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EXHIBIT 3.1
ARTICLES OF AMENDMENT
OF
RESTATED 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(f) of the Corporation's Restated Articles of Incorporation, as
amended (the "Articles of Incorporation") to determine the terms of a series of
the Preferred Stock:
"(f) 8% Series D Cumulative Redeemable Preferred Shares.
(i) TITLE. The series of Preferred Stock is hereby designated as
the "8% Series D Cumulative Redeemable Preferred Shares" (the "Series D
Preferred Shares").
(ii) NUMBER. The maximum number of authorized shares of the Series
D Preferred Shares shall be 2,800,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive
distributions and to participate in distributions of payments in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, the Series D Preferred Shares shall rank (a) senior to the Common
Stock and any other class or series of capital stock of the Corporation
ranking, as to the payment distributions and upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, junior to the Series
D Preferred Shares (collectively, "Junior Shares") and (b) on a parity with any
class or series of capital stock of the Corporation ranking, as to the payment
of distributions or upon voluntary or involuntary liquidation, dissolution or
winding-up, whether or not the distribution rates, distribution payment dates
or redemption or liquidation prices per share thereof are different from those
of the Series D Preferred Shares, if the holders of such class or series of
capital stock and the Series D Preferred Shares shall be entitled to the
receipt of distributions or of amounts distributable upon voluntary or
involuntary liquidation, dissolution or winding-up in proportion to their
respective amounts of accrued and
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unpaid distributions per share or liquidation preferences, without preference
or priority one over the other (collectively, "Parity Preferred Shares"). The
Corporation's Series A Preferred Shares, Series B Preferred Shares and Series C
Preferred Shares are Parity Preferred Shares.
(iv) DISTRIBUTIONS.
(A) Holders of Series D Preferred Shares will be
entitled to receive, when, as and if declared by the Corporation cumulative
preferential cash distributions at the rate of $2.00 per share, per annum,
payable (1) quarterly (such quarterly periods for purposes of payment and
accrual will be the quarterly periods ending on the last day of the quarterly
periods set forth in this clause (1) and not calendar quarters) in arrears on
the first day of of each of March, June, September and December of each year,
commencing on December 1, 1999, and (2) in the event of a redemption of Series
D Preferred Shares, on the redemption date (each a "Distribution Payment
Date"). Such distributions shall accrue from the original date of issuance of
Series D Preferred Shares. In addition to the foregoing, holders of Series D
Preferred Shares will be entitled to receive, when, as and if declared by the
Corporation a preferential cash distribution in an amount equal to all accrued
and unpaid distributions, whether or not declared, attributable to the Series D
Preferred Units of Post Apartment Homes, L.P. up to the date such Series D
Preferred Units were exchanged into the Series D Preferred Shares held by such
holder, such preferential distribution to be payable to holders on the first
Distribution Payment Date following the issuance of such Series D Preferred
Shares. The amount of the distribution payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed based on the ratio of the
actual number of days elapsed in such period to ninety (90) days. If any date
on which distributions are to be made on the Series D Preferred Shares is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. Distributions on the Series D
Preferred Shares will be made to the holders of record of the Series D
Preferred Shares on the relevant record dates, which will be fifteen (15) days
prior to the relevant Distribution Payment Date (the "Series D Record Date").
"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 distribution accrued on any Series
D Preferred Shares at any Distribution Payment Date shall be the amount of any
unpaid distribution accumulated thereon, to and including such Distribution
Payment Date, whether or not earned or declared, and the amount of
distributions accrued on any Series D Preferred Shares at any date other than a
Distribution Payment Date shall be equal to the sum of the amount of any unpaid
distributions accumulated thereon, to and including the last preceding
Distribution Payment Date, whether or
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not earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $2.00 per share for the period after such last preceding
Distribution Payment 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 (f), the Series
D Preferred Shares will not be entitled to any distributions in excess of full
cumulative distributions 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 D Preferred Shares which may be in arrears.
