Exhibit 10(b)(ii)
COUSINS PROPERTIES INCORPORATED
PROFIT-SHARING TRUST AGREEMENT
AS EFFECTIVE AS OF
January 1, 1991
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS..................................................... 2
SECTION 2. GENERAL..........................................................2
SECTION 3. CONTRIBUTIONS AND TRUST FUND.....................................2
SECTION 4. PLAN SPONSOR ................................................... 4
4.1. Powers and Duties of the Plan Sponsor.........................4
4.2. Liquidity Requirements....................................... 4
4.3. Action by the Plan Sponsor....................................5
SECTION 5. TRUSTEES........................................................ 5
5.1. Investment Powers............................................... 5
5.2. Special Rules for Investment of Fund......................... 7
5.3. Reports, Orders and Bond.... .............................. 9
5.4. Advice or Direction.......................................... 9
SECTION 6. PLAN BENEFIT AND EXPENSE DISBURSEMENTS.......................... 9
SECTION 7. ACCOUNTING BY TRUSTEE.......................................... 10
SECTION 8. EXPENSES....................................................... 11
SECTION 9. RESIGNATION OR REMOVAL OF TRUSTEE.............................. 11
SECTION 10. AMENDMENT AND TERMINATION..................................... 13
10.1. Amendment...................................................... 13
10.2. Termination.................................................... 13
SECTION 11. INDEMNIFICATION............................................... 13
SECTION 12. MISCELLANEOUS................................................. 14
12.1. Headings and References........................................ 14
12.2. Construction................................................... 14
12.3. Spendthrift Clause............................................. 15
12.4. Legally Incompetent............................................ 15
12.5. Benefits Supported Only by Fund................................ 15
12.6. Claims......................................................... 16
12.7. Nonreversion and Exclusive Benefit........................ 16
12.8. Merger or Consolidation................................... 17
12.9. Qualified Domestic Relations Order........................ 17
12.10. Reports.................................................. 18
COUSINS PROPERTIES INCORPORATED
PROFIT-SHARING TRUST AGREEMENT
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THIS TRUST AGREEMENT, made as of this 1st day of January, 1991, between
COUSINS PROPERTIES INCORPORATED, COUSINS REAL ESTATE CORPORATION, COUSINS
MANAGEMENT, INC. and Xxxxxx X. Xxxxxx, Xx., Xxxxx X. Xxxxx, and Xxxxx X.
Xxxxxxxxx as the individual Trustees for this Fund;
W I T N E S S E T H:
WHEREAS, the Plan Sponsor first adopted the Cousins Properties Incorporated
Plan and Trust Agreement ("Plan") effective as of January 1, 1966; and
WHEREAS, the Plan Sponsor reserved the right to amend the Plan from time to
time; and
WHEREAS, the Plan as amended and restated in its entirety effective as of
January 1, 1991 provides for multiple separate trust funds as part of the Plan;
and
WHEREAS, this Trust Agreement is adopted pursuant to the Plan as so amended
and restated and establishes one of such separate trust funds, which trust fund
shall be a part of the Plan and which trust fund initially shall constitute a
full and complete continuation of the Fund as in existence on December 31, 1990.
ss. 1.
DEFINITIONS
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Except as otherwise expressly set forth in this Trust Agreement, all of the
terms defined in the Plan shall have the same meaning in this Trust Agreement as
in the Plan.
ss.2.
GENERAL
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All of the Trustee's rights, powers, duties and responsibilities of any
kind or description whatsoever respecting this Fund shall be expressly set forth
in this Trust Agreement. The Trustee shall have only such duties with respect to
the maintenance, operation and administration of the Plan as are expressly set
forth in this-Trust Agreement. No right, power, duty or responsibility of any
kind or description whatsoever respecting this Fund or the maintenance,
operation or administration of the Plan shall be attributed to the Trustee on
account of any ambiguity or inference which might be interpreted by any person
to exist in the terms of this Trust Agreement.
ss. 3
CONTRIBUTIONS AND TRUST FUND
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This Fund shall constitute a full and complete continuation of the Fund as
in existence on December 31, 1990. All such assets of such Fund shall be held in
trust in this Fund and this Fund shall continue to be a part of the Plan. The
Trustee thereafter shall accept the contributions made by, or on behalf of, a
Company for the Plan, and such contributions shall be held in trust and shall
become part of this Fund when and as accepted by the Trustee.
