POST PROPERTIES, INC.
2003 INCENTIVE STOCK PLAN
NON-INCENTIVE STOCK OPTION
AND
STOCK APPRECIATION RIGHT
CERTIFICATE
FOR DIRECTORS
Post Properties, Inc., a Georgia corporation, in accordance with the Post
Properties, Inc. 2003 Incentive Stock Plan, hereby grants an Option and Stock
Appreciation Right, or "SAR", to _______________ ("Director") with respect to
________ shares of Stock of Post Properties, Inc. at an Option Price per share
equal to $[XX.XX]. This Option and SARs grant (this "Grant") shall be subject to
all of the terms and conditions set forth in this Certificate and in the Plan.
This Grant has been made as of [XXXXXXX ___, 200_], which shall be referred to
as the "Grant Date."
POST PROPERTIES, INC.
By: ______________________________________
Sherry W. Cohen
Executive Vice President & Secretary
TERMS AND CONDITIONS
Section 1. Plan. This Grant is subject to all the terms and
conditions set forth in the Plan and this Certificate, and all the terms in this
Certificate which begin with a capital letter either are defined in this
Certificate or in the Plan. If A determination is made that any term or
condition set forth in this 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 or she
proposes to exercise any rights under this Grant, is an officer or director of
Post, 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 or her 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 Certificate to exercise this Grant with
respect to:
(1) the first one-third of the shares of Stock underlying
this Grant (rounding down to the nearest whole number)
only if he or she remains a member of the Board through
the first anniversary of the Grant Date,
(2) the second one-third of the shares of Stock underlying
this Grant (rounding down to the nearest whole number)
only if he or she remains a member of the Board through
the second anniversary of the Grant Date, and
(3) the balance of the whole number of shares of Stock
underlying this Grant only if he or she remains a member
of the Board through the third anniversary of the Grant
Date.
(b) Acceleration of Exercise Rights and Time to Exercise.
(1) Before a Change in Control. If Director's status as a
member of the Board terminates before the Effective Date
(as defined in Section 3(c)) of a Change in Control (as
defined in Section 3(c)) as a result of
(a) his or her failure to be nominated for election as
a member of the Board after affirmatively and in
good faith seeking such nomination,
(b) his or her failure to be elected a member of the
Board after affirmatively and in good faith
seeking such election, or
(c) if he or she had been Chairman of the Board, his
or her resignation following his or her failure to
be elected as Chairman of the Board after
affirmatively and in good faith seeking such
election,
then the date his or her status as a member of the Board
terminates shall be treated as the third anniversary of
the Grant Date, this
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Grant shall immediately be exercisable in full and
Director's right to exercise this Grant in full shall
expire on the earlier of (1) the second anniversary of
the date his or her 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 or her failure to be nominated for election as
a member of the Board at his or her first
opportunity to be so nominated following such
Change in Control,
(b) his or her failure to be elected a member of the
Board at his or her first opportunity to be so
elected following such Change in Control, or
(c) if he or she had been Chairman of the Board, his
or her resignation following his or her failure to
be elected as Chairman of the Board at his or her
first opportunity to be so elected following such
Change in Control,
then the date his or her status as a member of the Board
terminates shall be treated as the third anniversary of
the Grant Date, this Grant shall immediately be
exercisable in full and Director's right to exercise
this Grant 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 or her
Disability (as defined in Section 3(c)) or death, then
the date his or her status as a member of the Board so
terminates shall be treated as the third anniversary of
the Grant Date, this Grant shall immediately be
exercisable in full and the right of the Director or his
or her estate (as applicable) to exercise this Grant in
full shall expire on the earlier of (a) the first
anniversary of the date his or her status as a member of
the Board so terminates or (b) the 10th anniversary of
the Grant Date.
(4) Vesting Date. If Director reaches his or her Vesting
Date and there is no interruption in his or her status
as a member of the Board between the Grant Date and his
or her Vesting Date, then the date he or she reaches his
or her Vesting Date shall be treated as the third
anniversary of the Grant Date, this Grant shall
immediately be
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exercisable in full and Director's right to exercise
this Grant in full shall expire on the 10th anniversary
of the Grant Date.
(5) Other Reason. 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 his or her right under Section 3(a) to exercise
this Grant shall expire on the earlier of (a) the first
anniversary of the date his or her status as a member of
the Board terminates or (b) the 10th anniversary of the
Grant Date.
