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EXHIBIT 10.23
AMENDMENT NUMBER TWO
TO THE POST PROPERTIES, INC. PROFIT SHARING/sec. 401(K) PLAN
AS AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 1994
Pursuant to sec. 13.1 of the Post Properties, Inc. Profit Sharing/sec. 401(k)
Plan as amended and restated effective as of January 1, 1994 ("Plan"), Post
Properties, Inc. hereby amends the Plan as follows:
1.
By amending sec. 12.2 to read as follows:
"12.2. Individual Account Investments. The Trustee at the direction of
the Plan Sponsor shall establish at least two separate investment funds
within the Trust Fund, one of which shall invest primarily in
"qualifying employer securities" (as defined for purposes of ERISA sec.
407) of the Plan Sponsor, and such funds as in effect from time to time
shall be described in the summary plan description for this Plan or in
such other materials as the Plan Sponsor furnishes from time to time to
Employees and Beneficiaries. The Plan Sponsor from time to time shall
establish and shall communicate in advance and in writing to Employees
and Beneficiaries procedures for making investment elections under this
sec. 12.2 between, or among, these investment funds as the Plan
Sponsor in its absolute discretion deems necessary or appropriate
under the circumstances for the proper administration of this Plan;
provided, however, no Employee or Beneficiary shall have any right to
make any investment elections with respect to his or her Matching
Account, which Matching Account shall be invested solely in the
investment fund that invests primarily in qualifying employer
securities of the Plan Sponsor.
Subject to such procedures, each Employee and each Beneficiary of a
deceased Employee for whom an Individual Account continues to be
maintained under the Plan shall have the right to elect how such
Individual Account shall be invested as between or among such
investment funds. All investment directions by Employees and
Beneficiaries shall be timely furnished by the Plan Sponsor to the
Trustee or by each Employee and Beneficiary directly to the Trustee or
its delegate in accordance with procedures established by the Plan
Sponsor. The Individual Account of an individual for whom no investment
election is in effect under this sec. 12.2 shall (together with all
contributions to such Individual Account) be invested automatically in
the fund designated by the Plan Sponsor for such accounts.
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All additional administrative expenses incurred to effect the
investment elections made under this sec. 12.2 shall be paid by the
Trust Fund and charged (in accordance with such reasonable rules as
the Plan Sponsor deems appropriate under the circumstances) to
the Individual Account of the person making such election, unless the
Plan Sponsor elects that the Plan Sponsor (or the Plan Sponsor and
each Company) shall pay such expenses.
The Trustee shall (in accordance with the provisions of the Trust
Agreement) pass through to each Employee or Beneficiary any voting,
tender and other similar rights appurtenant to his or her interest in
an investment fund that invests primarily in qualifying employer
securities of the Plan Sponsor and that is allocated to his or her
Individual Account and, to the extent required in the regulations under
ERISA sec. 404(c), shall pass through to each Employee or Beneficiary
any voting, tender and other similar rights appurtenant to other
investment funds allocated to his or her Individual Account."
2.
By adding a new sec. 15 to read as follows:
"sec. 15. Matching Contributions.
15.1. Amount of Matching Contributions. The Plan Sponsor shall
decide each Plan Year how much each Company shall contribute
as a Matching Contribution for such Plan Year based on the
extent to which the Plan Sponsor's actual funds from
operations for such year meet the targeted funds from
operations for such year. Forfeitures, if any, from Matching
Accounts shall be applied when available against the
Companies' obligation to make Matching Contributions, and no
Matching Contribution shall be made directly by the Companies
for any Plan Year to the extent that such Forfeitures are
available to satisfy the Matching Contribution obligation for
such Plan Year.
15.2. Allocation of Matching Contributions. Subject to the
limitations set forth in this sec. 15 and in sec. 7,
the Matching Contributions made for any Plan Year shall be
allocated as of the last day of such Plan Year by, or at the
direction of, the Plan Sponsor among the Matching Accounts of
all Active Participants on whose behalf Before-Tax
Contributions were made for such Plan Year. The Matching
Contribution shall be allocated to each such Matching Account
in the same proportion that the Before-Tax Contributions
allocated to such Active
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Participant's Before-Tax Account for such Plan Year bears to
the total of all Before-Tax Contributions allocated to all
Before-Tax Accounts for such Plan Year; provided, however, no
Before-Tax Contributions in excess of 3% of an Active
Participant's Compensation for a Plan Year shall be taken into
account in computing the numerator or denominator of such
fraction.
