Exhibit No.
Description
Form of New Change in Control Severance Agreement
Form of Amendment Number Two to Change in Control Severance Agreement
COUSINS PROPERTIES INCORPORATED
By:
/s/ Robert M. Jackson
Robert M. Jackson
Senior Vice President, General Counsel and
Corporate Secretary
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Company
COUSINS PROPERTIES INCORPORATED |
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By: | ||||
Name: | ||||
Title: | ||||
Executive
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Name: | ||||
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1. | Definitions . For the purposes of this Protective Covenant Agreement, the following terms shall have the following meanings: |
(a) | Companys Business shall mean the business of the development, acquisition, financing, management, leasing and sale of real estate properties, including office, multi-family, retail, industrial and land development. |
(b) | Confidential Information shall mean any non-public information concerning the business of the Company that is or has been disclosed to Executive or of which Executive became aware as a consequence of Executives relationship with the Company and which has value to the Company and is not generally known to the Companys competitors, including its financial performance, results or prospects, and any non-public information provided by a third party with the expectation that the information will be kept confidential and used solely for the business purpose for which it was conveyed. Confidential Information may include, but is not limited to: (i) information about the Companys employees, customers, clients, tenants, buyers and/or sellers; (ii) business and employment policies, marketing methods and the targets of those methods, finances, business plans, promotional materials and price lists; (iii) the terms upon which the Company obtains products or information from its suppliers and sells them to or utilizes them on behalf of or in service of its customers, clients, tenants, buyers and/or sellers; (iv) the nature, origin, composition and development of the Companys products or services; (v) the manner in which the Company provides products and services to its customers, clients, tenants, buyers and/or sellers; and (vi) the terms and conditions of this Protective Covenant Agreement and the Severance Agreement. Confidential Information shall not include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure was made by the Executive without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. | ||
(c) | Protective Covenants shall mean those covenants set forth in Paragraphs 2, 3, 4 and 5 of this Protective Covenant Agreement. | ||
(d) | Protective Period shall mean a period equal to the shorter of (i) two years or (ii) the number of years, or portion thereof, used as a multiplier to determine Executives benefit under the Change in Control Severance Agreement; provided, however, if Executive is the owner of or a Seller within the meaning of O.C.G.A. § 13-8-17 of all or a material part of (1) the assets of the Company, (2) shares of the Company, (3) a partnership interest, (4) a limited liability company membership, or (5) an equity interest or profit participation, of any type, in the Company following the termination of his employment and the period in Section 1(d)(ii) is longer than two years, Protective Period shall mean the period described in Section 1(d)(ii). | ||
(e) | Restricted Territory shall mean a fifteen (15) mile radius from any and all of the Companys projects set forth on the list attached hereto as Schedule 1 and incorporated herein by reference. Schedule 1 shall be prepared by the Company in its sole discretion. | ||
(f) | Trade Secrets shall mean any technical or non-technical data, formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other information similar to any of the foregoing, which (i) derives economic |
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value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. |
2. | Confidentiality . |
Executive agrees that Executive will not (without the prior written consent of the Company) directly or indirectly use, copy, disclose or otherwise distribute to any other person or entity: (i) any Confidential Information for so long as such information remains Confidential Information. or (ii) any Trade Secret at any time such information constitutes a trade secret under applicable law. Executive shall promptly return to the Company all documents and items in Executives possession or control which contain any Confidential Information or Trade Secrets. Executive further agrees that if Executive is questioned about information subject to this Protective Covenant Agreement by anyone not authorized to receive such information, Executive will promptly notify Executives former supervisor or an officer of the Company. | ||
3. | Non-Competition . | |
Executive agrees that for the Protective Period Executive will not (without the prior written consent of the Company), either on Executives behalf or on behalf of any other legal entity, compete with the Companys Business within the Restricted Territory by performing executive leadership and management activities substantially similar to those performed by Executive for the Company within two (2) years prior to the termination of Executives employment. | ||
4. | Non-Solicitation . |