(6) No Duplication. If Director exercises his or her right
to purchase any share of Stock under the Option part of
this Grant, such exercise automatically shall cancel his
or her right to exercise the SAR part of this Grant with
respect to such share of Stock and, if Director
exercises the SAR part of this Grant with respect to any
share of Stock, such exercise automatically shall cancel
his or her right to exercise the Option part of this
Grant with respect to such share of stock.
(c) Definitions.
(1) Change in Control. The term "Change in Control" for
purposes of this 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 Section
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
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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 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 or her
service terminated because he or she no longer was able
to perform the essential functions of his or her
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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 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 Certificate shall mean the Securities Exchange Act
of 1934, as amended.
(5) Gross Up Payment. The term "Gross Up Payment" for
purposes of this 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 Certificate means the date Director reaches age 72.
Section 4. Life of Grant. This Grant 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.
(a) Option. Director may exercise the Option part of this Grant in
whole or in part (to the extent this Grant is otherwise
exercisable under Section 3) on any normal business day of
Post by (1) delivering to Post a written notice of the
exercise of such Option, 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, which have been held for
at least six (6) months and which are acceptable to the
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Committee, 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 Option part of this Grant is exercised.
(b) SAR. Director may exercise the SAR part of this Grant in whole
or in part (to the extent this Grant is otherwise exercisable
under Section 3) on any normal business day of Post by
delivering to Post a written notice of the exercise of such
SAR.
Section 6. Delivery of Stock.
(a) Option. Post shall (subject to Section 16.3 of the Plan)
deliver to Director a properly issued certificate for any
Stock purchased pursuant to the exercise of all or any portion
of the Option part of this Grant as soon as practicable after
such exercise, and such delivery shall discharge Post of all
of its duties and responsibilities and obligations with
respect to the shares of Stock subject to such exercise.
(b) SAR. Post, pursuant to any exercise of all or any portion of
the SAR part of this Grant, shall compute the excess, if any,
of the aggregate Fair Market Value of the shares of Stock
subject to such exercise on the date of exercise over the
aggregate Option Price for such shares (the "Spread") and
shall (subject to Section 16.3 of the Plan) as soon as
practicable after such exercise deliver to Director whole
shares of Stock equal to the Spread, and such delivery shall
discharge Post of all of its duties and responsibilities and
obligations with respect to the shares of Stock subject to
such exercise. The number of whole shares of Stock delivered
shall be determined using the Fair Market Value of a share of
Stock on the date the SAR is exercised.
Section 7. Nontransferable. No rights under this Grant shall be
transferable by Director other than by will or by the laws of descent and
distribution, and such rights shall be exercisable during Director's lifetime
only by Director. The person or persons, if any, to whom this 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 Certificate.
Section 8. No Right to Continue Service. Neither the Plan, this
Grant, 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 subject to this Grant until such
shares have been duly issued and
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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 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 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 Grant 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 the Option part of this Grant shall be promptly refunded to Director,
and Post at that point shall have the right to cancel the Option part of this
Grant or to take such other action with respect to this Grant as Post deems
appropriate under the circumstances.
Section 12. Governing Law. The Plan and this Grant shall be governed
by the laws of the State of Georgia.
Section 13. Binding Effect. This Grant shall be binding upon Post
and Director and their respective heirs, executors, administrators and
successors.
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Section 14. References. Any references to sections (Section) in this
Certificate shall be to sections (Section) of this Certificate unless otherwise
expressly stated as part of such reference.
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OPTION OR SAR EXERCISE FORM
(To be used by Director
to exercise the rights to purchase Stock
evidenced by the foregoing Option or to exercise the related SAR)
TO: Post Properties, Inc.
Please check either (a), (b) or (c).
[ ] (a) The Undersigned hereby exercises his/her right to purchase
_____________ shares of Stock covered by the Option grant evidenced by attached
Certificate in accordance with the terms and conditions thereof, and herewith
makes payment of the Option Price of such shares in full; or
[ ] (b) The Undersigned hereby exercises the SAR evidenced by the attached
Certificate with respect to _____________ shares of Stock covered by the SAR
grant in accordance with the terms and conditions thereof; or
[ ] (c) The Undersigned hereby exercises (1) his/her right to purchase
_____________ shares of such Stock covered by such Option and herewith makes
payment of the Option Price of such shares in full and (2) the SAR with respect
to _____________ shares of such Stock.
If the Undersigned wants shares electronically transferred to a brokerage
account, please attach appropriate transfer instructions to this form.
_____________________________________
Signature
_____________________________________
_____________________________________
Address
Dated ____________________
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