UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 12, 2009
Cousins Properties Incorporated
(Exact name of registrant as specified in its charter)
Georgia
(State or other jurisdiction of incorporation)
001-11312
(Commission File Number)
58-0869052
(IRS Employer Identification Number)
191 Peachtree Street NE, Suite 3600, Atlanta, Georgia 30303-1740
(Address of principal executive offices)
Registrant’s telephone number, including area code: (404) 407-1000
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
o      Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Effective on May 12, 2009, upon approval by the shareholders at the 2009 Annual Meeting of Stockholders of Cousins Properties Incorporated (the “Company”), the Company adopted the Cousins Properties Incorporated 2009 Incentive Stock Plan (the “2009 Plan”). A description of the material terms of the 2009 Plan is set forth in “Proposal 2 — Approval of the 2009 Stock Incentive Stock Plan and the Related Performance Goals” in the Company’s proxy statement filed with the Securities and Exchange Commission on April 3, 2009, which description is hereby incorporated into this Item 5.02 by reference. The 2009 Plan is also incorporated by reference in Exhibit 10.1 to this Current Report on Form 8-K.
On May 12, 2009, the Compensation, Succession, Nominating and Governance Committee of the Board of Directors of the Company (the “Compensation Committee”) approved an amendment to the form of Change in Control Severance Agreement (“CIC Agreement”) that the Company previously entered into with certain of its senior executive officers. The CIC Agreement was amended to modify the definition of change in control to correspond to the definition of change in control in the 2009 Plan and to make certain clarifications with respect to Internal Revenue Code § 409A. Each named executive officers has entered into a CIC Agreement. Although the Company anticipates that the named executive officers will execute the amendment, none of the named executive officers is required to execute the amendment. The form of amendment to the CIC Agreement is included as Exhibit 10.2 to this Current Report on Form 8-K.
On May 12, 2009, the Compensation Committee also approved an amendment to the Cousins Properties Incorporated 2005 Restricted Stock Unit Plan (the “RSU Plan”). The amendment revised the RSU Plan in various respects to be consistent with the 2009 Plan, including (1) changing the definition of change in control and adding definitions of cause, good reason, and protection period, each of which mirror the corresponding definitions in the 2009 Plan, (2) amending the change in control provision to provide that if the outstanding RSU awards are assumed or substituted for in connection with a change in control, an RSU award will vest in connection with the change in control only if a key employee’s employment terminates at the Company’s initiative for reasons other than cause or is terminated at the key employee’s initiative for good reason during a protection period specified in the RSU Plan, and (3) amending the change in control provision to provide that if the outstanding RSU awards are not assumed or substituted for in connection with a change in control, the RSU awards will automatically vest; provided, however, if vesting of the RSU award is conditioned on the satisfaction of a performance goal and there is a target for the performance goal, the RSU award vests only to the extent of the target unless the target has been exceeded before the date of the change in control, in which case the RSU vests to the extent the target has been exceeded. The amendment to the RSU Plan is included as Exhibit 10.3 to this Current Report on Form 8-K.
On May 12, 2009, the Compensation Committee also approved a cash settled long term incentive award (“Cash LTI Award”) for certain executives, including the named executive officers. The Cash LTI Award is described in each executive’s Cash Long Term Incentive Award Certificate (“Certificate”). The Cash LTI Award vests as of the earliest testing date, if any, on which the value (as defined in the Certificate) of a share of Company common stock has appreciated at a rate equal to at least 12% on an annualized and compounded basis for the period that begins on May 12, 2009 and ends on the applicable testing date. The testing dates are generally May 12, 2012, May 12, 2013 and May 12, 2014. If the stock value vesting condition has not been met as of May 12, 2014 (the latest possible testing date) or, except as described for a change in control, if the employee terminates employment before this vesting condition is met on a testing date, the Cash LTI Award is automatically forfeited.
Each executive’s Certificate specifies a target award amount. The target award amount is a specified percentage of the “Stock Value Creation” as of the applicable testing date, subject to adjustment by the Compensation Committee. Stock Value Creation is defined as an amount, expressed in dollars, equal to the aggregate appreciation in the value of all Company common stock during the applicable period less the net proceeds received by the Company, if any, from the issuance of Company common stock during the applicable period. The target award amount for each of the named executive officers assuming a 12% compounded return as of May 12, 2012, the first testing date, is estimated to be as follows:

 

 

