Exhibit 10.30


 


SEVERANCE
AGREEMENT


 


THIS SEVERANCE AGREEMENT (“Agreement”) is entered into
as of September 10, 2004 by and between Equity Residential, a Maryland
real estate investment trust (the “Company”), and Donna Brandin (the “Executive”).


 


WITNESSETH


 


WHEREAS, the Board of Trustees of the Company (the “Board”)
recognizes that the possibility of a Change in Control (as hereinafter defined)
exists or may exist in the future and that the threat or the occurrence of
such an event can result in significant distractions of its key management
personnel because of the uncertainties inherent in such a situation;


 


WHEREAS, the Board has determined that it is essential
and in the best interest of the Company and its shareholders to retain the
services of the Executive in the event of a threat or occurrence of a Change in
Control of the Company and to ensure her continued dedication and efforts in
such event without undue concern for her personal financial and employment
security; and


 


WHEREAS, in order to induce the Executive to remain in
the employ of the Company, particularly in the event of a threat or the
occurrence of either a Change in Control or a termination of her employment by
the Company without cause, the Company desires to enter into this Agreement with
the Executive to provide the Executive with certain benefits in the event her
employment is terminated as a result of such an event.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the respective
agreements of the parties contained herein and other good and valuation
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is agreed as follows:


 


1.                                       Term of Agreement. This Agreement shall commence as of the
date hereof and shall continue in effect until the date the Executive’s employment
is terminated.


 


2.                                       Definitions


 


2.1                                 Accrued Compensation. “Accrued Compensation” shall mean an
amount which shall include all amounts earned or accrued through the “Termination
Date” (as hereinafter defined) but not paid as of the Termination Date for: (i) base
salary, (ii) reimbursement for reasonable and necessary expenses incurred
by the Executive on behalf of the Company during the period ending on the
Termination Date, and (iii) vacation and sick leave pay (to the extent
provided by Company policy or applicable law).


 


2.2                                 Base Amount. “Base Amount” shall mean the Executive’s
annual base salary at the rate in effect on the Termination Date.


 


2.3                                 Bonus Amount. “Bonus Amount” shall mean the annual
average of the cash amount paid to the Executive under the Company’s annual
cash bonus plan for the two years immediately preceding the year in which the
Executive’s employment terminates. If the Executive’s employment is terminated
prior to payment of the 2005 calendar year bonus,


 

















 


 “Bonus Amount” shall mean 100%
of the target bonus that the Executive would have been eligible to receive for
such year.


 


2.4                                 Cause. A termination of employment is for “Cause”
if the Executive has been convicted of a felony involving fraud or dishonesty
or the termination is evidenced by a resolution adopted in good faith by at
least two-thirds of the Board that the Executive: (i) intentionally and
continually failed substantially to perform her reasonably assigned duties
with the Company (other than a failure resulting from the Executive’s
incapacity due to physical or mental illness or from the Executive’s assignment
of duties that would constitute “Good Reason” as hereinafter defined) which
failure continued for a period of at least thirty (30) days after a written
notice of demand for substantial performance has been delivered to the
Executive specifying the manner in which the Executive has failed substantially
to perform or (ii) intentionally engaged in conduct which is
demonstrably and materially injurious to the Company; provided, however,
that no termination of the Executive’s employment shall be for Cause as set
forth in clause (ii) above until (x) there shall have been delivered to
the Executive a copy of a written notice setting forth that the Executive was
guilty of the conduct set forth in clause (ii) and specifying the
particulars thereof in detail and (y) the Executive shall have been provided an
opportunity to be heard in person by the Board (with the assistance of the
Executive’s counsel if the Executive so desires). Neither an act nor a failure
to act, on the Executive’s part shall be considered “intentional” unless
the Executive has acted or failed to act with a lack of good faith and with a
lack of reasonable belief that the Executive’s action or failure to act was in
the best interest of the Company. Notwithstanding anything contained in this
Agreement to the contrary, no failure to perform by the Executive after a
Notice of Termination (as defined in Section 2.9) is given by the
Executive shall constitute Cause for purposes of this Agreement.


 


2.5                                 Change in Control. A “Change in Control” shall mean any of
the following events:


 


(a)                                  An acquisition (other than directly from
the Company) of any voting securities of the Company (the “Voting Securities”)
by any “Person” (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)),
immediately after which such Person has “Beneficial Ownership” (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of 30% or more of
the combined voting power of the Company’s then outstanding Voting Securities; provided,
however, that in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a “Non-Control Acquisition” (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A “Non-Control Acquisition” shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by
(x) the Company or (y) any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is owned directly
or indirectly by the Company (a “Subsidiary”), (ii) the Company or any
Subsidiary or (iii) any Person in connection with a “Non-Control
Transaction” (as hereinafter defined).