(D) Any dividend payment made on the Series D 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 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 D Preferred Shares shall equal (i) the
Capital Gains Amount multiplied by (ii) a fraction that is equal to (a) the
total dividends paid or made available to the holders of the Series D Preferred
Shares for the year over (b) the Total Dividends.
(F) No distributions on the Series D 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, distributions on the Series D Preferred Shares will accrue whether
or not declared, whether or not the terms and provisions of any agreement of
the Corporation at any time prohibit the authorization, payment or setting
apart for payment of such distributions, whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized.
(G) So long as any Series D Preferred Shares are
outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to Junior Shares,
nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series D
Preferred Shares, any Parity Preferred Shares or any Junior Shares, unless, in
each case, all distributions accumulated on all Series D Preferred Shares and
all classes and series of outstanding Parity Preferred Shares have been paid in
full. The foregoing sentence will not prohibit (i) distributions payable solely
in Junior Shares, (ii) the exchange or conversion of Junior Shares or Parity
Preferred Shares into
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capital stock of the Corporation ranking junior to the Series D Preferred
Shares as to distributions and rights upon involuntary or voluntary
liquidation, dissolution or winding-up of the Corporation, or (ii) the
redemption of capital stock by the Corporation to preserve the Corporation's
status as a REIT.
(H) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited in
trust for payment) upon the Series D Preferred Shares, all distributions
authorized and declared on the Series D Preferred Shares and all classes or
series of outstanding Parity Preferred Shares shall be authorized and declared
so that the amount of distributions authorized and declared per Series D
Preferred Share and such other classes or series of Parity Preferred Shares
shall in all cases bear to each other the same ratio that accrued and unpaid
distributions per Series D Preferred Share and such other classes or series of
Parity Preferred Shares (which shall not include any accumulation in respect of
unpaid distributions for prior distribution periods if such classes or series
of Parity Preferred Shares do not have cumulative distribution rights) bear to
each other.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation, the holders of the Series D
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, a liquidation preference of $25.00 per share, plus accrued and unpaid
quarterly distributions thereon.
(B) Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail,
postage prepaid, not less than 30 days and not more that 60 days prior to the
payment date stated therein, to each record holder of the Series D Preferred
Shares at the respective addresses of such holders as the same shall appear on
the transfer records of the Corporation.
(C) After the payment to the holders of the Series D
Preferred Shares of the full preferential amounts provided for in this
paragraph (f), the holders of the Series D Preferred Shares shall have no right
or claim to any of the remaining assets of the Corporation.
(D) 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 D Preferred Shares and any other shares
of the Corporation ranking as to any such distribution on a parity with the
Series D Preferred Shares are not paid in full, the holders of the Series D
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.
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(E) Neither the sale, lease 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 hereof.
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. The Series D Preferred Shares
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series D Preferred Shares of any
holder thereof, in whole or in part, at any time or from time to time, upon not
less than 30 days nor more than 60 days written notice, at a redemption price,
payable in cash, of $25.00, together with all accrued and unpaid distributions
to and including the date fixed for redemption (the "Series D Redemption
Price"), without interest. If fewer than all of the outstanding Series D
Preferred Shares are to be redeemed, the Series D Preferred Shares to be
redeemed shall be selected pro rata among all holders (as nearly as practicable
without creating fractional shares). The Series D Preferred Shares have no
stated maturity 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, by first class mail, postage prepaid, not less than 30 days
nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series D Preferred Shares at their
respective addresses as they appear on the records of the Corporation.
