RETIREMENT AGREEMENT AND
GENERAL RELEASE
This RETIREMENT
AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and
entered into by and among Thomas D. Bell, Jr. (“Bell”)
and Cousins Properties Incorporated (the
“Company”).
WHEREAS ,
Bell was employed with the Company as its Chief Executive
Officer;
WHEREAS,
Bell has retired from his employment with the Company and all
offices he holds with the Company, and incurred a “separation
from service” within the meaning of section 409A of the
Internal Revenue Code of 1986, as amended, effective July 1,
2009 (the “Retirement Date”);
WHEREAS,
Bell has resigned as Chairman and as a member of the Board of
Directors effective July 1, 2009;
WHEREAS,
the Company has agreed to provide Bell with certain payments and
benefits to which he would not otherwise be entitled, as provided
in this Agreement; and
WHEREAS ,
Bell and the Releasees want to settle fully and finally all
differences, disputes and potential disputes between them arising
out of Bell’s employment and retirement from the
Company;
NOW,
THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1.
Consideration . Provided that Bell satisfies the conditions
of this Agreement (including Sections 5, 6, 7, 8 and 9 below),
the Company will provide Bell the following consideration (the
“Consideration”):
A.
Retirement Payment . The Company shall pay to Bell the gross
lump sum of $650,000 (the “Retirement Payment”),
subject to applicable withholdings and other amounts required by
law to be withheld. The Retirement Payment shall become due and
payable as soon as practicable (and no later than 30 days)
after the Retirement Date;
B.
COBRA Benefits . The Company will reimburse Bell for amounts
expended by Bell to purchase (via COBRA) health insurance benefits
for himself, his spouse and eligible dependents through the
Company’s health plan for the period that begins on the
Retirement Date and ends on the earlier of (i) 12 months
after the Retirement Date, (ii) the date Bell becomes employed
with an employer with whom Bell is eligible for health insurance
benefits provided through that employer or (iii) the date Bell
is no longer eligible for COBRA. Bell will tender reasonable and
satisfactory proof of such expenditures, if any, to the Company
within thirty (30) days of such expenditure, and the Company
will reimburse Bell for such expenses within thirty (30) days
of receipt of such proof. Bell also agrees to inform Company
of
his becoming
employed with an employer with whom Bell is eligible for health
insurance benefits provided through that employer immediately upon
beginning such employment;
C.
Long-Term Incentive Compensation . All stock options
(“Options”) and shares of restricted stock
(“Restricted Stock”) issued to Bell under the
Company’s 1999 Incentive Stock Plan (“Stock
Plan”) that are outstanding on the Retirement Date and all
restricted stock units (“Restricted Stock Units”)
issued to Bell under the Company’s 2005 Restricted Stock Unit
Plan (“RSU Plan”) that are outstanding on the
Retirement Date shall become 100% vested on the Retirement Date to
the extent such Options, Restricted Stock or Restricted Stock Units
were not previously vested, and the Company agrees that it will
modify such Options to allow Bell the right to exercise such
Options within the stated term of the Options ( i.e .,
generally the balance of the 10 year exercise
period).
D.
Acknowledgements . Bell acknowledges and agrees that the
Consideration encompasses and is in lieu of and in full
satisfaction of any and all other payments which Bell is owed, is
potentially owed, or claims to be owed to him by the Company,
regardless of where arising (except for any benefits owed, under
the written terms of the Company’s benefit plans, through the
Retirement Date or as otherwise specifically stated herein, base
salary accrued through the Retirement Date, expenses incurred but
unpaid up to the Retirement Date that are reimbursable in
accordance with Company policy, rights to indemnification that Bell
may have under the Company’s articles of incorporation,
bylaws, and the Indemnification Agreement dated June 18, 2007,
and any coverage that Bell may have under any liability policy
covering officers and directors) as of the Retirement Date
including, without limitation, any other salary, severance,
benefits, bonuses, deferred compensation, incentive compensation,
equity compensation, vacation pay, pay, sick pay or other paid time
off. For the avoidance of doubt, there shall be no benefits paid by
the Company of any sort with respect to any of the
Consideration.
2.
Release and Covenant Not to Sue .
A.
General Release . As a material inducement of the Company to
enter into this Agreement, Bell hereby irrevocably and
unconditionally releases, acquits, and forever discharges the
Company and the Company’s former and current employees,
partners, members, managers, supervisors, attorneys, investors,
agents, officers, directors, and affiliates, including parent
companies, subsidiaries, benefit plans and divisions (collectively,
with the Company, the “Releasees”), (except as to the
Consideration and any benefits owed, under the written terms of the
Company’s benefit plans, through the Retirement Date or as
otherwise specifically stated herein, base salary accrued through
the Retirement Date, expenses incurred but unpaid up to the
Retirement Date that are reimbursable in accordance with Company
policy, rights to indemnification that Bell may have under the
Company’s articles of incorporation, bylaws, and the
Indemnification Agreement dated June 18, 2007, and any
coverage that Bell may have under any liability policy covering
officers and directors) from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including
attorneys’ fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or
contingent, including, but not limited to, any claims for
compensatory damages, special damages, punitive damages, or any
other form of compensation from the Releasees or any of them, or
based upon any contract, covenant of good faith and fair dealing,
or any tort, or any federal, state, or other governmental statute,
regulation, ordinance or common law, including,
-2-
without
limitation claims for unpaid wages, vacation pay, or other fringe
benefits; breach of any covenant of good faith and fair dealing;
breach of an express or implied contract; violation of any other
legal, equitable or contractual duty arising under the laws of any
state or locality, or the laws of the United States, including,
without limitation, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq. ; 42 U.S.C.
