**Exhibit10.2**

 

[TRAMMELL CROW COMPANY LETTERHEAD]

 

April 6, 2004

 

T. Christopher Roth

[XXXXXXXXXX]

[XXXXXXXXXX]

 

Re:                               EmploymentAgreement

 

Dear Chris:

 

We are pleased topresent you with this employment letter agreement (“Agreement”) which setsforth the terms upon which you will continue to be employed by Trammell CrowCompany (the “Company”, or “we”, or “us”).

 

**1.****                                      **Employment Period****.  Subject to the terms and provisions of thisAgreement, we agree to continue to employ you, and you agree to continue to beemployed by us, for a period (the “Employment Period”) commencing on thedate hereof and expiring December 31, 2006; provided, that onDecember 31, 2006 and on each subsequent December 31, this Agreementwill automatically be extended for one additional year unless, during the four****month period beginning March 1 and ending July 1immediately prior to the next scheduled extension, you or we will have givenwritten notice (a “Non-Renewal Notice”) that the Employment Period willnot be extended (a “Non-Renewal”).

 

**2.****                                      **Employment Termsand Conditions****.

 

(a)                                  Position and Duties; Extent of Services; Location.  During the Employment Period, you will serveinitially as President of Development and Investment for the Eastern UnitedStates of the Company and from time to time will serve in such other positionsas the Board of Directors of the Company (the “Board”) may from time totime determine.  In so doing, you willhave such powers and duties (including holding officer positions with one ormore Subsidiaries of the Company) as may be assigned from time to time by theBoard.  During the Employment Period,you will devote your full business time, energy, and best efforts to thebusiness and affairs of the Company. You agree not to engage, directly or indirectly, in any other business,investment, or activity that interferes with your performance of your dutiesunder this Agreement, is contrary to the interests of the Company or requiresany portion of your business time, provided, however, that (i) you may serve onthe board of directors (or similar governing body) of one public company if theBoard has provided prior approval for such service, and (ii) unless it wouldunreasonably interfere with your performance of your duties to the Company, youmay serve on the board of directors (or similar governing body) of no more

 

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than **one**other organization that does not directly or indirectly conduct a **Competing Business (asdefined herein)****,**in each case which boards shall be in addition to the boards of directors (orsimilar governing bodies) on which you serve at the request of theCompany.   The location of yourprincipal work office will be Washington, District of Columbia.  “Subsidiary”means any entity 50% or more of the voting securities of which are owned,directly or indirectly, by the Company.

 

(b)                                 Compensation.  During the Employment Period, you will receive an annual basesalary (“Annual Base Salary”), payable in accordance with the customarypayroll practices of the Company for executive officers.  The Board, in its sole discretion, may atany time increase the amount of the Annual Base Salary as it may deemappropriate.  From time to time prior toa Change in Control, and following the second anniversary of such Change in Control,the Board may decrease your Annual Base Salary in the same manner and to thesame proportional extent as the average (mean) percentage decrease in theannual base salaries of all other members of the Executive OfficerCommittee.  The term “Annual BaseSalary” will refer to the Annual Base Salary as it may be so adjusted fromtime to time.  In addition, during theEmployment Period, you will (i) be eligible to receive such annual bonuspayments, if any, as the Board or the Compensation Committee of the Board mayspecify in its sole discretion (each an “Annual Bonus”), subject to anyterms or conditions as may be established by the Board or its CompensationCommittee, provided, that you will be provided an individual “annual incentiveplan” for each year and any performance criteria included in such incentiveplan **must** bereasonably achievable**,**(ii) be entitled to participate in all incentive, savings, stock option, profitsharing and retirement plans, practices, policies and programs applicablegenerally to other executives of the Company (“Investment Plans”),subject to all of the terms and conditions of such Investment Plans; and (iii)be eligible to participate in all health, life and disability insurancepolicies, all death and disability plans, practices, policies and programs andall other welfare benefit plans, practices, policies and programs which are ineach such case applicable generally to other executives of the Company (“WelfarePlans”), subject to all of the terms and conditions of such WelfarePlans.  Subject to Sections 4 and 5, anyAnnual Bonus awarded to you by the Board or the Compensation Committee of theBoard for any calendar year will be payable in March of the followingyear, whether or not you are employed by the Company at such time. The term “ExecutiveOfficer Committee” will refer to the Company’s Executive Officer Committee,any successor committee thereto, and if there is no longer such a committee atthe time in question, then a comparable group of the Company’s executiveofficers (as defined in Rule 3b-7 promulgated under the Securities Exchange Actof 1934).

 

(c)                                  Vesting of Equity Awards.  Notwithstanding the provisions of any planor agreement governing such an Award (as defined in Section 4(c)),all Awards granted to you that remain outstanding and unvested immediatelyprior to the occurrence of a Change in Control (as defined in Section 4(d)(i)) automatically shallvest in full upon the occurrence of the Change in Control.

 

**3.****                                      **Termination ofEmployment****.

 

(a)                                  Death.  Your employment hereunder will terminateautomatically upon your death.

 

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(b)                                 Disability. If your Disability occurs, we may give you a written Notice ofTermination (herein so called), and your employment will terminate effective 30days later if you have not returned to perform, with or without reasonableaccommodation, the essential functions of your position on a full-timebasis.  “Disability” means your inability, due to physical or mental incapacityor impairment, to perform the material duties of your position(s) with the Company for any period of more than 120consecutive days, or for more than 180 days, regardless of how consecutivelythey occur, during any 360-day period.

 

(c)                                  Termination by Us.  We may terminate your employment hereunder at any time (A),subject to Section 6(b), for Cause or (B) for any reason other thanCause.  “Cause” means (i) yourcontinued failure to substantially perform your obligations and duties, asdetermined in good faith by the Board, and which is not remedied within 30 daysafter your receipt of written notice thereof; (ii) commission of an act offraud, embezzlement, misappropriation, willful misconduct or breach offiduciary duty against the Company or other conduct materially harmful orpotentially materially harmful to the Company’s best interest, as determined ingood faith by the Board; (iii) material breach of Section 7 or8 which is not cured within 30 days after your receipt of noticethereof, if such breach is capable of being cured; (iv) conviction, plea of nocontest or nolo contendere, deferred adjudication or unadjudicated probationfor any felony or any crime involving moral turpitude; (v) failure to carryout, or comply with, in any material respect, any lawful directive of the Boardconsistent with the terms of this Agreement, which is not remedied within 30days after receipt of written notice thereof; or (vi) unlawful use (includingbeing under the influence) or possession of illegal drugs.

