This Consulting
Agreement (the “Agreement”) is made and entered as of
December 5, 2008 (the “Effective Date”) by and
between JOEL T. MURPHY (“Executive”), an
individual resident of the state of Georgia, and COUSINS
PROPERTIES INCORPORATED (“Company”), a Georgia
corporation.
WHEREAS ,
Executive has notified Company that he will retire from the Company
effective as of December 31, 2008; and
WHEREAS ,
Company and Executive intend to create a consulting arrangement
between Company and Executive where Company may request personal
services from Executive and Executive agrees to provide such
services, subject to the specific terms of this Agreement;
and
WHEREAS ,
Executive desires and intends to make other and further promises to
Company in exchange for other and further agreed to consideration
from and promises by Company; and
WHEREAS ,
the parties desire to state in a single document their
understandings and agreements with respect to the subject matter
hereof;
NOW,
THEREFORE , in consideration of the covenants, promises and
agreements set forth herein, and good and valuable consideration,
the sufficiency of which is hereby acknowledged, the parties to
this Agreement agree as follows:
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(a)
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The
parties agree that Executive shall retire and his employment with
Company and any of its parents, subsidiaries or affiliates will
cease effective at the end of the business day on December 31,
2008 (the “Retirement Date”). As of the Retirement
Date, Executive’s employment, and his authority to act for or
on behalf of Company or any of its parents, subsidiaries, or
affiliates, shall be and is terminated.
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(b)
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Executive agrees that, upon his
retirement, he will immediately return to Company all property,
equipment, funds, lists, books, records and other materials of
Company in Executive’s possession; provided that
Executive may retain an electronic and a paper copy of his list of
professional and personal contacts.
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2.
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Term of Consultancy
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Executive and Company acknowledge
and agree that from January 1, 2009 until December 31,
2010, Company may, in its sole discretion, request that Executive
personally provide it consulting services based on his experience
and knowledge regarding the development, acquisition, financing,
management, leasing and sale of real estate. Executive agrees to
provide such services on a non-exclusive basis in any reasonable
manner and within any reasonable timeframe as may be requested by
Company
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taking into
account Executive’s other professional and personal
commitments; provided , however , if Executive
reasonably believes that complying with any request for consulting
services by the Company would cause a professional, personal and/or
ethical conflict for Executive then he shall so notify the Company,
in writing, of the nature of the conflict, in a manner and with
sufficient detail such that Company can reasonably consider whether
any modification of its request may be made so as to eliminate such
conflict for Executive. If no such modification is made by Company
after receiving notice of a conflict by Executive, or if the
request by Company (with or without modification by Company)
creates an unavoidable professional, personal and/or ethical
conflict for Executive, Executive is not obligated by this
Agreement or otherwise to provide the requested consulting services
to Company and shall not be in breach of this Agreement for failing
or refusing to provide such consulting services. Notwithstanding
the forgoing, Executive shall not be obligated to provide any
requested consulting services to the Company and shall not be in
breach of this Agreement if Executive determines that providing
such services would impair his ability to obtain employment and
Executive gives written notice of such determination to
Company.
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3.
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Consideration for Covenants by
Executive .
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Subject to Paragraphs 8 and 9 of
this Agreement, as of the Release Effective Date (as defined in the
Waiver and Release attached hereto as Exhibit A), Company
shall provide Executive with the following consideration in
exchange for Executive’s promises and covenants contained in
this Agreement:
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(a)
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Company will pay Executive
$350,000.00, subject to applicable withholdings.
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(b)
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With regard to all stock options
issued to Executive under Company’s 1999 Incentive Stock Plan
(the “Stock Plan”) that are currently vested, or will
become vested for Executive on or prior to December 31, 2008,
the Company agrees that it will modify such options to allow
Executive the right to exercise such options within the stated term
of the stock options ( i . e ., generally the balance
of the 10 year exercise period) rather than within one
(1) year of December 31, 2008 ( i . e .,
the rule that would otherwise apply following retirement of
Executive as set forth in the Stock Plan). Executive understands
and agrees that he shall not receive and is not entitled to receive
any additional stock, stock option or restricted stock option
grants after December 31, 2008.
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(c)
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With regard to the performance
conditioned Restricted Stock Unit (“RSU”) grant to
Executive dated as of February 20, 2006 pursuant to the 2005
Restricted Stock Unit Plan, Company agrees that it will amend the
grant as provided in Exhibit B .
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(d)
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Company will reimburse Executive for
amounts expended by Executive to purchase (via COBRA) health
insurance benefits through Company for up to the earlier of (i)
eighteen (18) months after the Retirement Date or
(ii) the date on which Executive becomes employed with an
employer with whom Executive is eligible for health insurance
benefits provided through that employer or (iii) the date
Executive is no longer eligible for COBRA. Executive will tender
reasonable and satisfactory proof of such expenditures, if any, to
Company within thirty (30) days of such expenditure, and
Company will reimburse Executive for such expenses within thirty
(30) days of receipt of such proof. Executive also agrees to
inform Company of his becoming employed with an employer with whom
Executive is eligible for health insurance benefits provided
through that employer immediately upon beginning such
employment.
