INDEMNIFICATION AGREEMENT
EXHIBIT 10.1
This INDEMNIFICATION AGREEMENT is made and executed effective as of the 18th day of
June, 2007, by and between COUSINS PROPERTIES INCORPORATED, a Georgia corporation (the “Company”),
and (NAME), an individual resident of the State of Georgia (the “Indemnitee”).
1. Service by the Indemnitee. The Indemnitee agrees to serve and/or continue to serve as a
director or officer of the Company faithfully and will discharge his/her duties and
responsibilities to the best of his/her ability so long as the Indemnitee is duly elected or
qualified in accordance with the provisions of the Restated and Amended Articles of Incorporation
(as may be amended from time to time, the “Articles”) and Bylaws (as may be amended from time to
time, the “Bylaws”) of the Company, the Georgia Business Corporation Code, as amended (the
“GBCC”), and any other applicable law in effect on the date of this Agreement and from time to
time, or until his/her earlier death, resignation or removal. The Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual obligation or other
obligation imposed by operation by law), in which event the Company shall have no obligation under
this Agreement to continue the employment or directorship of the Indemnitee. Nothing in this
Agreement shall confer upon the Indemnitee the right to continue in the employ of the Company or as
a director of the Company or affect the right of the Company to terminate the Indemnitee’s
employment at any time in the sole discretion of the Company, with or without
cause, subject to any contract rights of the Indemnitee created or existing otherwise than under this Agreement.
(a) The Secretary of the Company shall, promptly upon receipt of a claim for indemnification
from the Indemnitee, advise the Board of Directors in writing that Indemnitee has requested
indemnification. Any Expenses incurred by the Indemnitee in connection with the Indemnitee’s
request for indemnification hereunder shall be borne by the Company. The Company hereby
indemnifies and agrees to hold the Indemnitee harmless for any Expenses incurred by Indemnitee
under the immediately preceding sentence irrespective of the outcome of the determination of the
Indemnitee’s entitlement to indemnification.
(b) Upon written request by the Indemnitee for indemnification in connection with the
investigation, defense, appeal or settlement of a suit, action, investigation or proceeding covered
by Section 2, the entitlement of the Indemnitee to indemnification pursuant to the terms of this
Agreement shall be determined by the following person or persons, who shall be empowered to make
such determination: (i) if a Change in Control (as hereinafter defined) shall have occurred, by
Independent Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing that
such determination be made by the Board of Directors (or a committee thereof) in the manner
provided for in clause (ii) of this Section 5(b)) in a written opinion to the Board of Directors, a
copy of which shall be delivered to the Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A)(1) by the Board of Directors of the Company, by a majority vote of Disinterested
Directors (as hereinafter defined) even though less than a quorum, or (2) by a committee of
Disinterested Directors designated by majority vote of Disinterested Directors,
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even though less than a quorum, or (B) if there are no such Disinterested Directors or, even if there are such
Disinterested Directors, if the Board of Directors, by the majority vote of Disinterested
Directors, so directs, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to the Indemnitee. Such Independent Counsel shall be
selected by the Board of Directors and approved by the Indemnitee. Upon failure of the Board of
Directors to so select, or upon failure of the Indemnitee to so approve, such Independent Counsel
shall be selected by the judge assigned to the Business Case Division of the Superior Court of
Xxxxxx County, Georgia who has served the longest as a judge for the Superior Court of Xxxxxx
County, Georgia, or such other person as such judge shall designate to make such selection. Such
determination of entitlement to indemnification shall be made not later than 60 days after receipt
by the Company of a written request for indemnification. If the person making such determination
shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of the
application for indemnification, such person shall reasonably prorate such part of indemnification
among such claims, issues or matters. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten days after such determination.
(a) In making a determination with respect to entitlement to indemnification, the Indemnitee
shall be presumed to be entitled to indemnification hereunder and the Company shall be required to
make any showing necessary to the making of any determination contrary to such presumption.