 

(d)                                 Resignation by You.  You may terminate your employment hereunder at any time (i)subject to Section 6(a), for Good Reason or (ii) without GoodReason.  Prior to a Change in Controland following the second anniversary of such Change in Control, “Good Reason”means (A) any material diminution (considering all previous diminutions duringthe Employment Period in the aggregate, including all previous diminutionsduring the Employment Period which are not material when considered separately)in your position, authority, powers, functions, duties or responsibilities;provided, however, that Good Reason may not be asserted by you under thisclause (A) after a Non-Renewal Notice has been given; (B) the relocationor transfer of your principal office to a location more than 50 miles from yourregular work address as of the date hereof without your consent; **(C) any reduction in yourAnnual Base Salary to an amount that is less than 90% of the highest AnnualBase Salary in effect for you during the Employment Period;******(D) any reduction in your AnnualBonus Target from your Annual Bonus Target for the calendar year 2003; (E) thereceipt by you of Awards **(****excluding Non-Performance Awards)**inany calendar year that differ (as to number, terms or type of Awards), in amanner adverse to you, from the Awards **(****excluding Non-Performance Awards)**receivedby you in calendar year 2002, unless either (1) such adverse differences are inthe same manner and to the same proportional extent as the average (mean)changes made to the Awards **(****excluding Non-Performance Awards)**receivedby all other members of the Executive Officer Committee (excluding the ChiefExecutive Officer of the Company) in such calendar year **(for purposes of this clause (1), any member of theExecutive Officer Committee in such calendar year who was not a member of theExecutive Officer Committee in calendar year 2002 shall be deemed to havereceived an Award of 57,500 stock options in calendar year 2002)**or(2) such adverse differences are directly related to the Board’s good faithassessment of your relative contribution to the Company or your relativeperformance as compared to other members of the Executive Officer Committee **(excluding the Chief Executive Officer of the Company**);provided, however, that in

 

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the case ofadverse differences pursuant to clause (2), the receipt by you of a number ofany type of Award in such calendar year that is less than one-half of the FinalAverage Number of Awards of such type for such calendar year shall constituteGood Reason; or (F) any failure by the Company to comply with any of theprovisions of Section 2(b) which failure is not contemplatedpreviously within this definition, excluding in all such cases any isolated,insubstantial and inadvertent failure not occurring in bad faith and which isremedied by the Company promptly after receipt of notice thereof given byyou.  Upon or after a Change in Controlbut prior to the second anniversary of such Change in Control, “Good Reason”means (A) any material diminution (considering all previous diminutionsduring the Employment Period in the aggregate, including all previousdiminutions during the Employment Period which are not material when consideredseparately) in your position authority, powers, functions, duties orresponsibilities in effect immediately prior to the Change in Control (subjectto the same exclusions as provided above prior to a Change in Control andfollowing the second anniversary of such Change in Control); (B) anyreduction in your Annual Base Salary; (C) (i) any reduction in yourAnnual Bonus Target from your Annual Bonus Target for the calendar year 2003 or(ii) the awarding to you of an Annual Bonus that is less in amount thanthe Annual Bonus awarded to you for the calendar year immediately preceding theyear during which the Change in Control occurs; (D) the receipt by you ofAwards **(****excluding Non-Performance Awards)**inany calendar year that differ (as to number, terms or type of Awards), in amanner adverse to you, from the Awards **(****excluding Non-Performance Awards)**receivedby you in calendar year 2002, unless either (1) such adverse differences are inthe same manner and to the same proportional extent as the average (mean)changes made to the Awards (excluding Non-Performance Awards) received by allother members of the Executive Officer Committee (excluding the Chief ExecutiveOfficer of the Company) in such calendar year (for purposes of this clause (1),any member of the Executive Officer Committee in such calendar year who was nota member of the Executive Officer Committee in calendar year 2002 shall bedeemed to have received an Award of 57,500 stock options in calendar year 2002)or (2) such adverse differences are directly related to the Board’s good faithassessment of your relative contribution to the Company or your relativeperformance as compared to other members of the Executive Officer Committee(excluding the Chief Executive Officer of the Company); provided,however, that in the case of adverse differences pursuant to clause (2), thereceipt by you of a number of any type of Award in such calendar year that isless than one-half of the Final Average Number of Awards of such type for suchcalendar year shall constitute Good Reason; or (E) any failure by theCompany to comply with any of the provisions of Section 2(b) whichfailure is not contemplated previously within this definition; or (F) therelocation or transfer of your principal office to a location more than 50miles from your regular work address as of the date hereof without your consent,excluding in all such cases any isolated, insubstantial and inadvertent failurenot occurring in bad faith and which is remedied by the Company promptly afterreceipt of notice thereof given by you. As used in this Agreement:

 

(i)                                     “AnnualBonus Target” means the percentage of your Annual Base Salary that isauthorized to be awarded to you as an Annual Bonus if certain performancecriteria are met.

 

(ii)                                  “Final Average Number of Awards” means, forany calendar year and for each type of Award granted during such year, thequotient (rounded up to the nearest whole number) equal to the aggregate numberof Awards of such type (excluding Non-Performance Awards) received by allmembers of the Adjusted EOC Group in such

 

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calendar year, divided by the number of members of the Adjusted EOCGroup in such calendar year.

 

(iii)                               “Adjusted EOC Group” means, for any calendaryear and for each type of Award granted during such year, the members of theExecutive Officer Committee who are eligible to receive Awards of such type(excluding members of the Executive Officer Committee who receiveNon-Performance Awards) in such calendar year, excluding the Chief ExecutiveOfficer of the Company and each Outlier Award Recipient in such calendar year;provided, however, that if more than 50% of the members of the ExecutiveOfficer Committee for any calendar year are determined to be Outlier AwardRecipients in such calendar year, then, notwithstanding the foregoing, allmembers of the Executive Officer Committee (excluding the Chief ExecutiveOfficer of the Company) who are eligible to receive Awards of such type(excluding members of the Executive Officer Committee who receiveNon-Performance Awards) in such calendar year shall be included in the AdjustedEOC Group for such calendar year with respect to such type.

 

(iv)                              “Non-PerformanceAwards” means, for any calendar year and for each type of Award granted duringsuch year, Awards of such type received by members of the Executive OfficerCommittee that are granted to such members primarily in recognition ofpromotions (as to position, authority, powers, functions, duties orresponsibilities) or in recognition of becoming a member of the ExecutiveOfficer Committee.

 

(v)                                 “OutlierAward Recipient” means, for any calendar year and for each type of Awardgranted during such year, each member of the Executive Officer Committee(excluding the Chief Executive Officer of the Company) who is eligible toreceive Awards of such type (excluding any member of the Executive OfficerCommittee who receives Non-Performance Awards) in such calendar year and whoreceives a number of Awards of such type (excluding Non-Performance Awards) insuch calendar year that is (i) 150% or more of the Preliminary Average Numberof Awards or (ii) 66 2/3% or less of the Preliminary Average Number of Awards.

 

(vi)                              “PreliminaryAverage Number of Awards” means, for any calendar year and for each type ofAward granted during such year, the quotient (rounded up to the nearest wholenumber) equal to the aggregate number of Awards of such type (excludingNon-Performance Awards) received by all members of the Executive OfficerCommittee (excluding the Chief Executive Officer of the Company) in suchcalendar year, divided by the number of members of the Executive OfficerCommittee (excluding the Chief Executive Officer of the Company) who areeligible to receive Awards of such type (excluding members of the ExecutiveOfficer Committee who receive Non-Performance Awards) in such calendar year.