(a) | Executive agrees and covenants that for the Protective Period Executive shall not solicit or attempt to solicit, directly or by assisting others, any business from any of the Companys customers, including actively sought prospective customers, with whom Executive has material contact during Executives employment for purposes of providing development, acquisition, financing, management, leasing and sale of real estate properties, including office, multi-family, retail, industrial and land development, products or services that are competitive with those provided by the Company. | ||
(b) | For purposes of this paragraph, products or services shall be considered competitive with those provided by the Company if products or services are of the type conducted, authorized, offered or provided by the Company within two (2) years prior to the termination of Executives employment. | ||
(c) | For purposes of this Agreement, the term material contact shall mean contact between Executive and each customer or potential customer (1) with whom Executive dealt on behalf of the Company, (2) whose dealings with the Company were coordinated or supervised by Executive, (3) about whom the Executive obtained Confidential Information in the ordinary course of business as a result of |
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Executives association with the Company or (4) who receives products or services authorized by the Company, the sale or possession of which results or resulted in compensation, commissions, or earnings for Executive within two (2) years prior to the termination date of Executives employment. |
5. | Non-Recruitment of Employees . | |
Executive agrees that for the Protective Period Executive will not (without the prior written consent of the Company) directly or indirectly solicit or attempt to solicit any employee of the Company with whom Executive had direct personal contact during Executives employment with the Company to terminate or lessen that partys affiliation with the Company or to violate the terms of any agreement or understanding between such employee and the Company. | ||
6. | Acknowledgments . | |
[ Section 6 may be tailored by the Company in its discretion for the Executive prior to execution of the Protective Covenant Agreement .] |
(a) | Executive hereby acknowledges and agrees that the Protective Covenants are reasonable as to time, scope and territory given the Companys need to protect its business, personnel, Trade Secrets and Confidential Information. Executive acknowledges and represents that Executive has substantial experience and knowledge and that Executive can readily obtain subsequent employment without violating the Protective Covenants. In the event any of the Protective Covenants shall be determined by any court having proper jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. | ||
(b) | Executive acknowledges and agrees that during the Term of Executives employment with the Company Executive has and will continue to have access to Confidential Information (as defined below) and Trade Secrets (as defined below) and that unauthorized or improper use or disclosure by Executive of such Confidential Information or Trade Secrets will cause serious and irreparable harm to the Company. Executive acknowledges that an important part of Executives duties have been and will continue to be to advance the business of the Company by directly or through the supervision of others, developing and maintaining substantial relationships with prospective or existing customers, patients, vendors or clients of the Company and/or developing and maintaining the goodwill of the Company associated with an (1) ongoing business, commercial or professional practice, including but not limited to a trade name, trademarks, service marks, or trade dues, or (2) a specific geographic location, or (3) a specific marketing or |
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trade area. Executive acknowledges that Executive has and will continue to be provided extensive/specialized training as a part of Executives employment. |
(c) | Executive acknowledges and agrees that during the Term of Executives employment with the Company, Executive has and will continue to in the course of Executives employment customarily and regularly solicit for the Company customers or prospective customers and/or customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others, and/or perform each of the following duties: (1) have the primary duty of managing the business in which the Executive is employed or of a customarily recognized department of subdivision thereof; (2) customarily and regularly direct the work of two or more employees; and (3) have the authority to hire or fire other employees or have particular weight given to Executives suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees and/or by reason of the Companys investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships, (1) gain a high level of notoriety, fame, reputation, or public persona as the Companys representative or spokesperson or (2) a high level of influence or credibility with the Companys customers, vendors, or other business relationships and/or be intimately involved in the planning for or direction of the business of the Company or a defined unit of the business of the Company and/or obtain selective or specialized skills, knowledge, abilities, or customer contacts or information. Executive and the Company recognize, acknowledge and agree that Executives primary duties for the Company have and will continue to be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. |