 


(b)                                 Approval by stockholders of the Company
of:


 


(i)                                     A merger, consolidation or reorganization
involving the Company, unless:


 


(A)                              the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, at


 


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least
seventy percent (70%) of the combined voting power of the outstanding Voting
Securities of the corporation or other entity resulting from such merger or
consolidation or reorganization (the “Surviving Corporation”) in substantially
the same proportion as their ownership of the Voting Securities immediately
before such merger, consolidation or reorganization; and


 


(B)                                the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at least a majority
of the members of the board of directors or similar governing body of the
Surviving Corporation or a corporation or other entity beneficially owning,
directly or indirectly, a majority of the Voting Securities of the Surviving
Corporation;


 


(ii)                                  A complete liquidation or dissolution of
the Company; or


 


(iii)                               An agreement for the sale or other disposition of all
or substantially all of the assets of the Company to any Person (other than to
an entity of which the Company directly or indirectly owns at least 70% of the
voting shares).


 


Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial Ownership of more than the
permitted amount of the outstanding Voting Securities as a result of the
acquisition of Voting Securities by the Company which, by reducing the number
of Voting Securities outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.


 


(c)                                  The rejection by the voting Beneficial
Owners of the outstanding Shares of the entire slate of trustees that the Board
proposes at a single election of trustees; or


 


(d)                                 The rejection by the voting Beneficial
Owners of the outstanding Shares of one-half or more of the trustees that the
Board proposes over any two or more consecutive elections of trustees.


 


(e)                                  Notwithstanding anything contained in
this Agreement to the contrary, if the Executive’s employment is terminated
prior to a Change in Control and the Executive reasonably demonstrates that
such termination: (i) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a Change
in Control and who effectuates a Change in Control (a “Third Party”) or (ii) otherwise
occurred in connection with, or in anticipation of, a Change in Control which
actually occurs, then for all purposes of this Agreement, the date of a Change
in Control with respect to the Executive shall mean the date immediately prior
to the date of such termination of the Executive’s employment.


 


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2.6                                 Company. The “Company” shall include the Company’s
“Successors and Assigns” (as hereinafter defined).


 


2.7                                 Disability. “Disability” shall mean a physical or
mental infirmity that entitles the Executive to benefits under the Company
sponsored long-term disability plan in which he or she participates.


 


2.8                                 Good Reason.


 


(a)                                  “Good Reason” shall mean the occurrence
of any of the events or conditions described in subsections (i) through (vii) hereof:


 


(i)                                     a change in the Executive’s status,
position or responsibilities (including reporting responsibilities) which, in
the Executive’s reasonable judgment, represents a substantial adverse change
from her status, position or responsibilities; or the assignment to the
Executive of any duties or responsibilities which, in the Executive’s
reasonable judgment, are inconsistent with her status, title, position or
responsibilities.


 


(ii)                                  a reduction in the Executive’s base
salary or any failure to pay the Executive any compensation or benefits to
which she is entitled within five days of written notice thereof;


 


(iii)                               the Company’s requiring the Executive to be based at
any place outside a 30-mile radius from the Executive’s principal location of
business in Chicago, Illinois, except for reasonably required travel on the
Company’s business;


 


(iv)                              the insolvency or the filing (by any
party, including the Company) of a petition for bankruptcy of the Company,
which petition is not dismissed within sixty (60) days;


 


(v)                                 any material breach by the Company of any
provision of this Agreement;


 


(vi)                              any purported termination of the
Executive’s employment for Cause by the Company which does not comply with the
terms of Section 2.4; or


 


(vii)                           the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to assume and
agree to perform this Agreement, as contemplated in Section 6 hereof.


 


(b)                                 Any event or condition described in Section 2.8(a)(i) through
(vii) which occurs prior to a Change in Control, but which the Executive
reasonably demonstrates arose in connection with, or in anticipation of, a
Change in Control, which actually occurs, shall constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to the Change
in Control.


 


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2.9.                              Notice of Termination. “Notice of Termination” shall mean a
written notice of termination from the Company of the Executive’s employment
which indicates a specific termination provision in this Agreement relied upon and
which sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment under the
provision so indicated.


 


2.10.                        Pro Rata Bonus. “Pro Rata Bonus” shall mean an amount
equal to 100% of the target bonus that the Executive would have been eligible
to receive for the Company’s fiscal year in which the Executive’s employment
terminates, multiplied by a fraction, the numerator of which is the number of
days in such fiscal year through the Termination Date and the denominator of
which is 365.