 

(vii)                           Thephrase “number of Awards” refers to the underlying number of shares of capitalstock of the Company to which the applicable Award relates.

 

(e)                                  Expiration of Term.  Your employment will end at the expiration of the Employment Periodas a result of any Non-Renewal.  Exceptas described in Sections 3(e)(i), (ii), and (iii) and inthe definition of Change in Control, a termination of your employment underthis

 

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Agreement dueto the expiration of the Employment Period as a result of any Non-Renewal willnot be deemed a termination of your employment entitling you to any benefitsdescribed in Section 4 or Section 5.

 

(i)                                     Ifthe Company delivers a Non-Renewal Notice to you prior to any Change in Controlor after the second anniversary of such Change in Control, upon theeffectiveness of such Non-Renewal you will be entitled to receive (i) an amountequal to your Pro Rata Bonus, which will be paid at such time as the Companypays its other members of the Executive Officer Committee their annual cashincentive bonuses with respect to the calendar year in which terminationoccurs, (ii) the severance or separation benefits (including continuation ofany welfare benefits) provided generally by us to the members of the ExecutiveOfficer Committee under our general policies in effect from time to time upontermination by the Company of their employment (excluding any other severanceor separation benefits available to any member of the Executive OfficerCommittee pursuant to an employment agreement and not under our generalpolicies in effect from time to time), and (iii) the other compensation andbenefits described in Section 4(b).

 

(ii)                                  Ifthe Company delivers a Non-Renewal Notice to you after a Change in Control butprior to the second anniversary of such Change in Control, you will have therights described in Section 5(c) upon the effectiveness of suchNon-Renewal.

 

(iii)                               Ifany Non-Renewal is effected at your election, you will be entitled to receive(i) an amount equal to your Pro Rata Bonus, which will be paid at such time asthe Company pays its other members of the Executive Officer Committee theirannual cash incentive bonuses with respect to the calendar year in whichtermination occurs, and (ii) the other compensation and benefits described in Section 4(b)upon the effectiveness of such Non-Renewal.

 

(f)                                    AgreementNot to Terminate.  We agree that,notwithstanding any provision to the contrary contained in this EmploymentAgreement, we shall not have the right to terminate your employment, other thanfor Cause, for a period of time commencing on the date of this Agreement andending on the 180th day following the date of this Agreement.

 

**4.****                                     ****Compensation UponTermination Prior to a Change in Control and After the Second Anniversary ofsuch Change in Control**. Prior to a Change in Control and after the second anniversary of suchChange in Control, conditioned on the effectiveness of a Release signed by youor your legal representative, you will be entitled to the followingcompensation from the Company upon the termination of your employment, which isin lieu of any other severance pay or employment benefits to which you mightotherwise be entitled (whether contractual, under a severance plan, the WARNAct, any other applicable law, or otherwise):

 

(a)                                  Death or Disability.  If your employment is terminated by reasonof your death or Disability, the Company will pay you or your legalrepresentative, as applicable, (A) in a cash lump sum within thirty (30) daysafter the effective date of the Release, the following amounts:  (1) the sum of your unpaid Annual BaseSalary through the date of termination and any compensation previously deferredby you (together with any accrued interest or earnings thereon) (“AccruedObligations”); and (2) the amount of any unpaid Annual Bonus that was

 

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awarded to youprior to the date of termination; (B) any amounts arising from yourparticipation in any Investment Plan (“Accrued Investments”), whichamounts will be payable in accordance with the terms and conditions of suchInvestment Plan; (C) any amounts to which you are entitled from yourparticipation in, or benefits under, any Welfare Plan (“Accrued Welfare Benefits”),which amounts will be payable in accordance with the terms and conditions ofsuch Welfare Plan; and (D) an amount equal to your Pro Rata Bonus, which willbe paid at such time as the Company pays its other members of the ExecutiveOfficer Committee their annual cash incentive bonuses with respect to thecalendar year in which termination of your employment occurs.  “Pro Rata Bonus” means the amountequal to the product of (i) your Annual Bonus Target for the calendar yearin which your employment is terminated (or your Annual Bonus Target for theimmediately preceding year if you resign for Good Reason as defined in thefirst clause (D) or the second clause (C)(i) of Section 3(d)),multiplied by (ii) the amount of your Annual Base Salary for the calendaryear in which your employment is terminated (or the highest Annual Base Salaryto which you were entitled during the twelve months immediately preceding thedate of termination if you resign for Good Reason as defined in the firstclause (C) or the second clause (B) of Section 3(d)), multiplied by(iii) the average (mean) percentage of annual cash incentive bonus targetsactually paid as bonuses to the **members ofthe Executive Officer Committee**as a group for such year, andmultiplied by (iv) a fraction, the numerator of which is the number ofdays that have elapsed in such calendar year as of the date of termination, andthe denominator of which is 365.  Exceptas described in this Section 4(a),in the event of your termination by reason of your death or Disability, you andyour legal representatives, as applicable, will forfeit all rights to any othercompensation.

 

(b)                                 For Cause; Resignation by You Without Good Reason;Non-Renewal Election by You or the Company.  If your employment is terminated by us forCause or by you without Good Reason or due to a Non-Renewal election by us oryou, we will have no further obligations to you other than as set forth in Section 3(e),if applicable, and the obligation for payment of (i) Accrued Obligations (whichwill be payable within the time period set forth in Section 4(a)(A)above), (ii) the Accrued Investments and the Accrued Welfare Benefits (whichwill be payable in accordance with the terms and conditions of the InvestmentPlans and the Welfare Plans, as applicable), and (iii) the amount of any unpaidAnnual Bonus that was awarded to you prior to the date of termination (whichwill be payable within the time period set forth in Section 4(a)(A)above).  Except as described in this Section 4(b) or in Section 3(e), ifapplicable, in the event of your termination by the Company forCause or due to your resignation without Good Reason or a Non-Renewal electionby us or you, you will forfeit all rights to any other compensation.

 

(c)                                  Without Cause; Resignation for Good Reason.  If we terminate your employment withoutCause or you resign for Good Reason, then we will pay or provide to you:

 

(i)                                     acash lump sum within thirty (30) days after the effective date of the Releaseequal to the aggregate of the following amounts:  (A) the Accrued Obligations; (B) an amount equal to one andone-half (1.5) multiplied by the sum of (x) the highest Annual Base Salary towhich you were entitled during the twelve months immediately preceding the dateof termination, and (y) the sum of (i) one-half of your average (mean) AnnualBonus awarded to you for the three years preceding termination, plus(ii) one-half of the product of your current Annual Bonus Target (or yourAnnual Bonus Target for the immediately preceding year if you resign for GoodReason as

 

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defined in the first clause (D) of Section 3(d)), multiplied bythe amount of your Annual Base Salary for the calendar year in which youremployment is terminated (or the highest Annual Base Salary to which you wereentitled during the twelve months immediately preceding the date of terminationif you resign for Good Reason as defined in the first clause (C) ofSection 3(d)); and (C) the amount of any unpaid Annual Bonus that was awardedto you prior to the date of termination;

 