7. | Specific Performance . | |
Executive acknowledges and agrees that any breach of the Protective Covenants by Executive will cause irreparable damage to the Company, the exact amount of which will be difficult to determine, and that the remedies at law for any such breach will be inadequate. Accordingly, Executive agrees that, in addition to any other remedy that may be available at law, in equity, under the Severance Agreement, or hereunder, the Company shall be entitled to specific performance and injunctive relief, without posting bond or other security to enforce or prevent any violation of any of the Protective Covenants by Executive. The existence of any claim or cause of action by Executive against the Company, including any dispute relating to the termination of the Severance Agreement, shall not constitute a defense to enforcement of any of the Protective Covenants by injunction. |
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8. | Indemnification . | |
Executive hereby indemnifies and agrees to defend and hold harmless the Company and its employees, officers, directors, agents, representatives, affiliates and independent contractors from and against any and all damages, losses, costs (including, without limitation, court costs and attorneys fees), settlements, suits, actions, expenses, liabilities and claims of any kind caused by or resulting from any breach of this Protective Covenant Agreement by Executive | ||
9. | Construction . | |
The Protective Covenants shall be presumed to be enforceable, and any reading causing unenforceability shall yield to a construction permitting enforcement. If any one of the Protective Covenants shall be found unenforceable, it shall be severed and the remaining Protective Covenants enforced in accordance with the tenor thereof. | ||
10. | Miscellaneous . |
(a) | Assignment . Executive shall not assign this Protective Covenant Agreement, in whole or in part, without the prior written consent of the Company, and any attempted assignment not in accordance herewith shall be null and void and of no force or effect. The Company may assign this Protective Covenant Agreement to any of its subsidiaries or affiliates or to its successor following a Change in Control. | ||
(b) | Binding Effect . This Protective Covenant Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. | ||
(c) | Survival . This Protective Covenant Agreement and all covenants and agreements made herein shall survive the execution and delivery hereof. | ||
(d) | Amendment and Termination . This Protective Covenant Agreement, including all exhibits, may be amended or terminated only by a writing executed by the parties hereto. | ||
(e) | Construction . This Protective Covenant Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. No provision of this Protective Covenant Agreement or any related document shall be construed against or interpreted to the disadvantage of any party by reason of such party having, or having deemed to have, structured or drafted such provision. | ||
(f) | Headings . The section and paragraph headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Protective Covenant Agreement. | ||
(g) | Notices . Except as otherwise expressly provided herein, all notices, requests, comments and other communications under this Protective Covenant Agreement |
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shall be in writing and shall be deemed to be given when delivered personally or mailed first class, registered or certified mail, postage prepaid, in any case, addressed as follows: |
(h) | Counterparts . This Protective Covenant Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. | ||
(i) | Severability . In the event that any provision or portion of this Protective Covenant Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions hereof shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. | ||
(j) | No Waiver . No waiver by any party hereto of any breach by any party of any condition or provision contained herein shall be deemed a waiver of any other condition or provision hereof. Any waiver must be in writing and signed by Executive or an authorized officer of the Company, as the case may be. | ||
(k) | Attorneys Fees and Costs . Should Executive or the Company be required to commence an action in any court of competent jurisdiction to enforce this Protective Covenant Agreement, such party shall be entitled to recover its attorneys fees and costs, to the extent that such party is the prevailing party. |
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Company
COUSINS PROPERTIES INCORPORATED |
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By: | ||||
Name: | ||||
Title: | ||||
Executive
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Name: | ||||
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1. | Executives Separation . |
(a) | Executives employment with the Company has terminated in accordance with the provisions of the Agreement. | ||
(b) | Executive agrees to immediately return to the Company all property, equipment, funds, lists, books, records, other materials and property of the Company in Executives possession. |
