
opportunity to be so elected
following such Change in Control,
then the date his status as a member of the
Board terminates shall be treated as the
fifth anniversary of the Grant Date, and
this Stock Grant shall immediately be vested
in full.
(3) Disability or Death. If Director's status as
a member of the Board terminates as a result
of his Disability (as defined in Section
3(c)) or death, then the date his status as
a Director so terminates shall be treated as
the fifth anniversary of the Grant Date, and
this Stock Grant shall immediately be vested
in full.
(4) Vesting Date. If Director reaches his
Vesting Date and there is no interruption in
his status as a member of the Board between
the Grant Date and his Vesting Date, then
the date he reaches his Vesting Date shall
be treated as the fifth anniversary of the
Grant Date, and this Stock Grant shall
immediately be vested in full.
(5) Other. If Director's status as a member of
the Board terminates for any reason other
than a reason described in Sections 3(b)(1)
through 3(b)(3), then Director shall forfeit
the unvested shares.
(c) Definitions.
(1) Change in Control. The term "Change in
Control" for purposes of this Stock Grant
Certificate shall mean:
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(a) a "change in control" of Post of a
nature that would be required to be
reported in response to Item 6(e)
of Schedule 14A for a proxy
statement filed under Section 14(a)
of the Exchange Act as in effect on
the Grant Date.
(b) a "person" (as that term is used in
14(d)(2) of the Exchange Act)
becomes the beneficial owner (as
defined in Rule 13d-3 under the
Exchange Act) directly or
indirectly of securities
representing 45% or more of the
combined voting power for election
of directors of the then
outstanding securities of Post;
(c) the individuals who at the
beginning of any period of two
consecutive years or less (starting
on or after the Grant Date)
constitute the Board cease for any
reason during such period to
constitute at least a majority of
the Board, unless the election or
nomination for election of each new
member of the Board was approved by
vote of at least two-thirds of the
members of such Board then still in
office who were members of such
Board at the beginning of such
period;
(d) the shareholders of Post approve
any reorganization, merger,
consolidation or share exchange as
a result of which the stock of Post
shall be changed, converted or
exchanged into or for securities of
another organization (other than a
merger with a Post Affiliate or a
wholly-owned subsidiary of Post) or
any dissolution or liquidation of
Post or any sale or the disposition
of 50% or more of the assets or
business of Post; or
(e) the shareholders of Post approve
any reorganization, merger,
consolidation or share exchange
with another corporation unless (i)
the persons who were the beneficial
owners of the outstanding shares of
the stock of Post immediately
before the consummation of such
transaction beneficially own more
than 60% of the outstanding shares
of the stock of the successor or
survivor corporation in such
transaction immediately following
the consummation of such
transaction and (ii) the number of
shares of the stock of such
successor or survivor corporation
beneficially owned by the persons
described in Section 3(c)(1)(e)(i))
immediately following the
consummation of such transaction is
beneficially owned by each such
person in substantially the same
proportion that each such person
had beneficially owned shares of
Post stock immediately before the
consummation of such transaction,
provided (iii) the
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percentage described in Section
3(c)(1)(e)(i) of the beneficially owned
shares of the successor or survivor
corporation and the number described in
Section 3(c)(1)(e)(ii) of the beneficially
owned shares of the successor or survivor
corporation shall be determined exclusively
by reference to the shares of the successor
or survivor corporation which result from
the beneficial ownership of shares of stock
of Post by the persons described in Section
3(c)(1)(e)(i) immediately before the
consummation of such transaction.
(2) Disability. Director's service as a member of the
Board shall be treated as terminating by reason of a
"Disability" if the Committee determines that his
service terminated because he no longer was able to
perform the essential functions of his position as a
result of a physical or mental illness with or
without a reasonable accommodation by Post with
respect to such illness.
(3) Effective Date. The term "Effective Date" for
purposes of this Stock Grant Certificate shall mean
either the date which includes the "closing" of the
transaction which makes a Change in Control effective
if the Change in Control is made effective through a
transaction which has a "closing" or the date a
Change in Control is reported in accordance with
applicable law as effective to the Securities and
Exchange Commission if the Change in Control is made
effective other than through a transaction which has
a "closing".
(4) Exchange Act. The term "Exchange Act" for purposes of
this Stock Grant Certificate shall mean the
Securities Exchange Act of 1934, as amended.
(5) Gross Up Payment. The term "Gross Up Payment" for
purposes of this Stock Grant Certificate means a
payment to or on behalf of Director which shall be
sufficient to pay (a) any excise tax described in
Section 9 in full, (b) any federal, state and local
income tax and social security and other employment
tax on the payment made to pay such excise tax as
well as any additional taxes on such payment and (c)
any interest or penalties assessed by the Internal
Revenue Service on Director which are related to the
payment of such excise tax unless such interest or
penalties are attributable to Director's willful
misconduct or gross negligence.
(6) Vesting Date. The term "Vesting Date" for purposes of
this Stock Grant Certificate means the date Director
reaches age 65 or, if earlier, the date he reaches at
least age 55 and his age (in full
5
years) plus his full years of continuous service as a
member of the Board equals 65.