(ii)                                  anamount equal to your Pro Rata Bonus, which will be paid at such time as theCompany pays its other members of the Executive Officer Committee their annualcash incentive bonuses with respect to the calendar year in which terminationof your employment occurs;

 

(iii)                               theAccrued Investments and the Accrued Welfare Benefits, which amounts will bepayable in accordance with the terms and conditions of the Investment Plans andthe Welfare Plans, as applicable;

 

(iv)                              ifyou are entitled on the date of termination to coverage under the healthcareportion of the **Trammell Crow andAssociated Companies Welfare Benefits Plan or a similar Company group healtharrangement  (the “Health Plan”)**,continuation of such coverage for you and your dependents for a period endingon the 180th day following the second (2nd)****anniversaryof the date of termination, at the active employee cost payable by you withrespect to those costs paid by you prior to your termination; provided,however, that this coverage will count towards the depletion of any continuedhealth care coverage rights that you and your dependents may have pursuant tothe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”);provided further, however, that you or your dependents’ rights to continuedhealth care coverage pursuant to this Section will terminate at the timeyou or your dependents become covered, as described in COBRA, under anothergroup health plan, and will also terminate as of the date the Company ceases toprovide coverage to its senior executives generally under any such Health Plan;and

 

(v)                                 uponyour request and at the Company’s sole cost and expense, your enrollment in anoutplacement program with a placement agency selected by the Company, andreasonably acceptable to you, for a period of up to twelve months, commencingon the date of termination.

 

Notwithstandingthe provisions of any plan or agreement governing such an Award, the Companyalso will continue to vest all of your outstanding Awards that would haveotherwise vested during the eighteen (18) month period beginning on the date oftermination and such Awards will continue to vest and, if applicable, beexercisable during such eighteen (18) month period; provided, that nothing setforth herein shall result in an extension of the term of any Award beyond the term of the Award that would beapplicable absent any termination of your employment; provided further,however, that, in the case of a termination of your employment pursuant to thisSection 4(c), if the terms of the plan or agreement governing suchAward are more favorable to you as to vesting or exercisability than the termsof this paragraph, then the more favorable term(s) of such Award agreement orplan (in lieu of the corresponding less favorable term(s) in this paragraph)shall govern the vesting or exercisability, as the case may be, of such Awardupon your termination. “Award” means any option to acquire common stock,

 

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restricted stock award, stock appreciation right or similarequity-based award granted under the Trammell Crow Long-Term Incentive Plan orany other option or equity-based incentive plan sponsored by the Company.  Except as described in this Section 4(c), in the event of yourtermination by us without Cause or by you for Good Reason, you will forfeit allrights to any other compensation.

 

(d)                                 Asused in this Agreement:

 

(i)                                     “Changein Control” has the meaning given such term in the Trammell Crow Long-TermIncentive Plan (as such plan is in effect on the date of this Agreement, the“LTIP”); provided, however, that the occurrence of a Rule 13e-3 transaction(within the meaning of Rule 13e-3 promulgated under the Securities Exchange Actof 1934 or any similar successor rule thereto) that has been approved by theBoard and subsequent to which you are part of a group (within the meaning ofSection 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 or anysimilar successor rule thereto) that owns more than 50%, respectively, of thethen outstanding shares of common stock and the combined voting power of thethen outstanding voting securities entitled to vote generally in the electionof directors of the Company will not be deemed to be a Change in Control;provided, further, if, prior to any Change in Control, you terminate youremployment for Good Reason or your employment is terminated by the Companywithout Cause or as a result of a Non-Renewal Notice delivered by the Companyprior to such Change in Control and a Change in Control occurs within 180 daysafter such termination, or within 180 days after such Non-Renewal Noticedelivery in the case of a Non-Renewal (excluding a Change in Control thatoccurs pursuant to an unsolicited tender or exchange offer by any person, inresponse to which the Company does not recommend acceptance of the person’stender or exchange offer), then for all purposes hereof, the date of the Changeof Control with respect to your employment shall mean the date immediatelyprior to such termination, or immediately prior to such Non-Renewal Noticedelivery in the case of a Non-Renewal; provided, further that notwithstandingthat any such transaction does not constitute a Change in Control as defined inthe LTIP, a Change in Control shall be deemed to have occurred for all purposesunder this Agreement upon either (A) the consummation of a Business Combination(as defined in the LTIP) with a National Competitor, unless, following suchBusiness Combination, the conditions in clauses (B) and (C) of Section 1.6(iii) of the LTIP are satisfied and all or substantially all of the individualsand entities who were the beneficial owners of, respectively, the OutstandingCorporation Common Stock and Outstanding Corporation Voting Securities (each asdefined in the LTIP) immediately prior to such Business Combinationbeneficially own, directly or indirectly, more than 60%, respectively, of thethen outstanding shares of common stock and the combined voting power of thethen outstanding voting securities entitled to vote generally in the electionof directors of the corporation resulting from such Business Combination(including, without limitation, a corporation which as a result of suchtransaction owns the Company, or all or substantially all of the Company’sassets either directly or through one or more subsidiaries) in substantiallythe same proportions as their ownership, immediately prior to such BusinessCombination, of the Outstanding Corporation Common Stock and OutstandingCorporation Voting Securities, as the case may be, or (B) the acquisition byany National Competitor (or any group (as defined in the LTIP) of which aNational Competitor is a controlling (within the meaning of Rule 12b-2

 

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promulgated under the Securities Exchange Act of 1934) member of thegroup) of beneficial ownership (within the meaning of Rule 13d-3 promulgatedunder the Securities Exchange Act of 1934) of 40% or more of either theOutstanding Corporation Common Stock or the Outstanding Corporation VotingSecurities.  By way of clarification,any transaction with a National Competitor that constitutes a Change in Controlas defined in the LTIP shall be considered a Change in Control for all purposesunder this Agreement.

 

(ii)                                  “NationalCompetitor” means any one of the companies known as Jones Lange LaSalle,Inc., Grubb and Ellis Co. and CB Richard Ellis or their respective successors.

 

**5.****                                      **Compensation UponTermination Occurring On or Within Two Years After a Change in Control****.  After a Change in Control and on or beforethe second anniversary of such Change in Control, conditioned on theeffectiveness of a Release signed by you or your legal representative, you willbe entitled to the following compensation from the Company upon termination ofyour employment (including a termination resulting from the delivery of aNon-Renewal Notice by the Company or you during such two-year period), whichshall be in lieu of any other severance pay or employment benefits to which youmight otherwise be entitled (whether contractual, under a severance plan, theWARN Act, any other applicable law, or otherwise):

 

(a)                                  Death or Disability.  If your employment is terminated by reasonof your death or Disability, the Company will pay you or your legalrepresentative, as applicable, (A) in a cash lump sum within thirty (30) daysafter the effective date of the Release, the following amounts:  (1) the Accrued Obligations; and (2) theamount of any unpaid Annual Bonus that was awarded to you prior to the date oftermination; (B) the Accrued Investments, which amounts will be payable inaccordance with the terms and conditions of the Investment Plans; (C) theAccrued Welfare Benefits, which amounts will be payable in accordance with theterms and conditions of the Welfare Plans; and (D) an amount equal to your ProRata Bonus, which will be paid at such time as the Company pays its othermembers of the Executive Officer Committee their annual cash incentive bonuseswith respect to the calendar year in which termination of your employmentoccurs.  Except as described in this Section 5(a),in the event of your termination by reason of your death or Disability, you andyour legal representatives, as applicable, will forfeit all rights to any othercompensation.