(b) If the Board of Directors, or such other person or persons empowered pursuant to Section 5
to make the determination of whether Indemnitee is entitled to indemnification, shall have failed
to make a determination as to entitlement to indemnification within 60 days after receipt by the
Company of such request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be absolutely entitled to such indemnification,
absent actual fraud in the request for indemnification or a prohibition of indemnification under
applicable law. The termination of any action, suit, investigation or proceeding covered by
Section 2 hereof by judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
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such amounts if it is ultimately determined that the Indemnitee is not entitled to be indemnified by the Company pursuant to this Agreement or otherwise.
8. Remedies of the Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses. In the event that a determination is made that the Indemnitee is not entitled to
indemnification hereunder or if the payment has not been timely made following a determination of
entitlement to indemnification pursuant to Sections 5 and 6, or if Expenses are not advanced
pursuant to Section 7, the Indemnitee shall be entitled to a final adjudication in an appropriate
court of the State of Georgia or any other court of competent jurisdiction of whether the
Indemnitee is entitled to such indemnification or advance. Alternatively, the Indemnitee may, at
the Indemnitee’s option, seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association, such award to be made within 60 days
following the filing of the demand for arbitration. The Company shall not unreasonably oppose the
Indemnitee’s right to seek any such adjudication or award in arbitration or any other claim. Such
judicial proceeding or arbitration shall be made de novo, and the Indemnitee shall not be
prejudiced by reason of a prior determination (if so made) that the Indemnitee is not entitled to
indemnification. If a determination is made or deemed to have been made pursuant to the terms of
Section 5 or Section 6 hereof that the Indemnitee is entitled to indemnification, the Company shall
be bound by such determination and shall be precluded from asserting that such determination has
not been made or that the procedure by which such determination was made is not valid, binding and
enforceable. The Company further agrees to stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement and is precluded from
making any assertions to the contrary. If the court or arbitrator shall determine that the
Indemnitee is entitled to any indemnification hereunder, the Company shall pay all reasonable
Expenses actually incurred by the Indemnitee in connection with such adjudication or award in
arbitration (including, but not limited to, any appellate proceedings).
(a) The Company will be entitled to participate therein at its own expense.
(b) Except as otherwise provided in this Section 9(b), to the extent that it
may wish, the Company, jointly with any other indemnifying party similarly notified,
shall be entitled to assume the defense thereof with counsel reasonably satisfactory
to the Indemnitee. After notice from the Company to the Indemnitee of its election
to so assume the defense thereof, the Company shall not be liable to the Indemnitee
under this Agreement for any legal or other Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof
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other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right
to employ the Indemnitee’s own counsel in such action or lawsuit, but the fees and
Expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be
at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized in writing by the Company, (ii) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense of such action and such determination by
the Indemnitee shall be supported by an opinion of counsel, which opinion shall be
reasonably acceptable to the Company, or (iii) the Company shall not in fact have
employed counsel to assume the defense of the action, in each of which cases the
fees and Expenses of counsel shall be at the expense of the Company. The Company
shall not be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Company or as to which the Indemnitee shall have
reached the conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected without
its written consent, which consent shall not be unreasonably withheld. The Company
shall not be required to obtain the consent of Indemnitee to settle any action or
claim which the Company has undertaken to defend if the Company assumes full and
sole responsibility for such settlement and such settlement grants Indemnitee a
complete and unqualified release in respect of potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant to this
Section 9, the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of the policies.
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Among other considerations, the Company will weigh the costs of obtaining such insurance coverage against the protection
afforded by such coverage. In the event the Company maintains directors’ and officers’ liability
insurance, the Indemnitee shall be named as an insured in such manner as to provide the Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the Company’s officers or directors. However,
the Company agrees that the provisions hereof shall remain in effect regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company; except that any payments made to, or
on behalf of, the Indemnitee under an insurance policy shall reduce the obligations of the Company
hereunder. Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain such insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are disproportionate to the amount of
coverage provided or if the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit.