(c) | Executive acknowledges and agrees that Executive shall not be eligible to participate in the Cousins Properties Incorporated Severance Pay Plan, effective June 1, 2001 and as amended from time to time, or to receive any benefits or payments pursuant thereto. |
2. | General Release and Covenant Not to Sue . |
Executive hereby knowingly and voluntarily releases, discharges, and covenants not to sue the Company, and its predecessors, successors, parents, subsidiaries, affiliates, and divisions, and their respective current and former employees, officers, directors, shareholders, partners, trustees, representatives, attorneys, and agents (collectively referred to herein as Releasees) from and for all claims, liabilities, demands, and causes of action, known or unknown, fixed or contingent, of any nature whatsoever, which Executive, his or her heirs, administrators, executors, personal representatives, beneficiaries, or assigns ever had, now has, or may have or claim to have against the Releasees arising from or related to events which occurred from the beginning of time to the execution of this Release. This release, discharge and covenant not to sue include but are not limited to claims of: |
(a) | violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Equal Pay Act, the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Family and Medical Leave Act, the Labor Management Relations Act, the National Labor Relations Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, Executive Order 11246, Executive Order 11141, the Rehabilitation Act of 1973, the Employee Retirement Income Security Act, or the Sarbanes-Oxley Act of 2002; |
(b) | violations of any other federal or state statute or regulation or local ordinance; |
(c) | claims for lost or unpaid wages, compensation, or other benefits claims under state law, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, bad faith action, slander, assault, battery, wrongful or constructive discharge, negligent hiring, retention and/or supervision, fraud, misrepresentation, conversion, tortuous interference with property, negligent investigation, breach of contract, or breach of fiduciary duty; |
(d) | any claims to benefits under the Cousins Properties Incorporated Severance Pay Plan, effective June 1, 2001 and as amended from time to time, which Executive ever had or now has or may in the future have; or |
(e) | any other claims under state law arising in tort or contract. |
By referencing the laws above, the Releasees do not admit coverage or liability under any of these laws. This Release does not release any claim that may arise from events which occur after the date of execution of this Release. Executive also does not release claims |
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to any benefits that Executive is already entitled to receive under the Agreement or any right Executive has to benefits under the Consolidated Omnibus Budget Reconciliation Act. However, nothing in this Release or in the Agreement is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company, and the Company hereby reserves the right to amend or terminate any of its benefit plans at any time in accordance with the procedures set forth in the applicable plans or agreements. |
3. | No Disparagement . |
Executive agrees and covenants that, except as may be required by law, Executive shall not make any statement, written or verbal, in any forum or media, or take any action, in disparagement of the Company or any of the other Releasees. |
4. | No Disclosure of Terms of Release . |
Executive agrees that the terms and conditions of this Release are confidential, and may not and will not be disclosed by Executive at any time, under any circumstances, without the express written consent of the Company. Nothing in this Paragraph 4 shall prohibit Executive from disclosing or discussing this Release with his or her spouse, attorneys, or tax accountants, provided that any such individuals are also informed and agree to abide by this non-disclosure provision, or from disclosing the terms of this Release if legally compelled to do so. |
5. | Future Cooperation . |
Executive agrees and covenants that Executive shall, to the extent reasonably requested in writing, cooperate with and assist the Company in any pending or future litigation in which the Company is a party, and regarding which Executive, by virtue of Executives former employment with the Company, has factual knowledge or information relevant to said litigation, including, but not limited to, acting as the Companys representative in any said litigation. Executive further agrees and covenants that, in any such litigation, Executive shall provide, without the necessity for subpoena, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation. The Company will reimburse Executive for reasonable expenses incurred with regard to such cooperation and assistance. |
6. | No Future Employment . |
Executive forever releases and discharges the Company from any obligation to employ Executive in any capacity in the future. Notwithstanding the above, nothing in this Paragraph 6 shall preclude the Company from offering Executive employment and hiring Executive at some time in the future. |
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7. | Assignment of Claims . |
Executive hereby represents and warrants that Executive has not assigned, transferred, or hypothecated or purported to assign, transfer, or hypothecate any claim or matter herein released, disclaimed, discharged or terminated. |