No failure to give or defect in such notice shall affect the validity
of the proceedings for the redemption of any Series D Preferred Shares
except as to the holder to whom such notice was defective or not
given. In addition to any information required by law or by the
applicable rules of any exchange upon which the Series D Preferred
Shares may be listed or admitted to trading, each such notice shall
state: (a) the redemption date, (b) the Series D Redemption Price, (c)
the aggregate number of Series D Preferred Shares to be redeemed and
if fewer than all of the outstanding Series D Preferred Shares are to
be redeemed, the number of Series D Preferred Shares to be redeemed
held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding
Series D Preferred Shares that the total number of Series D Preferred
Shares held by such holder represents) of the aggregate number of
Series D Preferred Shares to be redeemed, (d) the place or places
where such Series D Preferred Shares are to be surrendered for payment
of the Series D Redemption Price, (e) that distributions on the Series
D Preferred Shares to be redeemed will cease to
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accumulate on such redemption date, and (f) that payment of the Series
D Redemption Shares will be made upon presentation and surrender of
such Series D Preferred Shares.
(2) If the Corporation gives a notice of
redemption in respect of Series D Preferred Shares then, by 12:00
noon, New York City time, on the redemption date, the Corporation will
deposit irrevocably in trust for the benefit of the holders of the
Series D Preferred Shares being redeemed funds sufficient to pay the
applicable Series D Redemption Price and will give irrevocable
instructions and authority to pay such Series D Redemption Price to
the holders of the Series D Preferred Shares upon surrender of the
Series D Preferred Shares by such holders at the place designated in
the notice of redemption. On and after the date of redemption,
distributions will cease to accumulate on the Series D Preferred
Shares or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for
redemption of Series D Preferred Shares is not a Business Day, then
payment of the Series D Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed
for redemption. If payment of the Series D Redemption Price is
improperly withheld or refused and not paid by the Corporation,
distributions on such Series D Preferred Shares will continue to
accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the applicable Series
D Redemption Price. In case fewer than all the Series D Preferred
Shares represented by any such certificate are redeemed, a new
certificate or certificates shall be issued presenting the unredeemed
Series D Preferred Shares without cost to the holder thereof.
(3) Any funds deposited with a bank or trust
company for the purpose of redeeming Series D Preferred Shares shall
be irrevocably deposited 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 D
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.
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(4) No Series D 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) The Corporation may not redeem fewer than
all of the outstanding Series D Preferred Units unless all accumulated
and unpaid distributions have been paid on all quarterly distribution
periods terminating on or prior to the date of the redemption;
provided, however, that the foregoing shall not prevent the redemption
of Series D Preferred Shares to preserve the Corporation's REIT
status.
(6) If a redemption date is after a Series D
Record Date and before the related Distribution Payment Date, the
distribution payable on such Distribution Payment Date shall be paid
to the holder in whose name the Series D Preferred Shares to be
redeemed are registered at the close of business on such Series D
Record Date notwithstanding the redemption thereof between such Series
D Record Date and the related Distribution Payment Date or the
Corporation's default in the payment of the distribution due. Except
as provided above, the Corporation will make no payment or allowance
for unpaid distributions, whether or not in arrears, on Series D
Preferred Shares to be redeemed.
(C) The Corporation shall have no voting rights with
respect to any Series D Preferred Shares following the redemption of such
shares pursuant to this paragraph (f).
(vii) VOTING RIGHTS. Except as required by law, and as set forth
below, the holders of the Series D 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 distributions on any Series D 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 D 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 distributions
accumulated on such Series D Preferred Shares for the past distributions
periods and the then current distributions period shall have been fully paid or
declared and a sum sufficient for the payment thereof set aside for
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payment. In such case, the entire Board of Directors of the Corporation will be
increased by two Directors.