         
    Cash LTI Award
    @ 12% Return
Thomas D. Bell, Jr.
  $ 2,522,000  
Craig B. Jones
  $ 690,000  
James A. Fleming
  $ 628,000  
R. Dary Stone
  $ 389,000  
Following a change in control of the Company, the Cash LTI Award is subject to accelerated vesting if it is not continued, or if the executive’s employment with the Company is terminated without cause or the executive resigns for good reason within 2 years. The stock value vesting condition must be met on the date of change in control, termination or resignation.
The Compensation Committee has complete discretion to: (1) adjust the Cash LTI Award amount as is necessary so that the executive’s overall long term incentive compensation under all Company plans and programs is consistent with the objectives of such plans and programs, as well as the Company’s overall compensation objectives, (2) in connection with a change in control, reduce the award amount to the extent of any amounts paid under a severance arrangement with executive that is not available to all employees, (3) adjust the award in the event of any change in capitalization of the Company, (4) adjust the vesting condition or Stock Value Creation requirement as a result of a change in control and (5) amend or terminate the award at any time.
The form of Certificate for the Cash LTI Award is included as Exhibit 10.4 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits
10.1   Cousins Properties Incorporated 2009 Incentive Stock Plan (incorporated by reference from Annex B to the Company’s proxy statement filed with the Securities and Exchange Commission on April 3, 2009)
 
10.2   Form of Amendment Number One to Change in Control Severance Agreement
 
10.3   Amendment Number Six to the Cousins Properties Incorporated 2005 Restricted Stock Unit Plan
 
10.4   Form of Cousins Properties Incorporated Cash Long Term Incentive Award Certificate

 

 

Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 18, 2009
         
  COUSINS PROPERTIES INCORPORATED
  		 
  By:   /s/ Robert M. Jackson    
    Robert M. Jackson   
    Senior Vice President, General Counsel and Corporate Secretary   
 

 

 

Exhibit List
10.1   Cousins Properties Incorporated 2009 Incentive Stock Plan (incorporated by reference from Annex B to the Company’s proxy statement filed with the Securities and Exchange Commission on April 3, 2009)
 
10.2   Form of Amendment Number One to Change in Control Severance Agreement
 
10.3   Amendment Number Six to the Cousins Properties Incorporated 2005 Restricted Stock Unit Plan
 
10.4   Cousins Properties Incorporated Cash Long-Term Incentive Award Certificate

 

Exhibit 10.2
AMENDMENT NUMBER ONE TO
CHANGE IN CONTROL SEVERANCE AGREEMENT
     THIS AMENDMENT to the Change in Control Severance Agreement (“Amendment”) is made and entered into as of the ___ day of                      , 2009, by and between COUSINS PROPERTIES INCORPORATED, a Georgia corporation (“Company”) and                                           (“Executive”).
WITNESSETH:
     WHEREAS, Executive and the Company entered into a Change in Control Severance Agreement dated the ___ day of                      , 2007 (“Agreement”);
     WHEREAS, the Company recently adopted the Cousins Properties Incorporated 2009 Incentive Stock Plan (“2009 Plan”) and the Executive and Company now wish to amend the Agreement to change the definition of Change in Control in the Agreement to correspond to the definition of Change in Control in the 2009 Plan and to make certain clarifications with respect to Internal Revenue Code § 409A;
     NOW, THEREFORE, in consideration of the mutual agreements of the parties set forth in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
     1. Section 1.1, Annual Base Salary , is amended effective as of March 12, 2009 to read as follows:
     1.1 “ Annual Base Salary ” shall mean Executive’s annual base salary in effect on the day before Executive’s employment with the Company terminates in accordance with the provisions of Section 2.1 or 2.4 hereof; provided , that “Annual Base Salary” shall not include the value of any stock option, restricted stock or restricted stock unit grants made by the Company to Executive, or any dividends, or dividend equivalents, paid with respect thereto, in any calendar year, any income realized by Executive in any calendar year as a result of the exercise of any such stock options or the lapse of any restrictions on such restricted stock or restricted stock unit grants, or any payments made to Executive in any calendar year pursuant to any long term cash based bonus program.
     2. Section 1.2, Average Bonus , is amended effective as of March 12, 2009 to read as follows:
     1.2 “ Average Bonus ” shall mean (i) the sum of the annual bonuses that were paid by the Company to Executive during the three (3) years immediately prior to the date Executive’s employment with the Company terminates in accordance with the provisions of Section 2.1 or 2.4 hereof; divided by (ii) the number of bonuses Executive