15.3. Limitations on Matching Contributions for Highly Compensated
Employees.
(a) General. Subject to sec. 15.3(f), the Average
Contribution Percentage for Highly Compensated Employees
for any Plan Year shall not exceed the Maximum
Contribution Percentage for such Plan Year. The Plan
Sponsor shall determine the amount, if any, of the
Excess Aggregate Contributions for such year for each
affected Highly Compensated Employee in accordance with
the rules under Code sec. 401(m).
(b) Special Rules.
(1) Other Plans or Arrangements. For purposes of
this sec. 15.3, the Contribution Percentage for any
Highly Compensated Employee who is eligible to have
"employee contributions" (within the meaning of
Code sec. 401(m)), "elective deferrals" (as
described in Code sec. 402(g)(3)), or "matching
contributions)' (as described in Code sec.
401(m)(4)) allocated to his or her account under
two or more plans or arrangements described in Code
sec. 401(a) or Code sec. 401(k) that are maintained
by a Company or an Affiliate shall be determined as
if all such contributions were made under this
Plan. If this Plan satisfies the requirements of
Code sec. 410(b) only if aggregated with one or
more other plans, or if one or more other plans
satisfy the requirements of Code sec. 410(b) only
if aggregated with this Plan, then this sec. 15.3
shall be applied by determining the Contribution
Percentages as if all such plans were a single
plan.
(2) Family Members. For purposes of determining the
Contribution Percentage of each Employee who is a 5%
owner or one of the 10 most highly paid Highly
Compensated Employees for such Plan Year, the
Matching Contributions and Compensation of such
Employee's "family members" (as described in
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Code sec. 414(q)(6)) shall be treated as the
Matching Contributions and Compensation of such
Employee, and such family members shall be
disregarded as separate Employees in determining
the Contribution Percentage both for individuals
who are Nonhighly Compensated Employees and for
individuals who are Highly Compensated Employees.
In the case of a Highly Compensated Employee whose
Contribution Percentage is determined under these
family aggregation rules, the determination of the
amount of Excess Aggregate Contributions shall be
made by reducing the Contribution Percentage in
accordance with the "leveling" method described in
Treas. Reg. sec. 1.401(m)-l(e)(2) and allocating
the Excess Aggregate Contributions among the family
members in proportion to the contributions of each
family member that have been combined.
(3) Other Requirements. The determination and
treatment of the Matching Contributions and
Contribution Percentage of any Employee shall
satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
(c) Distribution or Forfeiture of Excess Aggregate
Contributions. Notwithstanding any other provision of this
Plan, Excess Aggregate Contributions made for any Plan
Year, plus any investment income and minus any loss
allocable to such Excess Aggregate Contributions, shall be
forfeited (if otherwise forfeitable under sec. 8.4 and sec.
15.4(b)) or distributed (if not so forfeitable) from the
Individual Accounts of Highly Compensated Employees on
whose behalf such Excess Aggregate Contributions were
allocated for such Plan Year no later than the last day of
the immediately following Plan Year. Such distributions or
forfeitures shall be made to such Employees on the basis of
the respective portions of the Excess Aggregate
Contributions attributable to each such Employee,
determined by first reducing the Contribution Percentage of
the Highly Compensated Employee with the highest
Contribution Percentage to the extent necessary to satisfy
the Maximum Contribution Percentage limitations or to cause
such Contribution Percentage to equal the Contribution
Percentage of the Highly Compensated Employee with the next
highest Contribution Percentage, and then repeating such
process until the Maximum Contribution Percentage
limitations is satisfied.
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(d) Determination of Income or Loss. The investment income
or loss allocable to Excess Aggregate Contributions shall
be determined in accordance with sec. 6.5 for the Plan Year
for which such contributions were allocated (but not for
the period between the end of such Plan Year and the date
of distribution or forfeiture) in accordance with the
regulations under Code sec. 401(m).
(e) Order for Determining Excess Aggregate Contributions.