§ 1981; Executive Order 11246, 30 Fed. Reg. 12319; 42 U.S.C.
§ 1985(3); the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 701, et seq. ; the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. ;
the Family and Medical Leave Act, 29 U.S.C. § 2601, et
seq. ; the Employment Retirement Income Security Act of
1974, as amended, 29 U.S.C. § 1001, et seq. ;
the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. ; and the Sarbanes-Oxley Act of 2002, 18 U.S.C. §
1514A, et seq. , which Bell now has, owns or holds,
or claims to have, own or hold, which Bell at any time heretofore
had, owned or held, or claimed to have, against each or any of the
Releasees, including claims arising under any other agreement or
plan whatsoever, whether oral or written, with respect to matters
up to the time Bell signs this Agreement. Bell represents,
acknowledges and agrees that he has been provided with all leave to
which he may have been entitled under the Family and Medical Leave
Act. Bell hereby covenants and agrees, to the fullest extent
permitted by law, not to sue, file any grievance, complaint or
arbitration, commence, or permit to be commenced or filed, any
litigation, administrative charge, or other proceeding against any
of the Releasees as described herein, with respect to any matter
whatsoever, including, but not limited to, any matter arising from
or relating to the terms and conditions of his employment with the
Company, the termination of his employment with the Company, and
any other actions taken by the Company concerning Bell up to the
time of the Effective Date.
B.
Release of Claims under the ADEA . In addition to the
foregoing, Bell hereby knowingly and voluntarily releases and
discharges the Releasees, collectively, separately and severally,
from and for any and all liability, claims, allegations, and causes
of action arising under the Age Discrimination in Employment Act of
1967, as amended (“ADEA”), which he and/or his heirs,
administrators, executors, personal representatives, beneficiaries,
and assigns may have or claim to have against the Releasees.
Notwithstanding any other provision or section of this Agreement,
Bell does not hereby waive any rights or claims under the ADEA that
may arise after the date on which the Agreement is signed by
him.
Bell hereby
acknowledges and represents that (i) he has been given a
period of at least twenty-one (21) days to consider the terms
of this Agreement, (ii) the Company has advised (or hereby
advises) Bell in writing to consult with an attorney prior to
executing this Agreement, and (iii) Bell has received valuable
and good consideration to which he is otherwise not entitled in
exchange for his execution of this Agreement. Bell and the Company
acknowledge and agree that any revisions made to this Agreement
after it was initially delivered to Bell were either not material
or were requested by Bell, and expressly agree that such changes do
not re-start the 21-day consideration period described
above.
The parties hereby
acknowledge this Agreement shall not become effective or
enforceable until the eighth (8th) day after it is executed by Bell
(the “Effective Date”) and that Bell may revoke this
Agreement at any time before the Effective Date.
In the event Bell
revokes, he shall notify the Company in writing to its designated
agent for this purpose no later than the last day of the revocation
period. Such notice shall be delivered
-3-
to the Company
by national overnight delivery service such as Federal Express or
United Parcel Service, the receipt of which shall be tracked by the
delivery service, and addressed as follows:
Cousins Properties Incorporated
191 Peachtree Street, Suite 3600
Atlanta, Georgia 30303-1741
Attn: General Counsel
3. Denial
of Liability or Wrongful Conduct . This Agreement shall not in
any way be construed as an admission by the Company that it has
acted wrongfully in any way.
4. No
Pending Claims . Bell represents that he has not filed, nor
assigned to others the right to file, nor are there pending any
complaints, charges or lawsuits against the Releasees with any
governmental agency or any court, and that Bell shall not file any
claims against the Releasees with any governmental agency or any
court at any time hereafter for actions taken up to and including
the Effective Date with respect to matters released by this
Agreement. Bell agrees that he will not seek or be entitled to any
personal or representative monetary recovery in any proceeding of
any nature arising out of any of the matters released
above.
5.
Non-Disparagement . Except as otherwise required by law,
Bell acknowledges and agrees that, for a period beginning upon
execution of this Agreement and for three (3) years following
the Retirement Date, he shall not make any statement, written or
verbal, to any person or entity, including in any forum or media,
or take any action, in disparagement of the Company or any of the
other Releasees, including, but not limited to, negative references
to the Company’s or a Releasee’s services, policy,
partners, directors, officers, managers, members, or employees, or
take any other action that may disparage the Company or a Releasee
to the general public and/or the Company’s or
Releasee’s employees, clients, suppliers, and/or business
partners. Except as otherwise required by law, the Company
acknowledges and agrees that, for a period beginning upon execution
of this Agreement and for three (3) years following the
Retirement Date, the current members of its Board of Directors and
its current executive officers shall not make any statement,
written or verbal, to any person or entity, including in any forum
or media, or take any action, in disparagement of Bell, including,
but not limited to, negative references to Bell’s services,
or take any other action that may disparage Bell to the general
public or his future employer, clients, suppliers, and/or business
partners. All requests for references or other information from
Bell’s prospective employers shall be directed by Bell to the
Company’s head human resources officer , who shall advise
that the Company policy is not to provide references and shall
confirm only Bell’s positions, dates of employment, and
compensation with the Company.
6. Nondisclosure
and Non-Solicitation.
A.
Confidentiality . Bell agrees to and shall hold in
confidence all Trade Secrets and all Confidential Information (each
as defined below) and will not, either directly or indirectly, use,
sell, lend, lease, distribute, license, give, transfer, assign,
show, disclose, disseminate, reproduce, copy, appropriate, or
otherwise communicate any Trade Secrets or Confidential Information
to any person or entity, without the pr
|
