RETIREMENT AND CONSULTING AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
RETIREMENT AND CONSULTING AGREEMENT AND GENERAL RELEASE
This RETIREMENT AND CONSULTING AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered
into by and between Xxxxx X. Xxxxxxx (“Xxxxxxx”) and Cousins Properties Incorporated (the
“Company”).
WITNESSETH
WHEREAS, Xxxxxxx is employed with the Company as its Executive Vice President and Chief
Financial Officer;
WHEREAS, Xxxxxxx will retire from his employment with the Company and all offices he holds
with the Company and its subsidiaries and affiliates effective December 31, 2010 (the “Retirement
Date”);
WHEREAS, the Company has agreed to provide Xxxxxxx with certain payments and benefits to which
he would not otherwise be entitled, as provided in this Agreement; and
WHEREAS, Xxxxxxx and the Releasees (as defined below) want to settle fully and finally all
differences, disputes and potential disputes between them arising out of Xxxxxxx’x employment and
retirement from the Company as set forth below;
NOW, THEREFORE, in consideration of the premises and mutual promises herein contained, it is
agreed as follows:
1. Retirement and Consultancy. Xxxxxxx agrees that he will continue to use his full
business time and best efforts to fulfill all his duties and responsibilities as the Executive Vice
President and Chief Financial Officer of the Company through the Retirement Date. Xxxxxxx will
retire and his employment with the Company and any of its subsidiaries and affiliates will cease
effective as of the end of the business day on the Retirement Date; Xxxxxxx and the Company agree
that from January 1, 2011 through June 30, 2011, Xxxxxxx will (when requested by the Company)
provide consulting services in connection with the Company’s filing of the Form 10-K and such
other matters, if any, as the Company may reasonably request, and Xxxxxxx agrees to provide such
services within a reasonable timeframe as may be requested by the Company. The consulting services
will not exceed 40 hours per month. No compensation (other than the consideration described in
Section 2) will be paid to Xxxxxxx for any consulting services provided under this Agreement.
2. Consideration. Provided that Xxxxxxx satisfies the conditions of this Agreement
(including, without limitation, Sections 6,7, 8 and 9 below), the Company will provide Xxxxxxx the
following consideration (the “Consideration”):
A. Retirement Payments. The Company agrees to pay Xxxxxxx Three Hundred Twenty
Thousand Dollars ($320,000.00) in three equal installments of One Hundred Six Thousand Six Hundred
Sixty Six Dollars and Sixty Seven Cents ($106,666.67) on each of January 31, 2011, February 28,
2011, and March 14, 2011 (the “Retirement Payments”)
provided Xxxxxxx has timely executed the supplemental release described in Section 2(E) and
not revoked such supplemental release.
B. Bonus. If the Compensation, Succession, Nominating and Governance Committee of
the Company’s Board of Directors awards annual cash incentive awards (i.e., annual “cash bonuses”)
to the Company’s executive officers (the Company’s officers reporting for purposes of Section 16
of the Securities Exchange Act of 1934) other than Xxxxxxx for 2010 and provided Xxxxxxx has
timely executed the supplemental release described in Section 2(E) and not revoked such
supplemental release, Xxxxxxx’x cash bonus for 2010 will be determined by applying a percentage
that is not less than the average percentage of target bonus amount applicable to the Company’s
executive officers (other than Xxxxxxx) to Xxxxxxx’x 2010 target bonus amount. Such bonus
payment, if any, will be paid at the same time and in the same manner as other similar bonuses are
paid to the Company’s executive officers other than Xxxxxxx, but in no event will any such bonus
payment be made later than March 15, 2011.
C. COBRA Benefits. The Company will reimburse Xxxxxxx (subject to applicable tax
withholding) for amounts expended by Xxxxxxx 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 Xxxxxxx becomes employed with an employer with whom Xxxxxxx is eligible for health
insurance benefits provided through that employer or (iii) the date Xxxxxxx is no longer eligible
for COBRA. Xxxxxxx 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 Xxxxxxx
for such expenses within thirty (30) days of receipt of such proof. Xxxxxxx also agrees to inform
the Company of his becoming employed with an employer with whom Xxxxxxx is eligible for health
insurance benefits provided through that employer immediately upon beginning such employment.
D.