The Trustee shall have no responsibility whatsoever to inquire into or to
audit the acts or omissions of any trustee who transfers the assets of the Plan
to the Trustee or to make any claim or demand of any kind or description against
such a trustee absent a written direction from the Plan Sponsor to do so, and
the Trustee shall be indemnified and held harmless by the Plan Sponsor for any
act or omission of any such other trustee unless the Trustee has actual
knowledge that such act or omission violated ERISA or any other applicable law.
The Trustee shall maintain records which shall identify the assets
transferred for, and the contributions made for, the Plan and all investment
gains and losses, realized and unrealized, on such assets and contributions and
all disbursements made for the Plan.
The Trustee shall not be responsible for the amount or the collection of
any transfers or contributions to this Fund or for the determination of the
amount or frequency of any contribution required by the Plan, ERISA or the Code
and such responsibilities shall be borne solely by each Company.
ss. 4.
PLAN SPONSOR
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4.1. Powers and Duties of the Plan Sponsor. The Plan Sponsor shall act on
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its own behalf and on behalf of each Company in connection with the operation
and administration of this Fund. The Plan Sponsor shall advise the Trustee of
such facts and issue to the Trustee such directions as reasonably may be
required by the Trustee in its management of this Fund. The Plan Sponsor shall
direct the Trustee as to disbursements from this Fund (which direction may at
the Plan Sponsor's discretion be a continuing direction), and the Trustee shall
have no responsibility to determine whether disbursements are in accordance with
the Plan or otherwise proper or to see to the application of any disbursements
made in accordance with any such direction.
4.2. Liquidity Requirements. The Plan Sponsor shall determine anticipated
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liquidity requirements for the Plan to meet projected benefit payments for each
calendar year and, if any adjustment from previous annual liquidity requirements
is appropriate, the Plan Sponsor shall appropriately coordinate the Trustee's
Fund investment policies with Plan needs.
4.3. Action by the Plan Sponsor. Any action by the Plan Sponsor pursuant to
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any of the provisions of this Trust Agreement shall be communicated to the
Trustee in accordance with such procedures as the Plan Sponsor deems appropriate
under the circumstances.
ss. 5.
TRUSTEE
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5.1. Investment Powers. Subject to ss.5.2, the Trustee shall have the sole
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and exclusive power and duty to manage the investments of the assets of this
Fund in accordance with ERISA and, in connection with the exercise of such power
and the fulfillment of such duty, to do all things and execute such instruments
as the Trustee may deem necessary or proper, including the following powers, all
of which may be exercised without order of, or report to, any court:
(a) To sell, exchange, or otherwise dispose of any property
at any time held or acquired under this Fund, at public or private
sale, for cash or on terms, without advertisement, including the right
to lease for any term notwithstanding the period of the Plan or this
Fund, and to grant options to purchase any asset of this Fund.
(b) To vote in person or by proxy any corporate stock or other
security and to agree to or take any other action in regard
to any reorganization, merger, consolidation, liquidation,
bankruptcy or other procedure or proceeding affecting any stock,
bond, note or other property.
(c) To compromise, settle or adjust any claim or demand by or
against this Fund and to agree to any rescission or modification
of any contract or agreement affecting this Fund.
(d) To borrow money, and to secure the same by mortgaging,
pledging, or conveying any property of this Fund.
(e) To deposit any stock, bond, or other security in any
depository or other similar institution and to register any stock,
bond or other security in the name of any of his nominees, without the
addition of words indicating that such security is held in a fiduciary
capacity (but accurate records shall be maintained showing that such
security is an asset of this Fund and the Trustee shall be responsible
for the acts of such depository or nominee).
(f) To hold cash in such amounts as may be in his opinion
reasonable for the proper operation of this Fund.
(g) To invest all monies in such stocks, bonds, securities,
investment company or trust shares, mortgages, notes, choses in
action, real estate and improvements on real estate, as the Trustee
may select; provided no investment may be made in either "employer
securities" or "employer real property" unless (1) such property
constitutes "qualifying employer securities" or qualifying employer
real property" (as such terms are defined for purposes of ss. 407 of
ERISA) and_(2) the cost of such investments in "qualifying employer
securities" allocable to this Fund as of any date does not exceed on
such date the Company Contribution credited to the Accounts and
suspense accounts allocable to this Fund on the date such securities
were purchased.
(h) To make such other investments as the Trustee in his
discretion shall deem best without regard to any state law now or
hereafter in force limiting investments of trustees or other
fiduciaries.
