agreement.htm


    
 

    May 3,
2010

     

    


     

    PERSONAL
AND CONFIDENTIAL

     

    


    Mr. Frank
C. Spencer

    President
and Chief Executive Officer

    Cogdell
Spencer Inc.

    4401
Barclay Downs Drive, Suite 300

    Charlotte,
NC 28209-4670

    


    Re:  Retirement
as President and Chief Executive Officer

    


    Dear
Frank:

    


    As a
result of our discussions relating to your decision to retire as President and
Chief Executive Officer of Cogdell Spencer Inc. (the “Company”) on October
31, 2010, which corresponds to the expiration of the term of your employment
with the Company dated as of October 21, 2005 (the “Employment
Agreement”), we set forth below our agreements relating to this
decision:

    


    1.           Retirement
Date.  Your retirement from the Company will be effective, and
your employment with the Company and your service as President and Chief
Executive Officer will terminate, October 31, 2010 (the “Termination Date”),
or such earlier time as may be determined by the Board of Directors (the “Board”) of the
Company.

     

    2.           Retirement
Benefits.  In connection with your retirement, you shall
receive the payment and benefits set forth on Exhibit A hereto (the
“Retirement
Benefits”).  All such Retirement Benefits shall be paid or
delivered on, or, in the case of continuing benefits, commence on, the first
business day following the Termination Date.  Such payments shall be
made by wire transfer to an account designated by you.  Except as
otherwise provided in this letter, you shall have no right to any payments or
benefits under any other provision of the Employment
Agreement.  Through the Termination Date, you shall be paid your
regular salary and shall continue to receive all other benefits, payments and
entitlements under the Company’s employee benefit plans, programs and
arrangements that shall be earned and accrued prior to the Termination Date as
if you were an active employee (the “Salary Continuation
Benefits”) regardless of any earlier effective date for your
retirement.  Notwithstanding any provisions of the Employment
Agreement to the contrary, in the event of an involuntary termination of your
employment for any reason (including death or disability) prior to the
Termination Date, the Retirement Benefits and Salary Continuation Benefits shall
(in lieu of any other amounts otherwise payable to you under the Employment
Agreement) inure to the benefit of you or your estate and be paid as provided
herein.

     

    3.           Transfer of
Responsibilities.  You and the Board will cooperate to the best
of your respective abilities in the transfer of your duties and responsibilities
as President and Chief Executive Officer of the Company.  Such
transfer shall be effective in the manner from time to time specified and at the
time from time to time designated by the Board, authorized representatives of
the Board, or a designated committee thereof, so as to maximize the Company's
performance and operations.  During the period from the date hereof,
through the Termination Date, you shall have such duties and responsibilities as
designated from time to time by the Board.  You will take such other
appropriate actions as may be requested by the Company to give effect to your
decision to retire as President and Chief Executive Officer and resign from any
corporate offices you hold with the Company and all affiliates thereof, as
applicable.  You will, as long as you are employed by the Company or
serve as a member of the Board, represent the Company in a professional and
fully supportive manner.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    4.           Intent to Enforce
Restrictive Covenants.  In connection with Section 6 of the
Employment Agreement, entitled “Covenants of the Executive” (the “Restrictive
Covenants”), the Company confirms its intention to enforce the terms and
conditions of the Restrictive Covenants contained in Section 6 of the Employment
Agreement, and hereby irrevocably waives its right to provide contrary notice to
you; provided, that the Restrictive Covenants contained in Section 6.2 shall be
effective for a revised Restricted Period (the "Revised Period") commencing on
the termination of your employment with the Company and ending on the date you
are no longer serving as a director of the Company or, if later, on May 4,
2011.  You agree to abide by each of the Restrictive Covenants,
including the covenants contained in Section 6.2 of the Employment Agreement for
such Revised Period, and acknowledge that the Retirement Benefits constitute
sufficient consideration for such agreement.  Further, the Restricted
Period shall be tolled during any period of time in which the Executive engages
in activities constituting a violation of Section 6 of the Employment
Agreement.

     

    5.           Board
Service.  We are pleased that you have agreed to continue as a
director of the Company through at least the date of the 2011 Annual
Stockholders Meeting, provided that you are elected to the Board at the
Company’s 2010 annual meeting.  In such capacity, effective as of the
Termination Date, you shall be designated as a non-management, non-independent
member of the Board, and during your continuing service as a director
thereafter, you will be entitled to receive the same compensation (determined on
a pro-rata basis based upon your period of service as a director following the
Termination Date) as other non-employee directors of the Company, including
annual compensation/fees, equity awards and meeting fees.

     

    6.           Cooperation.   You
agree that you will (i) consult with the Company with respect to all matters
concerning the Company in which you had personal involvement during your period
of employment with the Company or any of its subsidiaries or affiliates, (ii)
assist the Company in the defense of any claims or potential claims that may be
made or threatened to be made against it in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (a “Proceeding”) and in
the prosecution of any claims that may be made by the Company in any Proceeding,
that may relate to matters with respect to which you have or had personal
knowledge or involvement during your employment with the Company or any of its
subsidiaries, predecessors or affiliates, and unless precluded by law, promptly
inform the Company if you are  asked to participate (or otherwise
become involved) in any Proceeding involving such claims or potential claims,
and (iii) unless precluded by law, promptly inform the Company if you are asked
to assist in any investigation (whether governmental or private) of the Company
(or its actions), regardless of whether a lawsuit has then been filed against
the Company with respect to such investigation.  The Company agrees to
reimburse you for all reasonable out-of-pocket expenses associated with such
assistance, including lodging and travel expenses.