 

 

was eligible to receive during such period; provided , that “Average Bonus” shall not include the value of any stock option, restricted stock or restricted stock unit grants made by the Company to Executive, or any dividends, or dividend equivalents, paid with respect thereto, in any calendar year, or any income realized by Executive in any calendar year as a result of the exercise of any such stock options or the lapse of any restrictions on such restricted stock or restricted stock unit grants, or any payments made to Executive in any calendar year pursuant to any long term cash based bonus program.
     3. Section 1.5, Change in Control , is amended effective as of March 12, 2009 to read as follows:
     1.5 “ Change in Control ” shall mean any one of the following events or transactions:
(i) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (“1934 Act”)) after May 12, 2009 becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act) directly or indirectly, of securities representing 30% or more of the combined voting power for election of directors of the then outstanding securities of the Company or any successor to the Company; provided, however, the following transactions shall not constitute a Change of Control under this § 1.5(i): (A) any acquisition of such securities by any employee benefit plan (or a related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (B) an acquisition of voting securities by the Company or by any person owned, directly or indirectly, by the holders of at least 50% of the voting power of the Company’s then outstanding securities in substantially the same proportions as their ownership in Company shares, (C) any acquisition of voting securities in a transaction which satisfies the requirements of § 1.5(v)(A), §1.5(v)(B) and § 1.5(v)(C), or (D) any acquisition directly from the Company;
(ii) during any period of two consecutive years or less, individuals who at the beginning of such period constitute the Board cease for any reason after May 12, 2009 to constitute at least a majority of the Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period;
(iii) the shareholders of the Company after May 12, 2009 approve any dissolution or liquidation of the Company;
(iv) the consummation of a sale or other disposition of all or substantially all of the assets of the Company, other than a transaction (A) in which the Company’s voting securities outstanding before the consummation of the transaction continue to represent, either directly or indirectly, at least 51% of the voting power of the surviving entity immediately after the transaction, (B) where at least 50% of the directors of the surviving entity were Company directors at the time the Board approved the transaction (or whose nominations or elections were

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approved by at least two-thirds of the Company directors who were on the Board at that time), and (C) after which no person or group owns 20% or more of the voting power of the surviving entity, unless such voting power is solely as a result of voting power held in the Company prior to the consummation of the transaction; or
(v) consummation by the Company of (1) any consolidation, merger, reorganization or business combination, or (2) the acquisition of assets or stock in another entity, in each case, other than a transaction (A) in which the Company’s voting securities outstanding before the consummation of the transaction continue to represent, either directly or indirectly, at least 51% of the voting power of the surviving entity immediately after the transaction, (B) where at least 50% of the directors of the surviving entity were Company directors at the time the Board approved the transaction (or whose nominations or elections were approved by at least two-thirds of the Company directors who were on the Board at that time), and (C) after which no person or group owns 20% or more of the voting power of the surviving entity, unless such voting power is solely as a result of voting power held in the Company prior to the consummation of the transaction.
     4. By deleting the definition of “Consummation” in Section 1.9 in its entirety, by deleting the phrase “Consummation of” wherever such phrase appears in Sections 1.14(iii) and 1.16, and by deleting the phrase “a Consummation of” wherever such phrase appears in Section 2.4(ii) effective as of March 12, 2009.
     5. By amending Section 2.1(ii) to read as follows effective as of                      , 2007:
(ii) Subject to Section 2.3(i) and (ii), from the date of such termination of Executive’s employment until the end of Executive’s Protection Period, the Company shall continue to provide coverage and benefits to Executive and his dependents under the Company’s health plans for employees, as the same may change from time to time as determined by the Company in its sole discretion; provided, however, that for the period that begins on the date Executive’s employment terminates and ends six (6) months and one (1) day after the date Executive separates from service (within the meaning of Section 409A of the Code) (“Reimbursement Period”) Executive shall pay 100% of the cost of such coverage and the Company shall reimburse Executive for the Company’s [portion of such] cost as soon as practical after Executive pays such cost. Further, if the Company determines, within its sole discretion, that it cannot reasonably provide such coverage and benefits under the Company’s health plans, the Company either shall use its best efforts to purchase health insurance coverage for Executive outside such plans at no additional expense or tax liability to Executive (with Executive paying 100% of the cost of such coverage and any tax liability and the Company reimbursing Executive for such tax liability and the Company’s portion of such coverage as soon as practical after Executive pays such costs) or shall reimburse Executive for Executive’s cost to purchase such coverage and for any tax liability for such reimbursements.