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(e)
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Executive will be eligible to
receive a bonus and a contribution to the Company’s profit
sharing plan for his employment with Company from January 1 through
December 31, 2008; provided, however , that
Executive acknowledges that any such bonus payments or
contributions are within the sole discretion of the Compensation,
Succession, Nominating and Governance Committee of the
Company’s Board of Directors and may in fact not be granted
to Executive; provided , further , however ,
notwithstanding the foregoing, if a bonus for 2008 is awarded to
any of the Company’s 2008 “named executive
officers” (i.e., those officers who’s compensation was
disclosed by the Company in its 2008 Proxy Statement to
shareholders: Tom Bell, Dan Dupree, Jim Fleming, Larry Gellerstedt
and Executive) then the Executive will receive a bonus for 2008 in
an amount not less than the product of (i) his target bonus
amount for 2008 multiplied by (ii) the average 2008 bonus
award (expressed as a percent of target) made to such named
executive officers other than Executive. Such bonus and profit
sharing contribution, if any, will be paid in 2009 at the time and
in the manner as other similar bonuses and contributions are paid
to other then-employed 2008 named executive officers.
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4.
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Confidentiality
.
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Executive acknowledges his
continuing obligations after his retirement from Company under the
Company’s Code of Conduct regarding the use, copying,
disclosure or other distribution of any “Confidential
Information” (as defined in the Code of Conduct) and any
“Trade Secret” (as defined in the Code of
Conduct).
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5.
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Non-Recruitment of
Employees .
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Executive covenants and agrees that
prior to June 30, 2009, he will not (without the prior written
consent of the Company) directly or indirectly solicit or attempt
to solicit any current employee of the Company with whom Executive
had personal contact during Executive’s employment with the
Company to terminate or lessen that party’s affiliation with
the Company or to violate the terms of any agreement or
understanding between such employee and the Company; provided, for
clarity, this covenant shall not apply to any employee who (i)
responds to any public advertisement or (ii) has been
terminated by the Company prior to any discussion with Executive
regarding such matters. Executive hereby acknowledges and agrees
(i) that this Paragraph 5 is reasonable as to time and
scope given the Company’s need to protect its business and
personnel and (ii) that Executive has substantial experience
and knowledge such that Executive can readily obtain subsequent
employment without violating this Paragraph 5. This covenant
shall be presumed to be enforceable, and any reading causing
unenforceability shall yield to a construction permitting
enforcement. Executive acknowledges and agrees that any breach by
Executive of this covenant will cause irreparable damage to the
Company, the exact amount of which will be difficult to determine,
and that the remedies at law for any such breach will be
inadequate. Accordingly, Executive agrees that, in addition to any
other remedy that may be available at law, in equity, or hereunder,
the Company shall be entitled to specific performance and
injunctive relief, without posting bond or other security to
enforce or prevent any violation of this Paragraph 5 by
Executive. The existence of any claim or cause of action by
Executive against the Company shall not constitute a defense to
enforcement of this Paragraph 5 by injunction.
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6.
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No Disclosure of Terms of
Agreement .
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Executive agrees that until
disclosed by the Company the terms and conditions of this Agreement
are confidential, and may not and will not be disclosed by him at
any time, under any circumstances, without the express written
consent of the Company. Nothing in this Paragraph shall prohibit
Executive from disclosing or discussing this Agreement with his
spouse, attorneys, or tax accountants, provided that any
such individuals are also informed and agree to abide by this
non-disclosure provision, or from disclosing the terms of this
Agreement if legally compelled to do so by a court of competent
jurisdiction.
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7.
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Future Cooperation
.
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Executive agrees and covenants that
he shall, to the extent reasonably requested in writing by Company,
cooperate with and assist Company in any pending or future
litigation in which Company is a party, and regarding which
Executive, by virtue of his employment with Company, has factual
knowledge or information relevant to said litigation, including,
but not limited to, acting as Company’s representative in any
said litigation. Executive further agrees and covenants that, in
any such litigation, he shall provide, without the necessity for
subpoena, in any jurisdiction in which Company requests, truthful
testimony relevant to said litigation. The Company will reimburse
Executive for reasonable expenses incurred with regard to such
cooperation and assistance.
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8.
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Waiver and Release
.
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The
Company’s obligations under this Agreement, whether to pay
any benefits or make any payments or take any actions or otherwise,
are expressly conditioned on the Company’s receipt of an
effective Waiver and Release in the form attached hereto as
Exhibit A , that has been duly executed and delivered
by Executive on or after the Retirement Date and that has not been
revoked within the applicable revocation period contained therein.
If Executive fails to deliver an executed Waiver and Release in the
form attached hereto as Exhibit A to the Company by 5:00pm on
Friday, January 23, 2009 or at any time revokes such Waiver
and Release, under the terms set forth therein, then this Agreement
shall terminate on such date, and neither Executive nor the Company
shall have any obligations under this Agreement.
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9.
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Forfeiture and Return of
Consideration .
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Executive agrees that if he violates
the provisions of this Agreement or the Waiver and Release, he will
immediately forfeit any portions of the consideration described in
Paragraph 3 of this Agreement that have not already been paid
or distributed. However, nothing in this Agreement shall preclude
Company from seeking and receiving such other monetary and
equitable relief as allowed by law for Executive’s violations
of this Agreement, including reimbursement of payments previously
made hereunder or revocation of actions taken pursuant to the terms
hereof.
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10.
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Release by the Company
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As
of the Release Effective Date (as that term is defined in the
Waiver and Release in the form attached hereto as
Exhibit A) , the Company hereby knowingly and
voluntarily
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releases,
discharges, and covenants not to sue Executive or any of his heirs,
administrators, executors, personal representatives, beneficiaries
or assigns (collectively referred to herein as the
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