5.2. Special Rules for Investment of Fund.
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(a) General. The Fund shall be invested up to 100% in the common
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stock of the Plan Sponsor or any successor to the Plan Sponsor, except
to the extent that a Participant who is an Employee exercises his
right under ss. 5.2(b) of this Trust Agreement and ss. 8.1(b) of the
Plan to direct the investment of his Account through a Brokerage
Account. The Trustee, subject to the approval of the Plan Sponsor,
shall have the right to employ a bank or brokerage house or other
financial institution to take custody of all or any part of the assets
of this Fund or to take such other action to provide for the
safekeeping of the assets of this Fund as the Trustee deems necessary
or appropriate under the circumstances.
(b) Brokerage Account. The Trustee, if so directed by the Plan
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Sponsor, shall transfer the assets of a Participant's Account or
Beneficiary's Account held by this Fund to a Brokerage Account as of
the first day of the calendar month which follows the date the Plan
Sponsor directs the Trustee to do so. A Participant or Beneficiary
upon the establishment of his Brokerage Account shall be exclusively
responsible for the management of the assets of such Brokerage Account
in accordance with ss. 8.1(b) of the Plan. All transaction fees,
commissions and any annual maintenance fee for a Brokerage Account
will be paid directly from such Brokerage Account. The Trustee shall
resume the management of a Participant's Brokerage Account or a
Beneficiary's Brokerage Account if directed to do so by the Plan
Sponsor on the Valuation Date which first follows the date the
Participant or Beneficiary converts all of his investments in his
Brokerage Account to cash.
5.3. Reports, Orders, and Bond. The Trustee shall not be required to make
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any inventory or appraisal or report to any court, nor to secure any order of
court for the exercise of any power granted to the Trustee under this Trust
Agreement and shall not be required to give bond, except as required by ERISA.
5.4. Advice or Direction. The Trustee may from time to time request in
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writing the advice of counsel satisfactory to the Plan Sponsor, including
counsel to the Plan Sponsor, on any legal matter, including the interpretation
of this Trust Agreement. The Trustee shall not be liable and shall be
indemnified and held harmless by the Plan Sponsor for any action taken on the
advice of such counsel or at the direction of the Plan Sponsor or for any
failure to act if such action can reasonably be taken only after receipt from
the Plan Sponsor of specific directions, or for failing to act, pending the
receipt of such directions, when such directions are timely requested by the
Trustee.
ss. 6.
PLAN BENEFIT AND EXPENSE DISBURSEMENTS
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No disbursement shall be made from this Fund by the Trustee for purposes of
the payment of any Plan benefits or expenses except at the direction of the Plan
Sponsor, and the Trustee shall have no duty to inquire into the accuracy of such
direction or its propriety in light of the provisions of the Plan, ERISA or the
Code. Upon direction (which may be a continuing direction) from the Plan Sponsor
as to the name of any person to whom money is to be paid from this Fund and the
amount of such payment, the Trustee shall draw a check in the name of the person
designated by the Plan Sponsor and deliver such check in such manner and in such
amount and at such time as directed by the Plan Sponsor. If the Plan Sponsor
shall deem it necessary to withhold any distribution pending compliance with any
legal requirements, including the probate of a will, the appointment of a
personal representative, the payment of, or provision for, estate or inheritance
taxes, or for death duties or otherwise, and so instructs the Trustee, the
Trustee shall thereafter take no action pending the delivery of (a) the Plan
Sponsor's instructions to make such disbursement notwithstanding such
requirements and (b) an agreement in a form satisfactory to the Trustee which
protects the Trustee from any liability arising out of noncompliance with such
requirements.
ss. 7.
ACCOUNTING BY TRUSTEE
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After the close of each calendar year and within 60 days after receipt of
the Company Contribution, the Trustee shall prepare a written report setting
forth all investments, receipts and disbursements and other transactions during
such calendar year. Upon the expiration of 90 days from the filing of any of the
Trustee's reports with the Plan Sponsor, including a final report in the event
of a discharge under ss. 9, the Trustee shall be forever relieved and discharged
from any liability or accountability to anyone with respect to the propriety of
his actions, except for those transactions to which the Plan Sponsor shall have
filed, within such 90-day period, its written inquiry or disapproval with the
Trustee, and no one shall have the right to demand or be entitled to any further
or different accounting by the Trustee.
ss. 8.