SECTION 4. STOCK CERTIFICATES. Post shall issue a Stock certificate for
the shares of Stock subject to the Stock Grant in the name of Director upon
Director's execution of the irrevocable Stock power in favor of Post attached
hereto as Exhibit A. The Secretary of Post shall hold the Stock certificate
representing such shares and any distributions made with respect to such shares
(other than cash dividends) until such time as the shares have vested or have
been forfeited. As soon as practicable after each vesting date, Post shall issue
to Director a Stock certificate reflecting the shares that have vested and
become nonforfeitable on such date (together with any distributions made with
respect to the shares that have been held by Post). If shares are forfeited, the
shares (together with any distributions made with respect to the shares that
have been held by Post) automatically shall revert back to Post.
SECTION 5. NONTRANSFERABLE. No rights granted under this Stock Grant
Certificate shall be transferable by Director other than by will or the laws of
descent and distribution. The person or persons, if any, to whom the Stock Grant
is transferred by will or by the laws of descent and distribution shall be
treated after Director's death the same as Director under this Stock Grant
Certificate.
SECTION 6. WITHHOLDING. Director's signing of this Stock Grant
Certificate shall constitute Director's consent and agreement for any tax
withholding required as a result of the transfer of the shares of Stock subject
to the Stock Grant to Director or any dividends or other payments made with
respect to the shares of Stock subject to the Stock Grant to be withheld from
his or her regular cash compensation, from the shares of Stock subject to the
Stock Grant or pursuant to such other means as Post deems reasonable and
appropriate under the circumstances.
SECTION 7. OTHER LAWS. Post shall have the right to refuse to transfer
shares of Stock subject to the Stock Grant to Director if Post acting in its
absolute discretion determines that the transfer of such shares might violate
any applicable law or regulation.
SECTION 8. NO RIGHT TO CONTINUE SERVICE. Neither the Plan, this Stock
Grant Certificate, nor any related material shall give Director the right to be
nominated or elected as a member of the Board or as the Chairman of the Board.
SECTION 9. TAX PROTECTION. If Post or Post's independent accountants
(which shall consider such issue upon the reasonable request of Director)
determine that any acceleration of the vesting of this Stock Grant and any other
benefits called for under this Stock Grant Certificate together with any other
payments and benefits made available to Director by Post or a Post Affiliate
will result in Director being subject to an excise tax under Section. 4999 of
the Code or if such an excise tax is assessed against Director as a result of
any such payments and other benefits, Post shall make a Gross Up Payment to or
on behalf of Director as and when any such determination or assessment is made,
provided Director takes such action (other than waiving Director's right to any
payments or benefits in excess of the payments or benefits which Director has
expressly agreed to waive under this Section 9) as Post reasonably requests
under the circumstances to mitigate or challenge such tax; provided, however, if
Post or Post's independent accountants make such a determination and, further,
determine that Director will not be subject
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to any such excise tax if Director waives Director's right to receive a part of
such payments or benefits and such part does not exceed $25,000, Director shall
irrevocably waive Director's right to receive such part if an independent
accountant or lawyer retained by Director and paid by Post agrees with the
determination made by Post or Post's independent accountants with respect to the
effect of such reduction in payments or benefits. Any determinations under this
Section 9 shall be made in accordance with Section. 280G of the Code and any
applicable related regulations (whether proposed, temporary or final) and any
related Internal Revenue Service rulings and any related case law and, if Post
reasonably requests that Director take action to mitigate or challenge, or to
mitigate and challenge, any such tax or assessment (other than waiving
Director's right to any payments or benefits in excess of the payments or
benefits which Director has expressly agreed to waive under this Section 9) and
Director complies with such request, Post shall provide Director with such
information and such expert advice and assistance from Post's independent
accountants, lawyers and other advisors as Director may reasonably request and
shall pay for all expenses incurred in effecting such compliance and any related
fines, penalties, interest and other assessments.
SECTION 10. GOVERNING LAW. The Plan and this Stock Grant Certificate
shall be governed by the laws of the State of Georgia.
SECTION 11. BINDING EFFECT. This Stock Grant Certificate shall be
binding upon Post and Director and their respective heirs, executors,
administrators and successors.
SECTION 12. HEADINGS AND SECTIONS. The headings contained in this Stock
Grant Certificate are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Stock Grant Certificate. All
references to sections in this Stock Grant Certificate shall be to sections of
this Stock Grant Certificate unless otherwise expressly stated as part of such
reference.
I, ROBERT C. GODDARD, III, HEREBY ACCEPT AND
AGREE TO THE TERMS AND CONDITIONS SET FORTH
IN THIS STOCK GRANT CERTIFICATE.
By: /s/ Robert C. Goddard, III
--------------------------
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EXHIBIT A
IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, pursuant to that certain Stock Grant Certificate,
dated July 17, 2003 (the "Stock Grant Certificate"), issued to the undersigned
in respect of a grant of shares of restricted Stock (the "Stock Grant") of Post
Properties, Inc. ("Post"), the undersigned hereby agrees, upon the occurrence of
any forfeiture event described in the Stock Grant Certificate, to sell, assign
and transfer to Post any unvested shares of Stock subject to the Stock Grant,
and does hereby irrevocably constitute and appoint Post to transfer said shares
on the books of Post, with full power of substitution in the premises.
DATED: As of September 30, 2003
/s/ Robert C. Goddard, III
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Robert C. Goddard, III
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