8. | Forfeiture and Return of Benefits . |
Executive agrees that if Executive violates the provisions of Paragraphs 1, 2, 3, 4, 5, 6 or 7 of this Release, Executive will immediately forfeit any portion of the benefits and payments described in the Agreement that has not already been paid or distributed and will immediately forfeit Executives right to retain (and shall become obligated to repay promptly to the Company) any portion of the benefits and payments described in the Agreement that Executive has already received, all as described in Section 2.2 of the Agreement. However, nothing in this Release shall preclude the Company from seeking and receiving such other monetary and equitable relief as allowed by law for Executives violations of this Release. |
9. | Denial of Liability . |
Executive understands and agrees that this Release does not constitute an admission of liability, wrongdoing, or unlawful conduct on the part of the Company. |
10. | Employment Reference . |
Executive agrees to direct any inquiries concerning employment references to the attention of the senior human resources officer. Executive agrees that if potential employers contact the senior human resources officer concerning Executive, the senior human resources officer will: |
(a) | Provide such employers with information regarding Executives last position held, Executives dates of employment, and confirmation of Executives compensation; and |
(b) | Provide additional information or access to other Company references concerning Executives employment. |
11. | Miscellaneous . |
(a) | Assignment . This Release is assignable by the Company in whole or in part to any subsidiaries or affiliates of the Company or to any successor to the Company, whether by merger, consolidation, sale of stock, sale of assets or otherwise. This Release is not assignable by Executive. |
(b) | Modification . No provision of this Release may be changed, altered, modified or waived except in writing signed by Executive and the Companys general |
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counsel, which writing shall specifically reference this Release and the provision which the parties intend to waive or modify. |
(c) | Severability . Except as noted below, should any provision of this Release be declared or determined by any court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions of this Release shall not be affected thereby and the invalid or unenforceable part, term or provision shall be deemed not to be a part of this Release. |
(d) | Reformation . If any of the covenants or promises of this Release are determined by any court of law or equity with jurisdiction over this matter to be unreasonable or unenforceable, in whole or in part, as written, the parties hereby consent to and affirmatively request that said court reform the covenant or promise so as to be reasonable and enforceable and that said court enforce the covenant or promise as reformed. |
(e) | Applicable Law . This Release has been entered into in and shall be governed by and construed under the laws of the State of Georgia without regard to choice of law rules. |
(f) | Consent to Jurisdiction and Venue . Executive consents, and waives any objection, to personal jurisdiction and venue in the federal and state courts having jurisdiction in Cobb or Fulton County, Georgia, in any dispute arising out of the terms of this Release. |
(g) | Attorneys Fees and Costs . Should Executive or the Company be required to commence an action in any court of competent jurisdiction to enforce this Release, such party shall be entitled to recover its attorneys fees and costs, to the extent that such party is the prevailing party. |
(h) | Headings and Captions . The headings and captions used in this Release 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 Release. |
(i) | No Waiver . The waiver by the Company of a breach of any of the provisions of this Release shall not operate or be construed as a waiver of any subsequent or simultaneous breach of the same or different provisions. |
(j) | Counterparts . This Release may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. |
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12. | Understanding . |
Executive warrants and agrees that: |
(a) | Executive has been given a period of at least twenty-one (21) calendar days to consider the terms of this Release and that Executive has been, and hereby is advised in writing to seek the advice of an attorney regarding the content and effect of this Release. In the event Executive delivers to the Company an executed Release before the end of the twenty-one (21) calendar day consideration period, Executive has voluntarily waived the right to the full twenty-one (21) calendar day period, and Executives decision to do so is knowing and voluntary and not induced through fraud, misrepresentation or threat to withdraw or alter the offer prior to the expiration of the twenty-one (21) calendar day period; |
(b) | Executive has a period of seven (7) calendar days following the date on which Executive delivers this Release to revoke the Release; |
(c) | If Executive chooses to revoke this Release, Executive must provide written notification of such revocation to Corporate Secretary, Cousins Properties Incorporated, 191 Peachtree Street, Atlanta, GA 30303, with a copy to the senior human resources officer at the same address, and such notice must be received by close of business on the 7 th day following the date Executive signed this Release in order to be effective; |