 


2.11.                        Successors and Assigns. “Successors and Assigns” shall mean a
corporation or other entity acquiring all or substantially all the Voting
Securities, assets or business of the Company whether by operation of law or
otherwise, and any affiliate of such Successors and Assigns.


 


2.12.                        Termination Date. “Termination Date” shall mean the first
to occur of:  (a) in the case of the
Executive’s death, her date of death, (b) in the case of Good Reason, the
last day of her employment and (c) in all other cases, the date specified
in the Notice of Termination or if no Notice of Termination is sent, the last
day of her employment; provided, however, that if the Executive’s
employment is terminated by the Company due to Disability, the date specified
in the Notice of Termination shall be the 30th day after receipt of
the Notice of Termination by the Executive, provided that the Executive shall
not have returned to the full-time performance of her duties within 30 days
after such receipt.


 


3.                                       Termination of Employment. The Executive shall be entitled to the
following compensation and benefits if her employment with the Company is
terminated:


 


(a)                                  If the Executive’s employment with the
Company shall be terminated: (i) by the Company for Cause or Disability, (ii) by
reason of the Executive’s death or (iii) by the Executive other than for
Good Reason, the Company shall pay to the Executive the Accrued Compensation; provided,
however, if an employment agreement is in existence between the Company
and/or any of its affiliates and the Executive on the Termination Date, the
Company and/or its affiliates, as the case may be, shall also pay to the
Executive any amounts owed to the Executive pursuant to such employment
agreement.


 


(b)                                 If the Executive’s employment with the
Company shall be terminated by the Company other than for Cause, death or
Disability or by the Executive for Good Reason, 
the Executive shall be entitled to the following:


 


(i)                                     the Company shall pay the Executive all
Accrued Compensation,  a Pro-Rata Bonus
and 100% of any unpaid bonus with respect to the Company’s fiscal year ended
prior to the Termination Date.


 


(ii)                                  the Company shall pay the Executive as
severance pay and in lieu of any further compensation for periods subsequent to
the Termination Date, in a single payment an amount in cash equal to one (1) times
the sum of (A) the Base Amount and (B) the Bonus Amount; provided,
however, if an employment agreement is in existence between the Company
and/or any of its affiliates and


 


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the
Executive on the Termination Date, any amount due the Executive under this Section 3(b)(ii) shall
be reduced by the amount of Base Amount and Bonus Amount paid as severance pay
to Executive pursuant to such employment agreement in lieu of compensation for
periods subsequent to the Termination Date.


 


(iii)                               for twelve (12) months following the Termination Date,
(the “Continuation Period”), the Company shall at its expense continue on
behalf of the Executive and her dependents and beneficiaries the same medical,
dental, life, disability and hospitalization benefits provided to the Executive
immediately prior to the termination of employment. The coverage and benefits
(including deductibles and costs) provided in this Section 3(b)(iii) during
the Continuation Period shall be no less favorable to the Executive and her or
her dependents and beneficiaries than the most favorable of such coverages and
benefits during any of the periods referred to in clauses (A) and (B) above.
The Company’s obligation hereunder with respect to the foregoing benefits shall
be limited to the extent that the Executive obtains any such benefits pursuant
to a subsequent employer’s benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the Executive hereunder
as long as the aggregate coverages and benefits of the combined benefits plans
is no less favorable to the Executive than the coverages and benefits required to
be provided hereunder. This subsection (iii) shall not be interpreted
so as to limit any benefits to which the Executive, her dependents or
beneficiaries may be otherwise entitled under any of the Company’s
employee benefit plans, programs or practices following the Executive’s
termination of employment, including without limitation, retiree medical and
life insurance benefits;


 


(iv)                              all theretofore unvested stock options,
restricted options, restricted stock, performance shares, phantom share awards,
share appreciation rights, dividend equivalents and any other awards issued to
the Executive pursuant to the Company’s Share Incentive Plan, as amended or
replaced time to time, shall immediately vest at the maximum possible amount;
with the exception of performance shares and other awards which have a variable
payout, in which case such performance shares/awards shall immediately vest at
the greater of: (i) the 100% target level; or (ii) the number of
shares earned calculated using the valuation method as of the date of
termination of employment; and


 


(c)                                  The amounts provided for in Sections 3(b)(i) and
(ii) shall be paid in a single lump sum cash payment in immediately
available funds within five (5) days following the expiration of any
required waiting period under the release agreement referenced in Section 11
hereof (or earlier, if required by applicable law).