 

(b)                                 For Cause; Resignation by You Without Good Reason.  If your employment is terminated by us forCause or by you without Good Reason, we will have no further obligations to youother than for payment of (i) Accrued Obligations (which will be payable withinthe time period set forth in Section 5(a)(A) above), (ii) theAccrued Investments and the Accrued Welfare Benefits (which will be payable inaccordance with the terms and conditions of the Investment Plans and theWelfare Plans, as applicable), and (iii) the amount of any unpaid Annual Bonusthat was awarded to you prior to the date of termination (which will be payablewithin the time period set forth in Section 5(a)(A) above).  Except as described in this Section 5(b), in the event of yourtermination by the Company for Cause or due to your resignation without GoodReason, you will forfeit all rights to any other compensation.

 

(c)                                  Without Cause; Resignation for Good Reason; Non-RenewalElection by Company.  If youremployment is terminated by the Company without Cause or due to a Non-

 

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Renewalelection made by the Company as provided in Section 3(e)(ii) or byyou for Good Reason (taking into account in each such case the definition ofChange in Control), then, in lieu of any other severance pay or benefits, andconditioned on the effectiveness of a Release signed by you, the Company willpay or provide to you:

 

(i)                                     acash lump sum within thirty (30) days after the effective date of the Releaseequal to the aggregate of the following amounts:  (A) the Accrued Obligations; (B) an amount equal to two andone-half (2.5) multiplied by the sum of (x) the highest Annual Base Salary towhich you were entitled during the twelve months immediately preceding the dateof termination, and (y) the sum of (i) one-half of your average (mean) AnnualBonus awarded to you for the three years preceding termination (or the threeyears preceding the year to which the Annual Bonus in question relates if youresign for Good Reason as defined in the second clause (C)(ii) ofSection 3(d)), plus (ii) one-half of the product of your current AnnualBonus Target (or your Annual Bonus Target for the immediately preceding year ifyou resign for Good Reason as defined in the second clause (C)(i) ofSection 3(d)), multiplied by the amount of your Annual Base Salary for thecalendar year in which your employment is terminated (or the highest AnnualBase Salary to which you were entitled during the twelve months immediatelypreceding the date of termination if you resign for Good Reason as defined inthe second clause (B) of Section 3(d)); and (C) the amount of any unpaidAnnual Bonus that was awarded to you prior to the date of termination;provided, however, that if the Company fails to make such lump sum payment whendue and such failure continues for ten (10) days following notice of nonpaymentto the Company, the amount of the payment the Company is obligated to makepursuant to this Section 5(c)(i) shall automatically be increased bytwenty-five percent (25%);

 

(ii)                                  theAccrued Investments and the Accrued Welfare Benefits, which amounts will bepayable in accordance with the terms and conditions of the Investment Plans andthe Welfare Plans, as applicable;

 

(iii)                               acash lump sum within thirty (30) days after the effective date of the Releaseequal to the sum of (1) the unvested portion of your Matching ContributionAccount under the Company’s Retirement Savings Plan, plus (2) the product of(x) two and one-half (2.5) multiplied times (y) the Matching Contribution youreceived for the calendar year ended prior to the calendar year in which theChange in Control occurs;

 

(iv)                              ifyou are entitled on the date of termination to coverage under the healthcareportion of the Health Plan, continuation of such coverage for a period endingon the 180th day following the second (2nd)****anniversaryof the date of termination, at the active employee cost payable by you withrespect to those costs paid by you prior to such termination.  Provided, however, that this coverage willcount towards the depletion of any continued health care coverage rights thatyou and your dependents may have pursuant to COBRA.  Provided further, that you or your dependents’ rights tocontinued health care coverage pursuant to this Section will terminate atthe time you or your dependents become covered, as described in COBRA, underanother group health plan, and will also terminate as of the date the Companyceases to provide coverage to its senior executives generally under any suchHealth Plan;

 

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(v)                                 anamount equal to your Pro Rata Bonus, which will be paid at such time as theCompany pays its other members of the Executive Officer Committee their annualcash incentive bonuses with respect to the calendar year in which terminationoccurs; and

 

(vi)                              uponyour request and at the Company’s sole cost and expense, your enrollment in anoutplacement program with a placement agency selected by the Company, andreasonably acceptable to you, for a period of up to twelve months, commencingon the effective date of the Release.

 

Notwithstandingthe provisions of any plan or agreement governing such an Award and withoutlimiting Section 2(c), (A) the Company will also continue to vestall of your outstanding Awards granted on or after a Change in Control thatwould have otherwise vested during the eighteen (18) month period beginning onthe date of termination and such Awards will continue to vest and, if applicable,be exercisable during such eighteen (18) month period and (B) all of youroutstanding Awards that are vested immediately prior to the date of terminationshall be exercisable during the eighteen (18) month period beginning on thedate of termination; provided, however, that nothing set forth herein shallresult in an extension of the term of any Award beyond the term of the Awardthat would be applicable absent any termination of your employment; provided,further, however, that, in the case of a termination of your employmentpursuant to this Section 5(c), ifthe terms of the plan or agreement governing such Award are more favorable toyou as to vesting or exercisability than the terms of this paragraph, then themore favorable term(s) of such Award agreement or plan (in lieu of thecorresponding less favorable term(s) in this paragraph) shall govern thevesting or exercisability, as the case may be, of such Award upon yourtermination.  Except as described in thisSection 5(c), in the event of yourtermination by us without Cause or due to a Non-Renewal election made by theCompany as provided in Section 3(e)(ii) or by you for Good Reason(taking into account in each such case the definition of Change in Control),you will forfeit all rights to any other compensation.

 

(d)                                 Non-Renewal Election by You.  If your employment is terminated due to aNon-Renewal Election by you, we will have no further obligations to you otherthan as set forth in Section 3(e)(iii), which also includesprovision for the compensation and other benefits described in Section 4(b).  Except as described in Section 4(b)and Section 3(e)(iii), in the event of your termination due to aNon-Renewal election by you, you will forfeit all rights to any othercompensation.

 

**6.****                                      **Other ProvisionsRelating to Termination****.

 

(a)                                  Good Reason. Upon you learning of any event described in the definition of GoodReason, you may terminate your employment for Good Reason by giving a Notice ofTermination (describing, if applicable, the action required to cure the basisfor termination) to us within 60 days thereafter. If the event constitutingGood Reason may be cured, we will have the opportunity to cure any such eventfor a period of 60 days following receipt of your Notice of Termination.  If you do not give a Notice of Terminationto us within 60 days after learning of an event giving rise to Good Reason,then this Agreement will remain in effect and, without any further act on yourpart, you will have waived your right to terminate your employment hereunderfor Good Reason in respect of such event.