(d) | Executive has been and hereby is advised that this Release shall not become effective or enforceable until the next business day after the end of any applicable revocation period set forth herein or in the Agreement; |
(e) | Executive has carefully read and fully understands all of the provisions of this Release; |
(f) | Executive knowingly and voluntarily agrees to all the terms set forth in this Release and intends to be legally bound by the same; |
(g) | Executive is, through this Release, releasing the Releasees from any and all claims Executive may have against the Company, except to the extent expressly provided otherwise herein; and |
(h) | In entering into this Release, Executive relies wholly upon Executives own judgment and has not been influenced by any statement made by the Company or by any person representing or employed by the Company. |
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COUSINS PROPERTIES INCORPORATED
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1. | Definitions . For the purposes of this Protective Covenant Agreement, the following terms shall have the following meanings: |
(a) | Companys Business shall mean the business of the development, acquisition, financing, management, leasing and sale of real estate properties, including office, multi-family, retail, industrial and land development. |
(b) | Confidential Information shall mean any non-public information concerning the business of the Company that is or has been disclosed to Executive or of which Executive became aware as a consequence of Executives relationship with the Company and which has value to the Company and is not generally known to the Companys competitors, including its financial performance, results or prospects, and any non-public information provided by a third party with the expectation that the information will be kept confidential and used solely for the business purpose for which it was conveyed. Confidential Information may include, but is not limited to: (i) information about the Companys employees, customers, clients, tenants, buyers and/or sellers; (ii) business and employment policies, marketing methods and the targets of those methods, finances, business plans, promotional materials and price lists; (iii) the terms upon which the Company obtains products or information from its suppliers and sells them to or utilizes them on behalf of or in service of its customers, clients, tenants, buyers and/or sellers; (iv) the nature, origin, composition and development of the Companys products or services; (v) the manner in which the Company provides products and services to its customers, clients, tenants, buyers and/or sellers; and (vi) the terms and conditions of this Protective Covenant Agreement and the Severance Agreement. Confidential Information shall not include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure was made by the Executive without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. | ||
(c) | Protective Covenants shall mean those covenants set forth in Paragraphs 2, 3, 4 and 5 of this Protective Covenant Agreement. | ||
(d) | Protective Period shall mean a period equal to the shorter of (i) two years or (ii) the number of years, or portion thereof, used as a multiplier to determine Executives benefit under the Change in Control Severance Agreement; provided, however, if Executive is the owner of or a Seller within the meaning of O.C.G.A. § 13-8-17 of all or a material part of (1) the assets of the Company, (2) shares of the Company, (3) a partnership interest, (4) a limited liability company membership, or (5) an equity interest or profit participation, of any type, in the Company following the termination of his employment and the period in Section 1(d)(ii) is longer than two years, Protective Period shall mean the period described in Section 1(d)(ii). | ||
(e) | Restricted Territory shall mean a fifteen (15) mile radius from any and all of the Companys projects set forth on the list attached hereto as Schedule 1 and incorporated herein by reference. Schedule 1 shall be prepared by the Company in its sole discretion. | ||
(f) | Trade Secrets shall mean any technical or non-technical data, formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other information similar to any of the foregoing, which (i) derives economic |
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value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. |
2. | Confidentiality . | |
Executive agrees that Executive will not (without the prior written consent of the Company) directly or indirectly use, copy, disclose or otherwise distribute to any other person or entity: (i) any Confidential Information for so long as such information remains Confidential Information. or (ii) any Trade Secret at any time such information constitutes a trade secret under applicable law. Executive shall promptly return to the Company all documents and items in Executives possession or control which contain any Confidential Information or Trade Secrets. Executive further agrees that if Executive is questioned about information subject to this Protective Covenant Agreement by anyone not authorized to receive such information, Executive will promptly notify Executives former supervisor or an officer of the Company. | ||
3. | Non-Competition . | |