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     6. By amending Section 2.3 (iii) effective May 12, 2009 to add the Company’s 2009 Incentive Stock Plan and to read as follows:
(iii) Except as otherwise expressly provided in this Agreement, this Agreement is not intended to take away any benefits and payments otherwise payable to Executive pursuant to the terms of any Company plan, policy, agreement or program, including, without limitation, the Company’s 1999 Incentive Stock Plan and the Company’s 2009 Incentive Stock Plan.
     7. By amending the first sentence of Section 4 to read as follows effective as of                      , 2007:
To the extent that Executive is a “specified employee” within the meaning of Section 409A of the Code, any payment or benefit (or portion thereof, if applicable) under this Agreement, including, but not limited to, any payment under Section 3, shall be deferred to the date following the date which is six (6) months and one (1) day after the Executive has a “separation from service” within the meaning of Section 409A.
     IT WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective as of the ___ day of                      , 2009.
         
  “Company”
COUSINS PROPERTIES INCORPORATED
  		 
  By:      
    Name:      
    Title:      
 
         
  “Executive”
  		 
     
  Name:      
     
 

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Exhibit 10.3
AMENDMENT NUMBER SIX TO THE
COUSINS PROPERTIES INCORPORATED
2005 RESTRICTED STOCK UNIT PLAN
     WHEREAS, the Compensation, Succession, Nominating and Governance Committee of the Board of Directors of Cousins Properties Incorporated (the “Committee”) has the authority, pursuant to § 9 of the Cousins Properties Incorporated 2005 Restricted Stock Unit Plan (the “Plan”) to amend the Plan from time to time, to the extent the Committee deems necessary or appropriate;
     WHEREAS, the Committee has determined that it is in the best interest of Cousins Properties Incorporated to amend the Plan in various respects to be consistent with the Cousins Properties Incorporated 2009 Incentive Stock Plan and has approved an amendment to the Plan to effect these changes;
     NOW THEREFORE, the Plan is amended, as approved by the Committee, effective as of May 12, 2009, as follows:
§ 1.
     By amending § 2.6 to read as follows:
     2.6 Change in Control — means any one of the following events or transactions
  (a)   any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the 1934 Act) after May 12, 2009 becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act) directly or indirectly, of securities representing 30% or more of the combined voting power for election of directors of the then outstanding securities of the CPI or any successor to the CPI; provided, however, the following transactions shall not constitute a Change of Control under this § 2.6(a): (A) any acquisition of such securities by any employee benefit plan (or a related trust) sponsored or maintained by the CPI or any corporation controlled by the CPI, (B) an acquisition of voting securities by the CPI or by any person owned, directly or indirectly, by the holders of at least 50% of the voting power of the CPI’s then outstanding securities in substantially the same proportions as their ownership in CPI shares, (C) any acquisition of voting securities in a transaction which satisfies the requirements of § 2.6(e)(A), § 2.6(e)(B) and § 2.6(e)(C), or (D) any acquisition directly from the CPI;

 

 

  (b)   during any period of two consecutive years or less, individuals who at the beginning of such period constitute the Board cease for any reason after May 12, 2009 to constitute at least a majority of the Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period;
 
  (c)   the shareholders of the CPI after May 12, 2009 approve any dissolution or liquidation of the CPI;
 
  (d)   the consummation of a sale or other disposition of all or substantially all of the assets of the CPI, other than a transaction (A) in which the CPI’s voting securities outstanding before the consummation of the transaction continue to represent, either directly or indirectly, at least 51% of the voting power of the surviving entity immediately after the transaction, (B) where at least 50% of the directors of the surviving entity were CPI directors at the time the Board approved the transaction (or whose nominations or elections were approved by at least two-thirds of the CPI directors who were on the Board at that time), and (C) after which no person or group owns 20% or more of the voting power of the surviving entity, unless such voting power is solely as a result of voting power held in the CPI prior to the consummation of the transaction; or
 