 

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(b)                                 Cause. Upon the Company learning of any event described in the definition ofCause, we may terminate your employment for Cause by giving a Notice ofTermination (describing, if applicable, the action required to cure the basisfor termination) to you within 60 days thereafter. If we do not give you aNotice of Termination within 60 days after learning of an event giving rise toCause, then this Agreement will remain in effect and, without any further acton our part, we will have waived our right to terminate your employment forCause in respect of such event.

 

(c)                                  Full Settlement; Mitigation.  In no event will you be obligated to seekother employment or take any other action by way of mitigation of the amountspayable to you under any of the provisions of this Agreement and, except foryour right, if any, to continue your participation in the Health Plan asprovided herein, such amounts will not be reduced whether or not you obtainother employment.  The Company will notbe liable to you for any damages for breach of this Agreement arising out ofthe termination of your employment other than for amounts payable under Sections3(e), 4 or 5, which amounts will be payable subject to theterms and conditions set forth therein. The Company will be entitled to seek damages from you for any breach of Section 7or 8 by you or for your criminal misconduct.

 

(d)                                 Release and Other Agreements.  Notwithstanding any other provision in thisAgreement to the contrary, as a condition to receiving the benefits describedin this Agreement, upon any termination of your employment hereunder you herebyagree to execute (and not revoke) a release in substantially the form attachedhereto as Exhibit A (the “Release”) andsuch other documents and agreements as required by the Company, in the form andpursuant to the procedures reasonably established by the Company.  For purposes of this Agreement, the Releasewill be considered to have been executed by you if it is signed by your legalrepresentative in the case of your legal incompetence or on behalf of yourestate in the case of your death.  Uponyour execution and delivery of the Release, the Company will also promptlyexecute and deliver the Release.

 

**7.****                                      **ConfidentialInformation****.

 

(a)                                  Youacknowledge that the Company has trade, business and financial secrets andother confidential and proprietary information regarding the Company and itsbusiness, in whatever form, tangible or intangible (collectively, the “Confidential Information”), and that duringthe course of your employment with the Company you have received, will receiveor will contribute to the Confidential Information.  During the 180-day period commencing on the date of thisAgreement and ending on the 180th day following the date of this Agreement, wewill (a) disclose to you, or place you in a position to have access to ordevelop, Confidential Information, (b) place you in a position to developbusiness goodwill on behalf of the Company, and/or (c) disclose or entrustbusiness opportunities of the Company to you. Confidential Information includes, to the extent confidential andproprietary to the Company, sales materials, technical information, processesand compilations of information, records, specifications and informationconcerning customers, prospective customers or vendors, customer andprospective customer lists, and information regarding methods of doingbusiness.  However, ConfidentialInformation does not include your general knowledge of and experience in thereal estate business or your personal and professional relationships and itdoes not include information that (i) is obtained by you from a sourceother than the Company or its affiliates who is not under a duty ofnon-disclosure to the Company or such affiliate or (ii) is in the public

 

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domain or isor becomes generally available to the public other than through disclosure byyou in violation of the provisions of this Agreement.

 

(b)                                 Youare aware of those policies implemented by the Company to keep its ConfidentialInformation secret.  You acknowledgethat the Confidential Information has been developed or acquired by the Companythrough the expenditure of substantial time, effort and money and provides theCompany with an advantage over competitors who do not know or use suchConfidential Information.

 

(c)                                  Duringand following your employment by the Company, you will hold in confidence andwill not directly or indirectly disclose, use, copy, make lists of, or makeavailable to others any Confidential Information except in the good faithperformance of your duties to the Company or to the extent authorized inwriting by the Board or required by law or compelled by legal process.  You agree to use reasonable efforts to givethe Company notice (accompanied by a copy of the subpoena, order or otherprocess used to compel disclosure) of any and all attempts to compel disclosureof any Confidential Information, in such a manner so as to provide the Companywith written notice within one (1) business day after you are informed thatsuch disclosure is being or will be compelled.

 

(d)                                 Youfurther agree not to use any Confidential Information for the benefit of anyperson or entity other than the Company.

 

(e)                                  Upontermination of your employment, you agree that all Confidential Information andother files, documents, materials and other repositories containing informationconcerning the Company or the business of the Company (including all copiesthereof) in your possession, custody or control, whether prepared by you orothers, will remain with or be returned to the Company promptly (withintwenty-four (24) hours) after the date of such termination.

 

(f)                                    Notwithstandinganything herein to the contrary, you may disclose to any and all persons,without limitation of any kind, the U.S. federal income tax treatment and taxstructure of the transactions contemplated in this Agreement and all materialsof any kind (including opinions and other tax analyses) that are provided toyou relating to such tax treatment and tax structure.  For this purpose, “tax structure” is limited to facts relevant tothe U.S. federal income tax treatment of the transactions contemplated in thisAgreement and does not include information relating to the identity of theparties hereto.

 

**8.****                                      **Non-Competition;Non-Solicitation****.

 

(a)                                  Youacknowledge and agree that your use of Confidential Information and our listsof, and information concerning, customers and prospective customers in theconduct of business on behalf of a competitor of the Company would constituteunfair competition with the Company and would adversely affect the businessgoodwill of the Company.  Accordingly,as a material inducement to the Company to enter into this Agreement; toprotect the Company’s Confidential Information, including lists of, andinformation concerning, customers and prospective customers of the Company,that may be disclosed or entrusted to you (the disclosure of which by you inviolation of this Agreement would adversely affect the business goodwill of theCompany), the business goodwill of the Company that may be developed in you andthe business opportunities that may be disclosed or entrusted to you by theCompany; in

 

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considerationfor the compensation and other benefits payable hereunder to you, for thebenefits to you of having access to Confidential Information, including listsof, and information concerning, customers and prospective customers of theCompany, during the Employment Period (the disclosure of which by you inviolation of this Agreement would adversely affect the business goodwill of theCompany); and for other good and valuable consideration, you hereby covenantand agree that, during the Term of Non-Competition, you will not directly orindirectly, individually or as an officer, director, manager, employee,shareholder, consultant, contractor, partner, member, joint venturer, agent, equityowner or in any capacity whatsoever:

 

(i)                                     own,engage in, manage, operate, join, control, be employed by, provide CompetingServices to, or participate in the ownership, management, operation or controlof or provision of Competing Services to, a Competing Business operating in theGeographic Area;

 

(ii)                                  recruit,hire, assist in hiring, attempt to hire, or contact or solicit with respect tohiring any person who, at any time during the twelve (12) month period endingon the date of termination, was an employee of the Company; provided, that youmay hire any person that served as an administrative or clerical employee atthe time their employment with the Company terminates so long as you do notrecruit, contact or solicit such employee;

 

(iii)                               induceor attempt to induce any employee of the Company to terminate, or in any wayinterfere with, the relationship between the Company and any employee thereof;or

 

(iv)                              induceor attempt to induce any customer, client, supplier, service provider, or otherbusiness relation of the Company in the Geographic Area to cease doing businesswith the Company, or in any way interfere with the relationship between theCompany and any such person.