Long-Term Incentive Compensation. All stock options granted to
Xxxxxxx on February 16, 2009 and February 15, 2010
(“Options”) and all shares of
restricted stock (“Restricted Stock”) issued to Xxxxxxx under the Company’s 1999 Incentive Stock
Plan and the Company’s 2009 Incentive Stock Plan (“Stock Plans”) that are outstanding on the
Retirement Date and all restricted stock units (“Restricted Stock Units”) issued to Xxxxxxx under
the Company’s 2005 Restricted Stock Unit Plan (“RSU Plan”) that are outstanding on the Retirement
Date and that vest solely based on continued employment with the Company (“Service Conditioned
Restricted Stock Units”) shall become 100% vested on the effective date of the supplemental
release described in Section 2(E) to the extent such Options, Restricted Stock or Service
Conditioned Restricted Stock Units were not previously vested and, with respect to the Options,
subject to the supplemental release described in Section 2(E) becoming effective, Xxxxxxx shall
have the right to exercise such Options within the stated term of the Options (i.e.,
generally the balance of the 10 year exercise period). With respect to any Restricted Stock Units
that vest or become payable in whole or in part based on the Company’s attainment of any
performance goals, Xxxxxxx will (subject to the supplemental release described in Section 2(E)
becoming effective) be deemed to have satisfied any requirement of continued employment associated
with such Restricted Stock Units but such Restricted Stock Units will vest and/or become payable
only if the Company meets the applicable performance goals. This Section 2(D) will amend and
supersede any terms of the agreements related to the Options, Restricted Stock and Restricted
Stock Units which conflict with this Section 2(D) and, except as provided in this Section 2(D),
such agreements shall continue in full force and effect. However,
this Section 2(D) will not amend or supersede any terms of the
agreements related to any stock options (other than the Options)
granted to Xxxxxxx under the Stock Plans, and such agreements
(including the existing vesting and exercise provisions) shall
continue in full force and effect.
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E. Supplemental Release. The Company will give Xxxxxxx a supplemental release (in
substantially the same form as set forth in Section 3) on December 31, 2010 which covers the
period from the date this Agreement is executed through December 31, 2010, and Xxxxxxx will have
21 days to consider the supplemental release and 7 days to revoke the supplemental release. The
parties agree that the Company will be relieved of its obligations under Sections 2(A), 2(B), 2(C)
and 2(D) if such supplemental release is either not executed or is revoked during any applicable
revocation period.
F. Acknowledgements. Xxxxxxx acknowledges and agrees that the Consideration
encompasses and is in lieu of and in full satisfaction of any and all other payments which Xxxxxxx
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 Xxxxxxx may have
under the Company’s articles of incorporation, bylaws, and the Indemnification Agreement dated
June 18, 2007, and any coverage that Xxxxxxx 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.
3. Release and Covenant Not to Xxx.
A. General Release. As a material inducement of the Company to enter into this
Agreement, Xxxxxxx 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
Xxxxxxx may have under the Company’s articles of incorporation, bylaws, and the Indemnification
Agreement dated June 18, 2007, and any coverage that Xxxxxxx 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, 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
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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 Xxxxxxxxxxxx
Xxx, 00 X.X.X. § 00000, 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 Xxxxxxxx-Xxxxx Act of 2002, 18 U.S.C. § 1514A, et
seq., which Xxxxxxx now has, owns or holds, or claims to have, own or hold, which Xxxxxxx
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 Xxxxxxx signs this Agreement. Xxxxxxx 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. Xxxxxxx hereby covenants and agrees, to the fullest extent
permitted by law, not to xxx, 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 Xxxxxxx up to the time of the Effective Date, except as otherwise provided in
this Section 3(A).
B. Release of Claims under the ADEA. In addition to the foregoing, Xxxxxxx 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, Xxxxxxx 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.
Xxxxxxx 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) Xxxxxxx in writing to consult with an attorney prior to executing this Agreement,
and (iii) Xxxxxxx has received valuable and good consideration to which he is otherwise not
entitled in exchange for his execution of this Agreement. Xxxxxxx and the Company acknowledge and
agree that any revisions made to this Agreement after it was initially delivered to Xxxxxxx were
either not material or were requested by Xxxxxxx, 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 Xxxxxxx (the “Effective Date”) and that Xxxxxxx may
revoke this Agreement at any time before the Effective Date.
In the event Xxxxxxx 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 to the Company by national overnight delivery service such as Federal Express or
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United Parcel Service, the receipt of which shall be tracked by the delivery service, and addressed
as follows:
Cousins Properties Incorporated
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: General Counsel
`
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: General Counsel
`
4. 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.
5. No Pending Claims. Xxxxxxx 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 Xxxxxxx 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.