  (e)   consummation by the CPI of (i) any consolidation, merger, reorganization or business combination, or (ii) the acquisition of assets or stock in another entity, in each case, other than a transaction (A) in which the CPI’s voting securities outstanding before the consummation of the transaction continue to represent, either directly or indirectly, at least 51% of the voting power of the surviving entity immediately after the transaction, (B) where at least 50% of the directors of the surviving entity were CPI directors at the time the Board approved the transaction (or whose nominations or elections were approved by at least two-thirds of the CPI directors who were on the Board at that time), and (C) after which no person or group owns 20% or more of the voting power of the surviving entity, unless such voting power is solely as a result of voting power held in the CPI prior to the consummation of the transaction.
§ 2.
     By adding the following new definitions as § 2.21, § 2.22 and § 2.23:
     2.21. Cause — means, unless otherwise provided in a Key Employee’s Award Certificate, the occurrence of any of the following:

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  (a)   Key Employee is convicted of, or pleads guilty to, any felony or any misdemeanor involving fraud, misappropriation or embezzlement, or Key Employee confesses or otherwise admits to the CPI, any of its Subsidiaries or Affiliates, any officer, agent, representative or employee of the CPI or one of its Subsidiaries or Affiliates, or to a prosecutor, or otherwise publicly admits, to committing any action that constitutes a felony or any act of fraud, misappropriation, or embezzlement; or
 
  (b)   there is any material act or omission by Key Employee involving malfeasance or gross negligence in the performance of Key Employee’s duties to the CPI or any of its Subsidiaries or Affiliates to the material detriment of the CPI or any of its Subsidiaries or Affiliates; or
 
  (c)   Key Employee breaches in any material respect any other agreement or understanding between Key Employee and the CPI in effect as of the time of such termination;
      provided , however, that no such act or omission or event shall be treated as “Cause” under this definition unless:
  (d)   Key Employee has been provided a detailed, written statement of the basis for CPI’s belief that such act or omission or event constitutes “Cause” and an opportunity to meet with the Committee (together with Key Employee’s counsel if Key Employee chooses to have counsel present at such meeting) after Key Employee has had a reasonable period in which to review such statement; and
 
  (e)   the Committee after meeting with Key Employee (unless Key Employee refuses the opportunity for such meeting) determines reasonably and in good faith and by the affirmative vote of at least a majority of the members of the Committee then in office at a meeting called and held for such purpose that “Cause” does exist under the Plan.
     2.22. Good Reason ” means, unless otherwise provided in a Key Employee’s Award Certificate:
  (a)   there is a reduction after a Change in Control, but before the end of Key Employee’s Protection Period, in Key Employee’s annual base salary or there is a reduction after a Change in Control, but before the end of Key Employee’s Protection Period, in Key Employee’s eligibility to receive any annual bonuses or other

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      incentive compensation, such that Key Employee’s eligibility to receive such bonuses or other incentive compensation is substantially different than it was immediately prior to such Change in Control, all without Key Employee’s express written consent;
  (b)   there is a significant reduction after a Change in Control, but before the end of Key Employee’s Protection Period, in the scope of Key Employee’s duties, responsibilities, or authority, or a change in Key Employee’s reporting level by more than two levels (in each case, other than as a result of a mere change in Key Employee’s title, if such change in title is consistent with the organizational structure of the CPI or its successor following such Change in Control), all without Key Employee’s express written consent;
 
  (c)   the CPI or any successor thereto, at any time after a Change in Control, but before the end of Key Employee’s Protection Period (without Key Employee’s express written consent), transfers Key Employee’s primary work site from Key Employee’s primary work site on the date of such Change in Control or, if Key Employee subsequently consents in writing to such a transfer [under this Agreement], from the primary work site that was the subject of such consent, to a new primary work site that is more than thirty-five (35) miles from Key Employee’s then current primary work site, unless such new primary work site is closer to Key Employee’s primary residence than Key Employee’s then current primary work site; or
 
  (d)   the CPI or any successor thereto, after a Change in Control, but before the end of Key Employee’s Protection Period (without Key Employee’s express written consent), fails to continue to provide to Key Employee health and welfare benefits, deferred compensation benefits, Key Employee perquisites (other than the use of a CPI airplane for personal purposes), stock options, restricted stock and restricted stock unit grants, each as applicable at the time of such Change in Control, that are in the aggregate comparable in value to those provided to Key Employee immediately prior to the Change in Control;
      provided , however , that no such act or omission shall be treated as “Good Reason” under this § 2.22 if Key Employee has refused a bona fide offer of continued employment with the CPI, a Subsidiary or Affiliate thereof or the CPI’s successor following the Change in Control, the terms of which offer would not amount to Good Reason in accordance with (a) through (d) above; and