EXPENSES
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All expenses of making purchases and sales of Fund assets shall be paid
from this Fund. All other expenses of managing the Fund, including any taxes
which may be levied or assessed against the Trustee acting on behalf of and on
account of the Plan or this Fund, and all other expenses of the Plan allocable
to this Fund or of this Fund shall be assessed by the Trustee in accordance with
the Plan Sponsor's directions and shall be paid by each Company in accordance
with such assessment.
ss. 9.
RESIGNATION OR REMOVAL OF TRUSTEE
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A Trustee may resign at any time by instrument in writing delivered to the
Plan Sponsor and, in such event, the Plan Sponsor will, within 60 days after
receipt of such resignation, appoint a successor trustee by instrument in
writing delivered to the resigning Trustee and to such successor trustee. The
Plan Sponsor also at any time may remove after 60 days' written notice a Trustee
and appoint a successor trustee or trustees by instrument in writing delivered
to the Trustee and to such successor trustee. The Plan Sponsor in any event also
shall have the right to postpone indefinitely the appointment of a successor
trustee if at least one Trustee remains after any such resignation or removal.
In either event, on the appointment of such successor and delivery of the
successor's written acceptance of the appointment to the Plan Sponsor and to the
retiring Trustee, the retiring Trustee shall promptly turn over to such
successor all Fund assets held by the Trustee and (if so requested by the Plan
Sponsor) shall make a final accounting to the Plan Sponsor. The successor
Trustee shall have no responsibility except to receive such money and property
from the retiring Trustee and to hold and administer the same thereafter in
accordance with this Trust Agreement and shall not be responsible for any act or
omission of the retiring Trustee, and shall not be required to make any claim or
demand against the retiring Trustee unless the Plan Sponsor shall in writing
request the successor trustee to make a claim of damage against such retiring
Trustee within the time limit prescribed after the filing of the Trustee's final
report under 7. Any such successor Trustee shall have and may exercise all the
rights, powers and duties of the Trustee as fully and to the same extent as if
he had originally been named a Trustee.
ss. 10.
AMENDMENT AND TERMINATION
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10.1. Amendment. The Plan Sponsor reserves the right at any time and from
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time to time to amend this Trust Agreement in writing, provided that no
amendment shall be made which would divert any of the assets of this Fund to any
purpose other than the exclusive benefit of Participants and Beneficiaries,
unless such amendment is necessary to cause the Plan or this Fund to continue to
be exempt from income taxes under the Code. Further, no amendment shall increase
the duties and responsibilities of the Trustee absent the Trustee's consent to
such amendment.
10.2. Termination. In the case of a complete termination of the Plan or a
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permanent discontinuance of contributions as described inss.9.2 of the Plan, the
Trustee shall liquidate Fund investments as necessary and distribute Accounts to
Participants and Beneficiaries as directed by the Plan Sponsor.
ss. 11.
INDEMNIFICATION
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Each Trustee shall (to the extent permissible under applicable law) be
indemnified and held harmless by the Plan Sponsor (subject to a right of
contribution against each Company) for any expenses, including legal fees,
incurred in the defense of any actual or threatened legal action which arises as
a result of his appointment as a Trustee, provided that he is not ultimately
determined in such action to be liable for a breach of his fiduciary (as
distinguished from his co-fiduciary) duty under the Plan.
ss. 12.
MISCELLANEOUS
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12.1. Headings and References. The headings and subheadings in this Trust
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Agreement have been inserted for convenience of reference only and are to be
ignored in construction of the provisions of this Trust Agreement. All
references to sections and subsections shall be to sections and subsections in
this Trust Agreement unless otherwise set forth in this Trust Agreement.
12.2. Construction. In the construction of this Trust Agreement, the
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masculine shall include the feminine and the singular the plural in all cases
where such meanings would be appropriate. This Trust Agreement shall be
constructed in accordance with the laws of the State of Georgia to the extent
that such laws are not preempted by federal law. This Fund is intended to be
exempt from income taxation under Code S 501(a) and state income tax laws as
part of a plan described in Code S 401(a) and the provisions of this Trust
Agreement shall be construed and interpreted in a manner that will effectuate
such intent.
12.3. Spendthrift Clause. Except to the extent permitted by law or S 12.9,
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no Account, benefit, payment or distribution under this Trust Agreement shall be
subject to the claim of any creditor of a Participant or Beneficiary, or to any
legal process by any creditor of such person and no Participant or Beneficiary
shall have any right to alienate, commute, anticipate, or assign (either at law
or equity) all or any portion of his Account, benefit, payment or distribution
under this Trust Agreement.
