Exhibit 10.2
CHANGE IN CONTROL
AGREEMENT
AGREEMENT by and between Parkway Properties, Inc., a Maryland
corporation (the "Company"), with offices at One Jackson Place,
Suite 1000, 188 East Capitol Street, Jackson, Mississippi
39201-2195, and _______________ (the "Executive"), an individual
residing at ____________________, dated as of __________.
WHEREAS, the Company recognizes that the current business
environment makes it difficult to attract and retain highly
qualified executives unless a certain degree of security can be
offered to such individuals against organizational and personnel
changes which frequently follow changes in control of a
corporation; and
WHEREAS, even rumors of acquisitions or mergers may cause
executives to consider major career changes in an effort to assure
financial security for themselves and their families; and
WHEREAS, the Company desires to assure fair treatment of its
executives in the event of a Change in Control (as defined below)
and to allow them to make critical career decisions without undue
time pressure and financial uncertainty, thereby increasing their
willingness to remain with the Company notwithstanding the outcome
of a possible Change in Control transaction; and
WHEREAS, the Company recognizes that its executives will be
involved in evaluating or negotiating any offers, proposals or
other transactions which could result in Changes in Control of the
Company and believes that it is in the best interest of the Company
and its stockholders for such executives to be in a position, free
from personal financial and employment considerations, to be able
to assess objectively and pursue aggressively the interests of the
Company's stockholders in making these evaluations and carrying on
such negotiations; and
WHEREAS, the Board of Directors (the "Board") of the Company
believes it is essential to provide the Executive with compensation
arrangements upon a Change in Control which provide the Executive
with individual financial security and which are competitive with
those of other corporations, and in order to accomplish these
objectives, the Board has caused the Company to enter into this
Agreement.
NOW THEREFORE, the parties, for good and valuable consideration and
intending to be legally bound, agree as follows:
1.
Operation and Term of Agreement . This Agreement shall
be effective immediately upon its execution. This Agreement
may be terminated by the Company upon 24 months' advance written
notice to the Executive; provided , however , that
after a Change in Control of the Company during the term of this
Agreement, this Agreement shall remain in effect until all of the
obligations of the parties under the Agreement are satisfied and
the Protection Period has expired. Prior to a Change in
Control this Agreement shall immediately terminate upon termination
of the Executive's employment or upon the Executive's ceasing to be
an elected officer of the Company.
2.
Certain Definitions . For purposes of this Agreement,
the following words and phrases shall have the following
meanings:
(a)
"Cause" shall mean (i) the continued failure by the Executive to
perform his material responsibilities and duties toward the Company
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness), (ii) the engaging by
the Executive in willful or reckless conduct that is demonstrably
injurious to the Company monetarily or otherwise, (iii) the
conviction of the Executive of a felony, or (iv) the commission or
omission of any act by the Executive that is materially inimical to
the best interests of the Company and that constitutes on the part
of the Executive common law fraud or malfeasance, misfeasance, or
nonfeasance of duty; provided , however , that
"cause" shall not include the Executive's lack of professional
qualifications. For purposes of this Agreement, an act, or
failure to act, on the Executive's part shall be considered
"willful" or "reckless" only if done, or omitted, by him not in
good faith and without reasonable belief that his action or
omission was in the best interest of the Company. The
Executive's employment shall not be deemed to have been terminated
for "cause" unless the Company shall have given or delivered to the
Executive (A) reasonable notice setting forth the reasons for the
Company's intention to terminate the Executive's employment for
"cause," (B) a reasonable opportunity, at any time during the
30-day period after the Executive's receipt of such notice, for the
Executive, together with his counsel, to be heard before the Board,
and (C) a Notice of Termination (as defined in Section 10 below)
stating that, in the good faith opinion of not less than a majority
of the entire membership of the Board, the Executive was guilty of
the conduct set forth in clauses (i), (ii), (iii) or (iv) of the
first sentence of this Section 2(a).