(B) So long as any Series D Preferred Shares remain
outstanding, the Corporation shall not, without the affirmative vote of the
holders of at least two-thirds of the Series D Preferred Shares outstanding at
the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of capital stock of the Corporation ranking senior to
the Series D Preferred Shares with respect to payment of distributions or
rights upon liquidation, dissolution or winding-up or reclassify any capital
stock of the Corporation into any such senior security, or create, authorize or
issue any obligations or securities convertible into or evidencing the right to
purchase any such senior security, (ii) issue any Parity Preferred Shares or
any obligations or securities convertible into or evidencing the right to
purchase Parity Preferred Shares to an affiliate of the Corporation unless such
issuance of Parity Preferred Shares is approved by a majority of the
disinterested directors of the Corporation, or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Corporation's Articles of Incorporation (including, without
limitation, this provision), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series D
Preferred Shares or the holders thereof; provided, however, that with respect
to the occurrence of any event set forth in (iii) above, so long as (a) the
Corporation is the surviving entity and the Series D Preferred Shares remain
outstanding with the terms thereof unchanged, or (b) if the Corporation is not
the surviving entity, other interests in the surviving entity having
substantially the same terms and rights as the Series D Preferred Shares,
including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series D Preferred Shares; and provided
further that any increase in the amount of capital stock of the Corporation or
the creation or issuance of any other class or series of capital stock of the
Corporation, in each case ranking either (a) junior to the Series D Preferred
Shares with respect to payment of distributions and the distribution of assets
upon liquidation, dissolution or winding-up or (b) on a parity with the Series
D Preferred Shares with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up, shall not
be deemed to materially and adversely affect such powers, special 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 D 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 D Preferred Shares in accordance with this paragraph (f), or as
otherwise required by law, each Series D Preferred Share shall be entitled to
one vote. With respect to each Series D Preferred Share, the
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holder thereof may designate a proxy, with each such proxy having the right to
vote on behalf of the holder.
(viii) CONVERSION. The Series D 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 D 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 D 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.
(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) "Ownership Limit" shall initially mean 6%
of the outstanding Series D 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 D Preferred Shares as so adjusted.
(5) "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
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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 D Preferred Shares for a period of 90 days following the
purchase by such underwriter of the Series D Preferred Shares.
(6) "REIT" shall mean a Real Estate Investment
Trust under Section 856 of the Code.
(7) "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 D Preferred
Shares on the ten trading days immediately preceding the date fixed
for redemption by the Board of Directors, or if the Series D Preferred
Shares are not then traded on the New York Stock Exchange, the average
of the last reported sales prices of the Series D Preferred Shares on
the ten trading days immediately preceding the relevant date as
reported on any exchange or quotation system over which the Series D
Preferred Shares may be traded, or if the Series D 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 D Preferred Shares on
the relevant date.
(8) "Restriction Termination Date" shall mean
the first day after Series D Preferred Shares 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.
(9) "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 D Preferred Shares or
the right to vote or receive dividends on Series D Preferred Shares
(including (A) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Series D
Preferred Shares or the right to vote or receive dividends on Series D
Preferred Shares or (B) the sale, transfer, assignment or other
disposition or grant of any securities or rights convertible into or
exchangeable for Series D Preferred Shares, or the right to vote or
receive dividends on Series D Preferred Shares), whether voluntary or
involuntary and whether by operation of law or otherwise.
(B) Restrictions.
(1) During the period commencing on the date
Series D Preferred Shares are first issued and prior to the
Restriction Termination Date: (a) no Person shall acquire any Series D
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 D Preferred Shares in
excess of the Ownership Limit; (b) no Person shall acquire any shares
of Series
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D Preferred Shares if, as a result of such acquisition, the Series D
Preferred Shares and Common Stock of the Corporation would be 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 D 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 D 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.
(2) Without limitation to subparagraph
(ix)(B)(2) or (C)(1), any purported transferee of Beneficial Ownership
of Series D 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
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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. During the
period commencing on the date Series D Preferred Shares are first issued and
prior to the Restriction Termination Date each person who is a Beneficial Owner
of Series D Preferred Shares and each Person (including the shareholder of
record) who is holding Series D 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.
(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.
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(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 D 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 shares of Common Stock.
(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 D
Preferred Shares of the Corporation entered into through the facilities of the
New York Stock Exchange."
III.
This Amendment was adopted on August 31, 1999.
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 3rd
day of September, 1999.
POST PROPERTIES, INC.
By: R. Byron Carlock, Jr.
--------------------------------
Name: R. Byron Carlock, Jr.
Title: Executive Vice President
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