Excess Aggregate Contributions shall be determined after
first determining "excess deferrals" under sec. 7.3 and
then determining "excess contributions" under sec. 7.4.
(f) Multiple Use Limit. If in the same Plan Year the
Maximum Deferral Percentage limitation is satisfied by
using the alternate limit under sec. 3.24(b) and the
Maximum Contribution Percentage limitation is satisfied by
using the alternate limit under sec. 15.5(f)(2), the Plan
Sponsor shall determine the amount, if any, of the
reductions required to satisfy the rules under Code sec.
401(m) on the multiple use of such alternative limits. Any
such reduction shall be treated as an Excess Aggregate
Contribution and shall be distributed or forfeited in
accordance with sec. 15.3(c).
15.4. Other Rules Applicable to Matching Accounts.
(a) Vesting and Forfeitures. The vested portion of an
Employee's Matching Account shall equal the percentage
figure shown opposite the Employee's completed Years of
Employment under the Vesting Schedule set forth in sec.
8.4(c), and the rules in sec. 8.4 shall apply to an
Employee's Matching Account in the same manner as to his
or her Profit Sharing Account; provided, however,
Forfeitures, if any, from Matching Accounts shall be
applied when available against the Companies' obligation
to make Matching Contributions under sec. 15.1.
(b) Top-Heavy. For purposes of the minimum top-heavy
contribution under sec. 14.7(d), Matching Contributions
shall be taken into account in calculating the highest
percentage allocated to a key employee.
(c) Code sec. 415 Limitations. Notwithstanding anything to
the contrary in sec. 7.2(a), the sum of the Matching
Contributions, Before-Tax Contributions, Profit Sharing
Contributions and
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Forfeitures credited to an Eligible Employee's
Individual Account for any Plan Year shall not
exceed the Code sec. 415 limitation described in
sec. 7.2(a)
15.5. Special Definitions.
(a) Average Contribution Percentage -- means for each Plan
Year the average (expressed as a percentage) of the
Contribution Percentages computed separately (a) for the
group of individuals who are Highly Compensated Employees
during such Plan Year and (b) for the group of individuals
who are Nonhighly Compensated Employees during such Plan
Year.
(b) Matching Account -- means the bookkeeping subaccount
maintained as part of an Employee's Individual Account
attributable to his or her Matching Contributions under
this Plan.
(c) Matching Contribution -- means the matching
contribution made by a Company in accordance with this sec.
15.
(d) Contribution Percentage -- means for each Plan Year
for each Employee who has satisfied the employment
requirement described in sec. 4.1 and who is an
Eligible Employee at any time during the Plan Year, the
ratio (expressed as a percentage) of (1) the Matching
Contribution, if any, credited to his or her Individual
Account for such Plan Year to (2) his or her Compensation
for such Plan Year. The Contribution Percentage for an
Employee who is eligible to make, but does not make,
Before-Tax Contributions and is not credited with a
Matching Contribution shall be zero.
(e) Excess Aggregate Contributions -- means for each Highly
Compensated Employee for each Plan Year the excess of
(1) the Matching Contributions actually taken into
account in determining the Contribution Percentage
of such Highly Compensated Employee for such Plan
Year over
(2) the maximum amount of such contributions
permitted for such Plan Year under Code sec.
401(m)(2)(A),
where such maximum shall be determined by reducing such
contributions made by or on behalf of such Highly
Compensated Employees in order of their Contribution
Percentages, beginning with the highest of such
percentages.
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(f) Maximum Contribution Percentage -- means for any Plan
Year the greater of
(1) the Average Contribution Percentage for
Nonhighly Compensated Employees for such Plan Year
multiplied by 1.25, or
(2) the lesser of (i) the Average Contribution
Percentage for Nonhighly Compensated Employees for
such Plan Year multiplied by 2 or (ii) the Average
Contribution Percentage for Nonhighly Compensated
Employees plus 2 percentage points."
3.
This amendment shall be effective as of January 1, 1996. Except as otherwise
expressly amended by this amendment, the Plan as in effect before this amendment
shall remain in full force and effect.
IN WITNESS WHEREOF, Post Properties, Inc. has caused this Amendment Number Two
to be executed by its duly authorized officer this 2nd day of January, 1996..
POST PROPERTIES, INC.
BY: /s/
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TITLE: President
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