     

    7.           Tax
Protection.  Nothing contained in this letter shall be
construed in any way to nullify or enhance the effectiveness of that certain tax
protection agreement dated as of November 1, 2005 (the “Tax Protection
Agreement”) by and between the Company, Cogdell Spencer LP and each of
the Protected Partners (such term as defined in, and such persons as identified
on Schedule 2.1(a) of, such agreement).  The parties acknowledge that
both the compensation and benefits arrangements under the Employment Agreement
and the Retirement Benefits are intended to be exempt from Section 409A of the
Internal Revenue Code of 1986, as amended, and, agree that for tax and wage
reporting purposes, all tax forms, reports, returns, and information statements
shall be prepared and filed consistent with such positions.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    8.           Entire
Agreement.  This letter, together with the Employment Agreement
(except as expressly modified herein) and the Tax Protection Agreement, contain
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes and replaces all prior agreements,
negotiations and proposed agreements, whether written or oral relating to such
matters.  We each acknowledge and confirm that neither we nor any
agent or attorney have made any promise, representation, or warranty whatever,
express, implied, or statutory, not contained herein concerning the subject
matter hereof, to induce the other party to execute this letter.  To
the extent that anything herein is inconsistent with the Employment Agreement,
it is expressly agreed that this letter amends the Employment
Agreement.  Nothing in this letter shall abrogate any of your rights
under any of the agreements with the Company listed on Exhibit B
hereto.

     

    9.           Employment
Agreement.  Other than with respect to such provisions of the
Employment Agreement that expressly survive hereunder, the Employment Agreement,
to the extent modified hereby, shall terminate on the Termination Date (or such
earlier date of termination as determined by the Board) in its entirety other
than with respect to the provisions specified hereunder (together with any
provisions of the Employment Agreement relating to the enforcement
thereof).

     

    10.           No Third-Party
Beneficiaries.  This letter is solely for the benefit of the
parties set forth herein and your estate in the event of your death or
disability prior to payments being made, and should not be deemed to confer upon
third parties any remedy, claim, liability, reimbursement, claims or action or
other right in excess of those existing without reference to this
letter.

     

    11.           Certain Matters Relating to
Enforceability.  Any provision of this letter which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.  Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.

     

    12.           No Oral
Modification.  This letter may not be modified or amended
except by an instrument in writing signed by the parties hereto.

     

    13.           Tax
Withholding.  The Company may withhold from any compensation or
benefits payable or otherwise arising under this letter all Federal, state, city
and other taxes as shall be required by law.

     

    14.           Governing Law; Dispute
Resolution.  THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.  Any controversy, dispute or claim relating to
this letter shall be resolved pursuant to the procedures and other terms and
conditions set forth in Section 7.3(b) of the Employment Agreement which are
hereby incorporated by reference into this letter to the same extent as if fully
set out herein.

     

    15.           Acknowledgement of Facts
Regarding Retirement.  You acknowledge that you have had the
opportunity to consult with legal counsel before signing this letter; that you
have obtained such advice as, and to the extent, you deem necessary with respect
to this letter; that you have fully read and understood the terms of this
letter; and that you are signing this letter knowingly and voluntarily, without
any duress, coercion, or undue influence, and with an intent to be
bound.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    16.           Counterparts.  This
letter may be signed in one or more counterparts, each of such counterparts
constituting an original and all of such counterparts together constituting one
instrument.

     

    17.           Headings.  The
headings of the sections herein are included for reference only and are not
intended to affect to meaning or interpretation of this letter.

     

    Please
acknowledge your agreement with the terms hereof by signing in the space
provided below and delivering a copy of the same to the Company.  So
that we may resolve this matter in a timely manner, we would request your
response by the 30th day
of April 2010.

     

    


    COGDELL
SPENCER INC.

    By:         /s/ Richard C. Neugent

    Name:    Richard
C. Neugent

    Title:      Lead
Independent Director

     

    /s/
Frank C. Spencer

    Frank C.
Spencer

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
A

    


    


    Retirement
Benefits

    


    Retirement
Payment                                                                                                US
$2,662.250.00

    


    Additional
Benefits:

    


    Three (3)
years continued health benefits under the Company’s group health plans and
programs applicable to senior executives of the Company generally as and to the
extent set forth in Section 5.2(b)(ii)(B) of the Employment Agreement (including
the right of the Company to amend, terminate or discontinue any such health
benefits in accordance with Section 5.2(c) of the Employment
Agreement).  Such benefits shall commence as of the Termination
Date.

    


    Reimbursement
for ordinary and reasonable out-of-pocket business expenses incurred prior to
the Termination Date, subject to the applicable Company policies.

    


    In
accordance with Section 5.2(b)(iii) of the Employment Agreement, you will fully
vest in the following equity-based awards set forth below:

    


    
      	
               
      

            	
              1.

            	
              Award
      of 62,695 LTIP Units, effective March 31,
2008.

            


    

    


    


    Title to
your Company car transferred to your name upon payment by you to the Company of
the Company's book value for such car as of the Termination Date.

    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
B

    


    


    Amended
and Restated Agreement of Limited Partnership of Cogdell Spencer LP

    


    Registration
Rights Agreements dated as of November 1, 2005

    


    Indemnification
Agreement dated as of November 1, 2005 between the Company and Frank C.
Spencer