(b)
"Change in Control" shall mean a change in control of a nature that
would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), whether or
not the Company is then subject to such reporting requirements;
provided that, without limitation, such a Change in Control shall
be deemed to have occurred if (a) any "person" (as such term is
used in section 13(d) and 14(d) of the Exchange Act) is or becomes
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 30 percent or more of the combined voting power of the
Company's then outstanding securities; or (B) during any period of
two consecutive years, the following persons (the "Continuing
Directors") cease for any reason to constitute a majority of the
Board: individuals who at the beginning of such period
constitute the Board and new Directors each of whose election to
the Board or nomination for election to the Board by the Company's
security holders was approved by a vote of at least two-thirds of
the Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for
election was previously so approved; or (C) the security holders of
the Company approve a merger or consolidation of the Company with
any other corporation, other than (i) a merger or consolidation
that would result in the voting securities of the Company
outstanding immediately before the merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the Company or of such
surviving entity outstanding immediately after such merger or
consolidation or (ii) a merger of consolidation that is approved by
a Board having a majority of its members persons who are Continuing
Directors, of which Continuing Directors not less than two-thirds
have approved the merger or consolidation; or (D) the security
holders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
(c)
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d)
"Disability," for purposes of this Agreement, shall mean total
disability as defined in any long-term disability plan sponsored by
the Company in which the Executive participates, or, if there is no
such plan or it does not define such term, then it shall mean the
physical or mental incapacity of the Executive that prevents him
from substantially performing the duties of the office or position
to which he was elected or appointed by the Board for a period of
at least 180 days and the incapacity is expected to be permanent
and continuous through the Executive's 65th birthday.
(e)
The "Change in Control Date" shall be any date during the term of
this Agreement on which a Change in Control occurs. Anything
in this Agreement to the contrary notwithstanding, if the
Executive's employment or status as an elected officer with the
Company is terminated within six months before the date on which a
Change in Control occurs, and it is reasonably demonstrated that
such termination (i) was at the request of a third party who has
taken steps reasonably calculated or intended to effect a Change in
Control or (ii) otherwise arose in connection with or anticipation
of a Change in Control, then for all purposes of this Agreement the
"Change in Control Date" shall mean the date immediately before the
date of such termination.
(f)
"Good Reason" means:
(i)
the assignment to the Executive within the Protection Period of any
duties inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting requirements,
authority, duties or responsibilities), or any other action that
results in a diminution in such position, authority, duties, or
responsibilities excluding for this purpose an isolated,
insubstantial, and inadvertent action not taken in bad faith and
that is remedied by the Company promptly after receipt of notice
given by the Executive;
(ii)
a reduction by the Company in the Executive's base salary in effect
immediately before the beginning of the Protection Period or as
increased from time to time after the beginning of the Protection
Period;
(iii)
a failure by the Company to maintain plans providing benefits at
least as beneficial as those provided by any benefit or
compensation plan (including, without limitation, any incentive
compensation plan, bonus plan or program, retirement, pension or
savings plan, life insurance plan, health and dental plan or
disability plan) in which the Executive is participating
immediately before the beginning of the Protection Period, or any
action taken by the Company that would adversely affect the
Executive's participation in or reduce the Executive's opportunity
to benefit under any of such plans or deprive the Executive of any
material fringe benefit enjoyed by him immediately before the
beginning of the Protection Period; provided ,
however , that a reduction in benefits under the Company's
tax-qualified retirement, pension, or savings plans or its life
insurance plan, health and dental plan, disability plans or other
insurance plans, which reduction applies generally to participants
in the plans and has a de minimis effect on the Executive
shall not constitute "Good Reason" for termination by the
Executive;
(iv)
the Company's requiring the Executive, without the Executive's
written consent, to be based at any office or location in excess of
50 miles from his office location immediately before the beginning
of the Protection Period, except for travel reasonably required in
the performance of the Executive's responsibilities;
(v)
any purported termination by the Company of the Executive's
employment for Cause otherwise than as referred to in Section 10 of
this Agreement; or
(vi) &nb
