exv10w2






EXHIBIT 10.2




AMENDMENT NUMBER TWO 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                     , 2010, by and between COUSINS PROPERTIES INCORPORATED, a
Georgia corporation (“Company”) and                      (“Executive”).



W I T N E S S E T H:




     WHEREAS, Executive and the Company entered into a Change in Control Severance Agreement dated
the ___day of                     , 2007, as amended by Amendment Number One to the Change in Control
Severance Agreement (“Agreement”);



     WHEREAS, the Company wishes to amend the Agreement to make certain clarifications in light of
Internal Revenue Code § 409A and certain other changes, including to the Protective Covenant
Agreement which is Exhibit A to the Agreement;



     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.




     By amending the second sentence of Section 2.1(i) to read as follows and by substituting
“such” for “each” whenever “each” appears in the third sentence of Section 2.1(i):




Such payment shall (subject to Section 4) be made in full in accordance with the provisions
of this Agreement on the date set forth in Section 2.2.



§ 2.




     By amending Section 2.2, Protective Covenant Agreement; Waiver and Release, to add the
following language at the end of such section:




The Company shall provide such Protective Covenant Agreement and Waiver and Release within
the five day period immediately following the date Executive separates from service (within
the meaning of Section 409A of the Code). The payment and benefits under the Agreement
shall (subject to the six month and one day rule in Section 4) be made on or commence (as
applicable) on the sixtieth (60th) day after the date Executive separates from
service (unless an earlier date is permissible under Section 409A of the Code) provided the
Protective Covenant Agreement and the Waiver and Release have been executed and become
irrevocable on or before such date. If the Protective Covenant Agreement is not executed or
the Waiver and Release is not
executed and irrevocable on or before the end of the sixty (60) day period immediately
following Executive’s separation from service (within the meaning of Section 409A of



 









 






the
Code), Executive’s right to all such payments and benefits shall be immediately forfeited.



§ 3.




     By amending Section 2.6, Transfer of Employment, to clarify any ambiguity in such
section and to read as follows:




2.6 Transfer of Employment. If Executive transfers employment between the Company
and a subsidiary or affiliate of the Company or any successor hereto, the Company shall
assign this Agreement to such subsidiary, affiliate or successor, which shall become the
“Company” for all purposes hereunder, and such transfer of employment shall not be treated
as a termination of Executive’s employment by the Company under this Agreement.



§ 4.





By adding a new Section 2.8, Clawback, to read as follows:




2.8 Clawback. The Company has the right to take any action which the Compensation
Committee reasonable determines is required for the Company to comply with the clawback
provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act.



§ 5.




     By amending the first sentence of Section 4, Section 409A Deferral, to read as
follows:




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 first
pay date following the date which is six (6) months and one (1) day after the Executive has
a “separation of service” within the meaning of Section 409A.



§ 6.




     By replacing Exhibit A, Protective Covenant Agreement, with a new Protective Covenant
Agreement, to read as set forth on Exhibit A to this Amendment.



     IT WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective as of the
            day of                  
               , 20       .



“Company”




	 	 	 	 	 
	 	COUSINS PROPERTIES INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	 	“Executive”

 	 
	 	  	 	 
	 	 	Name:  	 	 
	 	 	 	 



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Exhibit A




Protective Covenant Agreement




     The attached Protective Covenant Agreement is to be given to [                                        ] (“Executive”)
upon the occurrence of an event that triggers eligibility for severance benefits following a Change
in Control, as defined and described in that certain Change in Control Severance Agreement, dated
as of the             day of                     , 20            , by and between Executive and Cousins Properties Incorporated.



 









 





PROTECTIVE COVENANT AGREEMENT




     THIS PROTECTIVE COVENANT AGREEMENT (this “Protective Covenant Agreement”) is made and entered
into as of the                      day of                     , 20___ by and between COUSINS PROPERTIES INCORPORATED, a
Georgia corporation (the “Company”), and [                                        ] (“Executive”).



W I T N E S S E T H:




     WHEREAS, Executive is a party to that certain Change in Control Severance Agreement (the
“Severance Agreement”), dated as of the                      day of                     , 20 ___, by and between Executive
and the Company;



     WHEREAS, pursuant to the Severance Agreement, Executive is entitled to receive certain
benefits in the event of a termination of Executive’s employment with the Company following a
“change in control,” as defined in the Severance Agreement;



     WHEREAS, Executive’s employment with the Company has terminated in accordance with the
provisions of the Severance Agreement and Executive desires to elect to accept the benefits
described therein;



     WHEREAS, a condition to Executive’s receipt of the full benefits provided under the Severance
Agreement is Executive’s execution and delivery of this Protective Covenant Agreement imposing
certain reasonable restrictions on Executive’s activities;



     WHEREAS, the benefits Executive will receive under the Severance Agreement are in excess of
those benefits Executive would receive from the Company if Executive elected not to execute and
deliver this Protective Covenant Agreement; and



     WHEREAS, Executive and the Company desire to execute and deliver this Protective Covenant
Agreement in accordance with the Severance Agreement;



     NOW, THEREFORE, in consideration of the premises, Ten Dollars ($10.00) in hand paid, the
mutual promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:




	1.	 	Definitions. For the purposes of this Protective Covenant Agreement, the following
terms shall have the following meanings:






	 	(a)	 	“Company’s 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 Executive’s relationship with the
Company and which has value to the Company and is not generally known to the Company’s
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 Company’s 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 Company’s 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 Executive’s 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 Company’s 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 Executive’s 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 Executive’s 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 Executive’s behalf or on behalf of any other
legal entity, compete with the Company’s 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
Executive’s 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 Company’s customers, including actively sought prospective customers, with
whom Executive has material contact during Executive’s 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 Executive’s 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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	 	 	 	Executive’s 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 Executive’s 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 Executive’s
employment with the Company to terminate or lessen that party’s 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 Company’s 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 Executive’s
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 Executive’s 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 Executive’s employment.






	 	(c)	 	Executive acknowledges and agrees that during the Term of Executive’s
employment with the Company, Executive has and will continue to in the course of
Executive’s 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 Executive’s 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 Company’s 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 Company’s representative or spokesperson or (2) a high level of influence or
credibility with the Company’s 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 Executive’s 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:




(i) If to Executive:



 





 





 





(ii) If to the Company:



Cousins Properties Incorporated

191 Peachtree Street, Suite 3600

Atlanta, GA 30303-1740

Attention: Corporate Secretary



With a copy to:



Cousins Properties Incorporated

191 Peachtree Street, Suite 3600

Atlanta, GA 30303-1740

Attention: Senior Human Resources Officer





	(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.





[Remainder of page intentionally left blank]





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     IN WITNESS WHEREOF, the parties hereto have executed this Protective Covenant Agreement to be
effective as of the day and year first above written.



	 	 	 	 	 
	 	“Company”




COUSINS PROPERTIES INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	“Executive”	 
	 	 	 
	 	 	 
	 	Name:	 
	 	 	 



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Schedule 1




to

Protective Covenant Agreement



COMPANY PROJECTS