Xxxxxxx 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.
6. Non-Disparagement. Except as otherwise required by law, Xxxxxxx 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. The Company
agrees that it shall direct the members of its Board of Directors and its executive officers (each
as of the Effective Date of this Agreement) that they shall not for a period of three (3) years
following the Retirement Date make any statement, written or verbal, to any person or entity,
including in any forum or media, or take any action, in disparagement of Xxxxxxx, including, but
not limited to, negative references to Xxxxxxx’x services, or take any other action that may
disparage Xxxxxxx to the general public or his future employer, clients, suppliers, and/or business
partners. All requests for references or other information from Xxxxxxx’x prospective employers
shall be directed by Xxxxxxx to the Company’s head human resources officer, who shall advise that
the Company policy is not to provide references and shall confirm only Xxxxxxx’x positions, dates
of employment, and compensation with the Company.
7. Nondisclosure and Non-Solicitation.
A. Confidentiality. Xxxxxxx 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 prior written consent of the
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Company. Xxxxxxx’x obligation of non-disclosure as set forth herein with regard to each item
constituting all or any portion of a Trade Secret shall continue for so long as such item continues
to constitute a Trade Secret under applicable law, and with regard to any Confidential Information,
for a period of three (3) years after the Retirement Date.
“Confidential Information” means data or other information relating to the business of the
Company or a Releasee (other than Trade Secrets) that is or has been disclosed to Xxxxxxx or of
which Xxxxxxx became aware as a consequence of or through Xxxxxxx’x relationship with the Company
or a Releasee and which has value to the Company or a Releasee, is not generally known to the
Company’s or the Releasee’s competitors (as applicable). Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the Company or a
Releasee (except where such public disclosure has been made by Xxxxxxx without authorization) or
that has been independently developed and disclosed by others, or that otherwise enters the public
domain through lawful means.
“Trade Secrets” means information protectable as a trade secret under applicable law,
including, without limitation, and without regard to form: technical or non-technical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, or a list of actual or potential customers
or suppliers which is not commonly known by or available to the public and which information
derives economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use; and is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. For purposes of this Agreement, the term Trade Secret shall not include data
or information that has been voluntarily disclosed to the public by the Company or a Releasee
(except where such public disclosure has been made by Xxxxxxx without authorization) or that has
been independently developed and disclosed by others, or that otherwise enters the public domain
through lawful means.
B. Non-Solicitation of Employees. Xxxxxxx covenants and agrees that for a period of
twelve (12) months following the Retirement Date, Xxxxxxx will not, directly or indirectly, solicit
or encourage the solicitation or hiring of any person who was an employee of the Company at the
Retirement Date and who continues to be an employee of the Company at, or was an employee within
six (6) months before, the date of such solicitation, with whom Xxxxxxx had material contact, by
any employer other than the Company for any position as an employee, independent contractor,
consultant or otherwise; provided that this covenant shall not apply to any employee (i) the
solicitation of whom is approved by the Chief Executive Officer of the Company (such approval to be
made in his or her sole discretion and may be withheld for any or no reason), (ii) who responds to
any public advertisement or (iii) who’s employment with the Company terminated, whether voluntarily
or involuntarily, prior to any discussion with Xxxxxxx regarding such matters.
C. Acknowledgements. Xxxxxxx acknowledges and agrees that Xxxxxxx’x obligations under
this Section 7 are reasonable and necessary to protect the legitimate business interests of the
Company and that any claim or cause of action by Xxxxxxx against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company or
any other adversely affected Releasee of the covenants and promises in this Section 7.
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D. Reformation. In the event that any of the covenants in this Section 7 is found by
a court of competent jurisdiction to be overly broad or otherwise unenforceable as written, the
parties request the court to modify or reform any such covenant to allow it to be enforced to the
maximum extent permitted by law and to enforce the covenant as so modified or reformed.
8. Cooperation. Xxxxxxx acknowledges and agrees that he will reasonably cooperate
with the Company in any pending or future matters, including without limitation any litigation,
investigation, or other dispute, in which Xxxxxxx, by virtue of Xxxxxxx’x employment with the
Company, has relevant knowledge or information, without any further compensation other than what is
provided in this Agreement.