 


(d)                                 The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise, and no such payment shall be offset or reduced
by the amount of any compensation or benefits provided to the Executive in any
subsequent employment except as provided in Section 3(b)(iii).


 


(e)                                  The Executive’s entitlement to any other
compensation or benefits or any indemnification shall be determined in
accordance with the Company’s employee benefit plans


 


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and other applicable
programs, policies and practices or any indemnification agreement in effect.


 


4.                                       Notice of Termination. Any purported termination of the
Executive’s employment by the Company shall be communicated by Notice of
Termination to the Executive. For purposes of this Agreement, no such purported
termination shall be effective without such Notice of Termination.


 


5.                                       Successors; Binding
Agreement. This
Agreement shall be binding upon and shall inure to the benefit of the Company,
its Successors and Assigns, and the Company shall require any Successors and
Assigns to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform it
if no such succession or assignment had taken place. Neither this Agreement nor
any right or interest hereunder shall be assignable or transferable by the
Executive, her beneficiaries or legal representatives, except by will or by the
laws of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive’s legal personal representative.


 


6.                                       Fees and Expenses. The Company shall pay all legal fees
and related expenses (including the costs of experts, evidence and counsel)
incurred by the Executive as a result of the Executive obtaining or enforcing
any right or benefit provided by this Agreement. Furthermore, any amounts due
Executive by the Company that are not paid when due under this Agreement shall
bear interest at the Prime Rate (as declared by Bank of America, N.A. from time
to time) plus 5% from the time when the payment is due until the date the
payment is made.


 


7.                                       Notice. For the purposes of this Agreement,
notices and all other communications provided for in the Agreement (including
the Notice of Termination) shall be in writing and shall be deemed to have been
duly given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, by overnight courier or by facsimile, addressed to
the respective addresses and facsimile numbers last given by each party to the
other, provided that all notices to the Company shall be directed to the
attention of the Chairman of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received
on the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon
receipt.


 


8.                                       Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive’s continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company (except for
any severance or termination policies, plans, programs or practices) and for
which the Executive may qualify, nor shall anything herein limit or reduce
such rights as the Executive may have under any other agreements with the
Company (except for any severance or termination agreement). Amounts which are
vested benefits or which the Executive is otherwise entitled to receive under
any plan or program of the Company shall be payable in accordance with such
plan or program, except as explicitly modified by this Agreement.


 


9.                                       No Guaranteed Employment. The Executive and the Company
acknowledge that, except as may otherwise be provided under any other
written agreement between the Executive and the Company, the employment of the
Executive by the Company is “at will” and


 


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may be terminated by either the Executive or the Company at any
time, subject, however to the rights of the Executive provided herein in the
event of any such termination.


 


10.                                 Settlement of Claims. The Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against the Executive or others.


 


11.                                 Full Satisfaction; Waiver
and Release; Non-Competition. As a condition to receiving the payments and
benefits hereunder, the Executive shall execute a document in customary form,
releasing and waiving any and all claims, causes of actions and the like
against the Company and its successors, shareholders, officers, trustees,
agents and employees, regarding all matters relating to the Executive’s service
as an employee of the Company or any affiliates and the termination of such
relationship. Said document shall also contain appropriate confidentiality
provisions and a one-year non-competition and employee non-solicitation covenant
by the Executive. Such claims include, without
limitation, any claims arising under Age Discrimination in
Employment Act of 1967, as amended (the “ADEA”); Title VII of the Civil Rights
Act of 1964, as amended; the Civil Rights Act of 1991, as amended; the Equal
Pay Act of 1962; the American Disabilities Act of 1990; the Family Medical
Leave Act, as amended; the Employee Retirement Income Security Act of 1976, as
amended; or any other federal, state or local statute or ordinance, but exclude any claims that arise out of an asserted breach
of the terms of this Agreement or current or future claims related to the
matters described in Section 8.


 


12.                                 Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provisions of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.


 


13.                                 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Illinois
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in Cook County in the State of Illinois.


 


14.                                 Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions hereof.


 


15.                                 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.


 


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IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed by its duly authorized officer
and the Executive has executed this Agreement as of the day and year first
above written.


 


 


	
   

  	
  EQUITY
  RESIDENTIAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Bruce W. Duncan

  	
   

  
	
   

  	
   

  	
       Bruce
  W. Duncan

  
	
   

  	
   

  	
       President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Donna Brandin

  	
   

  
	
   

  	
   

  	
       Donna
  Brandin, Executive

  



 


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