Executive agrees that for the Protective Period Executive will not (without the prior written consent of the Company), either on Executives behalf or on behalf of any other legal entity, compete with the Companys Business within the Restricted Territory by performing executive leadership and management activities substantially similar to those performed by Executive for the Company within two (2) years prior to the termination of Executives employment. | ||
4. | Non-Solicitation . |
(a) | Executive agrees and covenants that for the Protective Period Executive shall not solicit or attempt to solicit, directly or by assisting others, any business from any of the Companys customers, including actively sought prospective customers, with whom Executive has material contact during Executives employment for purposes of providing development, acquisition, financing, management, leasing and sale of real estate properties, including office, multi-family, retail, industrial and land development, products or services that are competitive with those provided by the Company. | ||
(b) | For purposes of this paragraph, products or services shall be considered competitive with those provided by the Company if products or services are of the type conducted, authorized, offered or provided by the Company within two (2) years prior to the termination of Executives employment. | ||
(c) | For purposes of this Agreement, the term material contact shall mean contact between Executive and each customer or potential customer (1) with whom Executive dealt on behalf of the Company, (2) whose dealings with the Company were coordinated or supervised by Executive, (3) about whom the Executive obtained Confidential Information in the ordinary course of business as a result of |
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Executives association with the Company or (4) who receives products or services authorized by the Company, the sale or possession of which results or resulted in compensation, commissions, or earnings for Executive within two (2) years prior to the termination date of Executives employment. |
5. | Non-Recruitment of Employees . | |
Executive agrees that for the Protective Period Executive will not (without the prior written consent of the Company) directly or indirectly solicit or attempt to solicit any employee of the Company with whom Executive had direct personal contact during Executives employment with the Company to terminate or lessen that partys affiliation with the Company or to violate the terms of any agreement or understanding between such employee and the Company. | ||
6. | Acknowledgments . | |
[ Section 6 may be tailored by the Company in its discretion for the Executive prior to execution of the Protective Covenant Agreement.] |
(a) | Executive hereby acknowledges and agrees that the Protective Covenants are reasonable as to time, scope and territory given the Companys need to protect its business, personnel, Trade Secrets and Confidential Information. Executive acknowledges and represents that Executive has substantial experience and knowledge and that Executive can readily obtain subsequent employment without violating the Protective Covenants. In the event any of the Protective Covenants shall be determined by any court having proper jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. |
(b) | Executive acknowledges and agrees that during the Term of Executives employment with the Company Executive has and will continue to have access to Confidential Information (as defined below) and Trade Secrets (as defined below) and that unauthorized or improper use or disclosure by Executive of such Confidential Information or Trade Secrets will cause serious and irreparable harm to the Company. Executive acknowledges that an important part of Executives duties have been and will continue to be to advance the business of the Company by directly or through the supervision of others, developing and maintaining substantial relationships with prospective or existing customers, patients, vendors or clients of the Company and/or developing and maintaining the goodwill of the Company associated with an (1) ongoing business, commercial or professional practice, including but not limited to a trade name, trademarks, service marks, or trade dues, or (2) a specific geographic location, or (3) a specific marketing or |
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trade area. Executive acknowledges that Executive has and will continue to be provided extensive/specialized training as a part of Executives employment. |
(c) | Executive acknowledges and agrees that during the Term of Executives employment with the Company, Executive has and will continue to in the course of Executives employment customarily and regularly solicit for the Company customers or prospective customers and/or customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others, and/or perform each of the following duties: (1) have the primary duty of managing the business in which the Executive is employed or of a customarily recognized department of subdivision thereof; (2) customarily and regularly direct the work of two or more employees; and (3) have the authority to hire or fire other employees or have particular weight given to Executives suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees and/or by reason of the Companys investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships, (1) gain a high level of notoriety, fame, reputation, or public persona as the Companys representative or spokesperson or (2) a high level of influence or credibility with the Companys customers, vendors, or other business relationships and/or be intimately involved in the planning for or direction of the business of the Company or a defined unit of the business of the Company and/or obtain selective or specialized skills, knowledge, abilities, or customer contacts or information. Executive and the Company recognize, acknowledge and agree that Executives primary duties for the Company have and will continue to be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. |