9. Return of Company Property. On or prior to the Retirement Date, Xxxxxxx will
return to the Company all of the Company’s property, including, but not limited to, keys,
passcards, credit cards, computers and related equipment, cell phones, vendor or customer lists,
rolodexes, tapes, software, computer files, marketing and sales materials, and any other record,
data, document or piece of equipment belonging to the Company. Xxxxxxx agrees not to retain any
copies of the Company’s property, including any copies existing in electronic form, which are in
Xxxxxxx’x possession or control. Xxxxxxx acknowledges that he has not and will not destroy,
delete, or alter any Company property without the Company’s written consent. This Section shall
not be construed to relate to any of Xxxxxxx’x personal information which may be stored on the
Company’s computer that he used before the Retirement Date or personal information that he had at
the Company’s offices before the Retirement Date.
10. Modification. No provision of this Agreement may be changed, altered, modified or
waived except in writing signed by Xxxxxxx and an authorized representative of the Company’s Board
of Directors, which writing shall specifically reference this Agreement and the provisions which
the parties intend to waive or modify.
11. Voluntary Agreement/Consultation with Counsel. Xxxxxxx acknowledges the
following: (a) he has read and fully understands the terms of this Agreement; (b) he has agreed to
this Agreement knowingly and voluntarily and was not subjected to any undue influence in agreeing
to its terms; (c) has been (or is hereby) advised by the Company in writing that he may discuss
this Agreement with his personal attorney, and has had an opportunity to do so; and (d) has been
given a reasonable time (of at least 21 days) to consider whether he should enter into this
Agreement.
12. Attorneys’ Fees and Costs. If either party brings a claim released or waived by
or otherwise relating to this Agreement, or breaches any provision hereof, such party will pay the
attorneys’ fees incurred by the prevailing party, in addition to any other damages or relief a
court may award.
13. Entire Agreement. Except as expressly provided herein, this Agreement constitutes
and contains the entire agreement and final understanding concerning Xxxxxxx’x relationship with
the Company and the other subject matters addressed herein between the parties, and supersedes and
replaces all prior negotiations and all other agreements proposed or otherwise (except the
supplemental release referred to herein), whether written or oral,
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concerning the subject matter hereof. Any representation, promise or agreement not
specifically included in this Agreement shall not be binding upon or enforceable against either
party. Notwithstanding the foregoing, the Indemnification Agreement between the Company and
Xxxxxxx, dated as of June 18, 2007 and any certificates of awards issued to Xxxxxxx under the Stock
Plans and the RSU Plan shall survive in accordance with their respective terms. For further
clarity, each of the foregoing expressly survive and remain in full force and effect, and do not
merge into this Agreement.
14. Applicable Law. This Agreement has been entered into in and shall be governed by
and construed under the laws of the State of Georgia, notwithstanding its provisions governing
choice of law. Xxxxxxx acknowledges and agrees that he was employed by the Company in Georgia.
Subject to Section 19 below, any action to enforce any provision of this Agreement shall be brought
exclusively in the appropriate state or federal court in the State of Georgia.
15. Severability. The provisions of this Agreement are severable, and if any part of
it is found to be unenforceable, the other paragraphs shall remain fully valid and enforceable.
This Agreement shall survive the termination of any arrangements contained herein.
16. Headings and Captions. The headings and captions used in this Agreement are for
convenience of reference only, and shall in no way define, limit, expand or otherwise affect the
meaning or construction of any provision of this Agreement.
17. Construction. In the event that an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
18. Injunctive Relief/Obligations. Xxxxxxx acknowledges and agrees that the remedy at
law for any breach of Sections 6, 7, 8 or 9 hereof will be inadequate and that in the event of such
breach, the Company and/or the Releasees will suffer irreparable damage. Accordingly, in addition
to all other remedies available, the Company and any other adversely affected Releasee will
therefore be entitled, in aid of any arbitration conducted pursuant to Section 19 hereof, to
temporary, preliminary or permanent injunctive relief from a court enjoining said breach or
threatened breach without having to post a bond or other security. The existence of any claim,
demand, action or cause of action of Xxxxxxx against any Releasee shall not constitute a defense to
the enforcement by the Company or any Releasee of any of the covenants or agreements herein. The
existence of any claim, demand, action or cause of action of the Company or any Releasee shall not
constitute a defense to the enforcement by Xxxxxxx of any of the covenants or agreements herein.
19. Arbitration. Except as provided in Section 18 and below, any disputes or claims
of any kind or nature, including the arbitrability of claims under this Agreement, between Xxxxxxx
and the Company for any reason whatsoever, shall be settled by final and binding arbitration in
Atlanta, Georgia under the Federal Arbitration Act.
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Prior to filing a demand for arbitration, the party seeking arbitration shall serve upon the
other party written notice of an intent to arbitrate hereunder listing the claims to be arbitrated.
