EXHIBIT 10.2
POST PROPERTIES, INC.
2003 INCENTIVE STOCK PLAN
NON-INCENTIVE STOCK OPTION
OPTION CERTIFICATE
Post Properties, Inc., a Georgia corporation, in accordance with the Post
Properties, Inc. 2003 Incentive Stock Plan, hereby grants an Option to ROBERT C.
GODDARD, LLL, or "Director", to purchase from Post 100,000 shares of Common
Stock of Post Properties, Inc. at an Option Price per share equal to $26.07,
which grant shall be subject to all of the terms and conditions set forth in
this Option Certificate and in the Plan. This grant has been made as of JULY 17,
2003, which shall be referred to as the "Grant Date", and this Option is not
intended to satisfy the requirements of Section 422 of the Code and thus shall
be referred to as a Non-ISO.
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. This Non-ISO grant is subject to all the terms and
conditions set forth in the Plan and this Option Certificate, and all the terms
in this Option Certificate which begin with a capital letter either are defined
in this Option Certificate or in the Plan. If a determination is made that any
term or condition set forth in this Option Certificate is inconsistent with the
Plan, the Plan shall control. A copy of the Plan will be made available to
Director upon written request to the Secretary of Post.
Section 2. Section 16(a). If Director, at the time he proposes to
exercise any rights under this Non-ISO, is an officer or member of the Board, or
is filing ownership reports with the Securities and Exchange Commission under
Section 16(a) of the Exchange Act, then Director should consult Post before
Director exercises such rights to determine whether the securities law might
subject him to additional restrictions upon the exercise of such rights.
Section 3. Date Exercisable.
(a) General Rule. Subject to Section 3(b), Director shall have the
right under this Option Certificate to exercise this Non-ISO
with respect to:
(1) the first one-fifth of the shares of Stock underlying
the grant of this Non-ISO (rounding down to the
nearest whole number) 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
underlying the grant of this Non-ISO (rounding down
to the nearest whole number) 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 underlying
the grant of this Non-ISO (rounding down to the
nearest whole number) 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
underlying the grant of this Non-ISO (rounding down
to the nearest whole number) 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 underlying the
grant of this Non-ISO only if he remains a member of
the Board through the fifth anniversary of the Grant
Date.
(b) Acceleration of Exercise Rights and Time to Exercise Option.
(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
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(c) his resignation following his failure to be
elected as Chairman of the Board after
affirmatively and in good faith seeking such
election,
then the date his status as a member of the Board
terminates shall be treated as the fifth anniversary
of the Grant Date, this Non-ISO shall immediately be
exercisable in full and Director's right to exercise
this Non-ISO in full shall expire on the earlier of
(1) the second anniversary of the date his status as
a member of the Board so terminates or (2) the 10th
anniversary of the Grant Date.
(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, this Non-ISO shall immediately be
exercisable in full and Director's right to exercise
this Non-ISO in full shall expire on the 10th
anniversary of the Grant Date.
(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,
this Non-ISO shall immediately be exercisable in full
and Director's right to exercise this Non-ISO in full
shall expire on the earlier of (a) the first
anniversary of his Service the date his status as a
member of the Board so terminates or (b) the 10th
anniversary of the Grant Date.
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(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, this Non-ISO shall immediately be
exercisable in full and Director's right to exercise
this Non-ISO in full shall expire on the 10th
anniversary of the Grant Date.
(5) Other. If Director's status as a member of the Board
terminates for any reason other than a reason
described in Section 3(b)(1) through Section 3(b)(3),
then Director's right to exercise this Option (to the
extent exercisable under Section 3(a)) shall expire
on the earlier of (a) the first anniversary of the
date his status as a member of the Board terminates
or (b) the 10th anniversary of the Grant Date.
(c) Definitions.
(1) Change in Control. The term "Change in Control" for
purposes of this Option Certificate shall mean:
(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
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which the common 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 common stock of Post immediately
before the consummation of such transaction
beneficially own more than 60% of the
outstanding shares of the common 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 common 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 common
stock immediately before the consummation of
such transaction, provided (iii) the
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 common
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 Option Certificate shall mean either
the date which includes the
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"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 Option Certificate shall mean the Securities
Exchange Act of 1934, as amended.
(5) Gross Up Payment. The term "Gross Up Payment" for
purposes of this Option Certificate means a payment
to or on behalf of Director which shall be sufficient
to pay (a) any excise tax described in Section 10 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 Option Certificate means the date Director
reaches age 65 or, if earlier, the date he reaches at
least age 55 and his age (in full years) plus his
full years of continuous service as a member of the
Board equals 65.
Section 4. Life of Non-ISO. This Non-ISO shall expire and shall not be
exercisable for any reason on or after the 10th anniversary of the Grant Date.
Section 5. Method of Exercise of Non-ISO. Director may exercise this
Non-ISO in whole or in part (to the extent this Non-ISO is otherwise exercisable
under Section 3) on any normal business day of Post by (1) delivering this
Option Certificate to Post, together with written notice of the exercise of such
Non-ISO, and (2) simultaneously paying to Post the Option Price. The payment of
such Option Price shall be made either in cash, by check acceptable to Post, by
delivery to Post of certificates (properly endorsed) for shares of Stock
registered in Director's name, or in any combination of such cash, check, and
Stock which results in payment in full of the Option Price. Stock which is so
tendered as payment (in whole or in part) of the Option Price shall be valued at
its Fair market Value on the date the Non-ISO is exercised.
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Section 6. Delivery. Post shall deliver a properly issued certificate
for any Stock purchased pursuant to the exercise of this Non-ISO as soon as
practicable after such exercise, and such delivery shall discharge Post of all
of its duties and responsibilities with respect to this Non-ISO.
Section 7. Nontransferable. No rights granted under this Non-ISO shall
be transferable by Director other than by will or by the laws of descent and
distribution, and the rights granted under this Non-ISO shall be exercisable
during Director's lifetime only by Director. The person or persons, if any, to
whom this Non-ISO 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 Option Certificate.
Section 8. No Right to Continue Service. Neither the Plan, this
Non-ISO, 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. Stockholder Status. Director shall have no rights as a
stockholder with respect to any shares of Stock under this Non-ISO until such
shares have been duly issued and delivered to Director, and no adjustment shall
be made for dividends of any rights or any kind or description whatsoever or for
distributions of other rights of any kind or description whatsoever respecting
such Stock, except as expressly set forth in the Plan.
Section 10. 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 right to exercise this Option and any
other benefits called for under this Option 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 10) 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 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 10 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
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payments or benefits in excess of the payments or benefits which Director has
expressly agreed to waive under this Section 10) 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 11. Other Laws. Post shall have the right to refuse to issue or
transfer any Stock under this Non-ISO if Post, acting in its absolute
discretion, determines that the issuance or transfer of such Stock might violate
any applicable law or regulation, and any payment tendered in such event to
exercise this Non-ISO shall be promptly refunded to Director and Post at that
point shall have the right to cancel this Non-ISO or to take such other action
with respect to this Non-ISO as Post deems appropriate under the circumstances.
Section 12. Governing Law. The Plan and this Non-ISO shall be governed
by the laws of the State of Georgia.
Section 13. Binding Effect. This Non-ISO shall be binding upon Post and
Director and their respective heirs, executors, administrators and successors.
Section 14. References. Any references to sections (Section) in this
Option Certificate shall be to sections (Section) of this Option Certificate
unless otherwise expressly stated as part of such reference.
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