7. | Specific Performance . | |
Executive acknowledges and agrees that any breach of the Protective Covenants by Executive will cause irreparable damage to the Company, the exact amount of which will be difficult to determine, and that the remedies at law for any such breach will be inadequate. Accordingly, Executive agrees that, in addition to any other remedy that may be available at law, in equity, under the Severance Agreement, or hereunder, the Company shall be entitled to specific performance and injunctive relief, without posting bond or other security to enforce or prevent any violation of any of the Protective Covenants by Executive. The existence of any claim or cause of action by Executive against the Company, including any dispute relating to the termination of the Severance Agreement, shall not constitute a defense to enforcement of any of the Protective Covenants by injunction. |
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8. | Indemnification . | |
Executive hereby indemnifies and agrees to defend and hold harmless the Company and its employees, officers, directors, agents, representatives, affiliates and independent contractors from and against any and all damages, losses, costs (including, without limitation, court costs and attorneys fees), settlements, suits, actions, expenses, liabilities and claims of any kind caused by or resulting from any breach of this Protective Covenant Agreement by Executive |
9. | Construction . | |
The Protective Covenants shall be presumed to be enforceable, and any reading causing unenforceability shall yield to a construction permitting enforcement. If any one of the Protective Covenants shall be found unenforceable, it shall be severed and the remaining Protective Covenants enforced in accordance with the tenor thereof. | ||
10. | Miscellaneous . |
(a) | Assignment . Executive shall not assign this Protective Covenant Agreement, in whole or in part, without the prior written consent of the Company, and any attempted assignment not in accordance herewith shall be null and void and of no force or effect. The Company may assign this Protective Covenant Agreement to any of its subsidiaries or affiliates or to its successor following a Change in Control. | ||
(b) | Binding Effect . This Protective Covenant Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. | ||
(c) | Survival . This Protective Covenant Agreement and all covenants and agreements made herein shall survive the execution and delivery hereof. | ||
(d) | Amendment and Termination . This Protective Covenant Agreement, including all exhibits, may be amended or terminated only by a writing executed by the parties hereto. | ||
(e) | Construction . This Protective Covenant Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. No provision of this Protective Covenant Agreement or any related document shall be construed against or interpreted to the disadvantage of any party by reason of such party having, or having deemed to have, structured or drafted such provision. | ||
(f) | Headings . The section and paragraph headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Protective Covenant Agreement. | ||
(g) | Notices . Except as otherwise expressly provided herein, all notices, requests, comments and other communications under this Protective Covenant Agreement |
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shall be in writing and shall be deemed to be given when delivered personally or mailed first class, registered or certified mail, postage prepaid, in any case, addressed as follows: |
(h) | Counterparts . This Protective Covenant Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. | |
(i) | Severability . In the event that any provision or portion of this Protective Covenant Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions hereof shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. | |
(j) | No Waiver . No waiver by any party hereto of any breach by any party of any condition or provision contained herein shall be deemed a waiver of any other condition or provision hereof. Any waiver must be in writing and signed by Executive or an authorized officer of the Company, as the case may be. | |
(k) | Attorneys Fees and Costs . Should Executive or the Company be required to commence an action in any court of competent jurisdiction to enforce this Protective Covenant Agreement, such party shall be entitled to recover its attorneys fees and costs, to the extent that such party is the prevailing party. |
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Company
COUSINS PROPERTIES INCORPORATED |
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By: | ||||
Name: | ||||
Title: | ||||
Executive | ||||
Name: | ||||
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