12.4. Legally Incompetent. If so directed by the Plan Sponsor, the Trustee
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shall make payment on such direction (i) directly to an incompetent or disabled
person, whether because of minority or mental or physical disability, (ii) to
the guardian of such person or to the person having custody of such person, or
(iii) to any person designated or authorized under any state statute to receive
such payments on behalf of such incompetent or disabled person, without further
liability either on the part of the Plan Sponsor or the Trustee for the amount
of such payment to the person on whose account such payment is made.
12.5. Benefits Supported Only by Fund. Any person having any claim for any
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benefit under the Plan or this Fund shall (except to the extent required under
ERISA) look solely and exclusively to the assets of this Fund for satisfaction.
In no event will a Company, or any of its officers, members of its board of
directors or a Trustee in his individual capacity be liable to any person
whomsoever for the payment of benefits under the Plan or this Fund.
12.6. Claims. Any payment to a Participant or Beneficiary or to their legal
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representative, or heirs-at-law, made in accordance with the provisions of the
Plan and this Trust Agreement shall to the extent of such payment be in full
satisfaction of all claims under the Plan and this Fund against the Trustee and
each Company, either of whom may require such person, his legal representative
or heirs-at-law, as a condition precedent to such payment, to execute a receipt
and release therefore in such form as shall be determined by the Trustee or the
Plan Sponsor, as the case may be.
12.7. Nonreversion and Exclusive Benefit.
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(a) General. Except as provided in the Plan and in ss. 12.7(b),
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no Company shall have any present or prospective right, claim, or
interest in this Fund or in any Contribution made to the Trustee, and
neither the corpus nor the income of this Fund shall be diverted to
or used for any purpose other than the exclusive benefit of
Participants and Beneficiaries prior to the satisfaction of all
liabilities, if any, with respect to such persons.
(b) Return of Contributions. To the extent permitted by the
-----------------------
Code and ERISA, the Company Contributions, plus any earnings and less
any losses on such contributions, shall be returned by the Trustee to
a Company in the event that:
(1) A Company Contribution is made by such Company by
a mistake of fact, provided such return is effected within
one year after the payment of such contribution; or
(2) A deduction for a Company Contribution is
disallowed under Code ss. 404, in which event such
contribution shall be returned to the Company which made
such contribution within one year after such disallowance,
all contributions being hereby conditioned upon being
deductible under Code ss. 404.
The Trustee shall have no obligation or responsibility whatsoever to
determine whether the return of any such Company Contribution is
permissible under the Code or ERISA.
12.8. Merger or Consolidation. In the case of any merger or consolidation
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of the Plan and this Fund with, or transfer of assets or liabilities of the Plan
and this Fund to, any other employee benefit plan, each person for whom an
Account is maintained shall be entitled to receive a benefit from such other
employee benefit plan, if it is then terminated, which is equal to or greater
than the benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer, if the Plan and this Fund had been
terminated.
12.9. Qualified Domestic Relations Order. The Trustee shall make such
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transfers and distributions as directed by the Plan Sponsor under ss. 10.11 of
the Plan in the event the Plan Sponsor or the Trustee receives a domestic
relations order which the Plan Sponsor determines to be a "qualified domestic
relations order" within the meaning of Code ss. 414(p).
12.10. Reports. The Trustee shall within the time required by law file the
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reports, if any, required by applicable law respecting this Fund, but shall have
no duty or responsibility to file any such reports respecting the Plan.
IN WITNESS WHEREOF, each Company has caused this Trust Agreement to be
executed by their duly authorized officers and their respective seals to be
affixed to this Trust Agreement and each Trustee has signed and sealed this
Trust Agreement all as of the date set forth on the first page of this Plan.
COUSINS PROPERTIES INCORPORATED
(CORPORATE SEAL) By: /s/ Xxxxx X. Tatikoff
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Senior Vice President
COUSINS REAL ESTATE CORPORATION
(CORPORATE SEAL) By: /s/ Xxxxx X. Tatikoff
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Senior Vice President
COUSINS MANAGEMENT, INC.
(CORPORATE SEAL) By: /s/ Xxxxx X. Tatikoff
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Senior Vice President
/s/ Xxxxxx X. Xxxxxx, Xx. (SEAL)
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Xxxxxx X. Xxxxxx, Xx. as a
Trustee
/s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx, as a Trustee
/s/ Xxxxx X. Xxxxxxxxx (SEAL)
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Xxxxx X. Xxxxxxxxx-, as a Trustee