 

Notwithstanding the foregoing,the Company agrees that you may own less than one percent of the outstandingvoting securities of any publicly traded company that is a Competing Businessso long as you do not otherwise participate in such competing business in anyway prohibited by this Section.

 

(b)                                 Youacknowledge that the geographic boundaries, scope of prohibited activities, andtime duration of the preceding paragraphs in this Section are reasonablein nature and are no broader than are necessary to maintain the goodwill of theCompany and the confidentiality of its Confidential Information and to protectthe goodwill and other legitimate business interests of the Company, and alsothat the enforcement of such covenants would not cause you any undue hardshipor unreasonably interfere with your ability to earn a livelihood.  If you violate the covenants andrestrictions in this Section and the Company brings legal action forinjunctive or other equitable relief, you agree that the Company will not bedeprived of the benefit of the full period of the restrictive covenant, as aresult of the time involved in obtaining such relief.  Accordingly, you agree that the provisions in thisSection will have a duration determined pursuant to Subsection (a)above, computed from the date the legal or equitable relief is granted.

 

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(c)                                  Asused in this Agreement:

 

(i)                                     “CompetingBusiness” means a business that competes in any material respect with thebusiness, or any line of business, engaged in by the Company or any of itsSubsidiaries (A) at the time in question in respect of the Term ofNon-Competition occurring prior to the date of termination of your employmentand (B) as of the date of termination of your employment in respect of the Termof Non-Competition occurring on and after the date of termination of youremployment.

 

(ii)                                  “CompetingServices” means services that, if provided to a business other than aCompeting Business, would constitute the conduct of a Competing Business.

 

(iii)                               “GeographicArea” means the geographic area in which the Company or any of itsSubsidiaries engages in its respective business or any line of its business (A)at the time in question in respect of the Term of Non-Competition occurringprior to the date of termination of your employment and (B) as of the date oftermination of your employment in respect of the Term of Non-Competitionoccurring on and after the date of termination of your employment.

 

(iv)                              “Termof Non-Competition” means the period of time beginning on the date hereofand continuing until 5:00 p.m., Dallas, Texas time, on:

 

(A)                              thedate of termination if your employment is terminated (1) by the Company for anyreason other than Cause, (2) by you for Good Reason, (3) due to a Non-Renewalelection by you prior to a Change in Control or after the second anniversary ofsuch Change in Control, or (4) due to a Non-Renewal election made by theCompany at any time, or

 

(B)                                thedate that is twelve (12) months after the date of termination if youremployment is terminated (1) by the Company for Cause, (2) by you for anyreason other than Good Reason,****or(3) due to any Non-Renewal election made by you after a Change in Control andon or before the second anniversary of such Change in Control.

 

(d)                                 Ifany court or arbitrator determines that any portion of this Section 8is invalid or unenforceable, the remainder of this Section 8 willnot thereby be affected and will be given full effect without regard to theinvalid or unenforceable provisions.  Ifany court or arbitrator construes any of the provisions of this Section 8to be invalid or unenforceable because of the duration or scope of suchprovision, such court or arbitrator will be required to reduce the duration orscope of such provision, to the minimum extent necessary so as to beenforceable, and to enforce such provision as so reduced.

 

**9.****                                      **Gross-Up forCertain Taxes****.  Ifany of the payments or benefits due to you under this Agreement would otherwiseresult in your liability for any excise taxes pursuant to Internal Revenue Code(“Code”) Section 4999 (“Excise Tax”) (whether at the time ofpayment or upon a later IRS audit), the Company and you agree to usecommercially reasonable efforts to restructure, in a manner reasonablyacceptable to the Company and you, such payments or benefits due to you so thatsuch Excise Tax is eliminated or minimized to the extent permitted by

 

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applicablelaw; provided, however, that, without creating any implication as to whether ornot, under all the circumstances it would be unreasonable for you to refuse todefer receipt for a shorter period, the Company agrees that, regardless of thecircumstances, it shall not be unreasonable for you to refuse to defer receiptof a material portion of the payments or benefits due to you under this Section 9for more than six months after the date on which such payments or benefitswould otherwise become due to you under this Agreement.  If, despite the use of commerciallyreasonable efforts, the Company and you are unable either to agree on any suchrestructuring or to restructure the payments or benefits due to you under thisAgreement to eliminate such Excise Tax, the Company will reimburse you for theamount of such Excise Tax plus all federal, state and local taxes applicable tothe Company’s payment of such Excise Taxes, including any additional taxes dueunder Section 4999 of the Code with respect to payments made pursuant tothis provision.  **Calculations for these purposes willassume the highest marginal rate for individuals applicable at the time ofcalculation. **Theintent of this Section 9 is that the Company will pay you anadditional amount (the “Gross-Up Payment”) such that the net amountretained by you after deduction of (i) any Excise Tax imposed on any suchpayment or benefit; and (ii) any excise tax, federal, state or local income,payroll, and/or other taxes, imposed on the Gross-Up Payment, will equal theamount of such payment or benefit reduced by all applicable taxes on suchamount other than the Excise Tax.

 

**10.****                               **Successors;Binding Agreement****.

 

(a)                                  ThisAgreement may not be assigned by you other than by will or by the laws ofdescent and distribution.  ThisAgreement will inure to the benefit of and be enforceable by your personal andlegal representatives, executors, administrators, heirs, distributees, deviseesand legatees. This Agreement will inure to the benefit of and be binding uponthe Company and its successors and assigns.

 

(b)                                 TheCompany will require any successor to all or substantially all of the businessand/or assets of the Company, by a written agreement in form and substancereasonably satisfactory to you, to assume expressly and agree to perform thisAgreement in the same manner and to the same extent that the Company would berequired to perform it if no such succession had taken place.  Failure of the Company to obtain suchagreement prior to the effectiveness of any such succession will be consideredgrounds for you to terminate your employment for Good Reason, and if you do soterminate your employment, you will be entitled to compensation from theCompany in the same amount and on the same terms as you would be entitled topursuant to Section 5 if you terminated your employment for GoodReason thereunder after, but before the second anniversary of, a Change inControl.  As used in this Agreement andafter any such succession, “Company” will mean the Company as hereinbeforedefined and any successor and/or assigns which assumes and agrees to performthis Agreement by operation of law, or otherwise.

 

**11.****                               **Miscellaneous****.

 

(a)                                  Construction.  This Agreement will be deemed drafted equally by both theparties.  Any presumption or principlethat the language is to be construed against any party will not apply.

 

(b)                                 Notices. For purposes of this Agreement, notices and all other communicationsprovided for in this Agreement will be in writing and will be deemed to have

 

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been dulygiven when (i) delivered personally; (ii) sent by facsimile or similarelectronic device and confirmed; (iii) delivered by overnight express; or (iv)if sent by any other means, upon receipt. Any notice or other communication shall be delivered to the address setforth below the Company’s or your signature hereto, as applicable, or to suchother address as either party will have furnished to the other in writing inaccordance herewith.