Thereafter, the parties shall, for a period of two weeks, first attempt in good faith to resolve
any such claim through informal negotiation. If the claim is not resolved, the arbitration shall
be administered by an arbitration agency mutually agreeable to Xxxxxxx and the Company, before an
arbitrator mutually agreeable to Xxxxxxx and the Company. Should the Company and Xxxxxxx be unable
to mutually agree upon an arbitration agency or an arbitrator within four weeks of either party’s
written notice of intent to arbitrate hereunder, or within two weeks from the time any court or
other judicial body orders arbitration, the arbitration shall be administered by the American
Arbitration Association before an arbitrator mutually agreeable to Xxxxxxx and the Company. If
Xxxxxxx and the Company are thereafter unable to agree upon an arbitrator, the arbitrator shall be
selected in accordance with the rules of the American Arbitration Association.
Upon the request of either party, the arbitrator’s award shall include findings of fact and
conclusions of law. Discovery in the arbitration by or to each party shall presumptively be limited
to five depositions (including experts), twenty-five interrogatories (including subparts), and
thirty document requests (including subparts). In considering the relevancy, materiality, and
admissibility of evidence, the arbitrator shall take into account, among other things, applicable
principles of legal privilege, including the attorney-client privilege, the work product doctrine,
the self-evaluative privilege, and appropriate protection of the Company’s Trade Secrets, personnel
records, and other Confidential Information or proprietary information. Any arbitration of any
claim by Xxxxxxx pursuant to this Agreement may not be joined or consolidated with any other
arbitration(s) by or against the Company, including through any class arbitration. Any arbitration
of any claim by the Company pursuant to this Agreement may not be joined or consolidated with any
other arbitration(s) by or against Xxxxxxx. Notwithstanding any other provision of this Agreement,
the Company may seek temporary, preliminary, or permanent injunctive relief against Xxxxxxx at any
time without resort to arbitration. If any provision of this Section is found to be invalid or
unenforceable, such provision shall be severed or modified as necessary to permit this Section to
be upheld and enforced to the maximum extent permitted by law.
20. Notice. All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by registered or
certified mail, postage prepaid, return receipt requested, or sent by overnight courier, addressed
as follows:
To the Company: |
Cousins Properties Incorporated |
|
| 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 |
||
| Xxxxxxx, Xxxxxxx 00000-0000 |
||
| Attn: General Counsel | ||
With a copy to: |
Xxxx X. Xxxxxx, Esq. | |
| King & Spalding LLP | ||
| 0000 Xxxxxxxxx Xxxxxx | ||
| Xxxxxxx, Xxxxxxx 00000 |
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To Xxxxxxx: |
Xx. Xxxxx X. Xxxxxxx | |
| [address omitted] | ||
21. Termination by the Company for Good Cause. The Company may terminate Xxxxxxx’x
employment ten (10) days after giving written notice to Xxxxxxx for “Good Cause.” “Good Cause”
shall mean: (i) Xxxxxxx’x material breach of this Agreement; (ii) Xxxxxxx’x xxxxx negligence in the
performance or nonperformance of any of his material duties or responsibilities; (iii) Xxxxxxx’x
dishonesty, fraud or willful misconduct with respect to, or disparagement of, the business or
affairs of the Company; (iv) Xxxxxxx’x conviction of a felony; (v) Xxxxxxx’x abuse of alcohol or
use of any illegal drug; or (vi) Xxxxxxx’x being absent from work for five consecutive days for any
non-business related reason, other than an approved leave of absence, including without limitation
any vacation or sick leave, such approval to be made in a manner consistent with prior practice and
in any case not to be unreasonably withheld. In the event of the termination of Xxxxxxx’x
employment for Good Cause, the Company will be released of all its obligations under this
Agreement.
22. 409A. The parties to this Agreement intend that all payments and benefits under
this Agreement be exempt from or comply with section 409A of the Internal Revenue Code of 1986, as
amended.
XXXXXXX ATTESTS THAT HE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS THAT THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS THAT XXXXXXX MAY HAVE AGAINST THE COMPANY.
| /s/ Xxxxx X. Xxxxxxx | August 9, 2010 | |||
| Xxxxx X. Xxxxxxx | Date | |||
| COUSINS PROPERTIES INCORPORATED |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | August 9, 2010 | ||
| Xxxxxx X. Xxxxxxx | Date | |||
| Senior Vice President, General Counsel and Corporate Secretary | ||||
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