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      further provided , that no such act or omission shall be treated as “Good Reason” under this § 2.22 unless:
  (e)   (1) Key Employee delivers to the Committee a detailed, written statement of the basis for Key Employee’s belief that such act or omission constitutes Good Reason; and
     (2) Key Employee delivers such statement before the later of (i) the end of the ninety (90) day period that starts on the date there is an act or omission which forms the basis for Key Employee’s belief that Good Reason exists, or (ii) the end of the period mutually agreed upon for purposes of this subsection (e)(2) in writing by Key Employee and [the Chairman of] the Committee; and
     (3) Key Employee gives the Committee a thirty (30) day period after the delivery of such statement to cure the basis for such belief; and
     (4) Key Employee resigns by submitting a written resignation to the Committee during the sixty (60) day period that begins immediately after the end of the thirty (30) day period described in subsection (e)(3) above if Key Employee reasonably and in good faith determines that Good Reason continues to exist after the end of such thirty (30) day period; or
  (f)   The CPI states in writing to Key Employee that Key Employee has the right to treat any such act or omission as Good Reason under this Plan and Key Employee resigns during the sixty (60) day period that starts on the date such statement is actually delivered to Key Employee.
 
  (g)   If Key Employee consents in writing to any reduction described in § 2.22(a) or (b), to any transfer described in § 2.22(c) or to any failure described in § 2.22(d) in lieu of exercising Key Employee’s right to resign for Good Reason and delivers such consent to the CPI, the date such consent is delivered to CPI thereafter shall be treated under this definition as the date of a Change in Control for purposes of determining whether Key Employee subsequently has Good Reason under the Plan as a result of any subsequent reduction described in § 2.22(a) or (b), any subsequent transfer described in § 2.22(c) or any subsequent failure described in § 2.22(d).
     2.23. Protection Period ” shall mean the two (2) year period which begins on the date of a Change in Control; provided, however, a resignation by Key Employee shall be treated under this Plan as if made during Key Employee’s Protection Period if:

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  (a)   Key Employee gives the Committee the statement described in subsection (e)(1) of the second proviso of § 2.22 prior to the end of the thirty (30) day period that immediately follows the end of the Protection Period and Executive thereafter resigns within the period described in such subsection (e); or
 
  (b)   CPI provides the statement to Key Employee described in subsection (f) of the second proviso of § 2.22 prior to the end of the thirty (30) day period that immediately follows the end of the Protection Period and Key Employee thereafter resigns within the period described in such subsection (f).
§ 3.
     By amending § 8 to read as follows:
     8.1. Continuation or Assumption of Plan or Awards . If (1) there is a Change in Control of CPI and this Plan and the outstanding Awards granted under this Plan are continued in full force and effect or there is an assumption or substitution of the outstanding Awards granted under this Plan in connection with such Change in Control and (2) (i) a Key Employee’s employment with the CPI, any Subsidiary of the CPI, any Parent of the CPI, or any Affiliate of the CPI is terminated at the CPI’s initiative for reasons other than Cause or is terminated at the Key Employee’s initiative for Good Reason within the Protection Period or (ii) a Director’s service on the Board terminates for any reason within the two-year period starting on the date of such Change in Control, then any outstanding issuance and forfeiture conditions on such Key Employee’s or Director’s Awards automatically shall expire and shall have no further force or effect on or after the date his or her employment or service so terminates.
     8.2. No Continuation or Assumption of Plan or Awards . If there is a Change in Control of CPI and the outstanding Awards granted under this Plan are not continued in full force and effect or there is no assumption or substitution of the Awards granted under this Plan in connection with such Change in Control, then (1) any then outstanding issuance and forfeiture conditions on Awards granted under this Plan automatically shall be deemed 100% satisfied as of the date of such Change in Control, and (2) the Awards shall be automatically cancelled in exchange for the cash payment, if any, owed under such Awards as of the date of such Change in Control; provided, if any issuance or forfeiture condition described in this § 8 relates to satisfying any performance goal and there is a target for such goal, such issuance or forfeiture condition shall be deemed satisfied under this § 8.2 only to the extent of such target unless such target has been exceeded before the date of such Change in Control, in which event such issuance or forfeiture condition shall be deemed satisfied to the extent such target had been so exceeded.
     IN WITNESS WHEREOF, Cousins Properties Incorporated has caused this Amendment Number Six to be executed by its duly authorized officers and its seal to be affixed as of this 15 th day of May, 2009.