13. Intent. This Agreement is intended to be broader than any statutory indemnification
rights applicable in the State of Georgia and shall be in addition to any other rights Indemnitee
may have under the Company’s Articles, Bylaws, applicable law or otherwise. To the extent that a
change in applicable law (whether by statute or judicial decision) permits greater indemnification
by agreement than would be afforded currently under the Company’s Articles, Bylaws, applicable law
or this Agreement, it is the intent of the parties that Indemnitee enjoy by this Agreement the
greater benefits so afforded by such change.
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(a) “Change in Control” shall mean:
(i) | a “change in control” of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A for a proxy statement filed under Section 14(a) of the Act as in effect on the date of this Agreement; | ||
(ii) | a “person” (as that term is used in Section 14(d)(2) of the Act) who becomes the beneficial owner (as defined in Rule 13d-3 under the Act) directly or indirectly of securities representing 45% or more of the combined voting power for election of directors of the then outstanding securities of the Company; | ||
(iii) | the individuals who at the beginning of any period of two consecutive years or less (starting on or after the date of this Agreement) constitute the Company’s Board of Directors cease for any reason during such period to constitute at least a majority of the Company’s Board of Directors, unless the election or nomination for election of each new member of the Board of Directors was approved in advance by vote of at least two-thirds of the members of such Board of Directors then still in office who were members of such Board of Directors at the beginning of such period; | ||
(iv) | the shareholders of the Company approve any reorganization, merger, consolidation or share exchange as a result of which the common stock of the Company shall be changed, converted or exchanged into or for securities of another organization or any dissolution or liquidation of the Company or any sale or the disposition of 50% or more of the assets or business of the Company; or | ||
(v) | the shareholders of the Company approve any reorganization, merger, consolidation or share exchange with another corporation unless (1) the persons who were the beneficial owners of the outstanding shares of the common stock of the Company immediately before the consummation of such transaction beneficially own more than 60% of the outstanding shares of the common stock of the successor or survivor corporation in such transaction immediately following the consummation of such transaction and (2) the number of shares of the common stock of such successor or survivor corporation beneficially owned by the persons described in Section 21(a)(v)(1) immediately following the consummation of such transaction is beneficially owned by each such person in substantially the same proportion that each such |
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person had beneficially owned shares of the Company common stock immediately before the consummation of such transaction, provided (3) the percentage described in Section 21(a)(v)(1) of the beneficially owned shares of the successor or survivor corporation and the number described in Section 21(a)(v)(2) of the beneficially owned shares of the successor or survivor corporation shall be determined exclusively by reference to the shares of the successor or survivor corporation which result from the beneficial ownership of shares of common stock of the Company by the persons described in Section 21(a)(v)(1) immediately before the consummation of such transaction. |
(b) “Disinterested Director” shall mean a director of the Company who is not or
was not a party to the action, suit, investigation or proceeding in respect of which
indemnification is being sought by the Indemnitee.
(c) “Expenses” shall include all attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and
all other disbursements or expenses incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating or being or preparing to
be a witness in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature, in each case to
the extent reasonable.
(d) “Independent Counsel” shall mean a law firm or a member of a law firm that
neither is presently nor in the past five years has been retained to represent (i)
the Company or the Indemnitee in any matter material to either such party or (ii)
any other party to the action, suit, investigation or proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest
in representing either the Company or the Indemnitee in an action to determine the
Indemnitee’s right to indemnification under this Agreement.
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(a) If to the Indemnitee to:
(ADDRESS)
(b) If to the Company, to:
Cousins Properties Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
King & Spalding LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
or to such other address as may be furnished to the Indemnitee by the Company or to the Company by
the Indemnitee, as the case may be.
24. Governing Law. The parties hereto agree that this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Georgia, applied without giving
effect to any conflicts-of-law principles.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on the day
and year first above written.
COUSINS PROPERTIES INCORPORATED |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Xxxxxx X. Xxxxxxx, Senior Vice President and | ||||
General Counsel | ||||
INDEMNITEE |
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By: | ||||
NAME | ||||
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