 

(c)                                  Severability.  Except as otherwise provided in Section 8(d), if anyprovision of this Agreement is held to be illegal, invalid or unenforceable,such provision will be fully severable; this Agreement will be construed andenforced as if such illegal, invalid or unenforceable provision had nevercomprised a portion of this Agreement; and the remaining provisions of thisAgreement will remain in full force and effect and will not be affected by theillegal, invalid or unenforceable provision or by its severance from thisAgreement.  Furthermore, except asotherwise provided in Section 8(d), in lieu of such illegal,invalid or unenforceable provision there will be added automatically as part ofthis Agreement a provision as similar in terms to such illegal, invalid orunenforceable provision as may be possible and be legal, valid and enforceable.

 

(d)                                 Withholding. The Company may withhold from any amounts payable under this Agreementsuch Federal, state or local taxes as are required to be withheld pursuant toany applicable law or regulation.

 

(e)                                  No Waiver. Except as expressly set forth in this Agreement, no waiver by eitherparty at any time of any breach by the other party of, or compliance with, anycondition or provision of this Agreement to be performed by the other partywill be deemed a waiver of similar or dissimilar provisions or conditions atany time.

 

(f)                                    Equitable and Other Relief.  You acknowledge that money damages would beboth incalculable and an insufficient remedy for a breach of Section 7or 8 by you and that any such breach would cause the Company irreparableharm.  Accordingly, the Company, inaddition to any other remedies at law or in equity it may have, will beentitled, without the requirement of posting of bond or other security, toequitable relief, including injunctive relief and specific performance, inconnection with a breach of Section 7 or 8 by you.  The parties agree that the onlycircumstances in which disputes between them will not be subject exclusively toarbitration pursuant to the provisions in Section 11(h) are inconnection with a breach of Section 7 or 8 by you.  If the Company files a pleading with a courtseeking immediate injunctive relief and this pleading is challenged by you andinjunctive relief sought is not awarded, the Company will pay all of your costsand attorneys’ fees.  The partiesconsent to venue in Dallas County, Texas and to the exclusive jurisdiction ofcompetent state courts or federal courts in the state or district in DallasCounty, Texas for all litigation which may be brought, subject to therequirement for arbitration hereunder, with respect to the terms of, and thetransactions and relationships contemplated by, this Agreement.

 

(g)                                 Entire Agreement.** **The provisions ofthis Agreement constitute the entire and complete understanding and agreementbetween the parties with respect to the subject matter hereof.  The Company and you acknowledge that theIndemnification Agreement, dated                            ,by and between you and the Company shall remain in full force and effect,without limitation of your rights thereunder by the terms of this Agreement.

 

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(h)                                 Arbitration. Except as otherwise provided in Section 11(f), in the eventany claim, demand, cause of action, dispute, controversy or other matter inquestion (“Claim”) arises out of thisAgreement (or its termination) or your employment (or termination ofemployment) by the Company or its Subsidiaries, then, upon the written requestof you or us, such dispute or controversy will be submitted to bindingarbitration.  Any arbitration will be conductedin accordance with the Federal Arbitration Act (“FAA”)and, to the extent an issue is not addressed by the FAA or the FAA does notapply, with the then-current National Rules for the Resolution of EmploymentDisputes of the American Arbitration Association (“AAA”)or other rules of the AAA as applicable to the claims asserted.  The results of arbitration will be bindingand conclusive on the parties hereto. All parties agree that venue for arbitration will be in Dallas County,Texas.  If you are the prevailing party,then you will be entitled to reimbursement by the Company for reasonableattorneys fees, reasonable costs and other reasonable expenses pertaining tothe arbitration.  All proceedingsconducted pursuant to this Section 11(h) will be kept confidentialby all parties.  **THE ARBITRATORSSHALL HAVE NO AUTHORITY TO AWARD PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES(WHETHER IT BE EXEMPLARY DAMAGES, TREBLE DAMAGES, OR ANY OTHER PENALTY ORPUNITIVE TYPE OF DAMAGES).  REGARDLESSOF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER TEXAS LAW, YOU AND THE COMPANYEACH HEREBY WAIVE THE RIGHT, IF ANY, TO RECOVER PUNITIVE DAMAGES IN CONNECTIONWITH ANY CLAIMS.  YOU AND THE COMPANYACKNOWLEDGE THAT BY SIGNING THIS AGREEMENT YOU AND THE COMPANY ARE WAIVING ANYRIGHT THAT YOU OR THE COMPANY MAY HAVE TO A JURY TRIAL OR, OTHER THAN ASEXPRESSLY PROVIDED BY SECTION 11(f), A TRIAL BEFORE A JUDGE INCONNECTION WITH, OR RELATING TO, A CLAIM**.

 

(i)                                     Survival. Sections 3(e), 4, 5, 6, 7, 8, 9,10 and 11 of this Agreement will survive the termination of thisAgreement.

 

(j)                                     Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAWS OF THE STATE OF TEXAS WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTOF LAWS OF TEXAS OR ANY OTHER JURISDICTION, AND, WHERE APPLICABLE, THE LAWS OFTHE UNITED STATES.

 

(k)                                  Amendments. This Agreement may not be amended or modified at any time except by awritten instrument approved by the Board and executed by the Company and you.

 

(l)                                     Acknowledgement.  You acknowledge that you have read and understand this Agreement(including its legal effect), have had an opportunity to consult legal counselregarding it, have not acted in reliance upon any representations or promisesmade by the Company not contained herein, and have entered into this Agreementfreely.

 

(m)                               Counterparts.  This Agreement may be executed (including by facsimiletransmission) in any number of counterparts.

 

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By signing andcountersigning this Agreement in the appropriate space set forth below, we andyou have agreed to be bound by the terms and conditions set forth herein,effective as of the date first written above.

 
|                                  | Sincerely,                 |
|---------------------------------------|----------------------------|
|                                  |                       |
|                                  | **TRAMMELL CROW COMPANY**, |
|                                  | a Delaware corporation     |
|                                  |                       |
|                                  | By:                        | /s/ ROBERT E. SULENTIC |
|                                  | Name:                      | Robert E. Sulentic |
|                                  | Title:                     | Chairman and Chief Executive  Officer |
|                                  |                       |
|                                  | Address:                   | Trammell Crow Company |
|                                  |                       | 2001 Ross Avenue, Suite 3400 |
|                                  |                       | Dallas, Texas  75201 |
|                                  |                       | Attention:  General Counsel |
|                                  |                       | Telephone:  (214) 863-3000 |
|                                  |                       | Fax:  (214) 863-3125 |
|                                  |                       |
|                                  |                       |
| ACKNOWLEDGED AND AGREED BY EXECUTIVE: |                       |
|                                  |                       |
| /s/ T. CHRISTOPHER ROTH               |                       |   |
| Name:  T. Christopher Roth       |                       |
|                                  |                       |
| Address:                              | [XXXXXXXXXX]               |   |   |
|                                  | [XXXXXXXXXX]               |   |   |
|                                  | Telephone:                 |   |   |   |
|                                  | Fax:                       |   |   |   |
|                                       |                            |  |  |  |  |  |  |  |

 

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