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  Cousins Properties Incorporated
  		 
  By:   /s/ Robert M. Jackson   
    Name:   Robert M. Jackson  
    Title:   Senior Vice President,
General Counsel and
Corporate Secretary 		 
 

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Exhibit 10.4
COUSINS PROPERTIES INCORPORATED
Cash Long Term Incentive Award
Certificate
     This Certificate evidences the grant by COUSINS PROPERTIES INCORPORATED (“CPI”) of a cash long term incentive award (“Award”) to the executive named below (“Executive”), subject to all of the terms and conditions set forth in this Certificate.
Terms and Conditions
     1.  Name of Executive .                                          
     2.  Grant Date . May 12, 2009
     3.  Award Amount . An amount equal to __.___% multiplied by the Stock Value Creation (as defined in Section 6(a)) as of the applicable Testing Date (as defined in Section 4) up to a maximum of $_____; provided , however , the Committee (as defined in Section 10) may adjust the Award Amount to the extent the Committee determines that such adjustment is necessary so that the Executive’s overall long term incentive compensation, taking into account this Award and compensation under the Company’s other long term compensation plans and programs, achieves the objectives of such plans and programs and is otherwise consistent with the Company’s compensation objectives; provided , further , however , the Committee may reduce the Award Amount as provided in Section 8(c).
     4.  Testing Dates . Except as provided in Section 8, the testing dates for this Award are May 12, 2012, May 12, 2013 and May 12, 2014 (each a “Testing Date”); provided , however , if any such date is not a business day, the Testing Date shall be the first business day immediately following such date.
     5.  Vesting and Forfeiture .
          (a) This Award shall become 100% vested on the earliest Testing Date, if any, as of which the Committee determines that the value of a share of CPI common stock (“Stock”) has appreciated at a rate equal to at least 12% on an annualized and compounded basis for the period that begins on the Grant Date and ends on such Testing Date (“Applicable Period”). This condition is referred to as the Stock Value Vesting Condition. The value of Stock shall be calculated as provided in Section 6. Based on a Grant Date value of Stock of $8.506, to satisfy the Stock Value Vesting Condition, the value of a share of Stock must be at least equal to or greater than $11.95 on May 12, 2012, or $13.38 on May 12, 2013 or $14.99 on May 12, 2014.
          (b) Except as provided in Section 8, if Executive’s employment with CPI terminates for any reason, including without limitation a termination with or without cause or due to death or retirement of Executive before vesting on a Testing Date, then this Award shall be forfeited and cancelled immediately and automatically as of Executive’s employment termination date. For purposes of this Section 5, Executive shall be treated as having terminated

 

 

employment with CPI if Executive is unable to perform his duties due to permanent disability (as determined by the Committee).
          (c) Nothing in this Certificate shall give Executive the right to continue in employment with CPI or limit the right of CPI to terminate Executive’s employment with or without cause at any time.
          (d) If the Share Value Vesting Condition is not satisfied as of May 12, 2014 (the latest possible Testing Date) then this Award shall be forfeited and cancelled immediately and automatically.
     6.  Stock Value Creation and Value of Stock .
          (a) “Stock Value Creation” shall mean an amount, expressed in dollars, equal to the aggregate appreciation in the value of all Stock during the Applicable Period; less the net proceeds received by the Company, if any, from the issuance of Stock during the Applicable Period. The value of all Stock as of the Grant Date is $436,715,647 ($8.506 times 51,342,070 shares outstanding).
          (b) For purposes of determining Stock Value Creation and the value of Stock, except as provided in Section 8(a), the value of a share of Stock on any particular date shall mean (1) the average of the closing price on each trading day during the 30 consecutive day period ending on the applicable date for a share of Stock as reported by The Wall Street Journal under the New York Stock Exchange Composite Transactions quotation system (or under any successor quotation system) or, if Stock is no longer traded on the New York Stock Exchange, under the quotation system under which such closing price is reported or, if The Wall Street Journal no longer reports such closing price, such closing price as reported by a newspaper or trade journal selected by the Committee; or (2) if no newspaper or trade journal reports such closing price or if no such price quotation is available, the current fair market value of a share of Stock as determined by the Committee.
     7.  Payment of Vested Award . Payment of a vested Award in an amount equal to the Award Amount (or, if applicable, the adjusted Award Amount) shall be made in a single payment in cash as soon as practicable after this Award vests, but in no event later than 2 1 / 2 months after the end of the calendar year in which vesting occurs. In the event of Executive’s death, payment of a previously vested Award shall be made to Executive’s estate.
     8.  Change In Control .
          (a) If (1) there is a Change in Control (as defined in CPI’s 2009 Incentive Stock Plan, the “Stock Plan”) of CPI and this Award is continued in full force and effect or there is an assumption or substitution of this Award in connection with such Change in Control and (2) Executive’s employment with the CPI is terminated at CPI’s initiative for reasons other than Cause (as defined in the Stock Plan) or is terminated at Executive’s initiative for Good Reason (as defined in the Stock Plan) within the Protection Period (as defined in the Stock Plan), then an additional Testing Date shall occur on the date of the termination of Executive’s employment with CPI.

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          (b) If there is a Change in Control of CPI and this Award is not continued in full force and effect or there is no assumption or substitution of this Award in connection with such Change in Control, then an additional Testing Date shall occur as of the date of such Change in Control. For this purpose, Stock Value Creation and the value of Stock under Section 6, shall be determined using the value of the per share consideration received by CPI’s shareholders in the Change In Control or, in a Change In Control where CPI shareholders do not receive consideration, the implied value of a share of Stock in connection with the Change In Control. If the Stock Value Vesting Condition is not met as of such Testing Date or if Executive is not employed on such Testing Date then this award shall be forfeited and cancelled immediately and automatically.
          (c) Notwithstanding anything to the contrary herein, for any Testing Date occurring as a result of a Change In Control, the Committee may in its discretion reduce the Award Amount by the amount of any payments made or expected to be made to Executive by the CPI pursuant to any severance plan or program not otherwise available to all employees.
     9.  Withholding . CPI shall have the right to take whatever action the Committee directs to satisfy applicable federal, state and other withholding requirements.
     10.  Committee . The Compensation, Succession, Nominating and Governance Committee of CPI’s Board of Directors (the “Committee”) shall be responsible for the administration of the Award. Notwithstanding anything to the contrary herein, the Committee acting in its absolute discretion shall exercise such powers and take such action as expressly called for under this Award and, further, the Committee shall have the power to interpret this Award and to take such other action in the administration of this Award as the Committee determines appropriate in its absolute discretion, including without limitation the determination of Stock Value Creation, the value of Stock, cause, permanent disability, whether and when a Change in Control has occurred and the amount, if any, by which the Award Amount is reduced under Section 3 or Section 8(c), which action shall be binding on CPI, Executive and on each other person directly or indirectly affected by such action.
     11.  Nontransferability and Status as Unsecured Creditor . Executive shall have no right to transfer or otherwise assign, pledge, encumber or alienate Executive’s interest in this Award. All payments pursuant to this Award shall be made from the general assets of CPI, and any claim for payment shall be the same as a claim of any general and unsecured creditor of CPI.
     12.  Amendment and Termination . The Committee may amend or terminate this Award at any time in its discretion. This Award shall automatically terminate on the first to occur of (a) when paid in full following the first Testing Date on which the Stock Value Vesting Condition is satisfied or (b) when forfeited.
     13.  Adjustment . In the event of any change in the capitalization of CPI (other than a Change in Control), including, but not limited to, such changes as stock dividends, or stock splits, the Committee may in its discretion calculate Stock Value Creation and the value of a Stock in an equitable manner so as to eliminate the effect of such change on such calculations; provided , however , any distribution which a shareholder has the right to elect to receive in cash or to forego the receipt of such cash distribution in consideration for the issuance of Stock shall be treated as a cash distribution. In the event of a Change in Control, the Committee may in its

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discretion make any changes to the Stock Value Vesting Condition and the definition of Stock Value Creation as the Committee deems appropriate under the circumstances for any Testing Date that occurs after the date of the Change in Control.
     14.  409A Compliance . CPI intends that this Award be exempt from the application of Internal Revenue Code Section 409A (including as a “short term deferral”), and this Award shall be administered and construed in accordance with any applicable exemption so that compensation paid in connection with this Award will not be included in income under Internal Revenue Code Section 409A. However, nothing in this Award is intended as an entitlement to or guarantee of any particular tax consequences to Executive.
     15.  Miscellaneous . This Certificate shall be governed by the laws of the State of Georgia.
         
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